author: BREWSTER, District Judge.

text:
    Cherri WOLFE, Plaintiff, v. UNITED STATES of America, Defendant.
    Civ. No. 80-0207-B.
    United States District Court, S.D. California.
    March 14, 1985.
    David C. Siegel, Olins, Foerster & Siegel, San Diego, Cal., Mark P. Friedlander, Jr., Arlington, Va., for plaintiff.
    Karen M. Shichman, Asst. U.S. Atty., San Diego, Cal., for defendant.
   MEMORANDUM DECISION

BREWSTER, District Judge.

This action arises under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. (hereinafter FTCA) and 28 U.S.C. § 1346(b) in conjunction with the National Swine Flu Immunization Act of 1976. It was transferred to the United States District Court for the District of Columbia for coordinated pretrial proceedings, after which it was remanded to this Court for trial.

Early in 1976, medical doctors at the Fort Dix Army Hospital in New Jersey isolated the virus which causes a strain of flu known as the Swine Influenza. Concerned that this illness could cause a nationwide epidemic the following winter, the United States government enacted the above legislation on an emergency basis, and implemented one of the largest immunization programs this country has ever undertaken. The Swine Flu Act provided for free immunization of all persons in the country. Public health clinics throughout the country were utilized as distribution centers. Serum was distributed to hospitals, clinics and doctors’ offices. Every clinic, hospital or physician who dispensed the vaccine without charge and who obtained the recipient’s signature on the government consent form provided was considered a “program participant.” Although not applicable here, the Swine Flu Act assumed all legal liability for any injuries caused by such program participants to the same extent as such participant could be held liable under the law of the state where the inoculation occurred. If any inoculation was administered by any entity other than a program participant, the United States still subjected itself to liability for injury in accordance with the provisions of the FTCA. The Swine Flu Act imposed exclusively on the United States the duty to warn recipients of the risks and benefits of the vaccine. The defendant sought to perform this obligation by furnishing its comprehensive consent form.with the serum to be dispensed by the health care providers. During the summer and fall of 1976 the defendant conducted a mass media promotion of this free immunization program, which commenced inoculations in October of 1976.

Plaintiff received a bivalent Swine Flu inoculation on November 29, 1976, from a nurse at the office of Harvey M. Bloom, M.D. She was motivated to take the flu shot by the extensive national media advertising described above. However, plaintiff neither saw nor signed the government consent form at the time she received her shot, because the dispensing office for an unknown reason had not used the form. Accordingly, the dispensing doctor was not a “program participant” as defined in the Swine Flu Act, and the defendant’s liability in the instant case must be analyzed under negligence principles applicable to the government under the FTCA.

The defendant’s vaccine administration program did set up a distribution system by which an adequate supply of printed consent forms accompanied all vaccine batches distributed to all inoculation facilities from the distribution center, whether program participants or not. In this case the dispensing doctor’s employee picked up the vaccine from the center, but the doctor did not recall ever seeing the form in his office. The defendant, in its extensive media promotion of the vaccine program did not advise the public of the possible risks of adverse reactions which might occur, although certain possible reactions were foreseen by the defendant. In fact, sporadic reports of infrequent but serious neurological reactions led to a sudden halt in the immunization program on or about December 16, 1976, after approximately 42 million persons had been inoculated within only seven weeks.

The defendant’s consent form fully and completely describes this egg-based vaccine, and adequately apprises the reader of possible adverse reactions which might occur, from allergic reaction up to and including death. For purposes of this case, the form, if used, would have fulfilled the defendant's obligation to warn. Moreover, the form would have provided the plaintiff with an informed basis for deciding whether or not to have the inoculation. Plaintiff contended she would not have had the shot had she seen the form — not for concern over possible allergic reaction, but just on general principles.

Plaintiff became ill within approximately forty-five minutes after the inoculation. Although she felt fine for the twenty minutes she stayed in the doctor’s office after receiving her shot, she became ill while driving home from the doctor’s office. She experienced rapid heart beat, shortness of breath, dizziness, flushed face, shakiness, a feeling of nausea and a sense of fear that she might die. She did not observe any heat or rash at the site of injection, nor wheezing. She pulled into a food establishment and with'help contacted a neighbor who came and took the plaintiff home. Within minutes thereafter her husband took her to a hospital emergency room where she presented the above symptoms approximately two hours after the shot. She believed she had suffered a reaction to the flu shot. The initial diagnosis was “acute reaction to flu shot,” but no specific findings of allergic reaction or antiphilactic shock were made, and no medication to reverse an allergic reaction or antiphilactic shock was administered. She was given a tranquilizer and anti-nausea medication and sent home. The following day she returned with complaints of persistent rapid heart beat, shakiness and nausea. No objective findings of any system abnormalities were made. Plaintiff was reassured and again sent home. She again returned to Grossmont Hospital on December 3 with persistent complaints of rapid heart beat, shakiness and her adamant belief that she had suffered a reaction to the flu shot. At that time she was diagnosed as suffering an anxiety reaction, a psychological condition. No physical abnormalities were found.

The court notes that the plaintiff had been treated for anxiety reactions during the year immediately preceding her inoculation, although she did not list that fact on the brief questionnaire she filled out in the office where she was inoculated.

After December 3, 1983, batteries of diagnostic studies were performed on the plaintiff, and it appeared that she had a mild- to moderate allergic sensitivity to a number of airborne irritants and some foods. Specifically, plaintiff tested as mildly to moderately sensitive to eggs, of which she was totally unaware, having eaten eggs all her life without known problems. Over the next two years she underwent a complete desensitization treatment for all of her allergies. Although her allergy condition was improved, her state of anxiety was not. Finally, after treatment for over four years by various psychologists and psychiatrists, she was treated by a psychiatrist with whom she apparently made progress toward complete recovery. During this entire period her personal problems were substantial, consisting primarily of marital and family difficulties which culminated in a divorce approximately three years after receiving her flu shot. She is now essentially recovered and leading a normal life. The entire course of plaintiff’s medical treatment over five years cost approximately $80,727.47 and she lost approximately $13,800 in wages from her employment.

In actions brought under the Federal Tort Claims Act, the United States is liable only for negligent or wrongful acts or omissions of its employees while acting within the scope of their office or employment. 28 U.S.C. § 2671, et seq. The FTCA has been held to exclude liability under theories of strict or absolute liability. Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), reh. denied, 346 U.S. 841, 74 S.Ct. 13, 98 L.Ed. 362 (1953). In weighing the negligent or wrongful conduct, state law determines the standard of care required of a government agent. Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32 L.Ed.2d 499 (1972). In California, the duty of a health care provider to warn a patient of danger in order to give the patient a basis for an informed consent is well summarized in Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 (1972) where the court required a physician to make “a reasonable disclosure of dangers inherently and potentially involved.” Id. at 243, 104 Cal.Rptr. 505, 502 P.2d 1.

Plaintiff contends the defendant was negligent in the following respects: 1) Overemphasis of the danger of the illness and the effectiveness of the vaccine and failure to warn of risks from the inoculation in the national advertising of the program; 2) failure to adequately warn through the substantive content of the consent form which the defendant distributed; and 3) failure to set up a distribution system for the consent form which was more reasonably likely to reach each recipient of the shot, including the plaintiff.

Defendant contends the duty to warn was fulfilled by both the content of the consent form and the system for its distribution, and that the defendant was not negligent in warning its citizens of the possible danger of swine flu and the desirability of obtaining a flu shot. Defendant also maintains that plaintiffs anxiety reaction was not proximately caused by the flu shot in any event, but was merely temporarily related by coincidence.

The dispensing physician, not being a “program participant,” is not the agent of the defendant. Even if that doctor be considered negligent in failing to use the consent form or in failing to warn the plaintiff of any risks, he was not sued and his liability is not before this court. Defendant’s evidence of the use of a distribution system which joined the consent forms with the vials of vaccine distributed by the distribution centers to the dispensing offices was unrefuted. It appeared reasonably conceived and executed to assure reasonable likelihood of use of the forms in the dispensing process.

Applying the applicable legal standards to the facts of this case, this court holds that the defendant was' not negligent in the design or the distribution of its consent form. Furthermore, the defendant was not negligent in viewing the possibility of a swine flu epidemic with alarm and strenuously urging its citizens to immunize themselves against it. The fact that the epidemic never materialized does not persuade this court that the concern was unfounded. With 42 million persons inoculated — Vs of the entire United States population — who can say that the extent of inoculations was not a significant factor in the relatively light impact of swine flu during the winter of 1976-77? Certainly plaintiff did not suffer one of the dangerous reactions which were foreseen, or which would be reasonably foreseeable by an entity in like circumstances administering inoculations en masse. There is no duty to warn of every possible risk, no matter how remote or bizarre.

In any event, the court also finds that the inoculation on November 26, 1976, did not proximately contribute to or cause the plaintiff’s extended psychological problem of an anxiety reaction. There was no evidence of allergic reaction within thirty minutes of the inoculation as would have been expected. The plaintiff was enduring a stressful period in her life due primarily to marital and family problems and secondarily to financial problems. These difficulties framed her psychological vulnerability to anxiety reactions and panic attacks, both of which she had suffered during the year immediately preceding her flu inoculation. Both of those problems were acute at the time of the inoculation, and the court finds from the preponderance of the evidence that such psychological problems, rather than an allergic reaction to the egg-based vaccine, were the proximate contributing cause of her acute anxiety reaction.

Finally, even if the flu shot had in fact precipitated an anxiety attack, such an unusual and bizarre reaction could not have been so foreseeable that the defendant should be held to a duty to warn of it in addition to those warnings in the consent form. ' Even assuming some relationship between the inoculation and the anxiety reaction, the evidence would not support a finding that the inoculation caused any more than two weeks of adverse effects. It is far more likely that the relatively severe contemporaneous sources of anxiety in the plaintiff’s life were the cause of her psychological problems.

For the reasons stated, judgment will be entered for the defendant with costs.

      . 42 U.S.C. § 247b(j)-(/) (Public Law 94-380; 90 Stat. 1113) (hereinafter Swine Flu Act)

      . 42 U.S.C. § 247b(k)(2)(B)

      . 42 U.S.C. § 247b(k)(2)(A)(i)

      . 42 U.S.C. § 247b(k)(l)(B), and § 247b' (k)(2)(A)

      . 42 U.S.C. § 247b(j)(l)(F)

      . I.e., Landry-Guillain-Barre Syndrome and Transverse Myelitis

      . Cobbs v. Grant, supra, at 243, 104 Cal.Rptr. 505, 502 P.2d 1


source: Caselaw Access Project

author: TURK, Chief Judge.

license: Public Domain

text:
    N. Brown FELTY, Plaintiff, v. GRAVES-HUMPHREYS COMPANY, Defendant.
    Civ. A. No. 83-0686.
    United States District Court, W.D. Virginia.
    March 14, 1985.

      Donald W. Huffman, Nate L. Adams, III, Bird, Kinder & Huffman, Roanoke, Va., for plaintiff.
    Bayard E. Harris, William P. Wallace, Jr., Woods, Roger, Muse, Walker & Thornton, Roanoke, Va., for defendant.
   MEMORANDUM OPINION

TURK, Chief Judge.

This case is before the court on the Motion for Summary Judgment filed by the defendant, Graves-Humphreys Company. See Fed.R.Civ.P. 56. The action was filed by the plaintiff, N. Brown Felty, under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. On August 14, 1984, the court entered an order taking the defendant’s motion under advisement to consider the issue of equitable tolling of the statutory filing period. The parties have submitted briefs, the court has heard oral argument, and the matter is ripe for a decision by this court.

I.

The facts relevant to the motion for summary judgment are not in dispute. Mr. Felty worked for Graves-Humphreys Company for forty-two (42) years. A letter of recommendation from the defendant describes Mr. Felty as loyal and dependable, and it states that he had an excellent attendance record and that he often went beyond what was expected of him. (Exhibit B to Plaintiff’s Answers to Defendant’s Interrogatories and Request for Production of Documents filed February 20,1985.) On November 12, 1982, Mr. Felty received notice that he was being terminated due to a reduction in the work force. The notice stated: “As of today, November 12, 1982, notice is being given that your last work day will be March 31, 1983.” The notice was unequivocal and was neither modified nor rescinded. The notice also included an incentive plan for terminated employees who continued to work through March 31, 1983, and provided for paid time off to look for employment elsewhere.

At the time Mr. Felty received his notice of termination, he was told by the Vice President and General Manager of GravesHumphreys not to discuss his termination with anyone else in the company on penalty of immediate dismissal. In his deposition in March of 1984, Mr. Felty admitted that on November 12, 1983, he had in fact discussed his termination with a fellow employee. At that time Mr. Felty learned that the younger employee, Mr. Harry Dooley, was being retained:

Q. You knew on November 12 that Mr. Dooley was being retained, did you not?
A. Yes.
Q. So, did you feel at that time that after having received notice of your discharge that you were being discriminated against because of your age?
A. Yes, sir.

Deposition of N. Brown Felty, March 2, 1984, pp. 39-40.

Mr. Felty filed a charge with the Equal Employment Opportunity Commission (EEOC) on June 2, 1983, and again on June 24, 1983. Both allege that Mr. Felty was the victim of age discrimination in that he was discharged and a younger man with less experience, Mr. Harry Dooley, was retained to do the work Mr. Felty had previously performed. Upon completion of the EEOC process, Mr. Felty filed the present action on August, 3, 1983.

II.

The first issue to be addressed by the court is when the 180-day filing period provided under 29 U.S.C. § 626(d)(1) begins to run. The rule in the Fourth Circuit is that the statutory filing period begins to run from the date the employee is informed unequivocally that he would be terminated, regardless of when the effects of the termination are felt. Price v. Litton Business Systems, Inc., 694 F.2d 963 (4th Cir.1982), citing Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981) and Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). The United States Supreme Court in Chardon stated:

As we noted in Ricks, “mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.” In the cases at bar, respondents were notified, when they received their letters, that a final decision had been made to terminate their appointments. The fact that they were afforded reasonable notice cannot extend the period within which suit must be filed.

454 U.S. at 8, 102 S.Ct. at 29.

In light of these strong pronouncements by the United States Supreme Court and the Fourth Circuit, this court must hold that the 180-day filing period began to run on November 12, 1982, when Mr. Felty was given unequivocal notice of his termination.

III.

The second issue involves the application of equitable tolling in this case. Tolling will not apply unless “the employee’s failure to file in a timely fashion is the consequence either of a deliberate design by the employer or of actions that the employer should unmistakably have understood would cause the employee to delay filing his charge.” Price at 965. See also Miller v. ITT, supra.

Assuming, without deciding, that the conduct of the employer in this case would support the application of equitable tolling, such tolling is effective only until “facts that would support a charge of discrimination ... were apparent or should have been apparent to a person with a reasonably prudent regard for his rights similarly situated to the plaintiff.” Reeb v. Economic Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir.1975). In the case at bar, the plaintiff discovered on November 12, 1982, that a younger employee was being retained to perform his duties. Therefore, any tolling which might apply would only toll the time from the termination notice on November 12, 1982, until he discovered that Mr. Dooley was being retained which, according to Mr. Felty’s deposition, occurred that same day. At that point Mr. Felty had sufficient knowledge to support a charge of age discrimination.

The Seventh Circuit in Vaught v. R.R. Donnelley & Sons Company, 745 F.2d 407 (7th Cir.1984) discussed the Reeb tolling standard which requires facts that would support a charge of discrimination, not necessarily facts sufficient to establish a prima facie case in a lawsuit. Apparently, the rationale behind this rule is that the purpose of an EEOC charge “is only to initiate the EEOC investigation, not to state sufficient facts to make out a prima facie case.” Id. at 411, quoting Graniteville Company v. EEOC, 438 F.2d 32 (4th Cir.1971). The Supreme Court in EEOC v. Shell Oil Company, — U.S. -, 104 S.Ct. 1621, 80 L.Ed.2d 41 (1984) stated:

a charge of employment discrimination is not the equivalent of a complaint initiating a lawsuit. The function of a Title VII charge, rather, is to place the EEOC on notice that someone ... believes that an employer has violated the title.

Id., quoted in Vaught, at 411-412.

While not persuaded that these ideals of EEOC investigations are consistent with the realities of the situation, this court is bound to follow the law as provided by the higher federal courts. Therefore, any tolling which might arguably apply is not effective, as the plaintiff on November 12, 1982, knew the facts necessary to support an EEOC complaint charging age discrimination in his termination, in spite of warnings by the employer which were allegedly designed to prevent just such knowledge.

IV.

Plaintiff claims that the filing period should be tolled until March 31, 1983, when he discovered which other employees had also been terminated. This contention was also made and rejected in Vaught:

Most of Vaught’s brief focuses on his argument that he did not know facts sufficient to support a discrimination charge until December 1980, when he learned that defendant had replaced most middle-level managers over age fifty with younger men. While this fact, if true, certainly strengthens Vaught’s case, we cannot agree that he had no basis for suspecting discrimination until this point in time.

Vaught at 411.

Evidence of other situations in which younger employees were retained and older employees were terminated merely represents additional proof of the alleged discriminatory discharge. Knowledge of “pattern and practice” evidence in no way provides an additional cause of action and it is not necessary for filing an EEOC charge of discrimination. Therefore, the court must reject this argument and hold that the statutory filing period is not tolled until March 31, 1983.

V.

Having reviewed the cases discussed herein, the court is compelled to hold that the 180-day statutory period for filing the charge of age discrimination in this case began to run on November 12, 1982, when Mr. Felty received unequivocal notice of termination. Furthermore, any tolling which might arguably be warranted by the conduct of the employer is only effective until later that same day when Mr. Felty acquired knowledge that Mr. Dooley was being retained. At that point, Mr. Felty had sufficient knowledge for a charge of age discrimination. Therefore, the June 1983 filing was not within the 180-day limit and the present action is barred.

Although the court views this rule as unfortunate, it is presently the rule in this circuit and must be followed until changed by the Court of Appeals or by the Supreme Court. Therefore, with great reluctance, the court holds that the defendant’s motion for summary judgment must be GRANTED. An order consistent with this memorandum opinion shall be filed this date.

      . There are some discrepancies between the sworn deposition given by Mr. Felty and a later affidavit filed by Mr. Felty. The filing of the contradictory affidavit, however, cannot be used to create an issue of fact for summary judgment purposes. Miller v. ITT, 755 F.2d 20, 2d Cir.1985.

       The first form was filled out by Mr. Felty with the assistance of his attorney. The second form was filled out by the EEOC and sent to Mr. Felty for his signature.

      . This rule has also been followed in other cases, including Wolfolk v. Rivera, 729 F.2d 1114 (7th Cir.1984) (time period tolled until black male discovered he was paid less than white employees) and Tucker v. United Parcel Service, 657 F.2d 724 (5th Cir.1981) (time limit tolled until black employees discovered white employees were being recalled and blacks were not). The rule is also apparently recognized in Meyer v. Riegel Products Corp., 720 F.2d 303 (3d Cir.1983) (plaintiff filed complaint within 25 days of learning he had been replaced by younger employee) which is cited by the plaintiff in this case.


author: ROVNER, District Judge.

text:
    SPRAGUE IRON WORKS, Plaintiff, v. Donald J. URBAUER, Sr., et al., Defendants.
    No. 84 C 3071.
    United States District Court, N.D. Illinois, E.D.
    March 14, 1985.

      John A. Cook, Mary J. Walsh, Barbara P. Landwehr, Chicago, Ill., for plaintiff.
    John August Cook, P.C., Robert A. Lewinthal, Fred Sudak & Associates, Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

Defendant Shopmen’s Local 473 of the International Association of Bridge Structural and Ornamental Iron Workers (“Local 473”) is the exclusive bargaining representative of the manufacturing employees at Sprague Iron Works (“Sprague”). Plaintiff Sprague fabricates steel used in construction projects. In the spring of 1983, Sprague and Local 473 tried unsuccessfully to reach agreement on a new collective bargaining agreement. On May 1, 1983, upon the expiration of its previous collective bargaining agreement with Sprague, Local 473 went on strike. Sprague hired replacements for the striking manufacturing employees and continued its manufacturing operation.

In addition to its manufacturing activities, Sprague also installs or “erects” its steel products for general building contractors at various construction sites. To perform the erection work, Sprague hires members of Local 1 of the International Association of Bridge Structural and Reinforcing Iron Workers (“Local 1”). Local 1 represents employees of other erection contractors as well as those employed by Sprague.

On June 1, 1983, Local 1 entered into a collective bargaining agreement with the Associated Steel Erectors of Chicago (“ASEC”), a multi-employer bargaining group. Sprague is a member of the ASEC and through the ASEC has a contractual relationship with Local 1. The contract has a “no-strike” provision which states:

Paragraph A. It is mutually agreed that there shall be no strikes authorized by the Union or no lockouts authorized by the Employer, except for the refusal of either party to submit to arbitration____
Paragraph B. Every facility of each of the parties hereto is hereby pledged to immediately overcome any such situation, provided, however, it shall not be a violation of any provision of this agreement to refuse to cross or work behind the picket line of any affiliated union which has been authorized by the international of that union, the central labor council or building or construction trades council.

Complaint, ¶! 11 (emphasis added).

On February 4, 1984, Local 473 picketed a construction site where Local 1 members were to begin erecting Sprague steel. As a result of the picketing, Local 1 members refused to work, thereby effectively shutting down Sprague’s operation at the site. The owner of the premises engaged another erection contractor to take over the work and charged Sprague for the cost of the substitute. •

Sprague brought suit in the Circuit Court of Cook County, Illinois against Local 473 for Local 473’s alleged tortious interference with Sprague’s contract with Local 1. Tortious interference is a state common law claim.

In its complaint, Sprague charges that officials of Local 473 conspired with the officials of Local 1 to coerce Local 1 members to honor Local 473’s picket line. According to Sprague, Local l’s refusal to work constitutes a breach of the no-strike provision of the collective bargaining agreement between Sprague and Local 1. Specifically, the breach occurred when Local 1 officials failed to “facilitate” an end to the Local 1 walk-out. In addition, Sprague alleges that Local 473’s picket line was not authorized by the International Association of Bridge Structural and Ornamental Iron Workers, by the Central Labor Council, or by the Building and Construction Trades Council. Sprague alleges that Local 1 violated its contract by honoring an unauthorized picket line.

Defendant Local 473 timely petitioned to remove the state action to federal court. Presently pending before this Court is the plaintiff Sprague’s motion to remand this case to state court. Sprague asserts that this case states only a state law claim against Local 473 for tortious interference with contract and thus was not removable under 28 U.S.C. § 1441(b).

No federal question is presented on the face of the complaint. The defendant argues, however, that the conduct at issue is protected by federal labor law, and thus a federal question is at issue.

As a general rule, a federal court does not have original federal question jurisdiction over a case in which the complaint on its face presents only a state law claim. Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). A state law claim is not transformed into one involving a federal question on its face simply because the defendant raises a federal question as a defense. 103 S.Ct. at 2851; Illinois v. Kerr-McGee Chemical Corp., 677 F.2d 571, 578 (7th Cir.1982), cert. denied, 459 U.S. 1049, 103 S.Ct. 469, 74 L.Ed.2d 618 (1982).

In Avco Corp. v. Aero Lodge No. 735 International Association of Machinists, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), however, the Supreme Court announced an exception to the general rule that the federal question must appear on the face of a well-pleaded complaint. The Court held that the preemptive force of Section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a), is so powerful that it entirely displaces any state cause of action for violation of contracts between an employer and a labor organization. See also Franchise Tax, supra 103 S.Ct. at 2854 (“Avco stands for the proposition that if a federal cause of action completely preempts a state cause of action, any complaint that comes within the scope of the federal cause of action necessarily ‘arises under’ federal law.”). The issue, therefore, is whether Section 301(a) applies to the instant case. This Court holds that it does not.

Although Section 301(a) has been broadly interpreted by other courts to apply to suits not involving the actual parties to a labor contract, the Seventh Circuit has construed Section 301(a) narrowly. In Loss v. Blankenship, 673 F.2d 942, 946-47 (7th Cir.1982), the Seventh Circuit held that Section 301(a) applies only to suits by actual signatories of the labor agreement allegedly breached. Cf. Chicago Area Vending v. Local Union No. 761, 564 F.Supp. 1186 (N.D.Ill.1983), aff'd, (7th Cir.1984). Under Chicago Vending, plaintiff Sprague is bound by the contract of the ASEC with Local 1 because plaintiff is a “signatory” to that contract. By contrast, defendant Local 473 is in no sense a “signatory” to the contract between the ASEC and Local 1.

Because the instant case does not fall within Section 301(a) under Loss, the Avco exception does not apply. This case, therefore, cannot be removed to federal court because it is not within the ambit of Section 301(a) and because no federal question appears on the face of the complaint. Accordingly, this case is remanded to state court. It is so ordered.

      . Donald J. Urbauer, the President and Representative of Local 473, is also named as a defendant. For convenience, this opinion refers only to Local 473 as the defendant.

      . In essence, although not articulated in these terms, the defendant argues that the plaintiff's state law cause of action is preempted by federal labor law. Thus, the federal question is presented as a defense to the state law claim.

      . Smith v. Evening News Association, 371 U.S. 195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962) (suit brought by an employee against his employer, alleging a breach of the collective bargaining agreement between the employee’s union and the employer); Nedd v. United Mine Workers, 556 F.2d 190 (3d Cir.1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 757 (1978) (suit by a trustee of pension fund established by collective bargaining agreement for the benefit of employees); Rehmar v. Smith, 555 F.2d 1362 (9th Cir.1976) (suit by widow of union member against trustees of pension fund to recover survivor's benefits allegedly due her under collective bargaining agreement.); Alvares v. Erickson, 514 F.2d 156 (9th Cir.), cert. denied, 423 U.S. 874, 96 S.Ct. 143, 46 L.Ed.2d 106 (1975) (suit by union members against pension fund trustee).

      . The court distinguished Smith as being clearly limited to the situation in which an individual employee sought to vindicate individual rights. Loss at 947 n. 3. See also Baker v. Fleet Maintenance, Inc., 409 F.2d 551, 554 (7th Cir.1969) (complaint failed to state a claim against a party who is not a party to the collective bargaining agreement).

      . In Chicago Area Vending v. Local Union No. 761, 564 F.Supp. 1186 (1983), aff'd, — F.2d -, (7th Cir.1984), the court held that it did have jurisdiction over a suit between a nonsignatory and a union for breach of cohtract. In Chicago Area Vending, an association of employers reached an agreement with Local 761. Defendant CCS was a member of the employer association. The association brought suit against CCS and against Local 761 for entering into a separate agreement, thereby violating the agreement between Local 761 and the association. The court held it had jurisdiction over the suit under Section 301(a), even though the suit involved CCS, technically a non-signing party. The court reasoned that, although the suit did not involve a "traditional employer-versus-union controversy as contemplated by section 301," the case did not run afoul of Loss which prohibited "non-party plaintiffs from suing a non-party defendant who had no interest in or obligation under the collective bargaining agreement and had a federal remedy against the employer for the putative non-party defendant’s acts." According to the court, "the conflict ... is within the scheme of section 301(a): it rises from a contract between an employer and a union. Although CCS has not signed the contract, it is a party to and bound by that contract [as a member of the multi-employer bargaining group]." Id. at 1192.


author: SAROKIN, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Louis MARKUS, Defendant.
    No. Crim. A. 84-220.
    United States District Court, D. New Jersey.
    March 15, 1985.

      W. Hunt Dumont, U.S. Atty. by Faith S. Hochberg, Asst. U.S. Atty., Newark, N.J., for plaintiff.
    Peter V. Ryan, Asst. Federal Public Defender, Newark, N.J., for defendant.
   OPINION

SAROKIN, District Judge.

Defendant seeks to dismiss this action on double jeopardy and collateral estoppel grounds. An earlier indictment against defendant was dismissed by the court on jurisdictional grounds. Had defendant’s motion in the earlier case been made prior to trial, no claim of double jeopardy could now arise. However, defendant intentionally awaited the impanelling of a jury before making his motion, for the very purpose of barring any later trial predicated upon a corrected indictment.

Although it is not necessary to develop a ;per se rule for the purpose of deciding this matter, it is difficult to envision any circumstances which would permit a defendant to utilize such strategy in order to avoid a retrial. If a defendant possesses the grounds to dismiss an indictment before actual trial, it would seem inappropriate to have jeopardy attach merely because defendant strategically determines to make such motion after trial commences. Under such circumstances, the defendant knowingly and unilaterally places himself in jeopardy and should not be permitted to benefit from such maneuvering. Counsel is not to be faulted for his efforts on his client’s behalf, but the client should not be able to avoid criminal prosecution through such tactics.

The protection afforded by the double jeopardy clause is of great significance, but it should be afforded to a defendant when something is done to him during the course of a trial, rather than by him. The public has the right to expect that crimes will be prosecuted consistent with constitutional protections, but not so as to permit those protections to be utilized to manipulate the judicial system.

BACKGROUND

On October 13, 1982, defendant Louis Markus was indicted on twenty counts of interstate transportation of stolen checks, in violation of 18 U.S.C. § 2314. Each count of the indictment represented a single check for an amount less than $5,000, though the totality of the checks exceeded $24,000. See Defendant’s App. at 46-4u. After the jury was impanelled, defendant moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. See Defendant’s Supp.App., 1/3/83 Transcript at 11. See also Id. 1/4/83 Transcript at 102, 110; 1/5/83 Transcript at 2, 14, 21; Brief in Support of Motion for Judgment of Acquittal. The court reserved on such motion, and on January 5, 1983, the jury found defendant guilty on all counts. However, on January 28, 1983, the court dismissed the indictment for failure to meet the jurisdictional requirement of the statute. United States v. Markus, 555 F.Supp. 375 (D.N.J.1983). In its Opinion, the court described defendant’s motion as one to dismiss the indictment, 555 F.Supp. at 376; additionally, the court described its actions as having dismissed the indictment. Id. at 378. However, the court also signed an Order which, after its recitational section, stated

... it is hereby
ORDERED that
1) a judgment of acquittal be entered with respect to all counts; and
2) the indictment be, and hereby is dismissed.

Defendant’s Brief at 5a. Such Order had been drafted by defendant; the government, while moving for reconsideration, see id. at 7a, did not, apparently, object to the form of such Order.

The decision of the court was affirmed by the United States Court of Appeals for the Third Circuit on November 16, 1983. United States v. Markus, 721 F.2d 442 (3d Cir.1983). The Circuit Court, however, described the issue before it in terms of the court’s Order, and concluded that “the district court correctly dismissed the indictment in the present case and properly ordered the defendant acquitted on all counts.” 721 F;2d at 444.

On August 8, 1984, defendant was again indicted, this time on one count of transporting twenty-seven stolen checks, total-ling approximately $27,000, across state lines. Discovery has revealed that all twenty checks charged in the 1982 indictment have been made a part of the instant indictment, and that the seven remaining checks, which the government proffered as evidence in the first trial but apparently did not introduce into evidence over defendant’s objection, total only $3420. See Defendant’s App. at 13-16. Based upon these facts, defendant here moves to dismiss the indictment on grounds of double jeopardy and collateral estoppel.

DISCUSSION

A. Double jeopardy

Defendant Markus argues that the court’s prior disposition of this matter constituted an acquittal and thus bars his re-prosecution for the same offense. While conceding that the instant indictment charges defendant with the same offense, the government counters that the court’s ruling constituted a post-trial dismissal of the indictment rather than a sufficient determination of the merits of the case to be considered on acquittal. The parties support their arguments with excellent and exhaustive briefs.

There is no question that, if the prior decision in this matter constituted an acquittal, then re-prosecution of defendant would be prohibited by the double jeopardy clause of the fifth amendment to the United States Constitution. That clause, which states, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb,” engenders “three basic protections”:

It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.

Ohio v. Johnson, — U.S. -, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984), quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). It is the scope of the first such protection that is here implicated. That scope is particularly broad; its proscription absolute. See generally United States v. DiFrancesco, 449 U.S. 117, 127-30, 101 S.Ct. 426, 432-34, 66 L.Ed.2d 328 (1980). Thus, acquittals are final, even if “based upon an egregiously erroneous foundation,” Arizona v. Washington, 434 U.S. 497, 503, 98 S.Ct. 824, 829, 54 L.Ed.2d 717 (1978), quoting Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962), or if inconsistent with other aspects of a jury’s verdict. United States v. Powell, — U.S. -, 105 S.Ct. 471, 477, 83 L.Ed.2d 461 (1984). The reasons are clear.

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957), quoted in, e.g., United States v. Maker, 751 F.2d 614, 620-21 (3d Cir.1984).

Nonetheless, the question of what constitutes an acquittal has proven difficult to answer. For example, “the Double Jeopardy Clause ‘imposes no limitations whatever upon the power to retry a defendant who has succeeded in getting his first conviction set aside.’ ” Tibbs v. Florida, 457 U.S. 31, 40, 102 S.Ct. 2211, 2217, 72 L.Ed.2d 652 (1982) (emphasis in original), quoting North Carolina v. Pearce, supra, 395 U.S. at 720, 89 S.Ct. at 2078. Thus, appellate success does not equal acquittal, except where the evidence is held legally insufficient to have supported the lower court conviction. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). See also Hudson v. Louisiana, 450 U.S. 40, 44-45 n. 5, 101 S.Ct. 970, 972-973 n. 5, 67 L.Ed.2d 30 (1981). Even this standard is less than clear: double jeopardy does not bar a re-trial where a guilty verdict is held, by a trial or appellate court, to be “against the weight of the evidence.” Tibbs v. Florida, supra, 457 U.S. at 42-44, 102 S.Ct. at 2218-2220. And, of course, where a conviction is reversed for trial error, the double jeopardy clause does not prevent the defendant who urged such error on the appellate court from being retried. See, e.g., Burks v. United States, supra, 437 U.S. at 15, 98 S.Ct. at 2149 (citing cases). See generally United States v. DiFrancesco, supra, 449 U.S. at 131, 101 S.Ct. at 434. The reason for this exception is clear and oft-quoted: “It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964).

Similarly, the grant of a defendant’s motion for mistrial or the court’s declaration of a mistrial on grounds of “manifest necessity” does not bar re-prosecution unless prosecutorial misconduct provoked such motion or declaration. See, e.g., Arizona v. Washington, supra, (prosecutor’s request for mistrial justified by manifest necessity); United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976) (citing cases). See generally United States v. DiFrancesco, supra, 449 U.S. at 130, 101 S.Ct. at 433; United States v. Scott, 437 U.S. 82, 92-94, 98 S.Ct. 2187, 2194-2196, 57 L.Ed.2d 65 (1978). Finally, where a mistrial is declared because of a hung jury, re-trial is not barred on the ground of double jeopardy. See Richardson v. United States, — U.S. -, 104 S.Ct. 3081, 3085-86, 82 L.Ed.2d 242 (1984). Thus, mistrials also do not constitute acquittals.

The question here posed for resolution is that of whether, in fact, defendant was earlier acquitted in this case. Defendant’s argument that he was is based upon the fact that his motion was one for a judgment of acquittal; that the court’s Order, and its affirmance by the Third Circuit indicated that a judgment of acquittal was entered; and that, in fact, such judgment was based upon the government’s having failed to make the factual showing necessary to convict defendant on each count. The government responds that the court’s action constituted either a dismissal of the indictment or an arrest of judgment, see Fed.R.Crim.P. 34, and that its determination was therefore strictly legal.

The court, in the unique position of reviewing its own actions, agrees with the government. First, irrespective of its label, defendant’s motion was for a dismissal of the indictment rather than for a judgment of acquittal, and the court’s decision so reflected. Indeed, as the government points out, the prior use of the word “acquittal” by this court, and by the Court of Appeals which was, apparently, guided by this court’s Order “has no talismanic quality for purposes of the Double Jeopardy Clause.” Serfass v. United States, 420 U.S. 377, 392, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265 (1975) (citing cases). See also United States v. Scott, supra, 437 U.S. at 96, 98 S.Ct. at 2196 (“We have previously noted that ‘the trial judge’s characterization of his own action cannot control the classification of the action’ ”), quoting United States v. Jorn, 400 U.S. 470, 478 n. 7, 91 S.Ct. 547, 553 n. 7, 27 L.Ed.2d 543 (1971) (opinion of Harlan, J.). See also Lee v. United States, 432 U.S. 23, 30, 97 S.Ct. 2141, 2145, 53 L.Ed.2d 80 (1977) (distinguishing between dismissal and declaration of mistrial); United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977); United States v. Wilson, 420 U.S. 332, 336, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975); United States v. Sisson, 399 U.S. 267, 270, 90 S.Ct. 2117, 2119, 26 L.Ed.2d 608 (1970); United States v. Maker, supra, 751 F.2d at 621 and n. 26. The standard that has emerged is that “a defendant is acquitted only when ‘the ruling of the judge, whatever its label, actually represents a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.’ ” Scott, supra, 437 U.S. at 97, 98 S.Ct. at 2197, quoting Martin Linen Supply, supra, 430 U.S. at 571, 97 S.Ct. at 1354 (brackets in original). The Third Circuit has recently applied this test to a proceeding terminated after the jury was sworn, but prior to a factfinding as to guilt or innocence. Thus, in United States v. Maker, supra, the court held that the district court’s dismissal of an indictment for failure to allege facts sufficient to sustain a conviction on a charge of a single scheme to defraud did not bar an appeal, or a re-trial, of such case. 751 F.2d at 623-24. Though the district court had based its holding in part upon the transcript of prior civil proceedings and the government’s opening, as well as the indictment, the Court of Appeals held that the factual determinations it made did not resolve an essential element of the case, and that the prior ruling was thus appealable. Id. at 623 and n. 30.

Here, there was overwhelming evidence, presented at the trial below, that defendant had indeed transported checks valued at greater than $5,000 across state lines, in violation of 18 U.S.C. § 2314. The jury so found, based upon an improper charge, see Defendant’s SuppApp., 1/5/83 Transcript at 54, and the court, in its Opinion, agreed. 555 F.Supp. at 378 (“... defendant was clearly guilty of transporting and negotiating stolen checks and the jury so found.”) While in complete agreement with the jury’s verdict of guilt, the court nonetheless dismissed the indictment on what it saw as purely legal grounds, amounting, in effect, to drafting error in the indictment. Though defendant argues as persuasively as possible that in so ruling, the court took into account the facts as presented to the jury in the form of stipulations or of the checks themselves, see Defendant’s Supp. App., 1/4/83 Transcript at 79, 85, such was clearly not the case. Indeed, the court’s ruling was based solely upon and directed toward the indictment itself. The sufficiency of the evidence actually presented was not at issue, and was not considered by the court in arriving at its decision. Rather, the court’s decision was predicated upon an analysis of the indictment alone and would have been the same had no evidence been presented.

Accordingly, the double jeopardy clause poses no obstacle to defendant’s re-prosecution, and the motion to dismiss on double jeopardy grounds must be denied. Such result is in perfect accord with the caselaw. Just as appellate reversal of a conviction on grounds other than sufficiency of the evidence does not bar a re-trial, so does reversal by the trial court itself on such legal grounds pose no double jeopardy problem. See, e.g., United States v. Wilson, supra, 420 U.S. at 345, 95 S.Ct. at 1023 (“It is difficult to see why the rule [that an appellate court’s reversal of a conviction on legal grounds does not bar further review, or retrial] should be any different simply because the defendant has gotten a favorable post-verdict ruling of law from the District Court rather than the Court of Appeals ...”). See also United States v. Kopp, 429 U.S. 121, 97 S.Ct. 400, 50 L.Ed.2d 336 (1976) (bench trial). See generally United States v. DiFrancesco, supra, 449 U.S. at 130, 101 S.Ct. at 433 (citing cases). Similarly, the events of this case can be analogized to the successful motion for a mistrial which, as noted by the Third Circuit, constitutes an effective waiver of defendant’s “valued right to have his trial completed by a particular tribunal,” United States v. DiFrancesco, supra, 449 U.S. at 128, 101 S.Ct. at 432; see United States v. Maker, supra, 751 F.2d at 621 n. 25, and thus is the “result of the deliberate choice of the defendant” to obtain “the termination of the proceedings against him in the trial court without any finding by a court or jury as to his guilt or innocence____” Id. at 621, quoting United States v. Scott, supra, 437 U.S. at 100, 98 S.Ct. at 2198. Had the court thus dismissed the indictment prior to submission of the case to the jury, re-trial would not have been barred. See United States v. Scott, supra, 437 U.S. at 100, 98 S.Ct. at 2198 (Defendant “has not been ‘deprived’ of his valued right to go to the first jury [but if re-trial were barred] the public [would be] deprived of its valued right to ‘one complete opportunity to convict those who have violated its laws.’ ”), quoting Arizona v. Washington, 434 U.S. at 509, 98 S.Ct. at 832. That the court chose to submit the case to the jury was appropriate, in light of the Supreme Court’s expressed preference for so acting, in order that in the event of a reversal, the guilty verdict could be reinstated without the inefficiency and anxiety of a new trial. See Scott, supra, 437 U.S. at 100 n. 13, 98 S.Ct. at 2198 n. 13 (citing cases). See also Government of the Virgin Islands v. Christensen, 673 F.2d 713, 718-19 (3d Cir.1982). It was also a choice necessitated by the timing of defendant’s motion, which could have been made before trial, since it was directed to the indictment alone, but was made much later, in an effort to gain some strategic advantage. The court acknowledged this effort in its Opinion, but concluded that the defendant had raised a jurisdictional problem, which could be noticed at any time. 555 F.Supp. at 376. However, the issue which emerged was not simple of resolution, and the court required time to research it and write an opinion. The court’s timing in doing so was thus attributable to defendant and, for this reason too, cannot be said to have prejudiced him. See Lee v. United States, supra, 432 U.S. at 34, 97 S.Ct. at 2147. Rather, the court acted to upset a conviction which would otherwise have been reversed by the Third Circuit. Neither its timing, nor its action can be said to constitute error. Nor in any event can re-trial after dismissal on the basis of a defective indictment, see, e.g., Lee, supra, 432 U.S. at 30-31, 97 S.Ct. at 2145-2146; Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), or any other reason unrelated to the guilt or innocence of a defendant, see, e.g., Scott, supra, (pre-indictment delay), be said to be barred by the double jeopardy clause.

Such is precisely the case here. The court’s earlier determination that the indictment did not allege an offense under section 2314 depended upon nothing more than the language of the indictment itself; it relied upon no facts whatsoever. See United States v. Appawoo, 553 F.2d 1242, 1244-46 (10th Cir.1977). Thus, the court does not here “[afford] the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks v. United States, supra, 437 U.S. at 11, 98 S.Ct. at 2147. See also United States v. DiFrancesco, supra, 449 U.S. at 128, 101 S.Ct. at 432. Indeed, in the first prosecution of this matter, the government had all the evidence it needed to convict defendant of the offense alleged, and defendant was, in fact, properly found guilty. However, such evidence was introduced pursuant to a fatally flawed indictment, and as a result, the indictment had to be dismissed. Unfortunately for defendant, the government, and the court, such dismissal occurred subsequent to trial, due to the intentional timing of defendant’s motion. However, defendant’s having waited for jeopardy to attach before raising such motion, see United States v. Maker, 751 F.2d at 620 n. 22, citing Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24 (1978), does not mean that dismissal precludes a second trial, for the attachment “is the beginning rather than the end of our analysis.” Maker, supra, 751 F.2d at 620 n. 22. As a dismissal which most certainly did not resolve any factual elements of the offense charged in defendant’s favor, and which, in fact, resolved no factual elements at all, the court’s action clearly does not preclude a re-trial, irrespective of the label placed on defendant’s motion, in the court’s Order or in the Third Circuit’s Opinion.

Of course, such dismissal nonetheless redounds to defendant’s benefit. He is now subject to a maximum fine of $10,000 and term of imprisonment of ten years; under the prior indictment, these numbers were multiplied twenty fold. More important, he is now entitled to a second opportunity to prove his innocence, having failed the first time. While he must therefore go through another trial, the court here concludes that such trial “is not an act of governmental oppression of the sort against which the Double Jeopardy Clause was intended to protect.” Scott, supra, 437 U.S. at 91, 98 S.Ct. at 2194. See also Tibbs, supra, 457 U.S. at 44, 102 S.Ct. at 2219; DiFrancesco, supra, 449 U.S. at 131, 101 S.Ct. at 434. Defendant’s motion to dismiss on double jeopardy grounds is denied.

B. Collateral estoppel

Defendant also contends that the government ought to be collaterally estopped from pursuing the instant indictment, arguing that the specific factual issues presented were resolved against defendant by the court’s prior decision dismissing the indictment and entering a judgment of acquittal. However, the court has already ruled, supra, that no such factual issues were resolved in defendant’s favor and that no such acquittal actually occurred. Rooted as it is in the double jeopardy clause, see Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970), the use of collateral estoppel in the criminal context depends first, upon the existence of an acquittal and second, upon a realistic and rational approach to whether “the jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Id. at 444, 90 S.Ct. at 1194. Of course, collateral estoppel is broader than double jeopardy: “Even though there has been no former acquittal of the particular offense on trial, a prior judgment of acquittal on related matters has been said to be conclusive as to all that the judgment determined.” United States v. DeAngelo, 138 F.2d 466, 468 (3d Cir.1943), cited in United States v. Keller, 624 F.2d 1154, 1157 (3d Cir.1980). Here, however, there has been no judgment of acquittal, only the dismissal of an indictment as improperly drafted. Further, the only facts determined by a factfinder, albeit based upon an erroneous jury instruction, were determined contrary to defendant’s position, and would indicate that he in fact committed the crime charged herein. Thus, both the application of the doctrine of collateral estoppel to this particular case and the policy concerns engendered by criminal law enforcement in general, see Standefer v. United States, 447 U.S. 10, 24-25, 100 S.Ct. 1999, 2008-2009, 64 L.Ed.2d 689 (1980), require that defendant’s motion to dismiss on collateral estoppel grounds be denied.

C. Bail

The court understands that until at least July 17, 1985, defendant will remain incarcerated and thus an application for bail at this time is premature.

An appropriate order will issue.

      . Title 18 U.S.C. § 2314 states, in pertinent part Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud____
      Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.

      . To the extent that, as the government argues, defendant's motion was treated by the court as a motion in arrest of judgment, Fed.R.Crim.P. 34, the double jeopardy clause does not prevent appeal or re-trial. See Wilson, supra, 420 U.S. at 344, 95 S.Ct. at 1022 (citing cases).

      . Scott established that, even absent the delay in moving which occurred here and in Lee, midtriai dismissals do not bar re-trial, as had been held in United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), upon which defendant relies. See Defendant's Supp. Brief at 9-10, citing Finch v. United States, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977). By overruling Jenkins, Scott .rendered the court's decision to reserve on defendant’s motion until after the verdict totally without prejudice to defendant.


author: SHABAZ, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. David M. BRONK, William P. Bronk, Robert J. Horvath, Michael A. Stremkowski and Paul J. Wojtalewicz, Defendants.
    No. 84-CR-54-S.
    United States District Court, W.D. Wisconsin.
    March 18, 1985.

      James M. Shellow, Stephen M. Glynn, Milwaukee, Wis., David L. Mandell, Madison, Wis., Gene D. Linehan, Wausau, Wis., Sarah Furey Crandall, Madison, Wis., for defendants.
    U.S. Atty. John R. Byrnes, Madison, Wis., for plaintiff.
   MEMORANDUM AND ORDER

SHABAZ, District Judge.

On October 30, 1984, the prosecution of certain offenses was undertaken by the United States of America against the five defendants, David M. Bronk, William P. Bronk, Robert J. Horvath, Michael A. Stremkowski, and Paul J. Wojtalewicz, by the docketing in this Court of an indictment returned by the Grand Jury.

The defendants are alleged to have conspired to intimidate and interfere with the federally-protected activities of Olufunsho Adeshina, Nathaniel Aiyedatiwa and Anthony Isua because of race, color or national origin, which resulted in bodily injury to these three persons.

Specifically, the Indictment sets forth in Count 1 the overt acts of a conspiracy in violation of Title 18 U.S.C. § 371, and in Counts 2, 3 and 4 alleges a violation of Title 18 U.S.C. §§ 2 and 245(b)(2)(F) against each of the three named persons, Adeshina, Aiyedatiwa, and Isua.

Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), the Hon. James Groh, United States Magistrate for the Western District of Wisconsin, has held hearings and issued several written reports and recommendations concerning defendants’ motions to dismiss this action. Several of the defendants have objected to certain of those recommendations. The Court will rule on those objections at this time. However, to the extent that no party objected to a particular recommendation of Magistrate Groh, that recommendation is adopted by the Court and the supporting report incorporated herein by reference without further comment.

Several of the defendants have also appealed certain of the Magistrate’s orders on pre-trial motions. The Court will rule on those appeals at the outset.

APPEALS FROM PRE-TRIAL ORDERS

The defendants Bronk and defendant Wojtalewicz appeal from both the Magistrate’s discovery order of February 25, 1985 and from his order of Februrary 27, 1985 denying their motions for severance. The Court may reconsider a decision of the Magistrate with regard to routine pre-trial matters if it is clearly erroneous and contrary to law. 28 U.S.C. § 636(b)(1)(A).

Discovery Orders

1. Production of Special Agent’s Investigative Report.

The Court has considered the defendants’ motions and the Magistrate’s order with regard to this issue and concludes, pursuant to the Jencks Act, 18 U.S.C. § 3500(a) that it would be premature for the Court to order production of the materials sought at this time.

2. Production of Witness Statements, Co-conspirator Statements, and Notes from Interviews Conducted by Government Counsel.

The only issue of substance with regard to production of such materials decided in Magistrate Groh’s order of February 25, 1985 was whether a defendant was entitled to receive statements made to the government by his or her co-conspirator(s) who would not be called by the government to testify at the defendant’s trial. The Magistrate ruled that the moving defendants here were not entitled to such statements because they fell outside the scope of Rule 16, Federal Rules of Criminal Procedure and the Jencks Act (of course, the government had already been ordered to turn over any exculpatory Brady material). The essence of defendants’ argument on appeal to the Court is that the Magistrate’s order was contrary to controlling precedent and an abuse of his discretion. In support of that argument, they cite United States v. Fine, 413 F.Supp. 740, 743 (W.D.Wis.1976) (Gordon, J. sitting by designation), a case in which the court held that statements by the defendant’s alleged co-conspirators were discoverable by the defendant pursuant to Rule 16(a)(1)(A) because those statements were not hearsay and thus could be admitted into evidence against the defendant with the same impact as his own prior statements.

The court’s reasoning in Fine is not persuasive. If the only test for discoverability under Rule 16 is whether the material sought could potentially be used to impeach the defendant if he testified at trial, then the wide range of third-party statements in the government’s possession would also be discoverable; as the court of appeals held in United States v. Zarattini, 552 F.2d 753 (7th Cir.1977), cert. den. 431 U.S. 942, 97 S.Ct. 2661, 53 L.Ed.2d 262 (1977), such third-party statements are not discoverable pursuant to that rule, even though they may incorporate the defendant’s own statements. Id. at 757. Although in Zarattini the court does quote language from United States v. McMillen, 489 F.2d 229 (7th Cir.1972) cert. den. 410 U.S. 955, 93 S.Ct. 1420, 35 L.Ed.2d 687 (1973), indicating that a trial court may, in its discretion, require the government to produce statements made by co-defendants who are not expected to testify as government witnesses at trial, in the context of the Zarattini case that statement was gratuitous, while in McMillen itself it was sheer dicta because the only issue before the court was whether production of statements of a co-conspirator who was going to testify on the government’s behalf was proper. Moreover, both McMillen and United States v. Feinberg, 502 F.2d 1180 (7th Cir.1974) (standing for a similar proposition regarding the trial court’s discretion to require production of statements of which the government was aware made by the defendant to third parties) arose prior to the 1974 amendment to Rule 16 that limited the Court’s role in discovery and stated in greater detail the government’s discovery obligations. In light of the court of appeals’ recent statement in United States v. Navarro, 737 F.2d 625, 630 (7th Cir.1984) that there is “[no] right of access to the prosecutor’s files in order to search for impeachment material,” the Court believes the Magistrate followed the better practice of construing Rule 16 strictly and denying production of materials not clearly within its scope.

Regarding the production of the notes of interviews conducted by government counsel, the Magistrate’s decision was also correct.

3. FOIA Request

The only real issue presented in this case with respect to whether the defendants can utilize the Freedom of Information Act, 5 U.S.C. § 552, as a discovery tool is whether they have satisfied the procedural requirements for bringing an FOIA issue before the Court. The Magistrate has found that they have not, and the defendants have failed to bring anything to the Court’s attention that would undercut.his findings. Accordingly, the Magistrate’s order denying their request for FOIA relief is affirmed.

Motions for Severance

Defendants’ motion for severance was based on two grounds: that their defenses are antagonistic and that, as held in Bru ton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), an admission in a joint trial of a non-testifying defendant’s statement incriminating himself and his co-defendants would violate the co-defendant’s right to confront witnesses guaranteed by the Sixth Amendment.

Defendants Bronk indicate that they will testify that their co-defendants, rather than they themselves, committed the assaults that underly the four offenses in the indictment with which all five defendants are charged. Presumably, defendant Wojtalewicz joins in the Bronks’ motion, because he intends to testify, as he has on prior occasions, that it was the Bronk brothers and the other defendants who assaulted the victims of the indicted offenses. Clearly, these defenses are antagonistic; but in this circuit severance is required pursuant to Rule 14, Federal Rules of Criminal Procedure, only where “the conflict between the defenses is so prejudicial that differences are unreconcilable and that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty,” United States v. Madison, 689 F.2d 1300, 1306 (7th Cir.1982) (citations and attributions omitted), or where “acceptance of one party’s defense will preclude the acquittal of the other.” United States v. Hendrix, 752 F.2d 1226, 1232 (7th Cir.1985) (citations and attributions omitted). Neither standard has been met here. The conflict inherent between defendants’ proposed defenses is not such that all the defendants would necessarily be convicted as a result of being tried together. What each defendant did is a very important issue in this case. The jury’s ultimate determination of that issue will likely depend on more than whatever testimony defendants themselves may provide. The jury may choose to believe or disbelieve each testifying defendant concerning his own guilt and the guilt of others as it wishes without finding another defendant guilty on the basis of that testimony. Furthermore, although it is generally stated that the mere presence of hostility among defendants or a desire of one to exculpate himself by inculpating others is not enough to require severance, see United States v. Madison, supra, that is especially true in this ease where the offenses charged include complex elements beyond the simple fact of assault. Thus, a jury may believe that one or more of the defendants were involved in the assault and that one or more were not involved without necessarily finding that those who were involved in the assault are guilty of the offenses charged in the indictment.

As a second ground in favor of severance, defendants assert that the government’s promise not to use extrajudicial statements made by any of the defendants in its case-in-chief is insufficient to protect defendants’ Sixth Amendment rights, because it leaves open the possibility that such statements could be used by the government in rebuttal without regard for the Bruton concerns. Regardless of whether the government has “elected” at this point in time to purge references to other defendants contained in any extrajudicial statements of a nontestifying defendant offered in rebuttal, it is clear by the terms of the Magistrate’s order and the demands of Bruton that the government must purge such references or risk declaration of a mistrial should prejudicial references to other defendants occur. That is the effect of the government’s decision to proceed with a joint trial in the face of defendants’ severance motions. The Bruton concerns will thus be met by a remedy other than severance.

THE MOTIONS TO DISMISS

The defendants have moved for dismissal of all or part of the indictment on several grounds. Included are contentions that their federal prosecution for the offenses charged in the indictment violates the Fifth Amendment’s guarantee against double jeopardy; that the tavern in which the events underlying the indictment are alleged to have taken place was not a public facility within the scope of 18 U.S.C. § 245; and finally, that the present prosecution was not properly certified as required in 18 U.S.C. § 245(a)(1). The Court considers each contention in turn.

Double Jeopardy

The Court has reviewed in depth the argument of defendant Wojtalewicz (adopted by defendant Horvath) that his prosecution for the acts alleged in Counts 1, 3, and 4 of the indictment is barred by the double jeopardy prohibition because he was prosecuted and convicted in state court for those same acts as a party to the crime of battery that was committed against Mr. Adeshina and as a party to the crime of aggravated battery that was committed against Mr. Isua pursuant to Wis.Stat. §§ 939.05 and 940.19.

Without going into detail, suffice it to say that Wojtalewicz’s argument that the state and federal offenses involved here may not each require proof of an element that the other does not (as required for successive prosecutions by the same sovereign, state or federal, for different offenses arising from the same transaction) may be correct as far as it goes. See Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). Relying on the principle of dual sovereignty reaffirmed in United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978), however, the Court concludes that the double jeopardy prohibition does not bar successive prosecutions by different sovereigns, as under the facts of this case, regardless of whether the Brown test is satisfied.

The Public Facility Issue

The defendants Bronk (joined by defendant Horvath) move to dismiss the entire indictment on the ground that the tavern in which the acts alleged in the indictment are said to have occurred was not a “facility which serves the public” within the meaning of that term in 18 U.S.C. § 245(b)(2)(F) because the tavern is not open to persons younger than the state drinking age pursuant to Wisconsin law. The Court agrees with the Magistrate’s common sense construction of the word “public” to include all persons of the community not otherwise precluded by law from entering the premises.

The Question of Improper Certification

18 U.S.C. § 245(a)(1) reads, in part, as follows:

Nothing in this section shall be construed as indicating an intent on the part of Congress to prevent any State, any possession or Commonwealth of the United States, or the District of Columbia, from exercising jurisdiction over any offense over which it would have jurisdiction in the absence of this section, nor shall anything in this section be construed as depriving State and local law enforcement authorities of responsibility for prosecuting acts that may be violations of this section and that are violations of State and local law. No prosecution of any offense described in this section shall be undertaken by the United States except upon the certification in writing of the Attorney General or the Deputy Attorney General that in his judgment a prosecution by the United States is in the public interest and necessary to secure substantial justice, which function of certification may not be delegated. (Emphasis added.)

The written certification for each of the five defendants states in similar form as follows:

CERTIFICATE OF THE ACTING DEPUTY ATTORNEY GENERAL OF THE UNITED STATES

I, Roger Clegg, hereby certify that in my judgment a prosecution by the United States of William P. Bronk under the provision of Title 18, United States Code, Section 245, is in the public interest and necessary to secure substantial justice. Signed the 26th day of October, 1984.
/s/ Roger Clegg
Roger Clegg
Acting Deputy Attorney General of the United States

On November 29, 1984, the defendants David and William Bronk moved to dismiss prosecution for lack of valid certification. The defendants asserted that the certificate demonstrates that neither the Attorney General nor the Deputy Attorney General certified that this prosecution is an appropriate one. Rather, that function was delegated to one Roger Clegt [sic], an Acting Deputy Attorney General. The defendants Bronk claim that because the statute states the certification function may not be delegated, the prosecution against them was initiated without proper authorization and must be dismissed.

On November 30, 1984, the defendants Horvath and Wojtalewicz moved to dismiss, as did the defendant Stremkowski on December 1, 1984.

After the filing of memoranda of law by the parties, the Hon. James Groh, United States Magistrate in his report and recommendation of February 22, 1985 recommended that defendants’ motion to dismiss for lack of valid certification be denied.

On March 7, 1985, the defendants Bronk filed with this Court their objections to the report and recommendation of the Magistrate, together with accompanying memorandum. Thereafter, on March 14, 1985, the United States filed its motion for an expedited review of the Magistrate’s recommendation and report because trial has been scheduled for March 25, 1985.

Without reciting the arguments of counsel at length, this Court must conclude that the United States Supreme Court has already determined that this indictment must be dismissed without prejudice.

On May 13, 1974, the United States Supreme Court, in a unanimous opinion on an issue less clear and less sensitive than the one before this Court, determined that the Executive Assistant to the Attorney General of the United States was not empowered by statute to authorize applications for wiretapping orders, and, accordingly, the defendants’ motion to suppress the evidence derived from an interception in contravention of 18 U.S.C. § 2516(1) was granted. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). In discussing 18 U.S.C. § 245(a)(1), Justice White, writing for the Court, at page 514, states as follows:

But here the matter of delegation is expressly addressed by § 2516, and the power of the Attorney General in this respect is specifically limited to delegating his authority to “any Assistant Attorney General specially designated by the Attorney General.” Despite § 510, Congress does not always contemplate that the duties assigned to the Attorney General may be freely delegated. Under the Civil Rights Act of 1968, for instance, certain prosecutions are authorized only on the certification of the Attorney General or the Deputy Attorney General, “which function of certification may not be delegated.” 18 U.S.C. § 245(a)(1). Equally precise language forbidding delegation was not employed in the legislation before us; but we think § 2516(1), fairly read, was intended to limit the power to authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate. This interpretation of the statute is also strongly supported by its purpose and legislative history. (Emphasis added.)

In affirming the authorization for wiretaps in United States v. Pisacano, 459 F.2d 259 (2d Cir.1972), Judge Friendly, writing for the Court, compared, at page 263, the language of 18 U.S.C. § 2516:

The Attorney General, or any Assistant Attorney General specifically designated by the Attorney General, may authorize an application to a federal judge of competent jurisdiction for ... an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation,

with the non-delegable language before this Court in 18 U.S.C. § 245:

Moreover, the procedures used clearly conformed with the letter of § 2516(1), particularly when this is read in light of the evidence, furnished by § 101(a) of the Civil Rights Act of 1968, 18 U.S.C. § 245(a)(1), that when Congress wished to prohibit delegation of any sort, it knew how to do it. This could well be “a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute.” Greenwood v. United States, [350 U.S. 366, 76 S.Ct. 410, 100] L.Ed. 412 (1956) (Frankfurter, J.). (Emphasis added.)

This Court has also reviewed 28 U.S.C. § 510, Delegation of Authority:

The Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General.

The United States Court of Appeals for the Eighth Circuit recognized Giordano as limiting the delegation of authority found in section 510, where, at page 372 of United States v. Agrusa, 520 F.2d 370 (8th Cir.1975), Judge Heaney, in writing for the Court, stated as follows:

Nothing in 28 U.S.C. § 515(a) or its legislative history evidences a congressional intent to limit the delegation authority of the Attorney General under 28 U.S.C. § 510. The delegation here to Assistant Attorney General Henry C. Petersen and Acting Assistant Attorney General John C. Keeney was in all respects proper. See 28 C.F.R. § 0.133; May v. United States, 236 F. 495, 500 (8th Cir.1916); In re Grand Jury Subpoena of Alphonse Persico, supra, 522 F.2d [41] at 66-67 [(2d Cir.1975) ]; United States of America v. Philip Crispino, 392 F.Supp. 764 (S.D.N.Y.1975); compare United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974).

Section 245, enacted after § 510, is a specific limit on the delegation authority of the Attorney General.

The government proceeds to discuss departmental regulations, and The Court'has reviewed 5 U.S.C. § 301, Departmental Regulations:

The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.

The power conferred by this section, of course, is administrative, and not legislative. United States v. George, 228 U.S. 14, 33 S.Ct. 412, 57 L.Ed. 712 (1913).

The district court provides an extensive discussion of the legality of delegation in Hall v. Marshall, 476 F.Supp. 262 (E.D.Penn.1979), affirmed 622 F.2d 578 (3d Cir.1980):

The LMRDA [Labor, Management, Reporting and Disclosure Act] is silent on the issue of subdelegation. While the legality of a subdelegation of an agency’s power is primarily a function of legislative intent, the omission of any specific grant of power to delegate should not be construed as a denial of that power. Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 67 S.Ct. 1129, 91 L.Ed. 1375 (1947); Tabor v. Joint Board for Enrollment of Actuaries, 566 F.2d 705, 708 (D.C.Cir.1977); EEOC v. Raymond Metal Products Co., 385 F.Supp. 907, 921 (D.Md.1974). The Secretary of Labor, as the head of an executive department, has a “general power of delegation” under 5 U.S.C. § 301, Wirtz v. Atlantic States Construction Co., 357 F.2d 442 (5th Cir.1966). Moreover, as the Court pointed out in Atlantic States Construction, supra:
Unless ... the statutory agent is hemmed in, the “administrative flexibility necessary for prompt and expeditious action on a multitude of fronts,” Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. [111] at 122, [67 S.Ct. 1129 at 1135,] points in the direction of more, not less, delegation. To argue for nondelegability in those situations in which Congress has not spoken explicitly and thereby insist upon personal performance by the Executive or the Chief Statutory Administrative Office envisages many unsatisfactory results. (Emphasis added.)

Ratification

Congress has indeed by its enactment of section 245 hemmed in the Attorney General. It has explicitly insisted upon personal performance. The United States appears to recognize that its action to undertake prosecution is suspect. It has argued that the decision of Mr. Clegg has been ratified. The only authority given for that subsequent certification cited by the government is found in United States ex rel Machi v. United States Department of Probation and Parole, 536 F.2d 179 (7th Cir.1976). The Court in Machi determined that the Attorney General’s telephonic approval of a wire tap application met the provisions of 18 U.S.C. § 2516(1). The Court found that sufficient compliance with the established statutory procedure was had where a discussion was held with Attorney General Mitchell prior to initiation of the interception.

Certainly, this is not the situation before the Court. Carol Dinkins signed her affidavit on January 11, 1985, almost two and one-half months after prosecution was undertaken. Perhaps she is suggesting that two and one-half months after a wiretap the Attorney General could give his approval and thereby validate the interception. In any event, her argument for ratification is less than substantial and acknowledges the deficiency in the original undertaking.

Finally, the government suggests that United States v. Smith, 532 F.2d 158 (10th Cir.1976) sustains its position. Smith deals with 18 U.S.C. § 6003, which allows a United States Attorney to make an application requiring a hostile witness to give testimony. Smith tells us that an Assistant United States Attorney, pursuant to 28 C.F.R. § 0.130, may perform this function. This has no similarity with the provisions of 18 U.S.C. § 245.

The government is attempting to categorize a loud and clear pronouncement of Congress with a normal everyday administrative duty which may be performed by an Assistant United States Attorney.

The cases and regulations cited by the Attorney General clearly indicate he does not understand the clear voice of the legislative branch of this government. He attempts to mute that voice with meaningless, circuitous, technical and ineffective regulations which, in vain,. attempt to change the intent of Congress.

The Attorney General and his or her deputy can, indeed, designate assistants; but they cannot delegate to those assistants functions which Congress has clearly and precisely declared to be nondelegable.

The effect of the provision in § 245(a) prohibiting delegation of the certification function is to require that either the Attorney General or the Deputy Attorney General personally certify that a prospective prosecution under the statute is in the public interest and necessary to obtain substantial justice. That requirement undoubtably has its roots in the sensitivity of Congress to the criticism that the law “federalized” criminal offenses that had been policed exclusively by the states for almost 200 years. Several times during the exhaustive floor debate in the Senate, proponents of H.R. 2516 as reported out by the Senate Judiciary Committee emphasized that federal prosecution under the statute was to be the exception, rather than the rule, and was to be invoked only at the highest and most visible level of the Executive Branch. As Senate Majority Leader Mike Mansfield stated on February 16, 1968,

The bill grants no rights that do not already exist. The bill, after exhaustive consideration in committee, was drawn carefully and limits severely the Federal authority. It is a simple proposal. In essence, it merely permits a Federal prosecution — rather than a prosecution in the county courthouse — but only where the Federal involvement is absolutely essential to insure substantial justice — a need demonstrated repeatedly in cases of crimes committed against the free exercise of already guaranteed rights. In fact, the bill goes to great lengths to preserve the current balance in the Federal-State judicial system — permitting the Federal prosecution when and only when, the climate in a local community unmistakably requires such a Federal role if justice is to be done.

114 Cong.Rec. S 3,235 (1968). Less than one week later, he reiterated the same point:

In essence it protects the rights granted by the Civil Rights Acts of 1964 and 1965 and, more fundamentally, by the Constitution itself. Those rights must not be frustrated. They must not be made the prey of violence or intimidation. Under H.R. 2516, if interference of this kind should occur, the trial for assault or murder or intimidation may — let me repeat that word “may” — take place in the Federal courthouse in the community of the crime rather than in the county courthouse; but even then only if the Attorney General determines that such a forum is necessary to effectuate substantial justice.

114 Cong.Rec. S 3,806 (1968). Given the unambiguous language of the statute and the legislative history quoted above, it would frustrate the clear intent of Congress for the Court to allow a prosecution to go forward on the basis of anything less than strict compliance with the statute.

CONCLUSION

The Magistrate has been subjected to a plethora of motions, many of which were less than substantial. They have now been resolved by this order, with the expectation, of course, that they will again be raised in the event the United States should again undertake prosecution of these offenses. To eliminate the attendant delays which these same perfunctory motions will once again attempt to cause, all dispositive motions concerning this matter will be referred by the Magistrate directly to the Court once a preliminary pre-trial conference may be held.

The Court is of the opinion that a timely reindictment would not cause an unnecessary delay in prosecution which would inherently prejudice the defendants, particularly where from its examination of the entire record it is determined that several of the defendants are primarily interested in creating unnecessary delay by filing less-than-substantial motions and may not be prepared to proceed to trial at this time for the lack of further investigation, which they appear to demand.

ORDER

IT IS ORDERED that the report and recommendation of the United States Magistrate to deny the motions of the defendants to dismiss the indictment for the failure to comply with the requirement of certification is REJECTED.

IT IS FURTHER ORDERED that the reports and recommendations of the United States Magistrate as they concern those other matters addressed herein are APPROVED.

IT IS FURTHER ORDERED that for want of compliance with the certification requirement provided in 18 U.S.C. § 245(a)(1), the indictment against the defendants is DISMISSED without prejudice, and leave to reindict pursuant to the provisions of 18 U.S.C. § 245(a)(1) is GRANTED where deemed appropriate.

IT IS FURTHER ORDERED that the defendants’ motions to review the documentation upon which a valid certification to undertake prosecution in this matter may be made is DENIED as moot.