author: EDELSTEIN, District Judge:

text:
    UNITED STATES of America, v. Donald PAYDEN, Eugene Coleman and Anthony Grant, Defendants.
    No. SS 84 Cr. 566 (DNE).
    United States District Court, S.D. New York.
    Nov. 26, 1985.

      Rudolph W. Giuliani, U.S. Atty., New York City (John K. Carroll, Asst. U.S. Atty., New York City, of counsel), for plaintiff.
    Robert L. Herbst, New York City, for defendant Anthony Grant.
   OPINION AND ORDER

EDELSTEIN, District Judge:

This opinion is the sixth relating to this case. The background facts may be read in the other opinions. Familiarity with them is assumed.

At a robing room conference during the trial of this case, defendant Anthony Grant’s attorney, Robert Herbst, stated that the government was about to introduce evidence against his client that constituted inadmissible hearsay and moved to exclude the evidence. (Tr. at 1641-42). The court requested the government to present an offer of proof regarding this testimony. (Tr. 1704). Assistant United States Attorney John Carroll did so and the government and Mr. Grant both submitted memoranda on this issue. This procedure was followed to avoid any possible prejudice to Mr. Grant’s co-defendants that would arise if the court admitted the evidence subject to connection with the conspiracy charged in the indictment, and later determined that the evidence was either totally inadmissible or admissible only as to Grant.

The court finds that the evidence consisting of statements by Grant and a third party is admissible as to defendant Grant. This evidence is not admissible as to the other defendants, Donald Payden (a/k/a “Country”) and Eugene Coleman. Under these circumstances, a jury instruction is not sufficient to protect the interests of Payden and Coleman. Accordingly, the government is precluded from offering this evidence.

BACKGROUND

Viewing the facts in the light most favorable to the government, the offer of proof presented by the government consists of the following information. This information is contained in two DEA form Sixes (exhibits 3502 EE and 3503 B) as well as the government’s memoranda and offer of proof. The “Sixes” were prepared by Special Agent Marvin Siegel, the case agent for the investigation and the officer personally involved in the incident with Grant and Special Agent Beatrice Leone who accompanied Siegel during the July 19, 1985 incident. The government would seek to introduce these facts through Special Agent Siegel and Special Agent Leone.

On July 19, 1984 at approximately 8:45 p.m., Special Agents Marvin Siegel and Beatrice Leone, while parked in the vicinity of 158th Street and Amsterdam Avenue, were approached by Anthony Grant. Grant offered to sell Siegel a variety of narcotics but Siegel initially rebuffed him stating that he did not believe that Grant would be able to sell him the quantity of heroin that he wished to purchase. Grant, disclaiming that he should not be telling Siegel this, then identified a location on Amsterdam Avenue as “Country’s,” and stated that all the heroin in the area was “Country’s,” and that “Country” could supply all the heroin Siegel needed. At that time Siegel observed Donald Payden [a/k/a “Country”] standing in front of the location Grant had pointed out.
Siegel then broke off his conversation with Grant, drove away, and returned approximately ten minutes later. At that time, Grant entered Siegel’s automobile and they discussed a narcotics transaction. Siegel reported to Grant that he would be interested in doing business if Grant could get heroin from Country. Grant replied that his brother worked for Country and could supply all the heroin Siegel wanted; Grant also fixed a price of $35.00 per quarter.
Shortly thereafter, Siegel drove his automobile back to the vicinity of 158th Street and Amsterdam Avenue. Grant got out of Siegel’s automobile and walked to an individual he later identified as “Eric.” After a brief moment, Grant returned to Siegel’s vehicle and told Siegel that Eric worked for Country and had heroin available for sale. Eric then briefly joined Grant at Siegel’s vehicle and first asked Grant if Siegel was going to do the deal and then directed Grant to “do the transaction.” Eric then rode away from the car on his bicycle.
Finally Siegel told Grant that he was reluctant to do the deal at that time but that he would return in the future. Grant gave Siegel a slip of paper with the phone number where he could be reached and Siegel departed.

Memorandum in Support of the Admission of Certain Evidence Relating to Incidents Occurring on July 19, 1984 at 2-3.

DISCUSSION

I. Admissibility of Evidence

The court must determine whether the evidence is admissible and, if so, against whom. Each of the statements must be examined independently with respect to the individual defendants.

A. Statements by Eric

Eric, the individual that Grant talked with after meeting with Siegel and who later approached Siegel’s automobile, made statements regarding the alleged deal between Grant and Siegel. Eric asked Grant whether Siegel was going to do the deal. After Grant nodded in the affirmative, Eric said “you do the transaction.”

The statements are not hearsay. Rather, they constitute verbal acts which are not being introduced for the truth of the matter stated. See United States v. Alvarez-Porras, 643 F.2d 54, 58 (2d Cir.), cert. denied, 454 U.S. 839,102 S.Ct. 146, 70 L.Ed.2d 121 (1981). The statements are therefore admissible against all of the defendants. The mere fact that these statements were made is evidence that Grant and Eric were involved in the same conspiracy. It is not clear from these statements, however, that Eric and Grant are involved in the Payden conspiracy charged in the indictment.

B. Statements by Grant

Grant is alleged to have made a number of comments regarding Donald Payden. Grant is also alleged to have made a statement that would tend to connect Grant to the alleged Payden-Coleman conspiracy.

1. Admissibility as to Grant.

Grant’s own statements may be introduced against him as admissions. Fed.R.Evid. 801(d)(2)(A). These admissions may be used against Grant to connect him with the Payden conspiracy. E.g., United States v. Terry, 702 F.2d 299, 320 (2d Cir.), cert. denied, 464 U.S. 992, 104 S.Ct. 482, 78 L.Ed.2d 680, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983); United States v. Archbold-Newball, 554 F.2d 665, 676-77 (5th Cir.), cert. denied, 434 U.S. 1000, 98 S.Ct. 644, 54 L.Ed.2d 496 (1977). Grant states that Eric works for Payden, and it is apparent from his statements and actions that he is working with Eric. Accordingly, as to Grant there is sufficient evidence to connect him to the Payden conspiracy.

2. Admissibility as to Payden and Coleman.

Simply because the statements are admissible as to Grant, the statements are not automatically admissible against Payden and Coleman because Rule 801(d)(2)(A) provides for the use of admissions only against the party making the statement. The court must determine the admissibility against Payden and Coleman as if they were being tried separately. See United States v. Archbold-Newball, 554 F.2d at 677. These statements may not be considered as evidence against Payden or Coleman unless they fall within the coconspirator exception embodied in Rule 801(d)(2)(E) or some other hearsay exception applicable to these codefendants. United States v. Lyles, 593 F.2d 182, 194 (2d Cir.), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979); United States v. Eubanks, 591 F.2d 513, 519 (9th Cir.1979) (per curiam); White v. United States, 394 F.2d 49 (9th Cir.1968); see also People v. Payne, 35 N.Y.2d 22, 27-28, 358 N.Y.S.2d 701, 315 N.E.2d 762 (1974) (admission received into evidence against declarant at his own trial not admissible as to coconspirator).

Under Rule 801(d)(2)(E), before a jury may consider out of court statements by a third party against a defendant, this court must be satisfied by a fair preponderance of the independent non-hearsay evidence that the defendant and the third-party declarant were in fact members of the same conspiracy, United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir.1969), cert. denied, 397 U.S. 1028, 90 S.Ct. 1276, 25 L.Ed.2d 539 (1970); see United States v. Cicale, 691 F.2d 95, 103-04 (2d Cir.1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1771, 76 L.Ed.2d 344 (1983), and that this conspiracy is the conspiracy charged in the indictment, see United States v. Cambindo Valencia, 609 F.2d 603, 636 n. 25 (2d Cir.1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2163, 64 L.Ed.2d 795 (1980). In order to be considered against Payden and Coleman, the court must therefore find by a fair preponderance of the independent, non-hearsay evidence that Grant is a member of the Payden-Coleman conspiracy.

The first question is to determine what is the non-hearsay evidence connecting Grant to the Payden-Coleman conspiracy. The totality of the evidence connecting Grant to the Payden-Coleman conspiracy consists of testimony of Claudine Jones and the proffered testimony of DEA agents. Claudine Jones testified that she cut-up Payden’s heroin into $25 and $50 bags. The agents would testify as to the events described in the DEA form Six. Specifically:

—Grant stated that all of the heroin sold in the area was Country’s and that Pay-den was standing in front of Kenny’s, a store on the block;
—Grant offered to sell “quarters,” “spoons” and “half-spoons” to Siegel;
—Grant told Special Agent Siegel that Eric and Grant’s brother worked for Country;
—Grant and Eric walked towards the automobile from the location where Payden was standing; and
—Eric then told Grant to do the transaction with Siegel.

The Government’s contention is that based on this evidence, Grant was a member of the Payden conspiracy. Not all of this evidence, however, is admissible, specifically Grant’s statement that Eric and Grant’s brother work for Country, and the statement that all of the heroin sold in the area was Country’s.

If admissible under another exception to the hearsay rule, these statements could be used in making the Geaney finding with respect to Payden and Coleman. United States v. Cambindo Valencia, 609 F.2d at 635 n. 24. Grant’s statements, although admissions as to him, are not admissible under 801(d)(2)(A) as to Payden and Coleman. Further, there are no other exceptions to the hearsay rule which would allow these statements to be admitted against them. The only possible exception that could apply is the statement against interest exception, Fed.R.Evid. 804(b)(3). Since Grant’s statement inculpates Payden and Coleman, in order to be admissible under Rule 804(b)(3), the government must show “(1) that the declarant is ‘unavailable’ as a witness,” (2) that the statement is sufficiently reliable to warrant an inference that “a reasonable man in [the declarant’s] position would not have made the statements unless he believed it to be true,” and (3) that “coroborating circumstances clearly indicate the trustworthiness of the statement.” United States v. Katsougrakis, 715 F.2d 769, 775 (2d Cir.1983), cert. denied, 464 U.S. 1040, 104 S.Ct. 704, 79 L.Ed.2d 169 (1984) (citations omitted); accord United States v. Alvarez, 584 F.2d 694, 699 (5th Cir.1978). Assuming arguendo that Grant is “unavailable,” Grant’s statements that Eric works for Country and that all of the heroin sold in the area is Country’s clearly do not satisfy elements (2) or (3).

An examination of the entire transaction reveals that there are a number of statements made by Grant relating to his attempt to consummate a sale with Siegel that would tend to subject Grant to criminal liability. Those statements offering to sell narcotics which do not inculpate Pay-den and Coleman would be admissible, if relevant, against Payden and Coleman under 804(b)(3) and would not be subject to the three part test noted above.

The specific statements that link Grant and Eric to Payden, including Grant pointing to Kenny’s, however, do not fall within this exception. Although stated in the context of a narcotics transaction, it cannot be said that a reasonable man would not have made these statements unless he believed them to be true. Further, these specific statements are not against Grant’s interest, rather, they affect Eric and Payden. Thus, the statements that link Eric to Pay-den do not satisfy the second element of the test.

With respect to the third element, there are few corroborating circumstances that would indicate the trustworthiness of these statements. In fact, the facts surrounding these statements indicate that the statements are unreliable. According to the DEA form six describing the Grant meeting, Grant approached the vehicle to inquire whether Siegel wanted to buy drugs. Siegel said that he was not interested in talking with Grant. Grant then stated that if Siegel wanted cocaine, he would take Siegel to an apartment on West 158th Street, but if he wanted heroin, he would take Siegel to an individual named Poindexter. Siegel again stated that he was not interested in doing business with someone he did not know. After Grant tried persuading Siegel further, Siegel responded that Grant could not supply the quantity that Siegel wanted. Grant then responded that all the heroin in the area was Country’s and that Country could supply whatever the agents needed. Siegel then appeared interested. Grant, persisted in his efforts to make a sale, then made the only statement that would link him to the Pay-den-Coleman conspiracy — that Eric worked for Payden. At that point Eric approached the car. In this context, the reliability of this statement is insufficient.

Apparently to corroborate Grant’s statements made during the July 19th meeting, the government has submitted a second DEA form Six relating to a meeting between Siegel and an individual identified as P.J. (Exhibit 3503 B). Siegel asked P.J. if he knew Grant or Eric. P.J. stated that he did. P.J. noted that Grant and Eric were not in the area but Grant had told him to take care of Siegel. Siegel then stated that he would buy heroin from anyone as long as it was Country’s. P.J. then stated that he would get someone to help them. P.J. later met with Siegel stating that he could not locate Grant or anyone else to get what Siegel wanted. This incident does not have adequate indicia of reliability to corroborate the prior meeting.

In sum, Grant’s statements regarding Eric’s connection to Country have not been corroborated by circumstances “clearly indicatpng] their trustworthiness.” Katsougrakis, 715 F.2d at 775. The Government has proffered little independent evidence that Eric and Country had any dealings with respect to the narcotics Grant was offering.

Accordingly, Grant’s statements that all the heroin in the area was Country’s and that Eric and Grant’s brother worked for Country cannot be considered in making the Geaney finding as to Payden and Coleman. Furthermore, the remaining evidence relating to the size of the packages Grant was offering for sale, that Grant identified Payden, and that Grant walked from the location where Payden was standing is insufficient to establish the link between Grant and the Payden conspiracy. See United States v. Garcia-Duarte, 718 F.2d 42, 46 (2d Cir.1983) (cocaine dealer’s customer book containing name of defendant along with finding cocaine in defendant’s home as well as magazine in defendant’s home addressed to dealer is not sufficient to establish link between the defendant and the dealer); United States v. Harshaw, 705 F.2d 317, 320-22 (8th Cir. 1983) (evidence that drug dealer met with defendant immediately prior to the detective’s drug buy from the defendant and that defendant was in a building visited by drug dealer twice during the course of another cocaine buy did not satisfy Geaney type standard and thus district court was not clearly erroneous in declaring a mistrial); United States v. Steinberg, 525 F.2d 1126, 1134 (2d Cir.1975) (overwhelming evidence that Steinberg participated in large scale narcotics conspiracy along with evidence that alleged co-conspirator engaged in narcotics transactions at Steinberg’s apartment was not enough to link Stein-berg to his alleged co-conspirator for purposes of 801(d)(2)(E)), cert. denied, 425 U.S. 971, 96 S.Ct. 2167, 48 L.Ed.2d 794 (1976); see also United States v. Terry, 702 F.2d at 320-21; United States v. Burgos, 579 F.2d 747, 749 (2d Cir.1978); United States v. Littrell, 574 F.2d 828 (5th Cir.1978); United States v. Cirillo, 499 F.2d 872, 884-87 (2d Cir.), cert. denied, 419 U.S. 1056, 95 S.Ct. 638, 42 L.Ed.2d 653 (1974). The fact that Grant offered heroin in small sized packages, a size that Claudine Jones stated were sold through her workers does not link Grant and Eric to Payden. These size packages were certainly not unique to heroin originating from Payden. Further, the effect of Grant identifying Payden only indicates that Grant knew who Payden was. Finally, that Grant came from Pay-den’s location is insufficient. Thus, viewed in a light most favorable to the government and “not in isolation but in conjunction,” Geaney, 417 F.2d at 1121, the independent non-hearsay evidence clearly does not show by a preponderance of the evidence that Grant is a conconspirator of Payden and Coleman.

II. Bruton Problem

Given the admissibility of Grant’s statement as to him and the inadmissibility of these same statements as to Payden and Coleman, a thorny problem is presented. Under circumstances such as these, a jury instruction to limit the application of the statement is not sufficient to protect the rights of Payden and Coleman. Bruton v. United States, 391 U.S. 123, 137, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); see United States v. Gonzalez, 555 F.2d 308, 316 (2d Cir.1977) (“Bruton was the culmination of a long debate among eminent jurists of the efficacy of cautionary instructions when the jury is permitted to hear a statement that is hearsay and inculpatory of a codefendant, without benefit of cross-examination, which all agree it should not use as a factor in judgment”). The simple logic of this is apparent. Given the circumstances of this case, if the statements were to be admitted, the jury would be instructed that they can consider Grant’s statements (admissions) against him to prove that he was a coconspirator of Payden but that it could not consider Grant’s statements against Pay-den to prove that Payden was a coconspirator of Grant — an absurd result when considering that the essence of a conspiracy is an “agreement” to do an unlawful act.

Under these circumstances the government cannot introduce Grant’s statements. See United States v. Glover, 506 F.2d 291 (2d Cir.1974) (proper course is to prohibit introduction of statements, rather than sever and declare a mistrial). The court is aware of the consequences of this decision and is wary to release a defendant who has been involved in a narcotics transaction. The government should have used more foresight. It should have either brought Mr. Grant to trial on a separate indictment or sought a severance prior to the commencement of trial.

III. Rule 29 Motion

There is a heavy burden on a defendant to succeed on a Rule 29 motion. As the Second Circuit has noted:

[I]n passing upon a motion for directed verdict of acquittal, [a trial judge] must determine whether upon the evidence, giving full to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon te evidence there must be such a doubt in a reasonable mind, he must grant the motion; or to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or no reasonable doubt is fairly possible, he must let the jury decide the matter.

United States v. Artuso, 618 F.2d 192, 195 (2d Cir.), cert. denied, 449 U.S. 861, 879, 101 S.Ct. 164, 226, 66 L.Ed.2d 77, 102 (1980). Given the finding above relating to the admissibility of Grant’s statements to Payden and Coleman under Geaney, however, it follows that unless additional evidence is introduced, Grant’s Rule 29 motion must be granted. As the Second Circuit has noted: “The standard for independent proof of participation is ‘lower then the standard of evidence sufficient to submit a charge of conspiracy to a jury.’ ” United States v. Cicale, 691 F.2d at 103 (quoting United States v. Alvarez-Porras, 643 F.2d 54, 57 (2d Cir.), cert. denied, 454 U.S. 839, 102 S.Ct. 146, 70 L.Ed.2d 121 (1981)); accord United States v. Garcia-Duarte, 718 F.2d at 45. Since Rule 29 provides for “the entry of judgment of acquittal ... after the evidence on either side is closed,” the determination of the Rule 29 motion is premature. The court, therefore, reserves on this motion until the close of the government’s case.

CONCLUSION

Defendants’ motion to exclude evidence is granted. The court reserves decision on defendant Grant’s Rule 29 motion until the close of the government’s case.

SO ORDERED.

      . United States v. Payden, 620 F.Supp. 1426 (S.D.N.Y.1985) (Opinion and Order); United States v. Payden, 613 F.Supp. 800 (S.D.N.Y.1985); United States v. Payden, 609 F.Supp. 1273 (S.D.N.Y.), aff’d, 768 F.2d 487 (2d Cir.1985); in re Grand Jury Subpoena Dated Jan. 2, 1985 (Simels), 605 F.Supp. 839 (S.D.N.Y.), rev’d, 767 F.2d 26 (2d Cir.1985); United States v. Payden, 598 F.Supp. 1388 (S.D.N.Y.1984), rev’d, 759 F.2d 202 (2d Cir.1985).

      . Defendants Donald Payden and Eugene Coleman have joined in the motion.

      . For convenience, Grant's statements, as contained in the DEA, form six, exhibit 3502 EE, are repeated here. Grant stated that he could take Siegel to locations to purchase small quantities of cocaine and heroin and that Grant could get heroin from an individual named "Poindexter.” After Siegel indicated that he wanted larger quantities, Grant indicated that there were two other locations where he could get larger quantities. When Siegel stated that he wanted more than one package of this larger quantity, Grant pointed to Kenny’s and stated that it was a number’s place. Grant then stated that the place was "Country’s” and that "Country” was standing in front of it. Grant also stated that all of the heroin in the area was Country’s and that Country could supply whatever Siegel needed. Siegel observed Payden in front of Kenny’s. Siegel then left the area. Ten minutes later, Siegel returned to speak to Grant. Grant entered Siegel’s car to discuss a possible deal while they drove around the neighborhood. Siegel stated that he would like to get heroin from Country. Grant then said that his brother worked for Country.
      Grant spoke to a person identified as Eric, and then approached the automobile. Grant stated that Eric worked for Payden and had the heroin Siegel wanted. Eric then approached the car and asked if the deal was going to go through. Grant replied in the affirmative and Eric told Grant to do the deal. Eric rode a short distance on his bicycle then stopped and waited. Siegel then informed Grant that he did not wish to do the deal at that time. Grant then gave Siegel a slip of paper with his phone number to allow Siegel to contact him to purchase heroin in the future.

      . Without this requirement of independent non-hearsay corroboration, coconspirator hearsay "would lift itself by its own bootstraps to the level of competent evidence.” Glosser v. United States, 315 U.S. 60, 74-75, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942).

      . The finding that no other exception would allow these statements as to Payden and Coleman for Geaney purposes would also preclude use of these statements against them to prove Grant’s participation as an element of the conspiracy. There is other evidence linking Payden and Coleman in a conspiracy so that the conspiracy charge as to them does not fall based on this exclusion.

      . When Grant's statements linking Eric to Pay-den are excluded, the relevance of the remaining statements is questionable. Although the remaining evidence does establish a Grant-Eric conspiracy, the failure to link them to the Pay-den conspiracy makes all of their remaining statements irrelevant to the charges contained in the indictment.

      . The arguments raised by Mr. Grant based on the "single act” doctrine and the “mere facilitation” doctrine are unpersuasive. It is clear that Mr. Grant was doing more than introducing a willing buyer to a willing seller: he was attempting to consummate a sale. See United States v. Putin, 486 F.2d 1363, 1369 (2d Cir.1973), cert. denied, 416 U.S. 987, 94 S.Ct. 2392, 40 L.Ed.2d 764 (1974). Further, the fact that Grant’s alleged participation in the conspiracy is limited to a single act does not preclude a finding that Grant was a member of the conspiracy. United States v. Ramirez, 482 F.2d 807, 816 (2d Cir.), cert. denied, 414 U.S. 1070, 94 S.Ct. 581, 38 L.Ed.2d 475 (1973). Based on the information contained in the DEA forms, testimony would be given that would tend to establish that Mr. Grant was attempting to sell narcotics. Based upon the evidence which the court is permitting to be introduced at trial, however, the court finds that the government has not established by a fair preponderence of the independent non-hearsay evidence that Donald Payden was the source of these narcotics, the charge in the Indictment.


source: Caselaw Access Project

author: WISEMAN, Chief Judge.

license: Public Domain

text:
    STATE OF TENNESSEE v. John HERRINGTON, Secretary of the United States Department of Energy.
    Civ. A. No. 3-85-0959.
    United States District Court, M.D. Tennessee, Nashville Division.
    Nov. 26, 1985.
    W.J. Michael Cody, Atty. Gen., John Knox Walkup, Chief Deputy Atty. Gen., Frank J. Scanlon, Deputy Atty. Gen., Nashville, Tenn., for plaintiff.
    Joe E. Brown, U.S. Atty., James C. Tho-mason, Asst. U.S. Atty., Nashville, Tenn., Wells D. Burgess, Land and Natural Resources Div., U.S. Dept, of Justice, Washington, D.C., Gregory Fess, Dept, of Energy, Gen. Counsel, Washington, D.C., for defendant.
   MEMORANDUM

WISEMAN, Chief Judge.

This is a case of first impression and involves an issue of pressing national importance — the safe storage of nuclear waste. The case arises out of a dispute between the, State of Tennessee and the United States Department of Energy (“DOE”) over whether the DOE followed proper statutory procedures in identifying sites in Tennessee as candidates for the temporary storage of nuclear waste in Monitored Retrievable Storage (“MRS”) installations.

The State of Tennessee seeks declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202; or, in the alternative, for a writ of mandamus under 28 U.S.C. § 1361 to compel the Secretary of Energy (“Secretary”) to comply with certain provisions of the Nuclear Waste Policy Act of 1982 (“NWPA”), 42 U.S.C. §§ 10101-10226 (1982). Recognizing the jurisdictional question raised by this action, the State has filed an identical complaint in the Court of Appeals for the Sixth Circuit, and asked the court of appeals to stay its proceedings until such time as this Court has decided the action.

The Secretary has moved to dismiss the complaint asserting lack of jurisdiction in this Court, insisting that the statutory scheme of the NWPA vests exclusive jurisdiction in the Court of Appeals to review actions of the Secretary in the administration of the NWPA.

The motion to dismiss is denied. For the reasons hereinafter set forth, this Court finds that it has jurisdiction of this case, and that the exclusive jurisdiction vested in the Courts of Appeals by section 119 of the NWPA does not apply to Part C of Sub-chapter 1 of the NWPA, section 141.

I. THE ACT

After years of unsuccessfully attempting to enact comprehensive legislation dealing with the urgent national problem of nuclear waste disposal, Congress passed the Nuclear Waste Policy Act of 1982, Pub.L. No. 97-425, 96 Stat. 2202 (1983). The purpose of the NWPA is “to establish programs for the development of repositories for the safe permanent disposal of high level nuclear waste and spent fuel, and to provide for the safe stabilization and long-term protection of sites for the disposal of low level radioactive waste.” H.R.Rep. No. 491(1), 97th Cong., 2d Sess. 26, reprinted in 1982 U.S.Code Cong. & Ad.News 3792. The federal waste management program articulated by the NWPA authorizes processes for both the permanent placement and the temporary storage of nuclear waste produced by civilian facilities. The focus of this waste management program is on the development of permanent, deep repositories for nuclear waste. The NWPA establishes a timetable for the Secretary to identify states containing “potentially acceptable sites” for a permanent repository and the mechanism for participation of states and Indian tribes in the sitting process. Ultimately, the process results in the President’s recommendation to Congress of one site for development of the first permanent repository. The state or Indian tribe affected may submit to Congress a notice of disapproval of the President’s site recommendation, and the site shall be disapproved unless Congress overrides the state veto by passing a resolution of repository sitting approval within 90 days.

Congress also enacted Part C of Sub-chapter I of the NWPA, which deals with Monitored Retrievable Storage, as a “backup” to the repository program. As its name implies, MRS basically requires the continuous monitoring of the waste stored in such a facility. Such waste may be retrieved at a later time, perhaps decades later, for placement in a permanent repository. Congress has made it clear in the NWPA that MRS is not as desirable as the permanent repository system in furthering the national goal of the safe disposal of nuclear waste. Congress has authorized the Secretary to develop plans for MRS as the contingency plan for the long-term storage of nuclear waste in the event that Congress determines at a future date that such facilities are needed as part of the national nuclear waste management system. The legislative history to the NWPA makes it clear that MRS is not an alternative to the permanent repository system but is to be developed in conjunction with the repositories, if at all. H.R.Rep. No. 491(1), 97th Cong., 2d Sess. 44, reprinted in 1982 U.S.Code Cong. & Ad.News 3792, 3810. Section 141(h) of the NWPA incorporates several of the sections and subsections of Part A of Subchapter I which deal with participation of states and Indian tribes in the selection of sites for permanent repositories. Therefore, states and Indian tribes have some of the same rights to participate in the selection of potential MRS sites and the same limited veto power as they have in the selection of sites for permanent repositories.

II. SUMMARY OF ARGUMENTS

The issue of whether original and exclusive jurisdiction is vested in the United States courts of appeals or the district courts to hear a challenge to the procedures followed by the Secretary in selecting potential sites in Tennessee for MRS installations involves a question of statutory construction. The State presents an uncomplicated, literal reading of the language of sections 119 and 141 in arguing that this Court has jurisdiction over this case. The State argues that Congress incorporated certain provisions contained within Part A of Subchapter I, relating to state participation, into the MRS subtitle of Part C by specifically citing these provisions in section 141(h), and impliedly rejected the application of all other provisions of Part A to the MRS development process. The State also argues that the clear language of section 119(a), which vests jurisdiction in the court of appeals, demonstrates the clear Congressional intent that the section applies only to certain actions arising “under this part” (referring to Part A of Subchapter I) and to actions arising under provisions outside of Part A of Sub-chapter I which are specifically enumerated in section 119(a)(1)(D)-(F). The State does not challenge the jurisdiction granted the courts of appeals over actions arising under these sections; however, the state relies on what it believes is the clear language of section 119(a), which does not refer to Part C of Subchapter I, concerning Monitored Retrievable Storage, in vesting original and exclusive jurisdiction in the courts of appeals, to exclude actions arising under Part C from the jurisdictional provision.

The Secretary presents a more convoluted analysis of the Act’s construction. The Secretary states that the State of Tennessee’s complaint alleges that he failed to comply with the provisions providing for state participation in the MRS siting process. The Secretary argues that the State thereby states a cause of action pursuant to section 119(a)(1)(B) which vests jurisdiction over actions alleging the failure of the Secretary to take any action required “under this part” in the courts of appeals. Arguing that the phrase “under this part” should not be read literally, the Secretary claims that since the procedures for state participation which are incorporated in section 141(h), relating to MRS, are located in Part A of Subsection I, therefore, the judicial review section of Part A, section 119, must also apply to actions involving section 141(h). The Secretary also argues that the fact that there is no judicial review provision in Part C of Subchapter I, while there is in Part A, militates in favor of finding exclusive jurisdiction vested in the courts of appeals. Finally, the Secretary argues that the most important reason for finding that Congress vested jurisdiction in the courts of appeals is the public policy behind avoiding lengthy litigation and duplicative review over a national program of urgent concern.

III. ANALYSIS

The Court finds the Secretary’s position without merit. The Judicial Code of 1911, ch. 2, § 24, 36 Stat. 1087, 1091-94

(1911) (current version of 28 U.S.C. §§ 1331-1361), removed all original and exclusive jurisdiction from what are known today as the United States circuit courts of appeals. Although Congress since that time has restored original jurisdiction to the courts of appeals over certain types of cases, the statutes which have done so have been express in their grant of jurisdiction and have been construed strictly. Section 119 of the NWPA expressly vests jurisdiction in the courts of appeals over the actions specifically enumerated in subsection a, thus expressly repealing the Judicial Code of 1911; however, actions arising under the MRS provision, section 141, are not mentioned as being within that section’s scope. Therefore, for jurisdiction over actions arising under section 141 to be vested in the courts of appeals pursuant to section 119, an implied repeal of the Judicial Code of 1911 is required. It is a universally recognized principle that repeals of statutes by implication are not favored. See, e.g., United States v. Will, 449 U.S. 200, 221-22, 101 S.Ct. 471, 484, 66 L.Ed.2d 392, 410 (1980); Allen v. McCurry, 449 U.S. 90, 99, 101 S.Ct. 411, 417, 66 L.Ed.2d 308, 316 (1980); Executive Limosine Service, Inc. v. Goldschmidt, 628 F.2d 115, 120 (D.C.Cir.1980). The intention of the legislature to repeal a statute must be “clear and manifest,” see, e.g., Watt v. Alaska, 451 U.S. 259, 267, 101 S.Ct. 1673, 1678, 68 L.Ed. 80, 88 (1981) (quoting United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181, 191 (1939), and absent some affirmative showing of a Congressional intention to repeal, the only permissible justification for finding repeal by implication is when earlier and later statutes cannot be reconciled. See, e.g., Tennessee Valley Authority v. Hill, 437 U.S. 153, 189-90, 98 S.Ct. 2279, 2299, 57 L.Ed.2d 117, 143 (1978); Izaak Walton League of America v. Marsh, 655 F.2d 346, 366 (D.C.Cir.), cert. denied, 454 U.S. 1092, 102 S.Ct. 657, 70 L.Ed.2d 630 (1981); Equitable Life Assurance Society of the United States v. Grosvenor, 426 F.Supp. 67, 71 (W.D.Tenn.1976), aff'd, 582 F.2d 1279 (6th Cir.1978) (unpublished), cert. denied, 439 U.S. 1116, 99 S.Ct. 1022, 59 L.Ed.2d 75 (1979). Congress has not expressed a clear intention in any of the legislative materials to vest original jurisdiction over actions arising under the MRS provision, section 141, in the courts of appeals, so as to impliedly repeal the Judiciary Act of 1911. Accordingly, jurisdiction over this action is vested in this Court.

Other well-established principles of statutory construction also mandate the conclusion that jurisdiction over this action is vested in this Court. The primary function of the courts in construing legislation is to effectuate the intent of the legislature. Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525, 533 (1975). Legislative intent may be ascertained from the clear language of the statute itself or from legislative materials which clearly reveal this intent, In re Arnett, 731 F.2d 358, 361 (6th Cir.1984). Courts should look first to the language of a statute, however, to determine its legislative purpose. See, e.g., Reiter v. Sonotone Cory., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931, 936 (1979); Securities & Exchange Commission v. Ambassador Church Finance/Develoyment Group, Inc., 679 F.2d 608, 611 (6th Cir., 1982). The Sixth Circuit Court of Appeals has stated that “[wjhere a statute is unambiguous, it should be given effect according to its literal language.” Hilliard v. United States, 310 F.2d 631, 632 (6th Cir.1962). Accordingly, courts may not discover a congressional intent, under the guise of statutory construction, which is contrary to the clear language of the statute itself. Hall v. Secretary, Health, Education & Welfare, 600 F.2d 556, 561 (6th Cir.1979).

The Court finds that section 119(a) of the NWPA clearly limits the original and exclusive jurisdiction of the courts of appeals to those actions specifically enumerated in subsections (1)(A)-(F). The Secretary asks this Court to ignore the clear language of subsections (1)(B) and (1)(C) which vests jurisdiction in the courts of appeals over actions challenging certain decisions made, or actions taken, “under this part.” The phrase “this part” refers to Part A of Subchapter I of the NWPA, and this part only. The internal consistency of the statute in at least two instances supports the Court’s conclusion that jurisdiction over this action is vested in the district courts. First, the terms “part,” “subtitle,” “title,” and “subchapter” were used intentionally and with deliberate, discrete meaning by Congress because those terms define the structure of the NWPA. Second, in section 141(h), Congress enumerated the provisions of Part A of Subchapter I which were incorporated in Part C. Section 119 was not one of the sections which was incorporated to apply to Monitored Retrievable Storage. Both of these internal consistencies indicate that Congress intended to vest jurisdiction over MRS actions in the district courts.

In reaching this decision the Court is in disagreement with two courts of the District of Columbia Circuit which have faced an analogous question. See General Electric Uranium Management Corp. (“GEUMCO”) v. United States Department of Energy, 764 F.2d 896 (D.C.Cir.1985); Wisconsin Electric Power Co. v. Hodel, 626 F.Supp. 424 (D.D.C.1984) aff'd., 778 F.2d 1 (D.C.Cir.1985). Both cases involved challenges to fees which utility companies using or planning to use nuclear reactors to generate electric power are required to pay into the Nuclear Waste Fund pursuant to section 302 of the NWPA. Section 302 is contained within Subchapter III of the NWPA. The Wisconsin Electric court held that literal reliance on the term “part” is misplaced because section 302(a)(1), authorizes the Secretary of Energy “[i]n the performance of his functions under this chapter” to enter into contracts with those who generate or hold title to nuclear waste to provide the funds for nuclear waste disposal. (Emphasis added). The court felt that the reference to “chapter” in section 302(a)(1) somehow was enough to “meld” that section with section 119(a)(1)(A), which is contained within Part A of Subchapter I. That finding, together with the practical reason stated by the court that the court of appeals would have a “rulemaking record” upon which to base its findings, led the district court to conclude that original jurisdiction is vested in the courts of appeals over any action arising under section 302, 42 U.S.C. § 10222.

The Court of Appeals for the District of Columbia in GEUMCO carefully traced through the provisions and the structure of the Act, and took a very broad view of the original and exclusive jurisdiction of the courts of appeals under the NWPA. Noting that Congress expressed its goal to establish a Nuclear Waste Fund in section 111(b)(4), which is contained within Part A of Subchapter I of the NWPA, the GEUMCO court found that section 302, which is contained within Subchapter III, incorporates by reference the “functional responsibilities” of the Secretary of Energy under Part A of Subchapter I, including the establishment and administration of the Nuclear Waste Fund. GEUMCO, 764 F.2d at 902. The court found that the structure of the Act supports the view that it would be “singularly incongruous” for fee questions to be subject to review in both the district courts and courts of appeals. Id. The court concluded that from whatever vantage point it approached the statutory construction problem presented by section 302, it invariably concluded that Congress intended to vest original and exclusive jurisdiction over actions raising this issue in the courts of appeals.

These two opinions do not shake this Court’s belief that Congress intended to vest original and exclusive jurisdiction over MRS actions in the district courts. Opinions of courts of sister circuits are persuasive, but not binding on this Court. These two courts overlook the fact that Congress has not repealed the provisions of the Judicial Code of 1911, ch. 2, § 24, 36 Stat. 1087, 1091-94 (1911) (current version at 28 U.S.C. §§ 1331-1361), so as to vest jurisdiction in the courts of appeals over actions not specifically enumerated in section 119(a)(1). Absent a clear and specific Congressional directive to relinquish jurisdiction, this is the trial level court under our judicial scheme. Rewriting a statute is not the province of the judiciary. For this Court to read the term “part” out of the statute is both presumptuous and violative of the rules of statutory construction above. This Court finds the statutory language clear, and not subject to judicial revision.

The thorough analysis of the NWPA articulated by the District of Columbia Court of Appeals in GEUMCO court merits further discussion. The GEUMCO opinion is distinguishable from the case at hand, and, to the extent that GEUMCO is not distinguishable, this Court disagrees with its holding. The GEUMCO court cited three reasons for holding that original and exclusive jurisdiction over nuclear waste fee questions was vested in the courts of appeals:

First, despite the statute’s lack of clarity, we find every indication from those sections of the statutes relied on by DOE, as well as from related sections, and from the structure of the statute as a whole, that Congress intended that the court of appeals would have original and exclusive jurisdiction in cases of this sort. Second, the legislative history, although not illuminating on this question, certainly does not compel a result contrary to the one we reach here. Third, the policy considerations underlying this case, and articulated in other judicial decisions covering analogous statutes, overwhelming support our conclusions.

GEUMCO, 764 F.2d at 901. As previously stated, this Court believes that rules of statutory construction compel a contrary conclusion as to the first justification. This case, however, is distinguishable from GEUMCO because, unlike the Nuclear Waste Fund, MRS is not mentioned in Part A of Subchapter I of the NWPA. The process undertaken by the GEUMCO and Wisconsin Electric courts to “meld” section 119 with section 302 cannot rationally be achieved between section 119 and section 141, the MRS provision.

The second justification stated by the GEUMCO court was that there is no explanation in the legislative history for the physical separation of the fee provisions of section 302 from the judicial review provisions in section 119. Neither is there an explanation in the legislative history for the separation, although somewhat less physically removed from one another, of the MRS provision of section 141 from the judicial review provisions of section 119. As previously stated, however, this Court is very hesitant to divine a Congressional intent to vest jurisdiction over MRS actions exclusively in the courts of appeals on the ground that the legislative history is silent.

The GEUMCO court stated three policy considerations weighing in favor of the court’s conclusion on jurisdiction. Citing the public policy of avoiding duplicative judicial review and the attendant delay and expense involved, the court stated that “in administrative appeals, “where it is unclear whether review jurisdiction is in the district court or the court of appeals the ambiguity is resolved in favor of the latter.” ” 764 F.2d at 903 (quoting Denberg v. United States Railroad Retirement Board, 696 F.2d 1193, 1197 (7th Cir.1983), cert. denied, 466 U.S. 926, 104 S.Ct 1706, 80 L.Ed.2d 180 (1984)). The GEUMCO court next stated that, because there were no factual findings to be made due to the extensive rule-making record in the case, the court of appeals would review exactly the same record as would be reviewed by a district court. Third, the court stated that vesting original jurisdiction in the courts of appeals promotes the Congressional goals of predictability and efficiency in dealing with the pressing national concern of the safe disposal of nuclear waste. Id. at 904.

This Court concedes the importance of the public policy considerations articulated by the GEUMCO court. The goals of judicial efficiency and predictability and the avoidance of duplicative review are laudable ones. The Nuclear Waste Policy Act, however, establishes a unique method of review in section 119. As earlier stated, Congress has restored original jurisdiction to the courts of appeals in piecemeal fashion since the Judiciary Act of 1911 abolished such jurisdiction. Today, numerous statutes vest original and exclusive jurisdiction in the courts of appeals to review administrative action. Such statutes, however, anticipate that the applicable federal agency or commission will develop an administrative record which the courts of appeals may review. In this case, an administrative record does not exist. If original jurisdiction over MRS actions was vested in the courts of appeals, the Court of Appeals for the Sixth Circuit would be compelled to hear proof in this case on the issue of whether or not the Secretary of Energy followed the proper statutory procedures in identifying sites in Tennessee as candidates for MRS installations. Since district courts are well-equipped to develop a record for review, the Court feels this point is further evidence that Congress intended that jurisdiction over MRS actions lie in the district courts.

IV. CONCLUSION

For the foregoing reasons, the Court holds that subject matter jurisdiction over the State of Tennessee’s claim lies exclusively in the district courts. Whether this result comports with the national policy of the speedy resolution of actions challenging the nuclear waste management plan is a matter for Congress to decide, not the courts.

ORDER

For the reasons set forth in the memorandum opinion filed contemporaneously herewith, the motion to dismiss for lack of jurisdiction of the subject matter is DENIED. Because this Court is of the opinion that this order involves a controlling question of law as to which there are substantial grounds for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation, an immediate appeal is authorized pursuant to the provisions of 28 U.S.C. § 1292(b).

      . Although this Court recognizes that there are distinctions among the many forms of nuclear waste, the Court will use the phrase "nuclear waste” in this opinion to include the types of waste produced in civilian commercial activities covered by the Nuclear Waste Policy Act of 1982, 42 U.S.C. §§ 10101-10226 (1982), including high-level radioactive waste, transuranic waste, low-level waste, and spent nuclear fuel.

      . 42 U.S.C. § 10139 (1982).

      . 42 U.S.C. § 10161 (1982).

      . The NWPA authorizes the development of permanent repositories in sections 111-125, comprising Part A, "Repositories for Disposal of High-Level Radioactive Waste and Spent Nuclear Fuel,” of Subchapter I. 42 U.S.C. §§ 10131-10145 (1982). In Part B of the statute, sections 131-137, 42 U.S.C. §§ 10151-10157, Congress authorizes the "Interim Storage Program,” which is intended to provide federal storage capacity to utilities which cannot safety provide their own interim storage capacity for spent nuclear fuel at the site of each civilian nuclear power reactor, until the permanent repositories are constructed. 42 U.S.C. § 10151(b). Part C of the NWPA, section 141, which describes the process for siting Monitored Retrievable Storage facilities, is described in detail in the body of this opinion since it is the subject of this action. 42 U.S.C. § 10161 (1982).

      . See 42 U.S.C. §§ 10131-10145 (1982).

      . See 42 U.S.C. §§ 10131-10138 (1982).

      . See 42 U.S.C. § 10134 (1982).

      . 42 U.S.C. §§ 10136(b)(2), 10138(a) (1982).

      . 42 U.S.C. § 10135(c) (1982). For a summary of this siting process, see State of Texas v. U.S. Dept. of Energy, 764 F.2d 278, 279-80 (5th Cir.1985).

      . 42 U.S.C. § 10161 (1982).

      . For a study on MRS technology, see The Monitored Retrievable Storage Concept, A Review of Its Status and Analysis of Its Impact on the Waste Management System, U.S. Dept. of Energy, Dec. 1981, cited in H.R.Rep. No. 491(1), 97th Cong., 2d Sess. 41 n. 2, reprinted in 1982 U.S.Code Cong. & Ad.News 3792, 3807 n. 2.

      . 42 U.S.C. § 10161(h) (1982).

      . Section 119, 42 U.S.C. § 10139, is the only substantive statutory review provision in the NWPA. The part of section 119 which bears on the present action is subsection (a), which states:
      (1) Except for review in the Supreme Court of the United States, the United States Courts of Appeals shall have original and exclusive jurisdiction over any civil action—
      (A) for review of any final decision or action of the Secretary, the President, or the Commission under this part;
      (B) alleging the failure of the Secretary, the President, or the Commission to make any decision, or take any action, required under this part;
      (C) challenging the constitutionality of any decision made, or action taken, under any provision of this part;
      (D) for review of any environmental impact statement prepared pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 'seq.) with respect to any action under this subtitle, or as required under section 10155(c)(1) of this title, or alleging a failure to prepare such statement with respect to any such action;
      (E) for review of any environmental assessment prepared under section 10132(b)(1) or 10155(c)(2) of this title; or
      (F) for review of any research and development activity under subchapter II of this chapter.
      (2) The venue of any proceeding under this section shall be in the judicial circuit in which the petitioner involved resides or has its principal office, or in the United States Court of Appeals for the District of Columbia.
      42 U.S.C. § 10139(a) (1982). The only other provision in the NWPA mentioning statutory review, section 221, which is contained within Subchapter II, merely refers back to section 119(a)(1) by stating "(¡judicial review of research and development activities under this subchapter shall be in accordance with the provisions of section [119] of this title.” 42 U.S.C. § 10201 (1982).

      . Section 141, which is contained within Part C of Subchapter I, pertains to Monitored Retrievable Storage. The part of this section which is at issue in this case is subsection (h), which states:
      Any facility authorized pursuant to this section shall be subject to the provisions of section 10135[115], 10136(a)[116(a)], 10136(b) [116(b)], 10136(d)[116(d)], 10137[117], and 10138[118] of this title, for purposes of carrying out the provisions of this subsection, any reference in sections 10135[115] through 10138[118] of this title to a repository shall be considered to refer to a monitored retrievable storage facility.
      42 U.S.C. § 141(h) (1982).

      . See supra note 13.

      . 42 U.S.C. § 10139(a)(1)(B) (1982).

      . See infra note 26 and accompanying text.

      . After having conducted an exhaustive search of the legislative materials of the NWPA, the Court has found no Congressional intent to vest exclusive jurisdiction in the courts of appeals over any actions arising under the NWPA other than those specifically enumerated in section 119(a) of the Act, 42 U.S.C. § 10139(a). In particular, neither the legislative history to section 119(a), nor section 141(h), demonstrates any legislative intent to vest exclusive jurisdiction in the courts of appeals over actions which challenge the procedures used by the Secretary of Energy in selecting potential sites for MRS installations. See H.R.Rep. No. 491(1), 97th Cong., 2d Sess. 56, reprinted in 1982 U.S.Code Cong. & Ad.News 3792, 3822-23.

      . See supra note 18 and accompanying text.

      . 42 U.S.C. § 10139(a)(1)(A)-(F) (1982).

      . Although the statute itself does not clearly define the term "subtitle,” the legislative history to the Act makes clear that the term, as used in section 119(a)(1)(D), is interchangeable with the term "part.” For an example of this fact, see H.R.Rep. No. 491(I), 97th Cong., 2d Sess. 50 & 56, reprinted in 1982 U.S.Code Cong. & Ad.News 3792, 3816 & 3822 (Part A of Subchapter I is referred to as Subtitle A, and the legislative history to section 119(a)(1) also refers to Part A in this manner.)

      . 42 U.S.C. § 10161(h) (1982).

      . The Secretary’s argument that the courts of appeals have exclusive jurisdiction over actions arising under section 141(h) because that provision incorporates several provisions of Part A of Subchapter I leads to the incongruous result that jurisdiction over actions arising under that section would be vested in the courts of appeals, while jurisdiction over actions arising under other MRS provisions, section 141(a)-(f), would be vested in the district courts. The Secretary certainly does not intend for this result to occur.

      . 42 U.S.C. § 10222 (1982). GEUMCO involved a challenge to the one-time fee charged utilities for spent nuclear fuel used to generate electricity before April 7, 1983, pursuant to section 302(a)(3) of the NWPA, 42 U.S.C. § 10222(a)(3). Wisconsin Electric involved a challenge to the ongoing fee for spent nuclear fuel used to generate electricity on and after April 7, 1983, pursuant to section 302(a)(2) of the NWPA, 42 U.S.C. § 10222(a)(2). Congress established the ongoing fee, and ordered the Secretary of Energy to promulgate the one-time fee, which he established by rulemaking proceedings. Art. VIII, A.2, 10 C.F.R. § 961.11 (1985).

      . 42 U.S.C. § 10222(a)(1) (1982).

      . 42 U.S.C. § 10131(b)(4) (1982).

      . 42 U.S.C. § 10222 (1982).

      . The GEUMCO court cited the Wisconsin Electric opinion with approval on this point. 764 F.2d at 902 n. 32.

      . See supra note 13.

      . In reaching this conclusion, this Court agrees with the opinion of the lower court in GEUMCO. See General Electric Uranium Management Corp. v. U.S. Dept. of Energy, 584 F.Supp. 234, 236-37 (D.D.C.1984) (Richey, J.), rev’d, 764 F.2d 896 (D.C.Cir.1985).

      . See supra note 18 and accompanying text.

      . The GEUMCO court stated that "even without an extensive record or hearing before the agency, it is rare that the factfinding capacity of the district court is required in judicial review of administrative agency actions.” 764 F.2d at 903 & n. 38 (citing Florida Power & Light Co. v. Lorion, — U.S.-,-, 105 S.Ct. 1598, 1607, 84 L.Ed.2d 643, 656 (1985)). This simple declaration presumes, of course, that an agency record in fact exists.

      . Some of the more widely used provisions vesting exclusive jurisdiction in the courts of appeals over certain governmental orders are as follows: the Hobbs Act, 28 U.S.C. §§ 2342-2350, concerning the Federal Communications Commission, the Federal Maritime Commission, the Nuclear Regulatory Commission, and the Interstate Commerce Commission; the Securities Act, 15 U.S.C. § 77i; and the Securities Exchange Act, 15 U.S.C. § 78j; concerning the Securities and Exchange Commission; the Federal Aviation Act, 49 U.S.C. § 1486, concerning the Federal Aviation Administration; and the Immigration and Nationality Act, 8 U.S.C. § 1105a, concerning the Immigration and Naturalization Service. See generally G. Edles & J. Nelson, Federal Regulatory Process: Agency Practices & Procedures § 8.4, at 180 (1981 & Supp.1984). Despite the fact that Congress very easily could resolve the prickly .question of whether a court of appeals or a district court has jurisdiction by a statutory amendment, it has not done so. See K. Davis, Administrative Law Treatise 134 (2nd ed. 1983). Courts must continue to consider this question. For a short listing of recent cases, see GEUMCO, 764 F.2d at 903 nn. 35-38.

      . See note 4 on page 926.


author: GESELL, District Judge.

text:
    LUCASFILM LTD., Plaintiff, v. HIGH FRONTIER, et al., Defendants. LUCASFILM LTD., Plaintiff, v. COMMITTEE FOR A STRONG, PEACEFUL AMERICA, et al., Defendants.
    Civ. A. Nos. 85-3609, 85-3668.
    United States District Court, District of Columbia.
    Nov. 26, 1985.

      Arthur J. Levine, Laurence R. Hefter, Jay L. Witkin, Philip J. Moy, Thomas W. Gorman, Washington, D.C., for plaintiff.
    Marianne Mele Hall, G. Lindsay Simmons, Scott W. Woehr, Washington, D.C., for defendants in 85-3609.
    Mary Jacksteit, John McNally, Frederic C. Williams, Anthony Parker, Washington, D. C., for defendants in 85-3668.
   MEMORANDUM

GESELL, District Judge.

These two complaints alleging infringement of plaintiff’s STAR WARS trademark involve the same questions of law and substantially similar facts. The suits have been consolidated and plaintiff’s motion for preliminary injunction in each case will be treated as submitting the issues for final resolution on the merits pursuant to Fed.R.Civ.P. 65(a)(2). The Court has received briefs, affidavits and heard full oral argument by counsel for all parties.

Not so long ago, in a studio far, far away from the policymakers in Washington, D.C., George Lucas conceived of an imaginary galaxy where fantastic creatures and courageous knights battled an evil empire with spaceships, “blaster” guns and light sabers. Plaintiff Lucasfilms Ltd. marketed this imaginative fantasy in three enormously popular films, the first of which was entitled “STAR WARS.” STAR WARS has since become a strong trademark owned by plaintiff and registered as a service mark under the Lanham Act. 15 U.S.C. §§ 1051-1127. Plaintiff has built on the national success of these movies and the goodwill associated with STAR WARS by using the STAR WARS mark to merchandise dolls, toys, comic books, cookies, paper cups, watches, candles and even bubble bath.

Meanwhile, in the real world of defense strategy and international politics, newspapers, politicians, scientists and spokesmen of allied and enemy nations have chosen to characterize the Reagan Administration’s Strategic Defense Initiative (SDI) as its “star wars” program. SDI seeks to develop defenses against a nuclear attack with weapons based in space somewhat reminiscent of those depicted in the STAR WARS movies. Some see SDI as a brilliant proposal full of promise. Others fear the idea will simply escalate the risk of nuclear war and frustrate efforts toward disarmament. An intense political debate is under way and still raging. Through persistent and prolific use in newspapers and magazines and over television and radio the phrase star wars has become a popular synonym for the SDI proposal.

The principal defendants are public interest groups aligned on opposite sides of this political controversy. Both have chosen to express their views through television messages which refer to SDI as star wars. Except for their viewpoint, defendants’ television messages are similar; both focus on a child’s response to space defenses against a nuclear attack. In addition, like many others, they sometimes refer to star wars in their literature as a catchy shorthand for SDI. Ironically, because of their opposing viewpoints, defendants are also engaged in a dispute between themselves as to whether star wars is an apt synonym for SDI, or should be replaced by more comforting phrases such as “Peace Shield” or “High Frontier.”

Plaintiff disavows involvement in this political fray and wishes only to protect its business interest in the STAR WARS trademark. Plaintiff fears that associating STAR WARS with this political controversy will injure the valuable goodwill it has achieved by developing a mark associated with imaginary battles among fantastic creatures in distant worlds. Inevitably, the political debate identifies STAR WARS in some minds with devastation and death from uncontrollable nuclear escalation. Plaintiff urges this could detract from the public’s present association of STAR WARS with humor and fantasy. The goodwill value of the trademark is particularly threatened by defendants’ use of television advertisements that are attractive to young television viewers.

Plaintiff seeks to enjoin defendants’ use of the phrase star wars alleging trademark infringement, unfair competition, misappropriation, disparagement and a number of other similar business torts. The proof presented at this stage leaves no doubt that STAR WARS is still a strong trademark and defendants’ television messages injure the value of the mark in some minds. Nonetheless, while plaintiff admittedly faces this unfortunate series of circumstances, the Court has no authority to provide plaintiff relief.

Plaintiff has no property right in the use of words commonly found in the English language. It is well established that the property right conferred by a trademark is very limited:

A trademark is not property in the ordinary sense, but only a word or symbol indicating the origin of a commercial product. The owner of a mark acquires the right to prevent the goods to which the mark is applied from being confused with those of others and to prevent his own trade from being diverted to competitors through their use of misleading marks. There are no rights in a trademark beyond these.

Industrial Rayon Corp. v. Dutchess Underwear Corp., 92 F.2d 33 (2d Cir.1937), cert. denied, 303 U.S. 640, 58 S.Ct. 610, 82 L.Ed. 1100 (1938); accord Power Test Petroleum Distributors v. Calcu Gas, Inc., 754 F.2d 91, 97 (2d. Cir.1985); Dresser Industries, Inc. v. Heraeus Engelhard Vacuum, Inc., 395 F.2d 457, 464 (3d Cir.1968), cert. denied, 393 U.S. 934, 89 S.Ct. 293, 21 L.Ed.2d 270 (1968). Thus plaintiff’s trademark, STAR WARS, only protects him against those who seek to attach those words to products or services that compete with him in the marketplace, against those who dilute the value of his mark by engaging in a noncompeting trade or business but utilize the mark in connection with a disreputable or sleazy product or service, and, under some circumstances, even against those who injure his business by offering goods or services that disparage the goodwill value of STAR WARS.

This case fits none of these molds. The defendants have not affixed any trademark to any goods or services for sale. Indeed, they are not engaged in selling anything but ideas. They do not compete with plaintiff and are not engaged in creating any confusion or mistake that takes advantage of plaintiff’s good will to further a trade or business. Defendants’ television messages and literature merely attempt to persuade the public of their respective but conflicting viewpoints. In this sense, their use of the phrase star wars stands on the same footing as its use in books, newspapers, magazines, comics, news reports, editorials or public speechs as a shorthand reference to the SDI program. Thus it is not the type of use that the laws against trademark infringement and unfair competition are designed to restrict.

Nonetheless, plaintiff suggests that defendants’ efforts to persuade the public of their viewpoint is a “service” within the meaning of the Lanham Act. Federal trademark laws, however, only prohibit unauthorized “use in commerce” of a trademark “in connection with the sale, offering for sale, distribution or advertisement of any goods or services” or affixing “a false designation of origin, or any false description or representation” to goods and services used in commerce. 15 U.S.C. §§ 1114, 1125(a). “Use in commerce” is defined as placing the mark on goods sold in commerce or using or displaying it in the sale or advertising of services rendered in commerce. 15 U.S.C. § 1127. Defendants’ only activity is trying to communicate their ideas. Purveying points of view is not a service. Even if promoting of ideas was considered to be conducting an educational “service,” television messages that are only used to express those ideas do not sell or advertise them. In this respect, defendants’ activities are indistinguishable from those of a publisher or lecturer who uses the phrase star wars while attempting to educate others or promote a certain view.

Trademark law does not reach such uses. The purpose of trademark regulation is to prevent unfair competition and protect consumers from fraud and deception. Id. Unfair competition and the other business torts invoked by plaintiff are similarly limited. These laws do not reach into the realm of public discourse to regulate the use of terms used outside the context of trade. Defendants’ use of the phrase star wars to persuade the public of their viewpoint through television messages is not an infringing use.

Traditional trademark law supports the common sense conclusion that defendants’ use of star wars under these circumstances cannot be enjoined. Defendants have not used the phrase as a title for their organization or propaganda campaign in a way that might create confusion among contributors or supporters. Compare National Association for the Advancement of Colored, People v. N.A.A. C.P. Legal Defense & Educational Fund, Inc., 559 F.Supp. 1337 (D.D.C.1983), rev’d on other grounds, 753 F.2d 131 (D.C.Cir.1985); American Diabetes Association v. National Diabetes Association, 533 F.Supp. 16, 21 (E.D.Pa.1981). Defendants’ use of the phrase star wars is not to advertise, connote sponsorship or act as an attention-getting symbol to promote products or services. Compare Mobile Oil Corp. v. Mobile Mechanics, Inc., 192 U.S. P.Q. 744 (D.C.Conn.1976). Defendants use star wars in the body of their message in a descriptive manner to communicate ideas, rather than to create confusion as to sponsorship. Such use of a trademark is not prohibited. See Reddy Communications, Inc. v. Environmental Action Foundation, 477 F.Supp. 936, 946 (D.D.C.1979).

When politicians, newspapers and the public generally use the phrase star wars for convenience, in parody or descriptively to further a communication of their views on SDI, plaintiff has no rights as owner of the mark to prevent this use of STAR WARS. Even though the descriptive meaning is originally derived from the trade use, courts obviously cannot regulate the type of descriptive, non-trade use involved here without becoming the monitors of the spoken or written English language. Since Jonathan Swift’s time, creators of fictional worlds have seen their vocabulary for fantasy appropriated to describe reality. Trademark laws regulate unfair competition, not the parallel development of new dictionary meanings in the everyday give and take of human discourse. Plaintiff is in the difficult position of objecting because what he has depicted as fantasy may be frightening when depicted as a potential reality. Plaintiff must be left to his own devices to maintain the strength of his trademark by making the differentiation clear and convincing.

Plaintiff argues that the defendants’ use of the phrase star wars differs from that of others engaged in this political debate because by using children it is attractive to children. One can appeal to adults by treating them as big children and child-like presentations are appealing to adults. Plaintiff’s own films are persuasive evidence of this. The impact of defendants’ messages, like that of others who associate star wars with SDI, is clearly directed towards adults and they are entitled to frame their messages in this way, even if this aspect inadvertently causes greater harm to plaintiff.

Overlying this lawsuit is plaintiff’s natural concern that if he does not seek legal remedies to protect his mark he will lose it. But the use of star wars in political propaganda, newspapers or noncommercial, non-trade references will not undermine plaintiff’s exclusive property right to use it in connection with goods and services. The words “star” and “wars” were in the common domain before plaintiff established its service mark and plaintiff’s efforts gave STAR WARS a special, secondary meaning. Now the phrase star wars has acquired a double meaning, but it has not become a generic term, that is a term associated with an entire class of goods or services. Continued non-trade, noncommercial use cannot take the mark away from plaintiff Lucasfilms. Whether this use makes the trademark become ultimately more or less valuable is a matter of conjecture, but the trademark is still plaintiff’s. The new meaning of the phrase in the political or scientific context does not affect the distinct, and still strong secondary meaning of STAR WARS in trade and entertainment. Plaintiff’s right to prevent an infringing use of its mark remains intact.

It would be wholly unrealistic and unfair to allow the owner of a mark to interfere in the give-and-take of normal political discourse, particularly where such interference of things would be incomplete, selective and ineffective. Yet, it would be equally unrealistic and unfair to take from the lawful owner of a strong trademark his continued right to its commercial use because others, beyond his control and contemplating no harm to him, used the words of the trademark as part of an on-going international political debate.

The Court cannot venture beyond the property protections provided by the trademark laws and attempt to regulate the terms of public debate. As the dispute between plaintiff and the defendants and the dispute between the defendants in this case illustrates, labels can have great significance, in both business and politics. But courts have no role in overseeing the use of labels in the context presented by this case.

The Court has concluded on the unique facts of these cases that defendants’ actions are not an infringing use within the trademark laws or related causes of action brought by the plaintiff. Judgment on the merits for the defendants will be entered and the complaints will be dismissed. The only issues upon which there is any factual dispute are the strength of plaintiff’s trademark and the potential for injurious confusion. The Court has assumed that both of these issues would be resolved in plaintiff’s favor, but neither is decisive to the outcome of the cases for the reasons stated.

An appropriate order dismissing the complaints is filed concurrently with this Memorandum.

      . See, e.g., Doonesbury comic strip for November 22, 1985, the first three frames of which duplicate defendant High Frontier's television message.

      . Defendants The Communications Company and Richard Pollack Associates are engaged in providing advertising services commercially, but are only acting as the conduit for the message of the public interest group sponsoring this advertisement. It is not enough that a defendant provides a service and uses a trademark— the trademark laws only reach activites in which a trademark is used in connection with selling or advertising a service. These messages do not sell or advertise the services of the commercial or noncommercial defendants.


author: ENSLEN, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Horace Mann OREN, Defendant.
    No. G 85-67 Cr.
    United States District Court, W.D. Michigan, S.D.
    Nov. 26, 1985.

      John Smietanka, U.S. Atty. by Donald Davis, Asst. U.S. Atty., Grand Rapids, Mich., for plaintiff.
    Vlachos, Jerkins & Hurley by Joseph Jerkins, Kalamazoo, Mich., for defendant.
   OPINION AND ORDER

ENSLEN, District Judge.

Defendant, Horace Mann Oren, D.D.S., was indicted by a grand jury in May of 1985 on three counts of willfully attempting to evade and defeat the federal income tax for the tax years 1978-1980 in violation of 26 U.S.C. § 7201. Defendant stood mute at his arraignment and a plea of not guilty was entered on his behalf. A jury trial commenced in this court on September 17, 1985. On September 21, 1985, the jury returned a verdict of guilty on all three counts of the indictment.

The matter is currently before the court on Defendant’s motion for new trial pursuant to Fed.R.Crim.P. 33 or, in the alternative, upon a writ of error coram nobis. Because the issue of Defendant’s past and/or present competency to stand trial has been raised for the first time in these pleadings, I ordered an independent psychiatric evaluation of the defendant pursuant to 18 U.S.C. §§ 4241 and 4247(b), (c). The court-appointed psychiatrist, Dr. Walter M. Anglin, interviewed the defendant on November 14, 1985. His report and assessment has been made available to both parties. The court has also received and carefully considered the evaluation reports of three experts retained by the defendant. These experts are: Steven Berger, M.D. (Psychiatrist); Stanley C. Clayton, Ph.D. (Clinical Sociologist); and Daniel Rosen, Ed.D. (Clinical Psychologist).

The object of these evaluations is rather unique in terms of § 4241. Because all four evaluations were conducted after the criminal trial at issue, and due to the nature of defendant’s motion, the medical inquiry was necessarily two-pronged: What is the current state of Dr. Oren’s mental and emotional health and what was the state of his mental health up to and through the time of trial? In other words, the court is now called upon to make a nunc pro tunc, or retrospective, competency determination. While such determinations are of dubious validity after a significant time lapse, in this case the issue was first raised and all four evaluations were made within two months after the commencement of defendant’s trial. Cf. United States v. Ives, 574 F.2d 1002 (9th Cir. 1978) (six-year time lapse too long for retrospective competency determination). Under the circumstances, I feel that this court is able to make a reliable judgment as to the defendant’s mental competence to stand trial dating back to September 17 of this year.

For our purposes, the term “competence” is defined by reference to 18 U.S.C. § 4247(c)(4)(A). That section provides that:

[I]f the examination is ordered under section 4241, [the proper inquiry is] whether the person is suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense.

All four experts agree that Dr. Oren suffers, to some degree, from an obsessive-compulsive personality disorder. Significantly, however, none of the examining experts conclude the Dr. Oren is or was “incompetent,” at least as that term is defined above. Rather, Dr. Anglin, the fourth and final examiner, concluded at page 3 of his report that: “At the time of this evaluation, Dr. Oren is mentally competent to understand both the nature and consequences of the proceedings against him. It is felt that he was competent (albeit unwise) at the time of the alleged offenses and selection of his initial legal counsel.”

I am in complete agreement with Dr. Anglin’s assessment of defendant’s competency. I think that it is beyond question that Dr. Oren understood the nature and consequences of his criminal trial. In fact, all the evidence indicates that Dr. Oren considered himself a martyr of sorts, a willing target of prosecution to further his cause. Dr. Oren apparently sought to be the subject of a test case in order to alert society to the evils of our monetary system and ultimately force the issue of the validity of the ratification of the sixteenth amendment. The evidence further indicates that Dr. Oren sought out his trial attorney, Lowell Becraft, for the purpose of presenting this very defense, after he had consulted with at least one local criminal defense attorney. While I, as a former trial attorney, might not consider this a prudent course, I note that prudence is not the equivalent of competence. I conclude, after reviewing the four medical reports and based upon my first-hand observation of the defendant at trial, that Dr. Oren is and was fully “competent” as that term is defined in § 4247.

I now shift to the defendant’s motion for new trial. This motion is based alternatively on Rule 33 of the Fed.R. Crim.P. and the ancient writ of error cor-am nobis. Congress has expressly approved two methods by which a criminal defendant can collaterally attack his judgment of conviction and sentence in the district court. Rule 33 allows the defendant to move for new trial on any ground within seven days after the verdict, or within two years of the entry of final judgment if the motion is based on newly discovered evidence. Pursuant to 28 U.S.C. § 2255, a convicted prisoner in federal custody can challenge his sentence on constitutional, statutory or jurisdictional grounds at any time after sentencing. Rule 33 and § 2255, however, did not provide an effective means of collateral attack in all cases. For instance, new evidence discovered in excess of two years after the entry of the judgment of conviction could not provide the basis of a challenge to the conviction and sentence under either provision. A similar inability to challenge a sentence on constitutional, statutory or jurisdictional grounds resulted where the convict was, for whatever reason, not in federal custody at the time of the motion. Therefore, the ancient writ of error coram nobis, once considered an anachronism in federal jurisprudence, see Lucas v. United States, 114 F.Supp. 581 (D.W.Va.1948), was revitalized by the Supreme Court in 1954 to fill the gaps left by Rule 33 and § 2255. See United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). Deriving its authority from 28 U.S.C. § 1651(a) (the all writs section), the Morgan Court held that the writ of error coram nobis was available to review a criminal conviction when § 2255 did not apply (i.e., when the convicted defendant was not in federal custody). The Second Circuit subsequently held the writ applicable to newly discovered evidence challenges after the jurisdictional time period of Rule 33. United States v. Keogh, 391 F.2d 138 (2d Cir.1968). Nevertheless, while the writ of error coram nobis is useful as a gap filler, it may not be used to supplant Rule 33 or § 2255 when relief under these two provisions is otherwise available. Therefore, I will proceed to consider defendant’s motion for new trial based upon the claims of newly discovered evidence under Rule 33.

As I read defendant’s motion, the claimed “newly discovered evidence” is that defendant was incompetent at the time of trial, that said incompetence effectively precluded him from retaining competent lead counsel for trial, and that Mr. Becraft rendered ineffective assistance of counsel in the sixth amendment sense. Because I have already ruled that Dr. Oren was legally competent to stand trial under 18 U.S.C. § 4241, the first two claims of newly discovered evidence are without merit. With respect to the claim of ineffective assistance as newly discovered evidence, I note that the Circuits that have considered this question are split. Only the D.C. Circuit has held that a claim of ineffective assistance of counsel can constitute newly discovered evidence under Rule 33. See United States v. Brown, 476 F.2d 933 (D.C.Cir.1973). Since Brown, all other Circuits that have addressed the issue have held that a claim of ineffective assistance cannot be considered “newly discovered” because the facts that give rise to the claim were necessarily known to the defendant at the time of trial. See United States v. Dukes, 727 F.2d 34, 39 (2d Cir.1984); United States v. Lara-Hernandez, 588 F.2d 272, 275 (9th Cir.1978); United States v. Ellison, 557 F.2d 128, 133-34 (7th Cir.), cert. denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 450 (1977). While the Sixth Circuit has not yet had the opportunity to rule on this issue, I think that a logical reading of Rule 33 compels the result reached by the Second, Seventh and Ninth Circuits. A claim of ineffective assistance of counsel, brought by a competent defendant under Rule 33, must be made, if at all, “within 7 days after the verdict or finding of guilty or within such further time as the court may fix during the 7-day period.” In the words of the Fourth Circuit, a claim “[bjelatedly pursued is not newly discovered.” United States v. Molovinsky, 688 F.2d 243, 248 (4th Cir.1982), cert. denied, 459 U.S. 1221, 103 S.Ct. 1228, 75 L.Ed.2d 462 (1983).

Of course, my ruling does not preclude the defendant from raising the issue of ineffective assistance of counsel directly on appeal. However, I will state for the record that were I to reach defendant’s claim of ineffective assistance on the merits, either under Rule 33 or the writ of error coram nobis, I would have held that defendant was not denied his sixth amendment right to effective assistance of counsel as that right was recently defined in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As the Strickland Court stated, “[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id., at---, 104 S.Ct. at 2064, 80 L.Ed.2d at 692-93. Strickland established a two part test for claims of ineffective assistance. First, defendant must show that his counsel was “deficient” in the sixth amendment sense. The attorney’s conduct must be measured against an objective standard of reasonableness under prevailing professional norms. Id., at---, 104 S.Ct. at 2064, 80 L.Ed.2d at 693-94. Second, defendant must show that his attorney’s conduct so prejudiced his defense that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at-, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

As far as Mr. Becraft’s ability to conduct a federal felony trial is concerned, I note that he stated that he had had some experience in criminal tax defense cases; that Mr. Jerkins, defendant’s current counsel, moved to admit Mr. Becraft to the local bar for the purposes of this case pursuant to W.D.Mich.R. 14, thereby implicitly vouching for his competence; that Mr. Jerkins’ firm filed an appearance as co-counsel in this case; and that Mr. Nicholas Vlachos, a member of that firm, sat at the defense counsel’s table throughout the entire trial. Under the circumstances, it seems somewhat disingenuous for Mr. Jerkins to assert, at this late date, that his client was denied effective assistance of counsel.

Furthermore, the primary quarrel with the conduct of the defense appears to be over trial tactics. Courts are understandably reluctant to secondguess a trial attorney’s strategy after the fact and with the benefit of hindsight. The proper inquiry must be whether the attorney exercised reasonable professional judgment, considered from his perspective at the time of trial. Since this is a difficult determination at best, and since there is no one “correct” defense to any particular criminal charge, the court must indulge a “strong presumption that counsel’s conduct fallé within the wide range of reasonable professional assistance.” Strickland, at -, 104 S.Ct. at 2066, 80 L.Ed.2d at 694. Under this analysis, I could not say that Mr. Becraft’s trial strategy, or his assistance in general, was deficient in the sixth amendment sense.

I would also have to say that different counsel with a different strategy, specifically Mr. Jerkins and his “diminished capacity” theory, would not be reasonably likely to obtain a verdict of acquittal on retrial. In my opinion, the evidence against the defendant at trial was overwhelming. This conclusion is buttressed by the fact that the jury deliberated for less than one hour. Based upon my observations at trial, and upon the reports of the four experts that examined the defendant, I simply do not think that it is reasonably likely that a new jury could be persuaded that the defendant was unable to appreciate the “nature and quality of the wrongfulness of his acts,” thereby negating the requirement of willfulness. In sum, if I had to decide the issue of ineffective assistance of counsel, I would hold that defendant was unable to establish either prong of the Strickland test.

In any event, defendant’s motion for new trial is denied.

IT IS SO ORDERED.


author: GONZALEZ, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Gerald A. RUSSELL, Defendant.
    No. 85-6128-Cr-GONZALEZ.
    United States District Court, S.D. Florida, N.D.
    Nov. 26, 1985.
    Barry Seltzer, Asst. U.S. Atty., Ft. Lauderdale, Fla., for plaintiff.
    Bruce A. Zimet, Fort Lauderdale, Fla., for defendant.
   ORDER

GONZALEZ, District Judge.

THIS CAUSE has come before the court upon the defendant’s Motion to Dismiss Indictment on the Basis of the Unconstitutionality of Title 31 U.S.C., section 5316.

On July 27, 1985, the defendant was charged with the wilful failure to comply with requirements of Title 31 U.S.C.A., section 5316 (West 1983 and West Supp.1985). The charge arises from his failure to file a currency and foreign transaction report disclosing the transportation of approximately $147,102.00 in cash out of the United States.

The defendant in seeking dismissal of his indictment argues that the disclosure and reporting requirements of section 5316 violate his fifth amendment protection against self-incrimination. The defendant’s position is premised upon certain amendments to the monetary transactions reporting requirements and other statutes. These amendments:

1. raised the reporting requirement from $5,000 to $10,000, 31 U.S.C.A. § 5316(a)(1) (West Supp.1985);
2. increased criminal penalties to a felony and subjected violators to a $250,000 fine, five (5) years imprisonment, or both, 31 U.S.C.A. § 5322(a) (West Supp.1985);
3. authorized United States Customs Officers to search, without a warrant, any vehicle or person suspected of transporting monetary instruments, 31 U.S.C.A. § 5317(b) (West Supp.1985);
4. encouraged the reporting of violators by offering substantial rewards, 31 U.S.C.A. § 5323 (West Supp.1985);
5. provided that violations of § 5316 are predicate offenses subject to RICO prosecutions, 18 U.S.C.A. § 1961(1) (West Supp.1985); and
6. included § 5316 violations on the list of offenses for which Title III electronic surveillance may be sought, 18 U.S.C.A. § 2516(1)(g) (West Supp. 1985).

The defendant maintains that the above amendments transformed §.5316 from a regulatory statute into a statute with criminal implications thereby triggering fifth amendment protections.

The court disagrees.

Although the act of transporting large sums of money is not unlawful, it is illegal to wilfully fail to comply with the disclosure and reporting requirements of section 5316. The possibility that compliance might benefit a government drug investigation to the detriment of an individual who complies with section 5316 is irrelevant. The underlying occurrence, transporting sums of money into and out of the United States, is not, in and of itself, illegal.

The defendant’s case authority supports this court’s determination. In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), compliance with the transfer tax provisions of the Marihuana Tax Act was held to violate the fifth amendment as an individual would be subjected to prosecution under state narcotics laws. The Supreme Court has also determined that as gambling was an illegal activity in every state, except Nevada, requiring a gambler to register and pay an occupational tax on wagering clearly violated fifth amendment protections. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). Further, a provision of the Subversive Activities Control Act of 1950 requiring members of the communist party to register was patently unconstitutional as membership in the communist party was itself a crime. Albertson v. Subversive Activities Control Board, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965).

To recapitulate, in the Leary, Marchetti and Albertson cases, the underlying activity was illegal; therefore, fifth amendment protections properly were triggered. In the case sub judice, the act of transporting large sums of money is not unlawful, Thus, section 5316 requirements do not violate fifth amendment prohibitions against self-incrimination.

Accordingly, it is hereby

ORDERED AND ADJUDGED that the Motion to Dismiss Indictment on the Basis of the Unconstitutionality of Title 31 U.S.C., Section 5316 filed by the defendant, Gerald A. Russell, be and the same is DENIED.

      . As the underlying activity is not unlawful, this court finds that the analysis employed in United States v. DesJardins, 747 F.2d 499 (9th Cir.1984), is unnecessary.