author: EUGENE A. WRIGHT, Circuit Judge:

text:
    CALIFORNIA DIVERSIFIED PROMOTIONS, INC., et al., Plaintiffs-Appellants, v. James A. MUSICK et al., Defendants-Appellees.
    No. 73-1554.
    United States Court of Appeals, Ninth Circuit.
    Oct. 25, 1974.

      Kenneth Scholtz, of Berrien E. Moore, Inc., Torrance, Cal., for plaintiffs-appellants.
    Adrian Kuyper, County Counsel, County of Orange, Santa Ana, Cal., for defendants-appellees.
   OPINION

Before WRIGHT and CHOY, Circuit Judges, and BURNS, District Judge.

EUGENE A. WRIGHT, Circuit Judge:

Appellants appeal the dismissal of their claim for injunctive relief and damages, brought under 42 U.S.C. § 1983, 28 U.S.C. § 1343, and 28 U.S.C. § 1331 (1970). Appellants are a California corporation doing business as the Frontier Room and its employee dancers. They allege that the defendants-appel-lees, Sheriff of the County of Orange, California, and four of his deputies, engaged in an “intentional program of harassment and bad-faith law enforcement” to chill their right to present nude dancing at the Frontier Room.

Appellants alleged that, in bad faith and without probable cause, the defendants arrested and cited the plaintiff dancers for violation of California Penal Code § 311.6, which prohibits obscene live conduct in a public place. They introduced affidavits from several of the dancers reporting alleged statements of the arresting officers which might be interpreted as supporting their claims that the arrests were made without probable cause.

The trial court denied appellants’ motion for a preliminary injunction on grounds of abstention, citing Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 667 (1971). The court went on, however, to dismiss the case, sua sponte. Appellants moved for and were granted a hearing under Federal Rule of Civil Procedure 60(b). At the hearing, the

court denied the motion to set aside the dismissal and to grant leave to amend to state a separate cause of action for damages. We reverse.

I.

DUE PROCESS ISSUES Appellants argue that the court erred in dismissing their complaint sua sponte without permitting them notice of the action, a hearing, and an opportunity to respond.

It has long been held that a judge can dismiss sua sponte for lack of jurisdiction. The power is not absolute, however, and “[a]II of the circumstances must be considered” in determining whether the absence of notice as to the possibility of dismissal or the failure to hold an adversary hearing renders the dismissal void, Beshear v. Weinzapfel, 474 F.2d 127, 133 (7th Cir. 1973). The Supreme Court has noted that “The fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked.” Anderson National Bank v. Luckett, 321 U.S. 233, 246, 64 S.Ct. 599, 606, 88 L.Ed. 692 (1944).

This court has held that, when jurisdiction is present, it is error to dismiss a claim on the merits without notice, a hearing, and an opportunity to respond, unless the complaint could not be corrected by amendment. Worley v. California Department of Corrections, 432 F.2d 769 (9th Cir. 1970). In reversing the sua sponte dismissal of a complaint under 42 U.S.C. § 1983, we held .in Harmon v. Superior Court, 307 F.2d 796, 798 (9th Cir. 1962);

The right to a hearing on the merits of a claim over which the court has jurisdiction is of the essence of our judicial system, and the judge’s feeling that the case is probably frivolous does not justify by-passing that right. Appellant is entitled to have process issued and served, and to be heard.

See also Clinton v. Los Angeles County, 434 F.2d 1038 (9th Cir. 1970), Brown v. Strickler, 422 F.2d 1000 (6th Cir. 1970). A similar rule has been followed by this court in cases involving pro se complaints by prisoners.

Here the trial judge should have given notice of his intention to dismiss, an opportunity to submit a written memorandum in opposition to such motion, a hearing, and an opportunity to amend the complaint to overcome the deficiencies raised by the court, Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir. 1970), Bertucelli v. Carreras, 467 F.2d 214 (9th Cir. 1972).

The appellants were given an opportunity to submit written memoranda at a Rule 60(b) hearing subsequent to the dismissal. We need not decide, however, whether this sufficiently mitigated the impact of the denial of prior hearing and other due process rights as to constitute harmless error, since we find that the case must be reversed and remanded on the merits.

II.

DENIAL OF INJUNCTIVE RELIEF

In their complaint appellants asked for injunctive relief to stop defendants from making arrests and issuing citations in bad faith. In their supporting papers they argued that they sought only prospective relief, that they did not seek to enjoin then pending state prosecutions, or challenge the constitutionality of the statute involved. The injunction included in their prayer for relief was, either artfully or inartfully, much broader, reaching both the defendants and prosecuting authorities, enjoining bad-faith arrests as well as prosecutions in general, and defining the statute’s definition of obscenity in specific terms at a time when the statute was under consideration by state courts and when no such definition had been made by any state court.

On its own motion and without granting leave to amend, the court, relying on Younger, supra, dismissed the complaint. The Supreme Court has recently had occasion to restate the rule in that case:

When a state criminal proceeding under a disputed state criminal statute is pending against a federal plaintiff at the time his federal complaint is filed . . . unless bad-faith enforcement or other special circumstances are demonstrated, principles of equity, comity, and federalism preclude issuance of a federal injunction restraining enforcement of the criminal statute ....

Steffel v. Thompson, 415 U.S. 452, 454, 94 S.Ct. 1209, 1213, 39 L.Ed.2d 505 (1974).

In Anderson v. Nemetz, 474 F.2d 814, 820 n.2 (9th Cir. 1973), we stated:

Younger established the criteria for determining when federal intervention is permissible even when a state court prosecution is pending. They are: (1) where irreparable injury is “both great and immediate” in that there is a threat to federally protected rights that cannot be eliminated by a defense against a single prosecution, or (2) where the state law is “flagrantly and patently violative of express constitutional prohibitions,” or (3) where there is a showing of “bad faith, harassment, or other unusual circumstance[s] that would call for equitable relief.”

In this case, appellants argued that they sought only prospective relief. Their requested injunction, however, would not only have reached bad-faith arrests, but would also have enjoined the pending prosecutions. Such intervention in pending prosecutions would not have been proper under Younger, since appellants failed to allege that they had been prosecuted in bad faith. In denying an injunction against pending prosecutions, the court in Lewis v. Kugler, 446 F.2d 1343, 1348 (3d Cir. 1971) held:

The plaintiffs allege police misconduct, but an injunction against pending state criminal proceedings would operate against the prosecutorial au-thories, and there is no allegation that they have either fostered or taken part in the alleged misconduct.

Hence it was proper to deny the injunction as stated in appellants’ complaint. However, it was error to dismiss without permitting the appellants an opportunity to amend their complaint and the requested injunction to conform to’ their stated intention to obtain an injunction against future bad-faith activities of defendants in making arrests and issuing citations under § 311.6 without probable cause. As we said in Keeton v. Procu-nier, 468 F.2d 810, 811-812 (9th Cir. 1972):

Although inartfully drawn, the sense of the allegation is that some unidentified defendant . . . deprived Keeton of his civil rights. Unfortunately, the district court did not pass upon this phase of Keeton’s claim. Dismissal of the entire complaint without granting the opportunity to amend was error.

The doctrine of Younger and its progeny does not require abstention in circumstances where prospective declaratory or injunctive relief would not interfere with pending prosecutions, Kugler, supra 446 F.2d at 1347, Steffel, supra 415 U.S. at 462, 94 S.Ct. 1209; Lake Carriers Assoc. v. MacMullan, 406 U.S. 498, 509, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972) . Here the relief requested, an injunction against bad-faith arrests in the future, would have had no impact on then pending prosecutions.

In Kugler, supra, the court reversed the dismissal of a complaint for an injunction against discriminatory stops and searches by state police, holding that such relief was not barred by Younger, despite the pendency of prosecutions involving several of the plaintiffs, since such future relief could not interfere with the current actions.

Here the plaintiff may have been able to frame an injunction which reached the alleged bad-faith arrests and harassment by defendants without posing a threat of interruption of pending prosecutions.

The propriety of permitting such in-junctive relief is even stronger when viewed from the perspective of plaintiff California Diversified Promotions, Inc. The corporate plaintiff was not directly involved as a party in any of the prosecutions, yet it alleged that its interests were adversely affected by the actions of the defendants, both because of the resulting interference with its business and the costs of defending criminal charges against its employees.

A corporate plaintiff can assert rights under the Fourteenth Amendment, Grosjean v. American Press Co., 297 U.S. 233, 244, 56 S.Ct. 444, 80 L.Ed. 660 (1936), Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), and suits under 42 U.S.C. § 1983 by corporate plaintiffs are permissible, Pierce, supra; Watchtower Bible and Tract Society v. Los Angeles County, 181 F.2d 739, 740 (9th Cir.), cert. denied, 340 U.S. 820, 71 S.Ct. 51, 95 L.Ed. 602 (1950); Safeguard Mutual Insurance Co. v. Miller, 472 F.2d 732, 733 (3d Cir. 1973) (and cases cited therein).

In Citizens for a Better Environment, Inc. v. Nassau City, 488 F.2d 1353, 1361 (2d Cir. 1973), the court permitted a corporate plaintiff to maintain a suit under § 1983, holding that

. while [Citizens for a Better Environment, Inc. has] not been charged with any offense, its very existence as a soliciting organization is obviously threatened by the fact that the police intend to continue to invoke the solicitation ordinances against its employees.
-X- -X- -X' -X- -X- *
But CBE’s real interest in the proper application of the local solicitation ordinances does entitle it to seek in-junctive relief against future police action against it or its. solicitors.

Additionally, three of the plaintiffs, Jeanette Ruth Swadley, Carol Glick and Judith Rodriguez, had state charges dismissed against them prior to the initiation of this action, hence any injunction they obtained against future bad-faith arrests could not interfere with prosecutions pending against them. Cf. Roe v. Wade, 410 U.S. 113, 124, 166, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), see Note: Federal Relief Against Threatened State Prosecutions: The Implications of Younger, Lake Carriers and Roe, 48 N.Y.U.L.R. 965, 983 (1973).

A remand is necessary, then, to provide an opportunity for amendment of the appellants’ request for prospective injunctive relief. However, such relief is proper only if the controversy between the parties remains substantial and continuing, see Steffel, supra, 415 U.S. at 460, 94 S.Ct. 1209, particularly in light of the changes in California law that have followed from the Supreme Court’s decision in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972) (upholding a licensing law prohibiting nude entertainment in places where liquor is served by the drink) and Miranda v. Hicks, 388 F.Supp. 350 (C.D.Cal. 1974) (three-judge court held the obscenity definition of § 311 constitutionally deficient).

Moreover, it must be determined whether there is a “likelihood of a recurrence of the conduct” which the appellants sought to enjoin, Wilson v. Webster, 467 F.2d 1282, 1283 (9th Cir. 1972).

III.

DAMAGES

A remand will also be necessary for consideration of appellants’ request for damages for the alleged violations of the First Amendment right of free expression. Appellants have alleged the requisite bad faith on the part of the defendants to state a claim under § 1983.

It was improper to dismiss the request for damages along with that for injunctive relief. Abstention provides no ground for such dismissal, since the damage action would not “result in duplicative legal proceedings or disruption of the state criminal justice system” nor could it "be interpreted as reflecting negatively upon the state courts’ ability to enforce constitutional principles.” Steffel, supra 415 U.S. at 462, 94 S.Ct. at 1212.

Moreover the equitable principles which might dictate dismissal of a complaint for equitable relief, are not necessarily controlling with respect to a damage action. O’Shea v. Littleton, 414 U. S. 488, 501 n. 5, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Stefanelli v. Minard, 342 U.S 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951). In a similar case, we reversed the dismissal of a damage action under § 1983:

Needless to say, the district court could not determine from the allegations of the complaint that these defendants had [a good faith] defense. Nor did it even undertake to make such a determination. The court therefore erred in dismissing the action as to defendant sheriff and deputy sheriffs on the ground that the complaint fails to state a claim upon which relief can be granted.

Dodd, supra 393 F.2d at 335.

The judgment of the district court is reversed and the case is remanded for further proceedings consistent herewith.

       Of the District of Oregon.

      . § 311.6. Participation in, or production or presentation of, obscene live conduct in public place.
      “Every person who knowingly . engages or participates in, manages, produces, sponsors, presents or exhibits obscene live conduct to or before an assembly or audience consisting of at least one person or spectator in any public place or in any place exposed to public view, or in any place open to the public or to a segment thereof, whether or not an admission fee is charged, or whether or not attendance is conditioned upon the presentation of a membership card or other token, is guilty of a misdemeanor.”

      . Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884); Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958), or for lack of prosecution, Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).

      . Hansen v. May, 502 F.2d 728 (9th Cir. 1974); Potter v. McCall, 433 F.2d 1087 (9th Cir. 1970); Keeton v. Procunier, 468 F.2d 810 (9th Cir. 1972), cert. denied 411 U.S. 987, 93 S.Ct. 2276, 36 L.Ed.2d 965 (1973); Sanders v. Veterans Administration, 450 F.2d 955 (9th Cir. 1971).

      . Link v. Wabash Railroad Co., supra 370 U.S. at 632, 82 S.Ct. at 1390:
      “In addition, the availability of a corrective remedy such as is provided by Federal Rule of Civil Procedure 60(b) — which authorizes the reopening of cases in which final orders have been inadvisedly entered —-renders the lack of prior notice of less consequence.”

      . Clerk’s record at 35 :
      “It is the Plaintiffs’ belief that the Younger limitation should not apply herein since the relief sought is prospective only and is not designed to interfere with the prosecution of pending cases.”
      Clerk’s record at 46 :
      “Plaintiffs do not allege that any statute is unconstitutional and are not seeking an adjudication of their guilt or innocence.

      . Miranda v. Hicks, 388 F.Supp. 350 at 359 (C.D.Cal., June 4, 1974) (no California decisions construe § 311 with sufficient specificity as to give fair notice as to what is constitutionally prohibited).

      . Roe v. Wade, 410 U.S. 113, 124, 166, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (unindicted co-plaintiff was permitted to seek a deelaratory judgment despite the fact that this would terminate the prosecution of co-plaintiff who was denied standing).

      . The corporation might also have standing under 28 U.S.C. § 1331, which was also cited in support of jurisdiction. See Grove Press Inc. v. State of Kansas, 304 F.Supp. 383, 388 (D.Kan.1969).

      . Cf. Boyle v. Landry, 401 U.S. 77, 81, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971); Native American Church of Navajoland, Inc. v. Arizona Corp. Comm., 329 F.Supp. 907 (D. Ariz.1971), aff’d 405 U.S. 901, 92 S.Ct. 934, 30 L.Ed.2d 775 (1972).

        . Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Dodd v. Spokane County Washington, 393 F.2d 330, 335 (9th Cir. 1968); Sheridan v. Williams, 333 F.2d 581, 582-583 (9th Cir. 1964); York v. Story, 324 F.2d 450 (9th Cir. 1963).


source: Caselaw Access Project

author: INGRAHAM, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Abel Montoya SAMBRANO and Johnnie Rodriguez Padilla, Defendants-Appellants.
    No. 74-1926.
    United States Court of Appeals, Ninth Circuit.
    Nov. 12, 1974.

      Stephen H. Scott (argued), of Burton, Remender, Scott & Novak, Phoenix, Ariz., for defendant-appellant Padilla.
    Edward C. Rapp (argued), of Tupper, Rapp, Salcito & Schlosser, Phoenix, Ariz., for defendant-appellant Sambrano.
    Joseph Keilp, Asst. U. S. Atty. (argued), Phoenix, Ariz., for plaintiff-appellee.
    Before MERRILL, BROWNING and INGRAHAM Circuit Judges.

       Honorable Joe McDonald Ingraham, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation.

   OPINION

INGRAHAM, Circuit Judge:

Appellants Abel Montoya Sambrano and Johnnie Rodriguez Padilla were convicted for the armed robbery of a federal credit union in. violation of 18 U.S.C. §§ 2113(a) and (d). On appeal Sambrano argues that the trial court improperly refused to give a requested jury instruction regarding his identification as one of the perpretrators of the alleged crime, and that, since only Padilla had been identified prior to trial, the court abused its discretion in refusing to grant his motion for a trial separate from Padilla’s. While Padilla joins in Sambrano’s contention that the court improperly instructed the jury .on the issue of identification, he also argues that the court erroneously denied his motion to suppress the in-court identification. Concluding that these contentions are without merit, we affirmed.

Just after noon on January 16, 1974, the Phoenix City Employees’ Credit Union was robbed by two Mexican-American males. Only two tellers were present in the building during the robbery, Clemence Godin and Suzanne Mef-ford, and one credit union member, Elias Aragon, who came in after the robbery began.

Shortly after the robbery, Godin and Mefford were shown photographs of eight persons, one of which was Sam-brano, but neither teller identified him as one of the perpetrators. The day after the robbery Godin and Mefford were again shown photographs, one of which was Padilla, but Padilla’s photograph was darker and clearer than the other photographs in the group. While Godin was unable to identify Padilla at this photo display, Mefford singled him out as a person with which she was familiar, stating that he resembled the man who carried the weapon during the robbery.

In a lineup conducted two days after the robbery in which both Sambrano and Padilla were included, Mefford again singled out Padilla, but voluntarily expressed the opinion that her identification might be the result of viewing the photographs the previous day. While Godin also identified Padilla at the lineup, neither Godin nor Mefford identified Sambrano. Aragon was also present at the lineup, but was unable to identify either of the appellants.

Apparently, the first time Sambrano was identified as one of the robbers was at the pre-trial hearing on the motion to suppress when he was seated beside the previously identified robber, Padilla. At trial, both Godin and Mef-ford positively identified the appellants, but Aragon was still unable to identify either of them as the robbers.

We turn first to Padilla’s contention that his in-court identification by witnesses Godin and Mefford should have been suppressed because it violated his right to due process. More specifically, Padilla argues that his initial identification at the photo display was a result of his photograph being darker and clearer than the other photographs, suggesting to the government’s witnesses Godin and Mefford that he was the perpetrator of the crime. The improper photo identification, he says, carried over to his being identified in the lineup and ultimately to the in-court identification itself.

As recently pointed out by the Supreme Court, a mere suggestion that the accused committed the crime does not constitute a due process violation. Rather, in order to make out a constitutional violation, the suggestion must be so “unnecessary” or “impermissible” as to create a “substantial likelihood of irreparable misidentification” based on the “totality of the circumstances.” Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Baker v. Hocker, 496 F.2d 615 (9th Cir. 1974).

Viewing all the facts and circumstances of this case, we do not believe that the suggestion, if any, was so great as to create a substantial likelihood of misidentification. The identifying witnesses had the opportunity to observe the robbers for approximately four minutes while the robbery was taking place. During the trial, they again had the opportunity to observe the appellants’ appearance and mannerisms and, based on these subsequent observations, positively concluded that these two were the perpetrators of the robbery. Moreover, additional evidence was introduced at trial establishing that Padilla was one of the robbers. For example, testimony placed both Padilla and Sambrano in the getaway car just prior and immediately after the robbery of the credit union. While it is clear that a photo display may be so impermissibly suggestive so as to deny an accused his right to due process, appellant Padilla has failed to make out such a violation.

Next, both appellants argue that the trial court improperly refused to give their requested jury instruction on identification. Recognizing that the giving of instructions on identification is largely within the discretion of the trial judge, United States v. Amaral, 488 F.2d 1148, 1151 (9th Cir. 1973); United States v. Evans, 484 F.2d 1178, 1188 (2nd Cir. 1973), appellants argue that when the only real issue at trial is the identity of the defendants as the perpetrators, more detailed instructions on identity should be given to insure that the jury’s attention is focused clearly on that issue.

Appellants fail to appreciate, however, that in cases of this nature the predominant issue to be resolved at trial is usually whether the defendants are indeed the perpetrators of the robbery. Implicit in the general instructions normally given by the trial court is the question whether the accused defendants are in fact the guilty culprits. In addition to the instruction given on identification, the court fully apprised the jury that it was its duty to determine the credibility of witnesses, that the government had the burden of proving each defendant guilty beyond a reasonable doubt, and that the evidence was to be assessed against each defendant individually. The court’s instructions, although not stated in the precise language requested by counsel, were fully adequate and made sure that the jury’s attention was focused on the issue of the defendants’ identity.

Finally, appellant Sambrano argues that the trial court erroneously denied his motion for severance. Since Padilla had been identified in the photo display and in the line-up, while he, Sambrano, was not identified until the identifying witnesses saw him sitting with Padilla at the pre-trial hearing, Sambrano contends that this association was so prejudicial as to warrant the trial court’s granting his motion for a separate trial.

While it is true that there is some suggestion that Sambrano participated in the robbery merely because of his association with the previously identified Padilla at defense counsel’s table, this suggestion does not make out such a prejudicial association as to require a separate trial. There is no evidence involved in this case that was admissible at the joint trial of appellants that would have been inadmissible if separate trials had been conducted. United States v. Gentile, 495 F.2d 626, 632-633 (5th Cir. 1974).

The appellants’ convictions are affirmed,

      . Also, United States v. Trejo, 501 F.2d 138 (9th Cir. June 10, 1974).


author: CRAVEN, Circuit Judge:

text:
    Sil EVANS, Appellee, v. George WRIGHT, Appellant.
    No. 73-2404.
    United States Court of Appeals, Fourth Circuit.
    Argued July 22, 1974.
    Decided Nov. 4, 1974.

      Robert T. Winston, Jr., Norton, Va., for appellant.
    Hugh P. Cline, Norton, Va. (Cline, McAfee, Adkins & Gillenwater, Norton, Va., on brief), for appellee.
    'Before CRAVEN, BUTZNER and FIELD, Circuit Judges.
   CRAVEN, Circuit Judge:

Primarily this appeal questions the extent of the power of a federal trial judge to comment on the evidence in the course of his charge to the jury. In order to understand what we hold it will be necessary to paraphrase much of the evidence. For just as jury instructions must always “be drawn with reference to the particular facts of the case on trial,” Collazo v. United States, 90 U.S.App.D.C. 241, 196 F.2d 573, 578, cert. denied, 343 U.S. 968, 72 S.Ct. 1065, 96 L.Ed. 1364 (1952), so also we cannot intelligently review an instruction in the abstract. Although exercising his power to perhaps its outer limit, we think the able trial judge below did not invade the province of the jury as understood in the federal system, and we therefore affirm.

I.

Appellant George Wright and appellee Sil Evans engaged in the coal mining business in the corporate form of Kentucky Mason Coal Company. Evans was front man and apparently chief operator, and Wright put up most if not all of the corporate capital. When things did not go well, Wright resorted to self-help by writing a check on the corporation in the amount of $115,000 to get part of his investment out. Not surprisingly this led to a lawsuit (with which we are concerned only as background), which resulted in a settlement agreement entered into on April 24, 1971, that divided the assets of Kentucky Mason between the two parties. One of the provisions of the agreement provided that Wright and Evans would divide equally any corporate tax refund that might be received by Kentucky Mason subsequent to the date of the agreement. Early in 1972 Wright received $13,607.01 in refund of 1971 federal and state taxes paid by Kentucky Mason. Although agreeing that he owed Evans half of this amount ($6,803.51), Wright nevertheless refused to divide the funds on the ground that he was entitled to deduct from Evans’ one-half share the sum of $2,575 that Evans had received from Kentucky Mason some nine days prior to the April 24 settlement agreement. Wright admitted that he had learned of Evans’ receiving the $2,575 early in May 1971, shortly after the settlement agreement, and thus had known of it for at least 13 months without ever mentioning it, much less protesting it, to anybody. Evans’ excuse for paying himself the $2,575 was that he had previously turned over to the corporation by depositing it to a corporate account known as “Kentucky Mason No. 2,” $5,000 of his dividend income and $215 additional personal funds. That he had done so was apparently not in dispute and is. supported by corporate records. Indeed, Evans added to his tax refund claim a second claim for the $5,215 he. had given the company.

The case thus went to the jury in this posture: George Wright unquestionably owed Sil Evans one-half of the tax refund ($6,803.51) unless (1) Wright was entitled to set off against Evans’ share the sum of $2,575 that Evans had paid himself out of corporate funds, or unless (2) Wright owed Evans not only one half of the tax refund but also the $5,215 contributed by Evans for corporate purposes. The jury returned a verdict in Evans’ favor for one-half the tax refund, but denied both Evans’ additional claim for $5,215 and Wright’s setoff. Wright claims on appeal that the trial judge unfairly prejudiced his claim to a setoff by impermissible commentary on the evidence during his charge to the jury.

II.

We begin our consideration of Wright’s contention with the premise that a United States district judge is not a bump on a log. Nor is he a referee at a prize fight. He is, instead, the governor of the trial with the power of the common law judge to implement justice. And this power extends to his charge to the jury. As stated in the leading case Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321 (1933):

In charging the jury, the trial judge is not limited to instructions of an abstract sort. It is within his province, whenever he thinks it necessary, to as sist the jury in arriving at a just conclusion by explaining and commenting upon the evidence, by drawing their attention to the parts of it which he thinks important, and he may express his opinion upon the facts, provided he makes it clear to the jury that all matters of fact are submitted to their determination. [Emphasis added]

See also Capital Traction Co. v. Hof, 174 U.S. 1, 13-14, 19 S.Ct. 580, 43 L.Ed. 873 (1899). In this tradition Rule 105 of the Proposed Rules of Evidence for United States Courts and Magistrates states the prerogative in clear terms:

After the close of the evidence and arguments of counsel, the judge may fairly and impartially sum up the evidence and comment to the jury upon the weight of the evidence and the credibility of the witnesses, if he also instructs the jury that they are to determine for themselves the weight of the evidence and the credit to be given to the witnesses and that they are not bound by the judge’s summation or comment. [Emphasis added]

The principle has now been recognized by the treatises:

The rule that the trial court is not permitted in its charge to the jury to invade the province of the jury to determine the facts at issue in the case does not preclude the trial judge from expression of opinion as to the facts. The general rule of the common-law practice is that the trial judge in summing up is not forbidden to express an opinion upon the facts; it is deemed that he can be of aid to the jury in expressing an opinion upon the reasonable inferences to be drawn from the evidence. The only limitations which the common law imposes upon the trial judge in the matter of expressing his opinion with reference to the merits of the case is that he should make it clear to the jury that they are not bound by his opinion, and that their decision upon the facts is exclusively for them.

74 Am.Jur.2d Trial § 657 (1974).

Under the Federal Constitution, the essential prerogatives of the trial judge as they were secured by the rules of the common law are maintained in the federal courts. Hence, in the federal courts, the judge, in submitting a case to the jury, may, at his discretion whenever he thinks it necessary to assist them in arriving at a just conclusion, comment upon the evidence, call their attention to parts of it which he thinks important, and express his opinion upon the facts, provided all matters of fact are ultimately submitted to the determination of the jury, and they are given to understand that they are not bound by such opinion.

Id. § 658.

Of course, the district judge’s power of summary and comment is not unbounded. As stated in Quercia, 289 U.S. at 470, 53 S.Ct. at 699 (citations omitted):

This privilege of the judge to comment on the facts has its inherent limitations. His discretion is not arbitrary and uncontrolled, but judicial, to be exercised in conformity with the standards governing the judicial office. In commenting upon testimony he may not assume the role of a witness. He may analyze and dissect the evidence, but he may not either distort it or add to it. This Court has accordingly emphasized the duty of the trial judge to use great care that an expression of opinion upon the evidence “should be so given as not to mislead, and especially that it should not be one-sided;” that “deductions and theories not warranted by the evidence should be studiously avoided.”

And the judge below conformed to these constraints. In a charge remarkably free of confusing “boilerplate abstractions,” United States v. Lozaw, 427 F.2d 911, 916 (2d Cir. 1970), the able trial judge in this case began by saying that the members of the jury were the triers of fact, that the jury should not infer from rulings on the evidence or any admonishment given to attorneys that the court was “for or against any party to this suit,” that the jury were “the sole judges of the credibility of the witnesses and the weight of the evidence,” and that it was within their province to give “the testimony of each witness such credibility as you may think it deserves.”

Then the trial judge got “to the cause of action” and very clearly and concisely applied the law to the facts as the jury should find them to be. See United States v. Holley, 502 F.2d 273 (4th Cir. 1974). Helpfully, he directed their attention to what he termed “essentially three matters to be considered by you in this case.” He noted that the contract called for a division of any tax refund, and that Wright had admitted that he owed Evans $6,803.51 as his one-half share. He then took up Evans’ contention that he was entitled not only to his one-half of the tax refund but also to $5,215 which he had deposited to the account of Kentucky Mason Mine No. 2 for corporate purposes. The judge noted that the settlement agreement provided that the obligations of Mine No. 2 were to be expressly assumed by Evans. It was then that he “commented upon the evidence,” and exactly what he said is quoted in the margin.

The trial judge thereupon directed the attention of the jury to Wright’s claim for a setoff of the $2,575 which Evans had paid himself out of corporate funds. He noted that Wright knew of the cheek soon after the execution of the settlement agreement and certainly by May 1971, and yet never mentioned the claimed setoff until a year later and several months after the books of the company were closed out by a certified public accountant.

Then the judge again commented on the evidence as fully set out in the margin. It is to this commentary that Wright takes exception.

There can be no reasonable contention on this charge that the trial judge was biased in favor of one party or prejudiced against the other. With fair indifference he expressed his opinion against the validity of both Wright’s setoff and Evans’ $5,215 claim. Nor did he comment on credibility. He did not suggest to the jury that Wright was lying and Evans telling the truth or vice versa. Indeed, the facts were really not in dispute. Everyone agreed that the settlement agreement had been executed by the parties, that not long before execution of that agreement Evans had first contributed $5,215 to the corporation for corporate purposes and then paid himself $2,575 out of corporate funds, and that Wright had learned of Evans’ receiving corporate funds not long after the agreement was signed yet had remained silent about it for a year. Thus the credibility of witnesses could not have been an issue.

Although there is substantial authority that is even more permissive, we are inclined to think that ordinarily a district judge should not express an opinion on an ultimate issue in a jury trial, e. g., instruct that negligence has been proved, Travelers Ins. Co. v. Ryan, 416 F.2d 362 (5th Cir. 1969); Trezza v. Dame, 370 F.2d 1006 (5th Cir. 1967), and that his doing so may amount to a directed verdict, Nunley v. Pettway Oil Co., 346 F.2d 95, 99 (6th Cir. 1965). But cf. Doyle v. Union Pac. Ry., 147 U.S. 413, 422-430, 13 S.Ct. 333, 37 L.Ed. 223 (1893); United States v. Philadelphia & Reading R. R., 123 U.S. 113, 8 S.Ct. 77, 31 L.Ed. 138 (1887); Tipton v. Socony Mobil Oil Co., 315 F.2d 660, 661-662 (5th Cir.), rev’d per curiam on other grounds, 375 U.S. 34, 84 S.Ct. 1, 11 L.Ed.2d 4 (1963). But that is not what we have here. In this case the district judge’s comments amounted, we think, to no more than fairly assisting the jury in interpreting the April 24, 1971, settlement agreement. The basic question was whether that agreement took into account and wiped out both Evans’ additional claim for $5,215 and Wright’s setoff claim. The judge simply instructed that in his opinion the settlement agreement embraced these two claims as well as all others. Ordinarily the interpretation of a contract is for the court and not for the jury, see 75 Am.Jur.2d Trial §§ 408, 410 (1974), and here any questions for the jury were inseparable from the terms of the settlement contract itself. In this context we hold that the judge’s commentary, if error at all, was harmless, and that substantial justice does not require a reversal and remand for a new trial. See Trezza v. Dame, supra, 370 F.2d at 1008-1009; Employers Liab. Assur. Corp. v. Freeman, 229 F.2d 547 (10th Cir. 1955).

III.

Wright also challenges the trial judge’s sending the jury back to reconsider what Wright claims was a perfectly good verdict. The jury first returned a verdict for Evans for one half of the federal tax refund “plus interest from May 1972,” the month Wright received the refund. Because the jury had by oversight failed to consider the state tax refund, the judge sent it back with instructions to add Evans’ share of that refund to its verdict. No one questions the propriety of that action. On its return, however, the jury’s verdict— though correctly including Evans’ shares of both federal and state refunds — contained the phrase “plus interest until paid.” The judge noted to the jury the discrepancy between its two verdicts on the matter of interest, and the fact that under its second verdict interest would start from the date of judgment, i. e., September 21, 1973. Stating that “I don’t know what you intend,” the judge sent the jury out again to consider whether they wanted to state a date for interest to start. He also told the jurors they could leave the verdict as it was if they wished, that it was entirely up to them. The jury retired, and four minutes later returned a verdict stating that interest was to begin May 1, 1972.

Wright objects to the judge’s sending the jury out to consider the interest point, because the jury’s addition of a date cost him over a year’s additional interest. He argues that the judge exceeded his authority in sending the jury out again, since its second verdict, silent as to the date for the start of interest, was unambiguous and perfectly proper.

We see no merit in this argument. While the jury’s second verdict was on its face unambiguous, we agree with the trial judge that it was rather puzzling. There was no explanation for dropping the starting date for interest which had been in the first verdict. In this context it was natural for the trial judge to wonder whether the jury had intended to omit reference to a starting date, or whether instead the jurors had simply overlooked that matter in revising their verdict. His comments did no more than express his puzzlement and offer them an opportunity to correct their oversight if indeed that was what it was. He did not in any way suggest to them what to do. Furthermore, it took the jury only four minutes to add the starting date for interest; this strongly suggests that its omission had indeed been an oversight. We hold that sending the jury out again, while not required for a valid verdict, was within the sound discretion of the district judge. Cf. 53 Am.Jur. Trial § 1099.

Affirmed.

      . Evans used the $2,575 received from Kentucky Mason to pay his personal taxes. lie testified at trial that he felt justified in doing so because his personal taxes had increased as a result of the $5,000 dividend, all of which lie had plowed back into Kentucky Mason.

      . Unlike the United States district judge, the trial judges in many of our states are forbidden, often by statute, from all summary of and comment on the evidence. The federal judge’s power is more akin to that of an English judge in the common law courts, who often undertook to condense all evidence presented into a manageable package for the jury, and even to give them his strong opinions on parts of it. See Myers v. George, 271 F.2d 168, 172 (8th Cir. 1959); Wright, The Invasion of Jury: Temperature of the War, 27 Temple L.Q. 137 (1953).

      . Since this money was deposited to the account of Mine No. 2 by the plaintiff, it seems more likely that this was in contemplation of the parties, and especially of the plaintiff, at the time the agreement of April 24th was entered into, and I comment on the evidence in this matter to say that I think you should find that the plaintiff should not receive any judgment against the defendant for the extra sum of $5,215, although the weight and sufficiency of the evidence and the intent of the parties when they signed the agreement are being submitted to the jury for your consideration, including this question. I do not direct a verdict on this point; I suggest what I think you should do. You are not bound by my suggestion.

      . The judge said to the jury on the matter of the closeout:
      I particularly note that neither party objected to the debits and credits in closing out of the books by Mr. Maness [the CPA] and neither item of $5,215 nor $2,575 was testified about by Mr. Maness, or even brought to iris attention when he made the distribution so far as we know.
      Neither counsel objected to or requested any modification of this narration of the evidence, although they were afforded the opportunity to do so under Rule 51.

      . I recite this evidence to show you why X consider the claim of Mr. Wright for the $2,575 credit with almost the same degree of doubt I consider the $5,215 extra claim of Mr. Evans. I charge you that in my opinion the weight of the evidence does not support the allowance of the $2,575 credit, but, as I have told you concerning the $5,215 claim, the weight and sufficiency of the evidence and the credibility of the witnesses are for the jury, and I leave this matter to you and do not direct a verdict on it, although in my opinion the $2,575 setoff ought not to be allowed.
      To sum it up, it seems to me that both the $5,215 additional claim of the plaintiff Evans and the $2,575 setoff claim of the defendant Wright are afterthoughts and have been brought up to bolster their respective sides in this litigation.
      I say to you that is my opinion, that you should give a verdict for half of the tax, which is $6,803.51 and should not allow the additional claim of Mr. Wright in the amount of $5,215 of Mr. Evans (sic) and should not allow the $2,575 setoff of Mr. Wright. But other than the tax, which I tell you you must return, the two other claims I am leaving to your consideration. You would not have to follow my suggestions or my recommendations to you.

      . Tlie settlement agreement included the following clause:
      Also heretofore in the past each of the parties have (sic) had numerous dealings with each other and with the corporation and the corporation had numerous dealings with the parties and in consideration of these premises it is hereby expressly agreed that this agreement is a complete settlement among Sil Evans, George Wright and Kentucky Mason Coal Company, Inc. and that by the execution of the terms hereinabove stated that a complete accord and satisfaction will have been perfected and neither of the parties shall be indebted to the other in any way whatsoever.
      On its face, this clause would appear to bar both Evans’ $5,215 claim and Wright’s setoff claim, since the transactions giving rise to both occurred before the date of the settlement agreement.

      . This case did not involve the possibility of fraud or duress in tiie execution of the settlement agreement, or circumstances in which one party to the agreement had no opportunity to learn the true facts before entering into the agreement. Had either of those possibilities been an issue, resolution would llave been for the jury alone, and the judge’s comments would give us considerably more difficulty. See 15 Am.Jur.2d Compromise and Settlement §§ 30-33 (1964).


author: WILLIAM J. CAMPBELL, Senior District Judge. FAIRCHILD, Circuit Judge

text:
    INLAND STEEL COMPANY, Plaintiff-Appellee, v. LOCAL UNION NO. 1545, UNITED MINE WORKERS OF AMERICA et al., Defendants-Appellants, Local Union No. 9111, United Mine Workers of America, Appellant. FREEMAN COAL MINING CORPORATION, Plaintiff-Appellee, v. UNITED MINE WORKERS OF AMERICA et al., Defendants-Appellants.
    Nos. 72-1893 and 72-1894.
    United States Court of Appeals, Seventh Circuit.
    Argued June 5, 1973.
    Decided Oct. 22, 1974.
    Rehearing and Rehearing En Banc Denied Dec. 4, 1974.

      Duncan B. Cooper, III, Peoria, 111., Lewis D. Sargentich, Daniel B. Edelman, Joseph A. Yablonski, Willard P. Owens, Washington, D. C., for appellants.
    Carter Harrison, Benton, 111., Henry M. Thullen, John J. Cassidy, Jr., Paul F. Gleeson, Arthur B. Smith, Jr., Chicago, 111., Paul S. Kuelthau, St. Louis, Mo., for appellees.
    Before KNOCH, Senior Circuit Judge, FAIRCHILD, Circuit Judge, and CAMPBELL, Senior District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   WILLIAM J. CAMPBELL, Senior District Judge.

These cases, Numbers 72-1893 and 72-1894, although separately briefed and argued, are consolidated for opinion since they involve similar facts and identical questions of law. The issue presented is whether the defendant unions’ conduct in honoring a stranger union’s picket line constituted an arbitrable issue under the collective bargaining agreement in force between the parties, and if so, whether that duty to arbitrate gave rise to an implied no-strike clause justifying the issuance of a Boys Markets injunction. A related subsidiary question concerns the propriety of the injunctive order under traditional equitable considerations. Before reaching these issues, a threshold inquiry must be made into the union’s right to challenge the underlying injunctive orders inasmuch as civil contempt citations were entered upon findings of the district court that the unions had willfully violated the injunction orders.

I.

The basic facts in both cases are largely undisputed and present a common factual scheme. Local 1545, United Mine Workers of America (“Local 1545”), represents underground employees of the plaintiff, Inland Steel Company (“Inland”), at its coal mine in Sesser, Illinois. Local 9111, United Mine Workers of America (“Local 9111”), represents underground employees of the Freeman Coal Mining Corporation (“Freeman”) at its Orient #3 Mine in Waltonville, Illinois. At all pertinent times, both parties were bound by the National Bituminous Coal Wage Agreement of 1971.

During this same period, Local 9111 also represented certain construction workers employed by Roberts & Shaefer Company who had been engaged in construction work at Freeman’s Orient #3 Mine since February or March of 1972. The relationship between the construction workers and their employer was governed by a separate collective bargaining agreement known as the National Coal Mine Construction Agreement.

In addition to Freeman’s Orient #3 employees who were represented by Local 9111, other mining employees of Freeman at its various mines were represented by Locals 1591, 9878, and 1284 of the United Mine Workers of America. These employees were also covered by the National Bituminous Coal Wage Agreement of 1971.

On August 14 and 15, 1972, construction employees of Roberts & Shaefer Company and members of Local 9111 appeared at Orient #3 and other Freeman mines and began picketing. Such pickets were also established at Inland’s coal mine in Sesser, Illinois on August 15, 1972. The purpose of the picketing was stated to be the Pay Board’s failure to approve the full measure of certain wage increases previously negotiated on behalf of the construction workers. As a result of the pickets, mining employees who were members of Locals 1545, 1591, 9111, 9878 and 1284 failed to report for work at Indand’s mine and the various Freeman mines.

The work stoppages continued for two days, after which both Inland and Freeman, in separate actions, petitioned the district court for injunctive relief under Section 301 Of the Labor Management Relations Act (29 U.S.C. § 185) and the rationale of Boys Markets . The companies argue that the broad arbitration clause contained in the collective bargaining agreement governed this dispute and required that it be submitted to arbitration. The unions, on the other hand, maintain that Section 4 of the Norris-LaGuardia Act (29 U.S.C. § 104) deprived the district court of jurisdiction over this controversy.

Almost simultaneously with the filing of the verified complaints, the district court entered ex parte temporary restraining orders calling for a halt to the work stoppages. Several days later, following full hearings at which all parties were represented by counsel, the district court entered temporary injunctions in both cases, specifically relying upon the holding in Boys Markets. The stoppages continued, however, and hearings on contempt citations were held in both cases. In the Freeman case, 72-1894, an order of civil contempt was entered against Locals 9111, 1591, 1284 and 9878 for their violations of the temporary restraining order and temporary injunction. Local 9111 was fined $10,000.00 per day for each day of violation and for each day that work stoppages continued. The other locals were fined $1,000.00 per day. These fines were subsequently reduced to $1,000.00 and $100.00 per day, respectively. All four locals have appealed, challenging the validity of both the injunctive and contempt orders.

In the Inland case, 72-1893, a civil contempt order was entered against Local 1545 for its violations of the temporary restraining order and preliminary injunction. A fine of $10,000.00 per day for each day the violation of the court’s injunctive order continued was imposed upon Local 1545. This fine was also later reduced to $1,000.00 per day. Local 1545 appeals from both the injunctive and contempt orders.

II.

Initially, both companies contend that we need not reach the question concerning the validity of the underlying in-junctive orders because the civil contempt orders are otherwise enforceable. In this regard, they maintain that the district court had jurisdiction over the parties and the authority to determine its own jurisdiction under the Norris-LaGuardia Act, and that the injunctive orders were required to be complied with until reversed or set aside by orderly and proper review proceedings. See, United States v. Mine Workers, 330 U.S. 258, 293, 67 S.Ct. 677, 91 L.Ed. 884 (1947); Bethlehem Mines Corporation v. United Mine Workers of America, et al., 476 F.2d 860 (3rd Cir. 1973).

In the Bethlehem Mines case, the Court of Appeals for the Third Circuit reached just such a result on the facts closely resembling those present in the cases before us. There is, however, one critically distinguishing factor in Bethlehem Mines. Insofar as it can be gleaned from that court’s opinion, the contempt order there was coercive in nature; that is, it was designed to promote obedience to the court’s orders. Where that is the case, the coercive civil contempt order is analogous to the criminal contempt order which clearly must be obeyed in order to permit the alleged contemnor to challenge the propriety of the underlying injunctive order. See, Brotherhood of Loc. Fire and Eng. v. Bangor and Aroostook R. Co., 127 U.S. App.D.C. 23, 380 F.2d 570, 583 (1967); United States v. Mine Workers, 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947).

The contempt orders here, however, stand on a different footing. They were specifically found by the district court to be “in the nature of compensation for losses and damages suffered by” the companies. Where the contempt is compensatory, “[t]he right to remedial relief falls with an injunction which events prove was erroneously issued, . and a fortiori when the injunction or restraining order was beyond the jurisdiction of the court.” United States v. Mine Workers, 330 U.S. 258, 295, 67 S.Ct. 677, 697, 91 L.Ed. 884 (1947). Thus, if the contempt orders are to be sustained here, the validity of the underlying injunctions must be established.

III.

We proceed then to the merits of this controversy. The first question is whether the parties had a duty to arbitrate this dispute under the terms of the collective bargaining agreement then in effect between them. Although concededly difficult to articulate, the dispute may be characterized as whether the unions had the right under the agreement to refuse to cross picket lines established by another union.

The pertinent parts of the collective bargaining agreement were recently described by the Supreme Court in the case of Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 374-378, 94 S.Ct. 629, 635-637, 38 L.Ed.2d 583, 590-592 (1974) which involved the National Bituminous Coal Wage Agreement of 1968. While discussing the arbitration provisions of the 1968 agreement, which are identical to those provisions in the 1971 agreement, the Court stated:

“The section of the agreement entitled ‘Settlement of Local and District Disputes’ provides for resolution of grievances by direct negotiation between the parties and ultimately, should such negotiations fail, for arbitration by an impartial umpire ‘mutually agreed upon by the operator or operators affected and . . . the United Mine Workers of America.’ The section further states that the ‘decision of the umpire shall be final.’ This arbitration clause governs disputes ‘as to the meaning and application of the provisions of this agreement,’ disputes ‘about matters not specifically mentioned in this agreement,’ and ‘any local trouble of any kind aris[ing] at the mine.’ Paragraph 3 of the ‘Miscellaneous’ section of the agreement states that both parties ‘agree and affirm . . . that all disputes and claims which are not settled by agreement shall be settled by the machinery provided in the ‘Settlement of Local and District Disputes’ section . . .’ It accepts from the arbitration obligation only those disputes ‘national in character.’ ” Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 374-376, 94 S.Ct. 629, 635, 38 L.Ed.2d 583, 590-591 (1974).

The “Settlement Of Local And District Disputes” and the “Miscellaneous” sections of the agreement are pivotal as to what constitutes an arbitrable issue thereunder. It is our conclusion that the “any local trouble of any kind aris[ing] at the mine” language contained in this exceptionally broad arbitration clause is itself expansive enough to encompass the present disputes. A work stoppage which results from the honoring of stranger picket lines by company employees is certainly local trouble at the mine. Any other construction of this language would simply be ignoring the realities of the situation. Moreover, these parties agreed to arbitrate not only disputes concerning the meaning and application of the express provisions of the agreement but also disputes “about matters not specifically mentioned in this agreement.” By the use of this terminology, we conclude that the parties mutually contracted to resolve any labor difficulties arising during the life of the agreement by the arbitration process, other than disputes which are “national in character.”

We further believe that this conclusion is enhanced by the strong public policy in favor of arbitration which was persuasively enunciated in the Steelworkers Trilogy. The often discussed presumption of arbitrability for labor disputes was recently reaffirmed by the Supreme Court in Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 377-380, 94 S.Ct. 629, 636-638, 38 L.Ed.2d 583, 592-593 (1974). While the arbitrability of the disputes involved here may not be free from doubt, the Trilogy has instructed that all such doubts be resolved in favor of arbitration.

In Gateway Coal, the Court also commented upon the value of arbitration, noting that it “provides a method for resolving the unforeseen disagreements that inevitably arise.” Collective bargaining agreements cannot anticipate every conceivable labor difficulty, given the intricate relationship between the parties. The merits of an arbitration mechanism in this context were clearly envisioned by Congress when it enacted Section 203(d) of the Labor Management Relations Act (29 U.S.C. § 173 (d)). The resolution of these disputes by a skilled labor arbitrator with his unique knowledge of the common law of the shop lends credence to this policy. The labor arbitration mechanism is better suited than the judicial process for making the kinds of interest accommodations that are necessary to the peaceful resolution of these disputes.

Mindful of these policy considerations as announced in the Steelworkers Trilogy and recently underscored in Gateway Coal, we, therefore, hold that the dispute here fell within the arbitration clause of the collective bargaining agreement in existence between these parties.

IV.

We next consider whether the district court had jurisdiction to enjoin these work stoppages. As indicated in Gateway Coal, this question depends upon whether the union was under a contractual duty not to strike. Absent such a duty, the prohibitions of the NorrisLaGuardia Act deprive the district court of the authority to enter injunctive orders in these cases. However, as the Court held in Boys Markets Inc. v. Retail Clerk’s Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), Section 301(a) of the Labor Management Relations Act empowers a federal court to prevent violations of a contractual duty not to strike under certain limited circumstances. The principal circumstance is that the work stoppage or strike must have been generated over an arbitrable dispute.

We have previously found that circumstance to be present in these cases. Relying upon Amstar Corp. v. Amalgamated Meat Cutters & B. Workmen, 468 F.2d 1372 (5th Cir. 1972), the unions maintain that the dispute here was not “over a grievance” which the parties were bound to arbitrate, but rather that the work stoppage itself precipitated the dispute. The companies, relying upon Monongahela Power Co. v. Local No. 2332 I.B.E.W., 484 F.2d 1209 (4th Cir. 1973), contend that the violation of a no-strike clause, express or implied, constitutes an arbitrable grievance justifying the issuance of a Boys Markets injunction. We conclude that neither Amstar nor Monongahela Power provide any guidance as to the issues before us. Both cases involved express no-strike clauses and both courts treated the issue as whether the violation of an express no strike clause itself creates an arbi-trable issue for purposes of a Boys Markets injunction. Here, we have no express no-strike clause and have previously concluded that the work stoppage fell within the general language of the arbitration clause, since the issue of whether the unions may refuse to cross a stranger picket line is, under this agreement, arbitrable. We express no opinion on the issues as they were presented in Amstar and Monongahela Power.

Nor is it of any consequence that the collective bargaining agreement here does not contain an express no-strike clause, as was present in Boys Markets. In Gateway Coal, this was not considered sufficient to defeat the district court’s jurisdiction to enter an injunction under the rationale of Boys Markets. The reason is that “a contractual commitment to submit disagreements to final and binding arbitration gives rise to an implied obligation not to strike over such disputes.” Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 381, 94 S.Ct. 629, 638, 38 L.Ed.2d 583, 594 (1974); Teamsters Local 174 v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1962); see also, Old Ben Coal Corp. v. Local U. No. 1487 of United Mine Workers, 457 F.2d 162, 164 (7th Cir. 1972). Thus, to the extent that a dispute is arbitrable, there exists an obligation not to strike over that dispute. Since we have concluded that the dispute here is subject to the arbitration process contained in the collective bargaining agreement between the parties, the unions here were bound not to strike. The district court thus had jurisdiction to enter the Boys Markets injunctions in these cases.

V.

There remains the question of whether the injunctive orders were proper under traditional equitable considerations. Our examination of the record convinces us that the companies made sufficient showings to entitle them to injunctive relief, including a clear demonstration of irreparable harm resulting from the work stoppages.

Finally, the unions complain that the injunctions were improperly entered because they were not conditioned on the companies’ willingness to arbitrate these disputes. The collective bargaining agreement here contains a mandatory arbitration clause. Where a dispute exists which is- not otherwise resolved under the “Settlement of Local and District Disputes” section of the agreement, the parties are contractually obliged to submit the matter to arbitration. At no time have the employers in the instant cases shown a reluctance or unwillingness to arbitrate the issues in dispute. On the contrary, by seeking Boys Markets injunctions, they demonstrated their desire to settle the dispute through arbitration. And, since the injunction may issue only if the dispute is subject to the agreement’s mandatory arbitration provisions, the injunctive orders implicitly require the parties to arbitrate. Accordingly, the injunctions were not improperly entered and need not be modified. We view the orders, in their present form, as conditioned upon the parties’ willingness to arbitrate the dispute, as they are obliged to do under this collective bargaining agreement.

For the reasons stated, the judgments of the district court in 72-1893 and 72-1894 are affirmed.

Affirmed.

FAIRCHILD, Circuit Judge

(dissenting).

I agree with the majority that the validity of the underlying injunctions is properly before this court. I respectfully disagree with the conclusion that they do not conflict with the Norris-LaGuardia Act.

The Supreme Court, in Boys Markets, Inc. v. Retail Clerk’s Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), “accommodated” the Norris-LaGuardia Act’s proscription of labor dispute injunctions to the federal substantive policy favoring the private resolution of disputes through grievance and arbitration procedures developed under Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957) and its progeny. This accommodation was narrowly circumscribed and limited to the granting of injunctions in situations where a work stoppage was “over a grievance which both parties are contractually bound to arbitrate.” 398 U.S. 235, 254, 90 S.Ct. 1583, 1594, 26 L.Ed.2d 199 (1970). In my view, the refusal to cross a picket line involved in the present case is not “over” an arbitrable grievance. Here, the dispute that precipitated the stoppage by appellants was the disagreement between the company and the construction workers which led to the formation of the picket line by the construction workers. This dispute is not arbitrable as between the parties to this proceeding, since the appellant unions are not directly involved.

The majority states the arbitrable issue raised by appellants’ honoring the stranger picket lines to be “whether the unions had the right under the agreement to refuse to cross picket lines established by another union.” (Slip Opinion at p. 297). Concededly, such issue is raised by appellants’ actions in this case, and arguably, would be arbi-trable. The mere existence of such an issue, however, does not seem to me sufficient to trigger the limited “accommodation” which Boys Markets made to the strict proscription of injunctive relief of Norris-LaGuardia.

The purpose of Boys Markets was to foster the effectiveness of an arbitration agreement by precluding resort to the strike weapon in place of arbitration to which the parties had agreed. To enjoin in the present case is not to prevent substitution of a strike weapon for the arbitration procedure agreed upon, but to presume that recognition of a picket line has been forbidden by the contract unless and until an arbitrator rules that it has not. The matter has been analyzed as follows: “If the arbitrable dispute is not a ‘cause’ of the work stoppage, then a concession on that dispute by the employer will not help to end the work stoppage. Under these circumstances, the work stoppage will exert no pressure on the employer to resolve the arbitrable issue short of arbitration. Thus, if this basic cause-effect relationship between the arbitrable issue and the strike is not present, the strike will not discourage arbitration and the policy that favors the arbitration of labor disputes will not be furthered by the issuance of an injunction.” N.A.P.A. Pittsburgh, Inc. v. Chauffeurs, Local 926, 502 F.2d 321, 330 (3rd Cir. 1974), Hunter, J., dissenting. To hold otherwise would be to permit the narrow exception created by Boys Markets to subsume the rule.

      . Boys Markets, Inc. v. Retail Clerk’s Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199, (1970).

      . 29 U.S.C. § 185(a) provides: “Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or . the citizenship of the parties.”

      . 29 U.S.C. § 104 provides :
      “No court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute to prohibit any person or persons participating or interested in such dispute (as these terms are herein defined) from doing, whether singly or in concert, any of the following acts:
      (a) Ceasing or refusing to perform any work or to remain in any relation of employment }>

      . See, Cox, “The Void Order And The Duty To Obey”, 16 U. of Chi.L.Rev. 87-115 (1948), for an analytical discussion of these “jurisdictional” concepts.

      . This section provides, in relevant part:
      “Should differences arise between the Mine Workers and the operators as to the meaning and application of the provisions of this agreement, or should differences arise about matters not specifically mentioned in this agreement, or should any local trouble of any kind arise at the mine, an earnest effort shall be made to settle such differences immediately: (The parties will not be represented by legal counsel at any of the steps below.)
      “1. Between the aggrieved party and the mine management.
      “2. Through the management of the mine and the mine committee.

        “3. Through district representatives of the United Mine Workers of America and a commissioner representative (where employed) of the coal company.
      “4. By a board consisting of four members, two of whom shall be designated by the Mine Workers and two by the operators. Neither the Mine Workers’ representatives on the board nor the operators’ representatives on the board shall be the same persons who participated in steps (1), (2), or (3) of this procedure.
      “5. Should the board fail to agree the matter shall, within twenty (20) days after decision by the board, be referred to an umpire to be mutually agreed upon by the operator or operators affected and by the duly designated representatives of the United Mine Workers of America, and the umpire so agreed upon shall expeditiously and without delay decide said case. The decision of the umpire shall be final. Expenses and salary incident to the services of an umpire shall be paid equally by the operator or operators affected and by the Mine Workers.
      “A decision reached at any stage of the proceedings above outlined shall be binding on both parties hereto and shall not be subject to reopening by any other party or branch of either association except by mutual agreement.”

      . This section provides :
      “The United Mine Workers of America and the operators agree and affirm that they will maintain the integrity of this contract and that all disputes and claims which are not settled by agreement shall be settled by the machinery provided in the ‘Settlement of Local and District Disputes’ section of this agreement unless national in character in which event the parties shall settle such disputes by free collective bargaining as heretofore practiced in the industry, it being the purpose of this provision to provide for the settlement of all such disputes and claims through the machinery in this contract provided and by collective bargaining without recourse to the courts.”.

      . United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprises Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).

      . This section provides:
      “Final adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.”

      . Since the underlying injunctive orders have been upheld, and since we find the contempt orders were otherwise proper, they are also affirmed.

      . Tlie “Settlement of Local and District Disputes” section of the collective bargaining agreement provides for arbitrations of “differences . . . as to the meaning and application of the provisions of this agreement

      . See Amstar Corp. v. Amalgamated Meat Cutters & B. Workmen, 468 F.2d 1372, 1373 (5th Cir. 1972); General Cable Corp. v. IBEW, Local 1644, 331 F.Supp. 478, 482 (D.Md.1971); Simplex Wire and Cable Co. v. Local 2208, IBEW, 314 F.Supp. 885, 886 (D.N.H.1970); N. A. P. A. Pittsburgh, Inc. v. Automotive Chauffeurs, Parts and Garage Employees, Local Union 926, 502 F.2d 321, 329-333 (3rd Cir. 1974), Hunter, J., dissenting; Gary-Hobart Water Corp., 210 N.L.R.B. No. 87, 86 LRRM 1210, 1214 (N.L.R.B., 1974). But, cf. Monongahela Power Co. v. Local No. 2332, I.B.E.W., 484 F.2d 1209 (4th Cir. 1973); Pilot Freight Carriers v. Teamsters, 497 F.2d 311 (4th Cir. 1974); Bethlehem Mines Corp. v. U. M. W. A., 375 F.Supp. 980 (W.D.Pa,1974).


author: STEVENS, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roosevelt OLIVER, Defendant-Appellant.
    No. 73-1699.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 13, 1974.
    Decided Oct. 31, 1974.

      Frederick F. Cohn, Chicago, 111., for defendant-appellant.
    William J. Mulligan, U. S. Atty., and Joseph P. Stadtmueller, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-ap-pellee.
    Before HASTINGS, Senior Circuit Judge, and CUMMINGS and STEVENS, Circuit Judges.
   STEVENS, Circuit Judge.

Appellant contends that his conviction of tax evasion rests on two separate violations of his Fifth Amendment right not to “be compelled, in any criminal case, to be a witness against himself.” He argues (1) that he made a compelled disclosure of incriminating information without first receiving warnings required by Miranda and Dickerson; and (2) that under the rationale of Marchetti he could not be compelled to disclose his illegal income on his tax return. Our evaluation of both arguments involves a consideration of the significance of the point at which the adversary character of the criminal prosecution commenced. We find merit in his first contention, but not in his second.

The indictment charged that defendant understated his adjusted gross income for 1970 and 1971. After a trial to the court, he was found not guilty on Count I, but guilty on the second count relating to 1971. His return for that year reported adjusted gross income of $6,030, including his wife’s earnings and a loss of approximately $2,000 on a truck rental operation. His return made no reference to any other income and contained no entry or disclosure which might have been interpreted to relate to any illegal earnings.

Predicated on an analysis of defendant’s net worth and expenditures during 1971, the government contended that his adjusted gross income was approximately $30,000 or, alternatively, crediting certain disputed testimony, could have been no less than $17,000. Among the witnesses for the prosecution were one Samuel Coca, whose testimony suggested that trafficking in narcotics provided the defendant with a probable source of income not reported on his return, and Kermit Duehring, a special agent with the Intelligence Division of the Internal Revenue Service.

Duehring testified that in March or April, 1972, he had been directed to investigate a possible criminal violation of the internal revenue laws by the defendant. After that investigation had been under way for several months, he and another special agent interviewed the defendant in the offices of the Intelligence Division in the Federal Building in Milwaukee. Having learned that defendant was in the building in the vicinity of the grand jury room, the two agents located him and asked him to come to their offices. He acceded to their request. Prior to any questioning, the agents informed defendant of their offices and read him the written statement set out in the margin.

During the course of the interview, which lasted about 45 minutes, a person who purported to have a message for defendant from his attorney was not permitted to communicate with defendant because, as Duehring testified, she did not possess written authorization from the attorney.

The government’s case was predicated, in part, on the assumption that defendant’s cash-on-hand on December 31, 1970, amounted to only $200. According to Duehring’s testimony, the source of this information was a statement made by Oliver during his interview in the agents’ office. Defendant’s objections to Duehring’s testimony were overruled on the ground that “the custody or rather the non-custody advice was adequate to meet the Constitutional requirement.” Tr. 301.

I.

The government does not attempt to defend the warnings given by Duehring as adequate if Miranda and Dickerson apply. It is suggested that Miranda is inapplicable because defendant was not actually in custody, and that Dickerson should be re-examined in the light of our more recent decision in Sicilia; in any event, it is claimed that the admission of Duehring’s testimony was harmless error.

We recognize that the warnings specified in the Court’s opinion in Miranda are not mandated by the Constitution itself, and that our opinion in Dickerson has not been followed in other circuits. Nevertheless, we are satisfied that as long as Miranda remains viable —as it certainly is today — its teachings must be applied to a situation such as that presented in Dickerson and in this case.

The application of Miranda does not turn on such a simple axis as whether or not the suspect is in custody when he is being questioned. As the Court repeatedly indicated, the prescribed warnings are required if the defendant is in custody “or otherwise deprived of his freedom of action in any significant way.” The fact of custody is emphasized in the opinion as having the practical consequence of compelling the accused to make disclosures. But the test also differentiates between the questioning of a mere witness and the interrogation of an accused for the purpose of securing his conviction; the test serves the purpose “of determining when the adversary process has begun, i. e., when the investigative machinery of the government is directed toward the ultimate conviction of a particular individual and when, therefore, a suspect should be advised of his rights.”

Since the constitutional protection is expressly applicable to testimony in the criminal case itself, for the purpose of determining when warnings are required, the Miranda analysis treats the adversary proceeding as though it commences when a prospective defendant is taken into custody or otherwise significantly restrained. After that point is reached, it is not unreasonable to treat any compelled disclosure as protected by the Fifth Amendment unless, of course, the constitutional protection has been waived. Adequate warnings, or the advise of counsel, are essential if such a waiver is to be effective.

The requirement of warnings set forth in Dickerson rests on the same underlying rationale. While the commencement of adversary proceedings against Dickerson had not been marked by taking him into custody, the I.R.S., by assigning the matter to the Intelligence Division, had commenced the preparation of its criminal case. When the agents questioned him about his tax return, without clearly explaining their mission, the dual criminal-civil nature of an I.R.S. interrogation created three key misapprehensions for the taxpayer.

“Incriminating statements elicited in reliance upon the taxpayer’s misapprehension as to the nature of the inquiry, his obligation to respond, and the possible consequences of doing so must be regarded as equally violative of constitutional protections as a custodial confession extracted without proper warnings.” 413 F.2d at 1116 (emphasis added).

The practical effect of these misapprehensions during questioning of a taxpayer was to “compel” him to provide information that could be used to obtain his conviction in a criminal tax fraud proceeding, in much the same way that placing a suspect under physical restraint leads to psychological compulsion. Thus, the misapprehensions are tantamount to the deprivation of the suspect’s “freedom of action in any significant way,” repeatedly referred to in Miranda.

In this case it is plain that the purpose of the agents’ interrogation of the defendant was to develop evidence which would secure his conviction of a crime. The criminal investigation of Oliver had commenced several months before he was questioned, and there was no ambiguity about the agents’ mission. No doubt, as Duehring testified, Oliver was free to leave at any time, and therefore not strictly in custody. But since the agents were in a position to intercept a message from his attorney, and actually did so, it is appropriate, for the purpose of applying the Miranda test, to characterize the situation as one in which defendant’s liberty was significantly restrained.

As we emphasized in Dickerson, one purpose of the Miranda warnings is to make sure that the défendant does not misapprehend the nature of his obligation to respond to the revenue agents’ inquiries. In this case, the warnings did not include advice that Oliver could remain silent or that he could have a lawyer present during the interview. Under these circumstances we believe Miranda requires us to treat his disclosures as though they were compelled during the course of an adversary proceeding, and therefore inadmissible at his criminal trial.

In United States v. Sicilia, 475 F.2d 308 (7th Cir. 1973), we refused to extend Dickerson to require F.B.I. agents to give Miranda warnings in connection with a request to the defendant for permission to search his company’s premises for a stolen fork lift truck. In that opinion we emphasized the absence of the potential ambiguity in an F.B.I. inquiry as opposed to an investigation by special agents of the Internal Revenue Service as an adequate basis for distinguishing Dickerson. We might also have pointed out that until after the lift truck was actually discovered on the premises, the investigation had not progressed to the point at which the agents were prepared to make an accusation against. Sicilia; when the matter did reach that point, they gave him complete Miranda warnings. Neither the holding in Sicilia nor the' language in that opinion would justify a refusal to apply Dickerson in this case.

The incriminating evidence obtained from defendant’s interrogation was inadmissible. That information was utilized by the government in computing Oliver’s understatement of taxable income by the net worth method. Specifically, the government’s calculation of Oliver’s eash-on-hand at the beginning of the tax year relied heavily on the admissions. In view of the importance of establishing the taxpayer’s opening net worth with “reasonable certainty,” see Holland v. United States, 348 U.S. 121, 132, 75 S.Ct. 127, 99 L.Ed. 150, we must reject the argument that the ei’ror was harmless.

II.

The government’s evidence indicated that the probable source of defendant’s unreported income was the sale of narcotics. Relying on Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889, appellant contends that his conviction must be reversed because the Fifth Amendment protects him from any compelled disclosure of his illegal activities. We have no doubt, however, that the rationale of the Marchetti decision is inapplicable to the requirement that all taxpayers, including those engaged in illegal ventures, report their incomes in full.

In Marchetti, the failure to pay a federal wagering occupation tax or to register as one engaged in the business of accepting wagers was excused on Fifth Amendment grounds. The Court noted that the statute was applicable only to a select group of persons engaged in a kind of activity which was unlawful in most states and that the statute required the Internal Revenue Service to provide local prosecuting officer’s with the names of persons who paid the tax. As Mr. Justice Brennan pointedly observed in his concurring opinion in Grosso v. United States, such requirements unambiguously evidenced a dominant congressional purpose to develop evidence for the purpose of criminal prosecution and conviction. He stated:

“The cases before us present a statutory system condemned by Albertson [v. SACB, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165]. The wagering excise tax, the occupational tax, and the registration requirement are only parts of an interrelated statutory system for taxing illegal wagers. Whatever else Congress may have meant to achieve, an obvious purpose of this statutory system clearly was to coerce evidence from persons engaged in illegal activities for use in their prosecution. See United States v. Kahriger, 345 U.S. 22, 37, 73 S.Ct. 510, 517, 97 L.Ed. 754 (Frankfurter, J., dissenting).” 390 U.S. 62, 74, 88 S.Ct. 709, 717, 19 L.Ed.2d 906 (emphasis added).

The enactment of special legislation designed to procure incriminating disclosures from a select group of persons engaged in criminal conduct was tantamount to an accusation commencing criminal proceedings against them. The statutory demand to register as a gambler was comparable to the inquisitor’s demand that a suspect in custody admit his guilt. The admission, once made, would almost inevitably become a part of the record of a criminal proceeding against a person who had already been accused when he confessed. Just as the Miranda decision may be read as having enlarged the adversary proceeding to commence when the accused is first taken into custody, Marchetti and comparable cases have, for Fifth Amendment purposes, treated special statutes designed to secure incriminating information from inherently suspect classes of persons as the commencement of criminal proceedings against those from whom incriminating information is demanded. Under this analysis, we must test the applicability of the Fifth Amendment to a self-reporting statute at the time that disclosure is compelled.

The statute which defendant Oliver is accused of violating is applicable to the public at large, and its demands for information are neutral in the sense that they apply evenly to the few who have illegal earnings and the many who do not. The self-reporting requirements of the Internal Revenue Code are justified by acceptable reasons of policy, entirely unrelated to any purpose to obtain incriminating evidence against an accused person or group. Therefore, even though the disclosure of defendant’s illegal income was compelled by statute, and even though we assume that such disclosure might well have been incriminating, the Marchetti holding does not justify the conclusion that the Fifth Amendment excuses defendant's obligation to report his entire income.

That amendment does not purport to forbid every compelled disclosure which contains incriminating information. In terms it applies only to testimony in “any criminal case.” That concept has been interpreted to encompass testimony before a grand jury, testimony in certain civil proceedings, responses to custodial interrogation, and statutory demands for information from selected groups of persons engaged in inherently suspect activities. With one exception, however, we find no precedent for enlarging the concept further to include the preparation and filing of the customary income tax return. Accordingly, without considering every hypothetical case in which a demand for information on a tax return might be challenged, we have no hesitation in holding that the Fifth Amendment has no application to the statutory requirement that every citizen must report his entire income even if a taxpayer is thereby compelled to disclose an incriminating fact.

III.

For the reasons stated in Part I, the judgment must be reversed and the case remanded for a new trial. In view of Judge Gordon’s familiarity with the complexities of this net worth prosecution, and in view of the fact that the case was tried to the court, and therefore it may not be necessary to repeat testimony already received, Circuit Rule 23 shall not apply.

Reversed and remanded.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

      . United States v. Dickerson, 413 F.2d 1111 (7th Cir. 1969).

      . Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889.

      . For a description of the “net worth” theory of proof of tax evasion, see Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150; United States v. Cleveland, 477 F.2d 310 (7th Cir. 1973), and cases cited therein.

      . “As a Special Agent, one of my functions is to investigate the possibility of criminal violations of the Internal Revenue laws, and related offenses.
      “In connection with my investigation of your tax liability, I would like to ask you some questions. However, first I advise you that under the Fifth Amendment to the Constitution of the United States I can not compel you to answer any questions or to submit any information if such answers or information might tend to incriminate you in any way.
      “I also advise you that anything which you say and any information which you submit may be used against you in any criminal proceeding which may be undertaken.

        “I advise you further that you may, if you wish, seek the assistance of an attorney before responding.” (Tr. 297-8)

      . Oliver was not told that he could have counsel present during the questioning. In addition, the warning ho was given on his right to remain silent contained an ambiguity that nullified its effectiveness. By informing Oliver that ho need not, give answers that might, be incriminating, the agents seemed to suggest that ho could be compelled to answer nonincriminating questions. This was hardly the “clear and unequivocal” warning of the right to remain silent required by Miranda, 384 U.S. at 467-468, 86 S.Ct. 1602. See United States v. Mullings, 364 F.2d 173, 175 (2d Cir. 1966). Additionally, the agents never ascertained whether Oliver understood the warnings. Miranda places “a heavy burden” on the government to show that, a suspect has knowingly and intelligently waived his Fifth and Sixth Amendment rights. 384 U.S. at 475, 86 S.Ct. 1602. It is somewhat surprising to find that, some six years after Miranda, and three years after Dickerson, the I.R.S. continued to utilize warnings that failed to comply in these significant respects with the Supreme Court’s mandate.
      Our conclusion that these I.R.S. warnings were insufficient is not inconsistent with our recent decision in United States v. Horton, 503 F.2d 810 (7th Cir. 1974). The only contention raised in Ilorton was that the warnings given (idential to those here) with respect to an interrogation about tax liability did not adequately warn the defendant when t..e questions turned to his ownership of a firearm. The compliance of the warnings with Miranda was not at issue there.

      . United States v. Sicilia, 475 F.2d 308 (7th Cir. 1973).

      . See Michigan v. Tucker, 417 U.S. 433, at 444, 94 S.Ct. 2357, 2364, 41 L.Ed.2d 182 (1974).

      . See United States v. Dawson, 486 F.2d 1326, 1329 (5th Cir. 1973), and cases cited therein at n. 4.

      . See 384 U.S. at 444, 445, 467, 477, 478, 86 S.Ct. at 1629.

      . See e. g., 384 U.S. at 457-458, 86 S.Ct. 1602.

      . The quotation is from Judge Will’s opinion in United States v. Turzynski, 268 F.Supp. 847, 852 (N.D.Ill.1967), which was quoted with approval in Dickerson, 413 F.2d at 1115. The Miranda Court had emphasized that taking a suspect into custody marked an important turning point in the criminal proceeding:
      "It is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries.” 384 U.S. at 477, 86 S.Ct. at 1629.
      Earlier in that opinion, in a footnote referring to the phrase “otherwise deprived of his freedom of action in any significant way,” the Court added this significant footnote :
      “This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.” 384 U.S. at 444 n. 4, 86 S.Ct. at 1612.

      . As we noted in Dickerson, 413 F.2d at 1116, most taxpayers in such surroundings would be under a practical compulsion to respond to questions about their returns comparable to the psychological pressures described in Miranda.

      . It was the discovery of the lift truck, coupled with Sicilia’s statement that he had purchased it, that precipitated the full Miranda advice. These facts are emphasized at page 311 of 475 F.2d.

      . During the August 23, 1972, interrogation Oliver gave the I.R.S. agents several pieces of information relevant to his opening net worth on January 1, 1971. In response to questioning, he informed them that he normally kept at most a couple of hundred dollars cash on hand. lie stated that the Christmas Club checks received by his wife had been entirely spent by January 1, 1971.

      . As government exhibit 59, the government’s worksheet, shows, Oliver’s cash-on-hand figures for the beginning and end of 1971 were calculated on the basis of Oliver’s statement that he normally had “a couple of hundred dollars” on hand and that a cashier’s check was purchased from 1971 funds. Apart from Oliver’s admissions as to these facts, there is little in the record to establish what Oliver’s cash position was. Special Agent Duehring, the government’s chief investigating officer, testified that the I.R.S. investigation disclosed no other evidence about Oliver’s cash-on-hand, but the government did not ask the agent to elaborate as to the actions the government took to arrive at this conclusion. Thus, only the agent’s assertion that no other evidence was found is in the record.

      . As Special Agent Duehring admitted on cross-examination (Tr. 350), the presence of a large amount of cash at the beginning of the year could mean that large personal expenditures would he consistent with a low reported income.

      . In his dissent in United States v. Kaliri-ger (which was overruled by Marchetti), Mr. Justice Black stated:
      “Whether or not the Act has this effect, I am sure that it creates a squeezing device contrived to put a man in federal prison if tie refuses to confess himself into a state prison as a violator of state gambling laws. . . . But we have a Bill of Rights that condemns coerced confessions, however refined or legalistic may be the technique of extortion.” 345 U.S. 22, 36-37, 73 S.Ct. 510, 519.

      . Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165; Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906; Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923; Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57.

      . As Mr. Justice Harlan stated in his concurring opinion in California v. Byers, 402 U.S. 424, 458, 91 S.Ct. 1535, 29 L.Ed.2d 9, a subsequent trial after compliance with a Jiarchetti-tyye statute would be “merely [al ritualistic confirmation of the ‘conviction’ secured through compliance with the reporting requirement in issue.”

      . In liis concurring opinion in United States v. Kahriger, Mr. Justice Jackson observed:
      “The United States lias a system of taxation by confession. That a people so numerous, scattered and individualistic annually assesses itself with a tax liability, often in highly burdensome amounts, is a reassuring sign of the stability and vitality of our system of self-government. What surprised me in once trying to help administer these laws was not to discover examples of recalcitrance, fraud or self-serving mistakes in reporting, but to discover that such derelictions were so few. It will be a sad day for the revenues if the good will of the people toward their taxing system is frittered away in efforts to accomplish by taxation moral reforms that cannot be accomplished by direct legislation.” 345 U.S. at 36, 73 S.Ct. at 517.
      It might also undermine the goodwill of the people toward their taxing system to place the law violator in a preferred status with respect to his obligation to report his entire income.

      . As Mr. Justice Holmes stated in his oft-quoted dictum in United States v. Sullivan, 274 U.S. 259, 263-264, 47 S.Ct. 607, 71 L.Ed. 1037, “It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime.”

      . See Garner v. United States, 500 F.2d 228 (9th Cir. 1974) (en banc), and Comment, Reporting Illegal Gains as Taxable Income: A Compromise Solution to a Prosecutorial Windfall, 69 Nw.U.L.Rev. 111, 141-142 (1974).

      . We note that the indictment here, as in United States v. Garcilaso de la Vega, 489 F.2d 761, 765 (2d Cir. 1974), was based on Oliver’s failure to state the amount, and not the source, of his income. Had he correctly reported the amount of his illegal income, but refused to supply information arguably requested (or regularly used) for the purpose of identifying criminal activity, a different Fifth Amendment issue would arise.

      . There is clearly a lesser basis for treating the filing of a normal income tax return as a disclosure compelled for the purpose of securing the taxpayer’s conviction of a crime than the self-reporting requirement in the California statute sustained by the Supreme Court in California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9. The Court’s holding that use immunity was not required because there was an insufficient correlation between a statutory requirement that a driver report his involvement in an accident and the possible criminal prosecution of the driver to make the Fifth Amendment applicable to that statute would seem to apply a for-tiori to the statute before us. See 402 U.S. at 431, 91 S.Ct. 1535.

      . As the only improperly admitted evidence was that obtained as a result of the August 23, 1972, interrogation, it would seem appropriate to use much of the original record in lieu of taking additional testimony.

      . We have considered and found no merit in defendant’s objection to the testimony of the tax accountant, or to his claim that he did not have an adequate opportunity to cross-examine the witness Coca.