author: PER CURIAM:

text:
    UNITED STATES of America ex rel. Norman Benjamin PARSON, Appellant, v. Raymond W. ANDERSON, Warden, Appellee.
    No. 73-1082.
    United States Court of Appeals, Third Circuit.
    Argued June 18, 1973.
    Decided July 11, 1973.
    Richard E. Poole, Potter, Anderson & Corroon, Wilmington, Del., for appellant.
    Jerome O. Herlihy, Chief Deputy Atty. Gen., Wilmington, Del., Peter Warren Green, Wilmington, Del., for appellee.
    Before VAN DUSEN, ALDISERT and ADAMS, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

Petitioner Norman B. Parson, convicted by the state of Delaware of murder in the first degree, appeals to this Court from the denial by the district court of his petition for habeas corpus. Determining the propriety of granting his petition requires this Court to consider questions involving the role of amnesia in establishing this defendant’s competence to stand trial. Resolution of that issue requires a brief explication of the involved procedural history of this case.

Parson was arrested on the night of January 31, 1964 in connection with a homicide that had occurred earlier that evening. He was indicted for murder in the first degree, and provided with appointed counsel. Prior to standing trial, Parson underwent extensive psychiatric and psychological examination. During Parson’s trial, which began in January, 1965, “No defense of insanity at the time of the crime was asserted and no hearing on competency to stand trial was requested or held.” Parson was convicted of murder in the first degree and that conviction was affirmed on appeal. Certiorari was denied by the U.S. Supreme Court.

Having unsuccessfully sought direct appellate review of his conviction, Parson then filed a petition for habeas corpus in the district court. That court concluded that substantial doubts had been raised concerning Parson’s competence at the time of his trial. The district court then proceeded to hold a hearing to determine whether it was possible accurately to assess, at that time, Parson’s mental state on the occasion of his first trial. Concluding that such assessment was impossible, the court, pursuant to Pate v. Robinson, ordered that the writ of habeas corpus be granted unless the state retried Parson.

Before retrial by the state, extensive psychiatric and psychological studies were again conducted. Parson was found competent to stand trial and was once more convicted. “No plea of insanity at the time of the crime was entered and no evidence of such insanity was introduced by the defense.” This second conviction was affirmed, and Parson again sought habeas corpus in the district court.

Stated simply, Parson’s basic contention here is that because he suffered from amnesia concerning the events that occurred at the time of the homicide, he could not properly assist in his own defense and was therefore incompetent to stand trial.

Two possible avenues of defense were open to Parson: (a) rebuttal of the prosecution’s evidence, (b) the insanity defense. Were his amnesia to appear to have blocked entry to either avenue, this Court would then have to consider whether such amnesia did, in fact, render Parson incompetent to stand trial.

The state trial court and the U. S. District Court found under the circumstances and the evidence adduced that Parson’s amnesia did not diminish his capacity either to understand the proceedings, against him or properly to assist in his own defense! We hold that these findings are not clearly erroneous.

Had the .proof of Parson’s commission of the crime been based on eyewitness testimony, or had the prosecution relied substantially on statements attributed to Parson, his amnesia might have significantly hindered the preparation and presentation of a rebuttal defense. No such evidence was presented here. Rather, the evidence was of a physical nature. Thus, it would appear that the amnesia did not meaningfully affect the availability of this type of defense.

Amnesia may at times make difficult the employment of an insanity defense. In this case, however, an insanity defense was neither asserted nor attempted. Nor is it suggested that this was a mere oversight or the result of improper assistance of counsel. On the contrary, the district court found:

“The defense declined to introduce other evidence of defendant’s mental condition [it had introduced evidence of his amnesia] because the court ruled that such testimony would open up the issue of the defendant’s mental condition and would allow the state to introduce evidence which the defense felt might be prejudicial.”

Because the defense’s trial strategy deliberately omitted a defense based on insanity, Parson cannot now be heard to contend that the defense was unavailable to him because of his amnesia. Therefore, we hold that, in the context of this ease, the fact that the defendant suffered amnesia as to the commission of the crime, does not, in and of itself, render the defendant incompetent to stand trial.

Parson further contends that the state failed to prove his sanity at the time of the commission of the crime. He argues that intent is an element of the crime and that it is the prosecution’s obligation to prove intent by negativing the possibility of the defendant’s insanity. Under Delaware law, the defense must serve notice of the insanity defense and tender evidence of insanity at trial; absent such notice and evidence the defendant is presumed sane. Without deciding whether this presumption would pass constitutional muster if the defense of insanity had been asserted or attempted without conforming with the Delaware procedure, we find that, in this case where the insanity defense was advertently not asserted or attempted, the state is not obligated to prove the defendant’s sanity in the first instance.

The order of the district court will be affirmed.

ALDISERT, J., concurs in the result.

      . The facts of this grisly killing are set forth in Parson v. State, 222 A.2d 326 (Sup.Ct.1966).

      . United States ex rel. Parson v. Anderson, 354 F.Supp. 1060 (D.Del.1972).

      . Parson raises the inter-related issues of excessive pre-trial publicity and prejudice on the part of members of the jury. We affirm the findings of the district court rejecting such claims. See United States ex rel. Parson v. Anderson, 354 F.Supp. at 1078-1087.

      . Shortly after his arrest, Parson gave to the police a five-page written statement explaining his conduct that evening. At some point thereafter, however, he claimed that he developed amnesia concerning the events of that evening. The trial judge presiding at Parson's second trial found “the most ‘reasonable assumption’ was that Parson’s amnesia was genuine.” 354 F.Supp. at 1068.

      . 354 F.Supp. at 1066.

      . Parson v. State, 222 A.2d 326 (Sup.Ct. 1966).

      . 386 U.S. 935, 87 S.Ct. 961, 17 L.Ed.2d 807 (1967).

      . 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

      . 354 F.Supp. at 1069.

      . Parson v. State, 275 A.2d 777 (Sup.Ct. 1971).

      . See Wilson v. United States, 129 U.S.App.D.C. 107, 391 F.2d 460 (1968).

      . See Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam). The Supreme Court stated that, in determining a defendant’s competency to stand trial:
      the “test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.”

      . Parson had made an inculpating written statement for the police shortly after his arrest. This statement was not introduced at this trial. 354 F.Supp. at 1069.
      He also made two oral comments. These were admitted uncontradicted. One statement was “I am in a mess of trouble.” The other revealed the location of the victim’s body, which was, in any event, easily discoverable. In view of the overwhelming physical evidence and the fact that he was at the scene of the crime when the killing took place, it cannot be contended that these statements were at all important in the trial of this case.

      . The physical evidence adduced, linking Parson to the crime, included samples of Parson’s blood, fingernail scrapings and pubic hair. 354 F.Supp. at 1087.

      . 354 F.Supp. at 1069.

      . Cf. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

      . 354 F.Supp. at 1077.

      . Cf. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) ; Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965).

      . See In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970). Compare Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).


source: Caselaw Access Project

author: HILL, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. A. Henry TAGER, Defendant-Appellant.
    No. 72-1418.
    United States Court of Appeals, Tenth Circuit.
    Argued Jan. 11, 1973.
    Decided May 14, 1973.
    Rehearing Denied Aug. 28, 1973.

      John W. Brimer, Wichita, Kan., for defendant-appellant.
    Kirby W. Patterson, Department of „ Justice, Washington, D. C. (Robert J. Roth, U. S. Atty., and Sidney M. Glazer, Department of Justice, on the brief), for plaintiff-appellee.
    Before BREITENSTEIN, HILL and McWILLIAMS, Circuit Judges.
   HILL, Circuit Judge.

Tager appeals from conviction and sentence by the United States District Court for the District of Kansas following guilty verdicts by a jury on three counts of an indictment. One count charged him with having conspired, in violation of 18 U.S.C. § 371, with a named co-defendant and two named but unindicted co-conspirators to transport in interstate commerce a United States treasui'y bill with a face amount of $100,000 knowing it to be stolen, in violation of 18 U.S.C. §§ 2314 and 2315. Counts 2 and 3 were substantive counts under the last two named statutes. Tager and the co-defendant, Konys, were tried jointly, and both were convicted.

The evidence on behalf of the prosecution established that David Casady, an unindicted co-conspirator, came to Las Vegas on February 6, 1970. He contacted Konys, who was at that time confined to a local hospital. Casady testified, after being granted immunity, that Konys had shown him the $100,000 treasury bill at the hospital. He testified that when Konys had produced the treasury bill, “he shook the bill like it might be one that would be a little hot to hold.” From this Casady inferred there was a “stigma” attached to the bill. Konys requested that Casady attempt to obtain $25,000 against the bill. Casady then contacted an acquaintance in Las Vegas, Boyd Rasmussen, the other unindicted co-conspirator, about obtaining this amount for the treasury bill.

The next morning Rasmussen, in trying to find someone willing to lend the requested amount with the treasury bill as collateral, called the office of a local businessman, Gilbert Barnes. Barnes declined to make the requested loan, but advised Rasmussen there was a person in his office who could perhaps be of some assistance. Rasmussen was then introduced to the appellant Tager, who was in Las Vegas pursuing business with Barnes. The telephone conversation was then conducted through an amplification device in Barnes’ office. The details of the transaction as related to Tager were that Rasmussen was representing Casady who was attempting to borrow $25,000 to $30,000 on the bill. There was also discussed at this time a five to eight thousand dollar “finder’s fee” which would be paid to the person locating a place where the loan could be obtained. Tager requested that he be allowed to see the treasury bill. It was agreed, and that afternoon Tager with four others, including Casady, drove to the hospital where Konys was confined. Casady entered the hospital and soon returned with the treasury bill which he showed to Tager and the other occupants of the car. After examining the bill, Tager stated that it looked genuine, to which Casady replied, “That’s all that I can guarantee, is that it is authentic.”

An agreement was reached whereby Tager would assist Casady in obtaining the loan at a Kansas City, Kansas, bank at which Tager had his personal banking accounts. At trial, conflicting explanations were offered as to the reason for handling the loan in the Kansas City bank. One explanation related an impossibility of securing that amount of funds from a Las Vegas bank, while another purported reason related to an attempted concealment of this asset pending a future divorce proceeding of one of the participants in the transaction.

Tager returned to Kansas City on Sunday, February 8, and was contacted the next day by Casady who had arrived in Kansas City that morning from California. Tager met Casady and the two of them proceeded to the bank. There is some evidence showing Tager suggested to the bank’s officers that federal authorities be contacted for the purpose of establishing the genuineness of the bill. In any event, such an inquiry by bank officials revealed the treasury bill being presented by Tager to be part of a theft of treasury bills from a New York City bank approximately four months earlier.

Casady, who had left the bank when the federal authorities were called, was arrested down the street from the bank while waiting for a taxi to leave the area. Tager remained at the bank until the federal authorities arrived, and after being informed of and waiving his Fifth Amendment rights, stated that he had obtained the treasury bill while in Las Vegas the previous weekend; that he had been asked to obtain a $25,000 loan using the treasury bill as collateral; that he was to receive a $5,000 fee for doing so; and that when the requested loan was later increased to $30,000 he had increased the amount of his fee to $8,000. In other testimony Tager denied that his fee was to have been either $5,000 or $8,000, but that it was “twenty-five to thirty-five hundred” dollars.

The assistant manager of a Las Vegas branch bank testified during the trial that a loan could be obtained in Las Vegas using the treasury bill as collateral; that attorneys are not used in treasury bill transactions; and that the usual fee charged by the bank for handling an unmatured treasury bill would be from twenty to fifty dollars, with fifty dollars as the maximum.

While at the bank, Tager additionally told the agents the name of the Las Vegas hotel at which he was registered on that weekend. The registration records were produced at trial, together with testimony of the hotel’s assistant manager. These records bore no indication of Tager having been registered at the hotel.

Tager, after being advised of his rights, also testified before the grand jury that he had repeatedly stated that he was going to have the treasury bill verified as to its authenticity before he would have anything to do ‘with the transaction. Rasmussen and Casady, however, testified that Tager had made no statements that he was going to contact federal authorities to verify the authenticity of the treasury bill.

Tager first asserts error in the trial court’s denial of his motions pursuant to F.R.Crim.P. Rule 29 for judgment of acquittal, contending there was insufficient evidence to establish that he knew the treasury bill was stolen. In reviewing the district court’s refusal to direct a verdict of acquittal, this court must determine whether, viewing the evidence in a light most favorable to the prosecution, there was substantial evidence, together with reasonable inferences drawn therefrom, that would sustain the verdict. We have carefully read and considered all of the evidence in the record and must conclude that the trial court did not err in refusing to direct a verdict of acquittal. There was sufficient evidence to support the verdict of the jury.

Tager next contends the trial court erred in permitting the introduction of evidence which was inconsistent with or contradictory to statements previously made by him. The alleged erroneously admitted evidence consisted of the hotel records indicating that he had not been registered at the hotel; the evidence showing a lack of necessity of taking the treasury bill to Kansas City to obtain funds on it; the inconsistent and contradictory statements made by Tager regarding the amount of his fee in the transaction; and testimony that Tager had not made repeated declarations of his intent to have the bill authenticated by federal authorities. False exculpatory statements made by a defendant are admissible to prove consciousness of guilt and unlawful intent. The evidence under attack here was properly admitted.

Appellant next argues the trial court prejudicially confined pre-trial discovery, particularly with regard to the testimony of other witnesses given to the grand jury. He contends the refusal of the trial court to order disclosure of the grand jury minutes denied him access to favorable information by which he could have both attacked the grand jury proceedings and better prepared for trial. Under the 1970 amendment to 18 U.S.C. § 3500, the defendant has no right to pre-trial discovery of statements made by government witnesses to the grand jury. There was no error in refusing appellant’s request for disclosure.

Complaint is also made that the 18-month delay between the date of the commission of the offense and the presentation of the evidence to the grand jury was a prejudicial delay. In United States v. Beitscher, 467 F.2d 269, 272 (10th Cir. 1972), we held “the rights of a defendant under the due process clause of the Fifth Amendment are not violated in the absence of a showing of actual prejudice resulting from the pre-indictment delay and that the delay was purposefully designed to gain tactical advantage or to harass the defendants.” We do not believe either of these elements was present in this case.

Tager next maintains the trial court erred in permitting the prosecution to question its own witnesses regarding prior inconsistent statements which they had given in testimony before the grand jury. Appellant contends this was improper in that the prosecution was permitted to impeach its own witnesses, while at the same time confusing the jury, thereby gaining the conviction. We note that the government witnesses who were questioned with regard to their grand jury testimony each recalled having made the statement and confirmed the answers he had given were true. Grand jury testimony may properly be used for the purpose of refreshing the recollection of a witness. The use of such testimony for this purpose rests in the sound discretion of the trial judge. We find no abuse of that discretion in the trial here.

Tager next contends the failure to disclose plea bargaining by the prosecution with the two named but unindieted co-conspirators who ultimately testified at trial requires reversal. See United States v. Harris, 462 F.2d 1033 (10th Cir. 1972). We note first there is no evidence in the record of prior plea bargaining by the prosecution in exchange for the testimony of either witness. However, Casady, in the presence of the jury in open court, claimed his Fifth Amendment privilege to refuse to answer questions. Court was recessed at that point until the prosecution received permission to grant immunity to this witness. Upon resumption of the trial, the jury was informed by the trial judge that the witness had been granted immunity from prosecution, and was additionally told that they were not to draw any adverse inferences or any inferences of guilt as to either of the defendants from this fact alone. The jury here was clearly instructed concerning the inducements for testimony of this witness, and those instructions must necessarily have been considered by them in reaching a verdict. With respect to the testimony of Rasmussen, the record does not reveal any prior inducements being made which would have been relevant in attacking his motive for testifying.

The jury, after having retired for their deliberations, requested that they be allowed to hear portions of the testimony of two of the witnesses. The trial judge felt that reading only portions of testimony would tend to unduly emphasize that part of the evidence, denied the request, and advised the jury that if they desired to have read the entire testimony of any of the witnesses, the request would be considered. The jury subsequently requested that they be allowed to hear the testimony of the co-defendant Konys. The request was granted, and the entire testimony of Konys was read to the jury in open court by the court reporter. Tager contends the trial court erred in allowing this testimony to be read back to the jury. He maintains this unduly emphasized that particular testimony, the effect of which was to prejudice him. In Tyler v. United States, 361 F.2d 862, 863 (10th Cir. 1966), we stated that “[i]t was within the sound discretion of the trial judge to determine whether the requested testimony should be read back to the jury. . . . ” We find no abuse here of that discretion.

On oral argument, appellant abandoned the asserted trial error relative to the trial court’s instructions. The merits of this argument are accordingly not considered.

The record in this case is voluminous, and during the course of our decisional process we have given careful consideration to all of the evidence and to the issues raised by the appellant. We are compelled to the conclusion that a fair trial was afforded to appellant, and the conviction must be affirmed.

      . United States v. Weiss, 431 F.2d 1402 (10th Cir. 1970).

      . United States v. Kilpatrick, 458 F.2d 864 (7th Cir. 1972) ; United States v. Pistante, 453 F.2d 412 (9th Cir. 1971).

      . United States v. Quintana, 457 F.2d 874 (10th Cir. 1972), cert. denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130; 18 U.S.C. § 3500(a), (e)(3).

      . Collins v. United States, 383 F.2d 296 (10th Cir. 1967).

      . United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129 (1940) ; Collins v. United States, supra.


author: CLARK, Circuit Judge:

text:
    Barbara A. GREEN, as Administratrix and personal representative of the Estate of Michael Ray Green, deceased, Etc., et al., Plaintiffs-Appellants, v. Harry J. ROSS et al., Defendants-Appellees.
    No. 72-3705.
    United States Court of Appeals, Fifth Circuit.
    June 21, 1973.
    James V. Dolan, Fort Lauderdale, Fla., for plaintiffs-appellants.
    Richard F. Ralph, Miami, Fla., for defendants-appellees.
    Before GOLDBERG, CLARK and RONEY, Circuit Judges.
   CLARK, Circuit Judge:

Barbara Green, as Administratrix and personal representative of the estate of her deceased husband, Michael Ray Green, brought this suit against Harry J. Ross and the Travelers Indemnity Co. Her complaint alleged that Ross’ negligence caused the death of her husband, who was struck by the propeller of the defendant’s outboard motorboat while skin diving in the Atlantic Ocean. The district court concluded, after a non-jury-trial, that the defendant was not negligent. Mrs. Green appeals. We affirm.

The appellant’s prime contention is that the court below should have granted her request for a jury trial. Mrs. Green invoked the admiralty and maritime jurisdiction of the district court to hear her claims arising under “federal maritime common law” and under the Florida Wrongful Death Act. The claim for wrongful death recovery under general maritime law is founded on the Supreme Court decision in Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970) . Moragne merely removes the bar to recovery by survivors under general federal maritime law in those cases where an injury occurring on navigable waters results in death. Id. 398 U.S. at 406, 90 S.Ct. at 1790. Historically, actions for personal injury brought in the federal admiralty jurisdiction under general maritime law have not entitled the injured plaintiff to a jury trial, unless he establishes an independent jurisdictional basis for such a trial. See Fitzgerald v. United States Lines Co., 374 U.S. 16, 17, 83 S.Ct. 1646, 1648, 10 L.Ed.2d 720 (1963); 9 Wright & Miller, Federal Practice and Procedure § 2315 (1971) . We agree with the district court that a Moragne survivor-claimant has no greater right to jury trial than his decedent, and thus affirm the denial of a jury trial on appellant’s Moragne action.

Mrs. Green also alleged a cause of action based on the Florida Wrongful Death Act, Fla.Stat. § 768.01, F.S.A. Prior to Moragne, this Act provided a basis for recovery in cases of fatal accidents on Florida’s navigable waters resulting from negligence which was enforceable through a libel in rem or in personam brought in the admiralty jurisdiction of the federal district court. Weeks v. Alonzo Cothron, Inc., 426 F.2d 674 (5th Cir. 1970); see Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210 (1921); The Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959). We need not decide here whether Moragne now preempts such actions in federal court based on state wrongful death statutes, since even if a concurrent cause of action under the Florida Act for wrongful death on navigable waters still exists, Mrs. Green could have invoked federal jurisdiction only in admiralty and therefore her suit under the state statute would have been governed by admiralty procedures. See generally Weeks v. Alonzo Cothron, Inc., supra 426 F.2d 674; Emerson v. Holloway Concrete Products Co., 282 F.2d 271 (5th Cir. 1960), cert. denied 364 U.S. 941, 81 S.Ct. 459, 5 L.Ed. 2d 372 (1961); Graham v. A. Lusi, Ltd., 206 F.2d 223 (5th Cir. 1953); Young v. Clyde S.S. Co., 294 F. 549 (S.D.Fla. 1923). Thus it is clear that both of the federal jurisdictional bases which Mrs. Green sought to invoke lay exclusively on the admiralty, rather than the civil, side of the district court.

On appeal, the appellant urges this court to abandon traditional admiralty practice and declare a right to jury trial in cases involving small craft operated by lay mariners on navigable waters since no “blue water” expertise is required to resolve the issues. We decline to carve out this narrow exception to well-established procedural rules. Additionally, we note that the appellant by-passed a readily available state court action under the “savings-to-suitors” clause, 28 U.S.C. § 1333(1), and instead elected this traditionally nonjury forum. Cf. United States Fidelity & Guaranty Co. v. Reed Construction Corp., 149 So. 2d 578 (Fla.App.1963).

Second, the appellant contends that the trial judge erroneously sustained an objection to the introduction of a copy of the police report into evidence. The defendant objected on the basis of authenticity, and the appellant then failed to offer any proof whatsoever that the report was in fact authentic. The court’s ruling was correct. F.R.Civ.P. 44; See also proposed Rules of Evidence for the United States Courts and Magistrates, Rules 901-902 (1972). The court did not reach the question of admissibility of a duplicate.

Third, despite Mrs. Green’s objections, the admission of the deposition of Charles Baggett, an expert for the defendant, was within the trial court’s discretion under Local Rule 14(E) of the district court. Although the defense counsel failed to timely present the plaintiff’s counsel with a resume of the content of the proposed expert testimony, as required by the local rule, the spirit of the rule had been satisfied. Prior to the trial the plaintiff’s counsel knew that the expert would be deposed and knew the content of his testimony. Co-counsel for the plaintiff was present at the deposition. He was told that the deposition would be offered by the defendant, and his early awareness allowed him time to arrange for the deposition of an expert of his own, if he wished to offer one.

Finally, we hold that the findings of the trial judge, giving due regard for the opportunity of the trial court to judge credibility, are not clearly erroneous. F.R.Civ.P., Rule 52.

Affirmed.

      . The district court found that the accident occurred approximately two miles east of Elliot Key, Dade County, Florida, and therefore within the territorial waters of the State of Florida. Fla.Stat. § 6.11, F.S.A.

      . The opinion of the district court denying the right to a jury trial is reported at 338 F.Supp. 365, 367 (S.D. Fla. 1972).

      . The Florida Wrongful Death Act applicable to the ease sub judice, Fla.Stat. §§ 768.01-768.03, F.S.A., has been repealed and replaced by Fla.,Stat. §§ 768.16-768.27, F.S.A., effective July 1, 1972.

      . A number of recent decisions have held that Moragne preempts causes of action brought in the federal admiralty jurisdiction under state wrongful death statutes. See, e. g., United States Steel Corp. v. Lamp, 436 F.2d 1256, 1278-1279 (6th Cir. 1970), cert. denied 402 U.S. 987, 91 S.Ct. 1649, 29 L.Ed.2d 153 (1971) ; Dennis v. Central Gulf Steamship Corp., 323 F.Supp. 943, 946-948 (E.D. La. 1971), aff’d 453 F.2d 137 (5th Cir. 1972). But cf. Weeks v. Alonzo Cothron, Inc., 466 F.2d 578, 580 (5th Cir. 1972). See generally, Comment, The General Maritime Action for Wrongful Death: Pleading and Practice in the Wake of Moragne, 10 Houston L.Kev. 101 (1972) ; Comment, Maritime Wrongful Death After Moragne: The Seaman’s Legal Lifeboat, 59 Geo.L.J. 1411 (1971).

      . The appellant lacked any non-admiralty basis for federal jurisdiction, such as diversity of citizenship, see, e. g., United New York & New Jersey Sandy Hook Pilots Association v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959) ; or the Jones Act, see Fitzgerald v. United States Lines Co., supra.

      . It is highly questionable if this alteration of federal procedure could be effected by opinion of an inferior court. 28 U.S.C. § 2073. See also Fitzgerald v. United States Lines Co., supra, 374 U.S. at 22, 83 S.Ct. at 1651 (Harlan, J., dissenting) .


author: KILEY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. GLEANERS AND FARMERS CO-OPERATIVE ELEVATOR COMPANY, Defendant-Appellant.
    No. 72-1064.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 7, 1973.
    Decided July 3, 1973.
    Rehearing and Rehearing En Banc Denied July 31, 1973.

      See, also, 314 F.Supp. 1148.
    Victor John Roberts, Lowell, Ind., Charles W. Grubb, Cedar Lake, Ind., for defendant-appellant.
    William C. Lee, U. S. Atty., Charles W. Larmore, Asst. U. S. Atty., Fort Wayne, Ind., for plaintiff-appellee.
    Before KILEY, PELL and STEVENS, Circuit Judges.
   KILEY, Circuit Judge.

Plaintiff, United States, brought suit against defendant, Gleaners and Farmers Co-operative Elevator Company (Gleaners), for satisfaction of a lien on crops which Gleaners had purchased from borrowers of the United States who defaulted on their obligation to repay the loans. The district court, sitting without a jury, entered judgment for the United States in the amount of $1,920.18. Gleaners has appealed. We affirm.

On January 13, 1966, the United States Department of Agriculture made a loan of $12,000.00 to Donald and Judith Jurs (debtors) and in return accepted a promissory note executed on that date. To secure the indebtedness security agreements were executed in favor of the United States on April 10, 1967 and March 21, 1968 covering, inter alia, crops to be grown by the debtors. Financing statements were also signed by the parties and filed in the appropriate manner on March 24, 1965 and April 13, 1967. Subsequently, Gleaners, a grain elevator in the business of purchasing crops of farmers, purchased a large quantity of grain from the debtors’ 1968 crop which was subject to a security interest under the security agreement executed on March 21, 1968. Thereafter the debtors defaulted on their obligations under the promissory note and the litigation subject of this appeal followed.

The vital issue before us is whether the United States had a perfected security interest in the debtors’ crops which was effective against Gleaners as purchaser. It is undisputed that the United States is bound by Article IX of the Uniform Commercial Code (U.C.C.).

The U.C.C. as adopted by Indiana provides, in pertinent part: that a security interest does not attach to crops planted more than one year after the security agreement is executed, Burns Ind.Stats. § 19-9-204(4)(a), IC 1971, 26-1-9-204(4) (a); and that a financing statement must be filed to perfect a security interest, Burns Ind.Stats. § 19-9-302, IC 1971, 26-1-9-302, and must comply with the requirements enunciated in Burns Ind.Stats. § 19-9-402, IC 1971, 26-1-9-402. We decide the issue before us against this background.

It is conceded by Gleaners that there was a security interest in the 1968 crops between the United States and debtors as a result of the March 21, 1968 security agreement. Gleaners argues, however, that the security interest was never perfected so as to be effective against all subsequent purchasers and creditors claiming an interest in the subject security. Its argument is based on the proposition that the April 13, 1967 financing statement was ineffective to perfect a security interest in the crops which were the subject of the March 21, 1968 security agreement. It also argues that since no financing statement had been filed at the time of or subsequent to the March 21, 1968 security agreement, Gleaners did not have notice of the security interest in the 1968 crops and was not bound thereby.

Gleaners’ argument, that there was not a perfected security interest in the 1968 crops as a result of the failure to file a financing statement in 1968, ignores two sections of the U.C.C. which provide (1) that “[a] financing statement may be filed before a security agreement is made or a security interest otherwise attaches,” Burns Ind.Stats. § 19-9-402; and (2) that the filing of a financing statement is effective for a period of five years unless a shorter period is otherwise stated, Burns Ind. Stats. § 19-9-403, IC 1971, 26-1-9-403. Applying these sections to the facts before us, the April 13, 1967 filing of a financing statement was sufficient to satisfy the requirement necessary to perfect a security interest under the March 21,1968' security agreement.

Moreover, Gleaners does not argue that the April 13, 1967 financing statement was not broad enough to cover the March 21, 1968 security agreement. We, therefore, agree with the district court and hold that under present Indiana law, the United States was under no obligation to file a 1968 financing statement in order to perfect the security interest.

Our holding gains support from recent developments in pertinent U.C.C. sections. Since the adoption of the U.C.C. by the State of Indiana, which was in effect at times pertinent to this case, the American Law Institute and the National Conference of Commissioners on Uniform State Laws have given their attention to the official text of the U.C.C. A comprehensive revision of Article IX of the U.C.C. has resulted. The revisions have been published recently as the “1972 Official Text and Comments of Article 9 — Secured Transactions.” Since the promulgation of these comprehensive revisions to Article IX, most states, including Indiana, have had little or no time to amend their statutes. Nevertheless we are aided in our decision by these revisions and by the official comments on the issue before us.

The most significant revision for our purposes is to be found in § 9-204 which, inter alia, permits and regulates the right of a secured party to acquire a security interest in crops. The section, before revision, as adopted by Indiana and discussed, supra, provided that no security interest could attach in crops which became such more than one year after the security agreement was executed. This section was designed to protect against farmers who would encumber their crops for many years in the future and was in substantial conformity .with the Indiana Chattel Mortgage Law which the U.C.C. replaced. The revised § 9-204, however, no longer restricts a security interest from attaching to crops which become such more than one year after the execution of the security agreement but rather has eliminated that provision. In articulating reasons for the changes, the commentators state that the former § 9-204(2) and (4) (a), applying to crops, were unworkable and confusing. Therefore, in the revision, section (2) was “eliminated as unnecessary” and (4) (a) was redesigned and numbered (2). In explaining the problems with the former section the commentators expressed reasons applicable to the issue before us. Therefore, we find the following explanation by the commentators of the change in former § 9-204(4) (a) persuasive in support of our determination of the case before us:

The provision did not work because there was no corresponding limit on the scope of a financing statement covering crops, and under the Code’s notice-filing rules the priority position of a security arrangement covering successive crops would be as effectively protected by the filing of a first financing statement whether the granting clause as to successive crops was in one security agreement with an after-acquired property clause or in a succession of security agreements. On the other hand the clause did require an annual security agreement for crops even when the encumbrance on crops was agreed to as part of a long-term financing covering farm machinery and other assets. The provision thus appeared to be meaningless in operation except to cause unnecessary paperwork, but it did introduce some element of uncertainty as to its purpose.

For the foregoing reasons the judgment of the district court is

Affirmed.

      . Federal jurisdiction rests on 28 U.S.G. § 1345.

      . This was an operating loan made under the provisions of the Consolidated Farmers Home Administration Act of 1961. 7 U.S.C. § 1921 et seq.

      . Burns Ind.Stats. § 19-9-101 et seq., IC 1971, 26-1-9-101 et seq.

      . It is significant to note that the provisions of the U.O.C. make a distinction between the attaching of a security interest and its perfection. The concept of “attaching” refers to the creation of the security interest by virtue of the execution of a security agreement, while “perfection” is the additional step which makes the security interest effective against third parties by virtue of filing a financing statement.

      . The U.C.C. was adopted by Indiana in 1968 and became effective on July 1, 1964.

      . The revisions were originally drafted and recommended by the U.C.C.’s permanent Editorial Board and in 1971 approved and in 1972 published by the American Law Institute and the National Conference of Commissioners on Uniform State Laws.

      . U.C.C. § 9-204, Burns Ind.Stats. 19-9-. 204. When Security Interest Attaches; After-Acquired Property; Future Advances.
      (1) A security interest cannot attach until there is agreement (subsection (3) of Section 1-201) that it attach and value is given and the debtor has rights in the collateral. It attaches as soon as all of the events in the preceding sentence have taken place unless explicit agreement postpones the time of attaching.
      (2) For the purposes of this section the debtor has no rights
      (a) in crops until they are jdanted or otherwise become growing crops, in the young of livestock until they are conceived ;
      (b) in fish until caught, in oil, gas or minerals until they are extracted, in timber until it is cut;
      (c) in a contract right until the contract has been made;
      (d) in an account until it comes into existence.
      (3) Except as provided in subsection
      (4) a security agreement may provide that collateral, whenever acquired, shall secure all obligations covered by the security agreement.
      (4) No security interest attaches under an after-acquired property clause
      (a) to crops which become such more than one year after the security agreement is executed except that a security interest in crops which is given in conjunction with a lease or a land purchase or improvement transaction evidenced by a contract, a mortgage or deed of trust may if so agreed attach to crops to be grown on the land concerned during the period of sucli real estate transaction;
      (b) to consumer goods other than accessions (Section 9-314) when given as additional security unless the debtor acquires rights in them within ten days after the secured party gives value.
      (5) Obligations covered by a security agreement may include future advances or other value whether or not the advances or value are given pursuant to commitment.

      . Revised § 9-204 provides:
      (1) Noecept as provided in subsection (%), a security agreement may provide that any or all obligations covered by the security agreement are to be sectored by after-acquired collateral.

      (2) No security interest attaches under an after-acquired property clause to consumer goods other than accessions (Section 9-314) when given as additional security unless the debtor acquires rights in them within ten days after the sectored party gives value.

        (3) (5) Obligations covered by a security agreement may include future advances or other value whether or not the advances or value are given pursuant to commitment (subsection (1) of Section 9-105).

      Italicized portions indicates new language.


author: CELEBREZZE, Circuit Judge.

text:
    WELLINGTON TRANSPORTATION COMPANY, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-1955.
    United States Court of Appeals, Sixth Circuit.
    June 27, 1973.

      Richard E. Fleury, Foster, Meadows & Ballard, Detroit, Mich., on brief, for plaintiff-appellant.
    Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., Allen Van Emmerik, Admiralty & Shipping Section Dept, of Justice, Washington, D. C., Harlington Wood, Jr., Asst. Atty. Gen., Walter H. Fleischer, Stanton R. Koppel, Attys. Dept, of Justice, Washington, D. C., on brief for defendant-appellee.
    Before CELEBREZZE, MILLER and LIVELY, Circuit Judges.
   CELEBREZZE, Circuit Judge.

This is an appeal from the District Court’s entry of judgment for Defendant-Appellee, the United States, in an admiralty suit under 46 U.S.C. § 781 in which a shipowner sought indemnity for attorney fees and litigation expenses incurred in successfully defending against an earlier state court action brought against the shipowner by an injured Coast Guardsman. Appellant shipowner also sought to recover damages sustained by its ship and allegedly caused by the negligence of the captain of a Coast Guard cutter.

The claims arose on February 2 and 3, 1969, when the Coast Guard cutter, the Naugatuck, was rendering ice-breaking and towing services to Appellant’s auto ferry, the Sugar Islander, which was beset in the ice of the St. Mary’s River. In an attempt to pull the ferry free from accumulated ice and into a channel which the cutter had made, a 3% inch nylon mooring line was passed from the cutter to the ferry, and the eye of the line was placed over a cast-iron cleat located on the corner of the ferry closest to the cutter. At all times during the voyage under which the ferry became beset in the ice and during this attempted tow, Mr. Wellington, Appellant’s President and normally the captain of the ferry, was aboard the cutter and, the ferry was operated by its alternate captain.

After the line was secured to the cleat, the captain of the cutter — who was standing on the bridge, half in and half out of the pilot house — gave full power to the cutter’s engine, causing the cutter to surge ahead. The nylon line, which was capable of stretching 40 to 50 percent of its length began to smoke and fray. The cleat was torn from the ferry’s deck and flew forward, striking the freezer door on the fantail of the cutter. Then either the cleat or the nylon line hit and fractured the leg of Coast Guardsman Clinton Otto, a seaman on the cutter who — unknown to the captain of the cutter and unknown to Mr. Wellington and other personnel assisting in the tow — was on the fantail of the cutter, attempting to get an axe located on the opposite side of the cutter from where the line had been passed to the ferry.

Coast Guardsman Otto subsequently filed suit against Appellant in a Michigan state court, seeking to recover for his injuries on the grounds of Appellant’s alleged negligence and the alleged unseaworthiness of Appellant’s ferry. After a full trial to the jury, a verdict of no cause of action was returned. Although it was thus successful in defending against Otto’s state-court suit and was required to pay no damages to Otto, Appellant nonetheless incurred $12,500 in attorney fees, investigation expenses, witness costs and travel expenses directly related to its defense in the state-court action.

In its complaint before the District Court, Appellant sought to recover $500 in damages to the cleat, railing, and deck of its ferry, and $12,500 in attorney fees and expenses incurred in defending against Otto’s state-court suit. Alleging that the captain and crew of the Coast Guard cutter were solely negligent in the attempt to tow the ferry, Appellant asserted three basic theories as grounds for its claim for reimbursement of its attorney fees and litigation expenses: contractual indemnity, as recognized in Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., 350 U. S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), and its progeny; tort indemnity ; and simple tort liability.

The District Court found that the cleat aboard the ferry was reasonably affixed for the purpose intended and that there was otherwise no negligence on the part of the ferry or its crew. The Court further found that the Coast Guard cutter and crew were negligent in applying a strong surge of power to the nylon line without ascertaining that the cutter’s fantail was clear of personnel. The District Court therefore concluded that the Coast Guard cutter and its crew were solely responsible for the injuries sustained by Coast Guardsman Otto and that Appellant’s ferry and its crew were in no way responsible for said injuries.

Notwithstanding these findings and conclusions, the District Court ruled that Appellant was without a remedy for the recovery of its attorney fees and litigation expenses. Ruling that the Coast Guard’s towing services were not rendered pursuant to any express or implied contract, the Court rejected the argument that Appellant was entitled to indemnity under Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., supra. Because the United States was not liable for injuries suffered by Coast Guardsman Otto, as an active member of the armed services [Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L. Ed. 152 (1950)], the District Court similarly held that the theory of tort indemnity between two tortfeasors was inapplicable to Appellant’s claims. The Court further held that Appellant had neither alleged nor proven that Appellee had committed a tort against it. Judgment was therefore entered for Appellee.

We agree with the District Court’s determination that the contractual indemnity recognized in Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), is inapplicable to Appellant’s claim in the present case. In the Ryan opinion, the Supreme Court emphasized that the warranty of workmanlike service deemed to be given by a stevedoring company is neither quasi-contractual nor implied in law, but rather said warranty has its basis in contractual duties undertaken by the stevedoring company. 350 U.S. at 133, 76 S.Ct. 232. While it is true that the Ryan doctrine has been applied in cases where the contractual relationship between the indemnitor and the indemnitee has been more attenuated than in the Ryan case [see Waterman Steamship Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 (1960); DeGioia v. United States Lines Co., 304 F.2d 421 (2d Cir. 1962)], we are neither referred to nor do we find any cases applying the Ryan doctrine where the indemnitor was not rendering services pursuant to its contractual duties. See Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 275-276 (2d Cir. 1968).

In contrast, as the District Court correctly ruled, the United States Coast Guard undertakes neither express nor implied contractual duties when it offers towing services to private ships in peril. Section 88, U.S.C. Title 14, provides that the Coast Guard may provide assistance to save lives and property. Upon volunteering towing assistance, a Coast Guard vessel and its crew are bound not by a contractual duty and a warranty of workmanlike service, but rather by the lesser duty to exercise reasonable care in towing operations, Geertson v. United States, 223 F.2d 68 (3d Cir. 1955), and not to injure persons through the negligent performance of rescue operations. United States v. Lawter, 219 F.2d 559 (5th Cir. 1955). Cf. Indian Towing Co., Inc. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 100 L.Ed. 48 (1955).

We therefore hold that the towing services undertaken by the Coast Guard in the present case were not rendered under a warranty of workmanlike service so as to invoke the Ryan indemnity doctrine. In so holding, we reject the contrary conclusion of the court in Nikiforow v. Rittenhouse, 319 F.Supp. 697, 702 (E.D.Pa.1970), upon which Appellant relies.

As an alternative to indemnity under the Ryan doctrine, Appellant contends that it is entitled to reimbursement from Appellee for attorney fees and expenses under the theory of tort indemnity. The District Court was of the view that Appellant’s claim for indemnity under this theory was barred by Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), wherein the Supreme Court held that the United States is not liable under the Federal Tort Claims Act for injuries incurred by servicemen while on active duty and resulting from the negligence of other servicemen. We hold that the District Court erred in so ruling.

We do not read Feres v. United States, supra, as presenting a bar to a third party’s claim aganst the United States for indemnification of damages awarded to an injured serviceman and attorney fees and expenses incident thereto. Rather, the Feres decision was concerned only with an injured serviceman’s direct remedy against the United States, and nothing in the Court’s opinion suggests that the holding of that case was intended to apply to a third party’s claim for indemnity against the United States. As discussed in Barr v. Brezina Construction Co., 464 F.2d 1141, 1143-1144 (10th Cir. 1972), we believe the Supreme Court’s decisions in Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 128-132, 76 S.Ct. 232, 100 L.Ed. 133 (1956) Weyerhaeuser Steamship Co. v. United States, 372 U.S. 597, 83 S.Ct. 926, 10 L.Ed.2d 1 (1963), and Treadwell Construction Co. v. United States, 372 U.S. 772, 83 S.Ct. 1102, 10 L.Ed.2d 136 (1963), support the conclusion that the Feres decision does not bar third-party indemnity claims against the United States arising out of suits by injured servicemen.

In light of our determination that Appellant’s indemnity claim is not barred by Feres v. United States, supra, we further note that under federal maritime law reasonable attorney fees and litigation expenses are consistently awarded to an indemnitee where those fees and expenses are incurred in defending against the principal action under which the indemnitor is ultimately adjudged to be liable. See A. C. Isreal Commodity Co. v. American-West African Line, Inc., 397 F.2d 170, 172-173 (3d Cir.), cert. denied, 393 U.S. 978, 89 S.Ct. 446, 21 L.Ed.2d 439 (1968). Although in most of the relevant cases the indemnitee’s defense against the principal action has been unsuccessful and attorney fees and expenses are thus awarded as incident to damages incurred by the indemnitee, there is no sound reason why such fees and expenses incurred in an indemnitee’s successful defense of the principal action should not alone be indemnifiable. Indeed, a rule allowing indemnification for attorney fees and expenses incurred by an indemnitee in unsuccessfully defending against the principal action, yet denying the same for a successful defense would place a “premium on losing lawsuits.” Massa v. C. A. Venezuelan Navigacion, 332 F.2d 779 (2d Cir. 1964).

To be entitled to indemnification of its reasonable attorney fees and litigation expenses incurred in successfully defending against Coast Guardsman Otto’s state-court suit, Appellant must, however, establish that those fees and expenses were incurred in defending against a liability which would have been indemnifiable had Appellant’s state-court defense not been successful —rendering the United States, as indemnitor, the beneficiary of Appellant’s successful defense. See American Export Lines v. Norfolk Shipbuilding & Drydock Corp., 336 F.2d 525, 527 (4th Cir. 1964). Thus, Appellant must establish that its attorney fees and litigation expenses were incurred in defense of a liability based upon Appellant’s “passive,” “constructive,” “viciarious,” or “insulated” fault, for which the Coast Guard was the “primary” or “active” wrongdoer. See Wallenius Bremen G. m.b.H. v. United States, 409 F.2d 994, 998 (4th Cir. 1969), cert. denied, 398 U. S. 958, 90 S.Ct. 2164, 26 L.Ed.2d 542 (1970).

The record before us contains no evidence of the nature of the liability asserted in Coast Guardsman Otto’s suit against Appellant in the state court. We are thus unable to determine whether that suit presented Appellant with a potential liability for which the United States owed a duty of indemnification.

We therefore vacate the judgment of the District Court and remand the case for further proceedings under Appellant’s claim against Appellee for attorney fees and expenses under the theory of tort indemnity and specifically for a determination of whether or not the liability defended against by Appellant in the state-court suit was indemnifiable.

We further conclude that under the theory of simple tort liability Appellant has presented a valid claim against Appellee, pursuant to 46 U.S.C. § 781, for physical damage to its ferry caused by the negligence of the Coast Guard captain during the towing operation. See Geertson v. United States, 223 F.2d 68 (3d Cir. 1955). Although Appellant alleged in its complaint that these damages totaled $500, the District Court apparently overlooked this claim and made no findings with respect to the amount of these damages.

The judgment of the District Court is vacated and the cause is remanded for further proceedings under Appellant’s claims for tort indemnity of its legal fees and expenses and for damage to its ferry.

      . The United States filed a counterclaim for $4,245.00 in medical expenses incurred in its treatment of Otto’s injuries. The District Court entered judgment for Appellant on this counterclaim, and no appeal lias been taken by the United States.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Ralph D. ROCKS, Appellant.
    No. 72-1862.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 4, 1972.
    Decided June 14, 1973.

      Arnold M. Weiner, Baltimore, Md. (A. Kenneth Pye, Durham, N. C., on brief), for appellant.
    Russell T. Baker, Jr., Asst. U. S. Atty. (George Beall, U. S. Atty., and Barnet D. Skolnik, Atty., Dept, of Justice, on brief), for appellee.
    Before HAYNSWORTH, Chief Judge and RUSSELL and WIDENER, Circuit Judges.
   PER CURIAM.

The defendant, Rocks, and Jesse S. Baggett were jointly charged with a violation of the Travel Act. Specifically, they were charged with causing the interstate movement of a $3500 check drawn by Rocks in the District of Columbia which Baggett used in Maryland to purchase a tractor for use on his farm. Baggett, first tried after a severance, was convicted. Because Baggett’s conviction occasioned extensive publicity in Baltimore and Washington, the trial of Rocks was transferred to Norfolk in the Eastern District of Virginia. A jury found him guilty.

From 1954 until he resigned in 1970, Baggett was a member of the Board of County Commissioners of Prince George’s County, Maryland. From December 1964 until his resignation, he was the Chairman of that Board. The Board had final authority over all zoning matters and proceedings.

Rocks was a prosperous builder and developer, based in the District of Columbia. Between 1962-1968, he was a frequent applicant for variances and zoning changes in Prince George’s County, Maryland. Typically, he sought increased population density rulings and other changes which would enhance the value of lands he had acquired for development and their development potential. His applications usually received favorable action by the Board of County Commissioners until Baggett learned of the governmental investigation of his receipt of the check mentioned above and his use of it for the purchase of the tractor.

Many questions are raised. The most serious ones arise out of the court’s handling of a report that some of the jurors, during their deliberations, read or learned of a newspaper article in which the conviction of Baggett was reported, a fact which had not been disclosed to the Virginia jury.

The trial judge conducted an extensive examination of all of the jurors. He permitted counsel to suggest questions to be asked, but he screened them and placed all allowed questions himself. Afterwards, he found that none of the jurors had read the article or had been told of its report of Baggett’s conviction until after their verdict.

The several questions arising out of that proceeding were fully discussed in an opinion. United States v. Rocks, E.D.Va., 339 F.Supp. 249. For the reasons there stated, we approve the procedures adopted by the trial judge and accept his findings.

The conviction is affirmed.

Affirmed.

      . 18 U.S.C. § 1952 and 18 U.S.C. § 2.


text:
    UNITED STATES of America, Appellee, v. Jesse S. BAGGETT, Appellant.
    No. 72-1548.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 4, 1972.
    Decided June 19, 1973.
    John M. Bray, Washington, D. C. (John R. Risher, Jr., and Arent, Fox, Kinter, Plotkin & Kahn, Washington, D. C., on brief) for appellant.
    Russell T. Baker, Jr., Asst. U. S. Atty. (George Beall, U. S. Atty., on brief) for appellee.
    Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and RUSSELL, Circuit Judge.
   PER CURIAM:

The defendant, Baggett, and Ralph D. Rocks were jointly charged with a violation of the Travel Act. Specifically, they were charged with causing the interstate movement of a $3500 check drawn by Rocks in the District of Columbia which Baggett used in Maryland to purchase a tractor for use on his farm. Baggett, first tried after a severance, was convicted.

From 1954 until he resigned in 1970, Baggett was a member of the Board of County Commissioners of Prince George’s County, Maryland. From December 1964 until his resignation, he was the Chairman of that Board. The Board had final authority over all zoning matters and proceedings.

Rocks was a prosperous builder and developer, based in the District of Columbia. Between 1962-1968, he was a frequent applicant for variances and zoning changes in Prince George’s County, Maryland. Typically, he sought increased population density rulings and other changes which would enhance the value of lands he had acquired for development and their development potential. His applications usually received favorable action by the Board of County Commissioners until Baggett learned of the governmental investigation of his receipt of the cheek mentioned above and his use of it for the purchase of the tractor.

The cheek was made payable to the implement dealer, but the testimony showed that the check came into Baggett’s possession in Maryland, that he took the' check to the implement dealer and used it to pay for the tractor Baggett had selected. There was some effort on the part of the defense in Baggett’s trial to show that the tractor was used only infrequently on Baggett’s farm, but there was abundant evidence to support a finding that it was maintained on that farm and used regularly, or exclusively, there until the matter came under investigation.

The Government’s evidence did not show a specific quid pro quo from Baggett to Rocks in return for the $3500 check. It did show a course of conduct of favors and gifts flowing from Rocks to Baggett. These included trips to Florida for Baggett and a William Stevens, who was in a position to expedite zoning applications on their way to the Board of County Commissioners. It included a check made to cash, drawn by the Maryland zoning attorney for Rocks, which found its way into Baggett’s cheeking account, though, after inquiry, it was claimed that that cheek represented a loan,, and a like amount was repaid by Baggett to the lawyer.

The proof also showed receipt by Baggett of favors from others who' had received favorable zoning rulings. After one such ruling, a man in the construction business built an addition to Baggett’s house, while another in the paving business paved a road on Baggett’s farm. Baggett was billed for neither and paid for neither. Baggett had been tried in a state court for the acceptance of the addition to his house, but the charges were thrown out on the ground that the bare fact of no billing and nonpayment was insufficient to show evil intent.

One of Baggett’s contentions on this appeal is that the references to the house addition violated the double jeopardy principle. He was not being tried for that, however, and the Government was entitled to show a whole succession of such events, which, by their pattern, would warrant the inference of evil intention, which focus on the single event of the house addition did not.

The many instances of favors and gifts accepted by Baggett from Rocks and others receiving favorable rulings from the Board of County Commissioners were ample to show Baggett’s corruption by the unprincipled greed of a wealthy man and Baggett’s preference for favors and gifts over his public duty. The jury was clearly authorized to draw the inference and conclusion that the $3500 check represented a payment by Rocks to Baggett for continuing favorable zoning rulings.

After consideration of all of Baggett’s claims of trial error, we find none affecting his substantial rights or the fairness of the trial. His conviction will be affirmed.

Affirmed.

       18 U.S.C. § 1952 and 18 U.S.O. § 2.


author: BREITENSTEIN, Circuit Judge.

text:
    NATURAL RESOURCES DEFENSE COUNCIL, INC., a non-profit New York Corporation, et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, Public Service Company of New Mexico, Intervenor in No. 72-1458.
    Nos. 72-1458 to 72-1460.
    United States Court of Appeals, Tenth Circuit.
    Argued March 27, 1973.
    Decided June 18, 1973.
    Rehearing Denied July 16, 1973.

      Richard E. Ayres, New York City, for petitioners.
    Edmund B. Clark, Washington, D. C. and G. William Frick, Kansas City, Mo. (Kent Frizzell, Asst. Atty. Gen., Lawrence E. Shearer, Robert L. Klarquist, Martin Green, and Thomas C. Lee, Attys., Dept, of Justice, on the briefs), for respondent.
    William K. Stratvert, Albuquerque, N. M. (Keleher & McLeod, William B. Keleher, Albuquerque, N. M., on the brief), for Public Service Co. of New Mexico, intervenor in No. 72-1458.
    Before BREITEN STEIN and DOYLE, Circuit Judges, and TALBOT SMITH, District Judge.

       Of the Eastern District of Michigan, sitting by designation.

   BREITENSTEIN, Circuit Judge.

Before us are three petitions to review actions of the Administrator of the Environmental Protection Agency approving under the Clean Air Act Amendments of 1970, 42 U.S.C. § 1857c-5, certain portions of the Implementation Plans of three states. No. 72-1458 concerns New Mexico, No. 72-1459 Utah, and No. 72-1460 Colorado. We dismiss each petition for the reason that no petitioner has standing to seek judicial review.

Section 1857e-5 requires each state to adopt and submit to the Administrator a plan for the implementation, maintenance, and enforcement of the national primary and secondary ambient air quality standards in each air quality control region. The Administrator must approve or disapprove the state plans within four months of the date of submission. Each of the three states submitted plans and the Administrator approved parts of each and disapproved other parts. The petitions seek review of the approval of certain portions of the plan for each state.

Review of the Administrator’s action is provided by 42 U.S.C. § 1857h-5(b)(1) which says:

“A petition for review of the Administrator’s action in approving or promulgating any implementation plan under section 1857c-5 * * * may be filed only in the United States Court of Appeals for the appropriate circuit. Any such petition shall be filed within 30 days from the date of such promulgation or approval, * -S *

Each petition was filed within the requisite time. The New Mexico petition is typical and reads:

“The Natural Resources Defense Council, Project on Clean Air; the New Mexico Citizens for Clean Air; Mr. Ellis Harrington; and Mrs. Láveme Harrington petition this court for review of the rules and regulations promulgated by respondent (37 Fed. Reg.10842 et seq., 40 CFR Part 52, Subchapter C) insofar as they approve the State implementation plan for the State of New Mexico.”

Natural Resources Defense Council is a petitioner in each case. The Utah petition names as additional petitioners five individuals and two organizations. The Colorado petition names as additional petitioners two organizations. We note that the briefs in the Colorado case name an individual as a petitioner but the records in the office of the clerk of the court contain no petition for review in which that individual is named as a petitioner. As to each organization, no petition discloses the type or state of organization, its purposes, or its membership. There are no allegations that any of the named individuals are citizens, residents, voters, or taxpayers of any of the affected states. There is no allegation of harm to any individual, to any organization, or to any member of any organization. There is no allegation that any individual or organization is' affected or aggrieved by the challenged administrative action. There is no assertion of any constitutional issue.

At the conclusion of the oral argument on the merits of each case, we expressed concern over the standing of petitioners to sue and directed the parties to file briefs on that and other questions. Those briefs have now been filed.

In their supplemental brief, petitioners say that they are submitting separately “a stipulation of facts agreed to by the Department of Justice” which will sustain their claim of “the requisite injury in fact” if the Administrator’s actions are allowed to stand. The mentioned stipulation has not been filed. The government’s supplemental brief says that “we are not disposed to argue with petitioners that the actual facts will disclose that some of their members or people on whose behalf they petition” have incurred or will incur the requisite injury. The government statement is conclusionary and gives us no facts upon which we can determine standing.

The position of the government is no more than a consent to suit. Existence of jurisdiction is of dominant concern to the courts, McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135, and cannot be conferred by consent, American Fire & Casualty Co. v. Flinn, 341 U.S. 6, 17-18, 71 S.Ct. 534, 95 L.Ed. 702. Whether standing be considered as a jurisdictional question going to the existence of a case or controvery and hence within the judicial power under Art. Ill, § 2, United States Constitution, or a rule of self-restraint, Flast v. Cohen, 392 U.S. 83, 92 n. 6, 88 S.Ct. 1942, 20 L.Ed. 2d 947, the matter is for determination by the courts, not by the parties to the litigation.

New areas of federal jurisprudence produce more confusion and perplexity than does the concept of “standing to sue.” Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947, quotes Prof. Paul A. Freund as saying that standing is one of “the most amorphous [concepts] in the entire domain of public law.” In Data Processing Service v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827, 829, 25 L.Ed.2d 184, the Supreme Court commented that, “Generalizations about standing to sue are largely worthless as such.” The subject has aroused much interest among the commentators. See e. g. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harvard Law Rev. 1265; Jaffe, The Citizen as Litigant in Public Actions: The NonHohfeldian or Ideological Plaintiff, 116 U. of Pa. Law Review 1033; Raoul Berger, Standing to Sue in Public Actions: Is it a Constitutional Requirement?, 78 Yale Law Journal 816; and The Aftermath of the Clean Air Amendments of 1970: The Federal Courts and Air Pollution, 14 Boston College Ind. and Com. Law Rev. 724. ¡

Before turning to the decisions, we note that in recent years the question of standing has arisen often in cases where jurisdiction was invoked under the Administrative Procedure Act, 5 U.S.C. § 702, which permits judicial review of agency action by a person “adversely affected or aggrieved” by that action. We are concerned with § 1857h-5(b) (1) which does not contain the quoted phrase.

In Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, the Supreme Court ruled that a federal taxpayer is without standing to challenge in federal court the constitutionality of a federal statute. In Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947, the Court upheld standing to challenge the expenditure of federal funds for the purchase of educational materials for religious and sectarian schools on the ground that the expenditures violated the Establishment and Free Exercise Clauses of the First Amendment. In so holding, the Court treated standing as an aspect of justiciability, 392 U.S. at 98, 88 S.Ct. 1942, and found no Art. Ill bar “to suit by taxpayers challenging allegedly unconstitutional federal taxing and spending programs.” Ibid, at 101, 88 S.Ct. at 1953.

Data Processing Service v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184, was an APA case in which the Court upheld standing of a party who claimed economic injury by agency action. The Court said that standing in federal court is to be considered within the framework of Art. III. Ibid, at 151, 90 S.Ct. 827. Apart from the case or controversy test, consideration must be given to whether the interest sought to be protected “is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Ibid, at 153, 90 S.Ct. at 830. The Court also recognized that problems of standing involve a “rule of self-restraint” which the Court applies for its own governance. Ibid, at 154, 90 S.Ct. 827.

Barlow v. Collins, 397 U.S. 159, 90 S. Ct. 832, 25 L.Ed.2d 192, also involved an attack on agency action with jurisdiction invoked under the APA. The Court held that the plaintiffs had a personal stake and interest which “impart the concrete adverseness required by Article III,” that the plaintiffs were “within the zone of interests” protected by the statute involved, and that judicial review of the agency action was not precluded by the statute. Ibid. at 164-165, 90 S. Ct. at 836.

In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636, the Supreme Court again dealt with an attack on agency action with jurisdiction invoked under the APA. The Court held that Sierra Club lacked standing to maintain the suit. In so doing it noted the trend to recognize injuries other than economic harm and said that such recognition does not abandon the requirement that a party “seeking review must himself have suffered an injury.” Ibid, at 738, 92 S.Ct. at 1368. The Court said that “an organization whose members are injured may represent those members in a proceeding for judicial review,” and commented that Sierra Club was a large and long-established organization “with a historic commitment to the cause of protecting our Nation’s natural heritage from man’s depredations.” Ibid, at 739, 92 S.Ct. at 1368. The following excerpt summarizes the Court’s decision, Ibid, at 740, 92 S.Ct. at 1368:

“The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process. It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process. The principle that the Sierra Club would have us establish in this ease would do just that.”

None of the mentioned decisions consider § 1857h-5(b) (1) which says only that a petition for review may be filed in the court of appeals of the appropriate circuit. Nothing is said about who may file the petition, what the petition shall say, what constitutes the record, what is the scope of review, or what are the consequences to a losing petitioner. In contrast § 1857h-2, which covers district court actions, provides that a civil action may be brought by any person in his own behalf but, with two specified exceptions, a 60-day notice must be given and the final order of the court “may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.” Thus, the provision for district court suits differs from the provision for circuit court review in that it requires notice and permits a possible penalty.

Our search for legislative history which might illuminate congressional intent with regard to circuit court review has proved fruitless. The reference thereto in Conf.Rep.No. 91-1783 is not helpful. See 3 Cong, and Admin.News ’70, p. 5389. The Senate debate was concerned with the provisions for district court actions. See 116 Cong.Rec. 32922-32927. We must take § 1857h-5(b)(1) as written.

Data Processing says that Congress can resolve the standing question “save as the requirements of Article III dictate otherwise.” 397 U.S. at 154, 90 S. Ct. at 830. Barlow refers to the question of the intent of Congress to preclude or allow judicial review of administrative action. 397 U.S. at 165, 90 S. Ct. 832. Sierra Club says that where the issue is justiciable the question of proper party “is within the power of Congress to determine.” 405 U.S. at 732, n. 3, 92 S.Ct. at 1365.

We believe that the question is whether the party attacking agency action has standing, not whether the issue itself is justiciable. In any event, it would seem that the Flast v. Cohen statement that standing “is an aspect of justiciability,” 392 U.S. at 98, 88 S.Ct. 1942, would require the present question to be decided on a constitutional basis if it were not for the apparent recognition of nonconstitutional factors in Data Processing, Barlow, and Sierra Club.

Those factors are whether the attack on agency action is by a person within the zone of protected interests and whether Congress precludes or authorizes judicial review. Petitioners cannot take advantage of the first because they do not allege what their interests are and thus make impossible the determination of whether the interests lie in a protected zone.

We come then to the effect of § 1857h-5(b)(lU * *By permitting anyone in the world to petition for review of agency action without hindrance or limitation, Congress attempts to authorize private attorney generals to assert a public interest. If Art. Ill is not controlling, the question is the power of Congress to affect the Court imposed rule of self-restraint. We are helped by no decided eases. The learned comments of the legal writers delve into history and theory but forego discussion of the practicalities. Anything which we might say on the rights of private citizens to assert their ideologies in public actions would add little if anything to the literature on the subject.

From a practical standpoint, it seems to us unreasonable to interpret | 4-85-7h-5-(-b-)-(-l-) as expressing a congressional intent to permit a New York subway rider to challenge in the Court of Appeals for the Tenth Circuit actions of the Administrator affecting the Four Corners area of New Mexico, Utah, and Colorado. If such be the intent of Congress, let it say so explicitly. It did not. We have a blanket authorization, nothing more. Nothing requires that “the questions will be framed with the necessary specificity, that the issues will be contested with the necessary adverseness and that the litigation will be pursued with the necessary vigor to assure that the * * * challenge will be made in a form thought to be capable of judicial resolution.” 392 U.S. at 106„.88-SrGt-:-at 1-956. We believe that any congressional authorization of suits by private attorney generals must be unequivocal and appropriate. We further believe that under the doctrine of separation of powers the question of the validity and extent congressional authorization is for determination by the judicial branch. Otherwise the provisions of Art. Ill limiting judicial power to eases and controversies is thrown into the discard.

In our opinion § 1857h-5(b)(1) is not an appropriate authorization for private attorney generals to petition in the courts of appeals for review of the actions of the Administrator and is not sufficient to accomplish that purpose. Unrestricted litigation by private persons to assert their own ideologies under a claim of public interest presents the potential of hazardous consequences to our constitutional system based as it is on the concept of separation of powers. The statute before us is a blanket invitation to all the world to petition a court of appeals for review of administrative action. The latent effects have alarming possibilities. We are not convinced that Art. Ill is inapplicable but, even if it is, § 1857h-5(b) (1) does not require a court of appeals to abdicate the power of judicial restraint in cases such as those before us. t *■ -

Petitioners seek to bolster their position by reference to Rule 15(a), F.R.A. P., providing for review of agency orders. They say that they have complied with the requirement that:

“The petition shall specify the parties seeking review and shall designate the respondent and the order or part thereof to be reviewed. Form 3 in the Appendix of Forms is a suggested form of a petition for review.”

Adherence to Form 3 does not solve the question of standing. The statutory authority of the Supreme Court to prescribe rules, including appellate rules, provides, 28 U.S.C. § 2072, that such rules “shall not abridge, enlarge, or modify any substantive right.”

Petitioners point out that these cases are concerned with agency rule making and not action taken after an adjudicatory type hearing. The difference is unimportant. A party attacking agency action, whether it be in connection with rule making or after an adjudicatory type hearing, must have standing. The fact that determination of standing may involve a court of appeals in a factual hearing or determination is irrelevant.

Our April 27, 1973 decision in No. 72-1575 — Utah International, Inc. v. Environmental Protection Agency, 478 F.2d 126, has no pertinence here. In that case we held that § 1857h-5(b)(1) does not permit review in the court of appeals of an Administrator’s order disapproving portions of a state Implementation Plan. Here we are concerned with approval rather than disapproval. Utah International does not discuss standing.

We believe that Art. Ill is controlling and that petitioners lack standing because they fail to state any injury in fact and hence do not present a ease or controversy within the constitutional mandate. If we are wrong in this, we believe that petitioners have no standing because they have alleged nothing which brings them within the zone of interests protected by the Clean Air Act Amendments of 1970. If we are wrong in both of these conclusions and if the later decisions in Data Processing, Barlow, and Sierra Club do away with the Flast v. Cohen disposition of standing on constitutional grounds, we believe that § 1857h-5(b) (1) is ineffective to deny the exercise of judicial restraint in determination of standing in cases like these, and we choose to exercise that restraint. *

In Nos. 72-1458, 72-1459, and 72-1460 the petitions for review are severally dismissed.