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All Reporters → F.2d (Federal Reporter, Second Series) → Volume 446

Opinions in F.2d (Federal Reporter, Second Series) Volume 446

The Secretary appeals from the district court’s holding that the unappealed administrative denial of claimant’s four previous applications for social security disability benefits was not res judicata of a substantially identical fifth application. We reverse and direct that the Secretary’s motion for summary judgment be granted. The doctrine of administrative res judicata is firmly establis...
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This is an appeal from a judgment of the United States District Court for the Eastern District of New York after a trial before a jury, Jack B. Weinstein, Judge, convicting appellant of bank robbery and bank robbery while armed. Defendant was sentenced to 15 years in prison on each count, to run concurrently. We find no error and affirm the judgment. At trial, defendant’s ease centered primar...
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Petitions for direct review are lodged in this court from reparation orders issued by the Secretary of Agriculture against Maly Livestock Commission Company and Glen Wenzl under the Packers and Stockyards Act, 7 U.S.C.A. 210(e). This court reserved ruling on the respondents’ motions to dismiss the petitions for lack of jurisdiction until the matter was fully briefed and submitted on the merits. W...
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This is an appeal from an order of dismissal by the District Court. The facts are sufficiently set forth in the opinion of District Judge Timothy Hogan, 327 F.Supp. 970, S.D.Ohio, 1971. The parties will be described as in the District Court. Briefly, the facts are as follows: The plaintiff is an “air carrier” within the meaning of Title 49 U.S.C. § 1301(3), and as such was required to char...
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The defendant was indicted for violation of the Dyer Act, transportation of a stolen motor vehicle from Texas to Mexico, knowing the same to have been stolen. Defendant was a member of the Armed Services (United States Army). Upon arraignment on June 5, 1970, represented by court-appointed counsel, Mr. Colbert N. Coldwell, he entered a plea of guilty which was accepted, and the district court t...
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For the second time we consider the conviction of Ben Thie Schultz for robbery in violation of 18 U.S.C. § 2113(a). 1 Two issues are raised on this appeal. Through appointed counsel, appellant contends that the trial court prejudiced the defense of insanity by requiring defendant to present his medical expert out óf turn. The record belies this contention. At the commencement of trial, Schult...
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This case had its genesis in Guinto v. District Director, I&NS, C.D.Cal., 1969, 303 F.Supp. 1094, where the background facts are fully stated. In that case, Judge Hill, on July 11, 1969, remanded the matter to the Immigration and Naturalization Service for further proceedings. He held that the.Attorney General (i. e., the Service) would be expected to determine whether Guinto was a m...
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Jones, in a jury trial, was convicted on six counts of an indictment charging violations of 26 U.S.C. § 5861(d) [possession of an unregistered machine gun], 26 U.S.C. § 5861(e) [illegal transfer of a submachine gun], and 18 U.S.C.App. 1202(a) [unlawful possession of a weapon by a felon]. Inasmuch as the sentences were for the same period of time and made to run concurrently, we need sustain the v...
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OPINION OF THE COURT This appeal challenges a May 6, 1970, district court order denying a Petition to Amend Pleading and For Reconsideration of an April 13, 1970, district court order dismissing the initial complaint. The complaint alleges a cause of action against plaintiff’s appointed counsel in a state criminal proceeding charging, inter alia, attempted prison break, aggravated assault and b...
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Appellant was found guilty by a jury of violating 18 U.S.C. § 2314 on three occasions. Section 2314 provides, in relevant part: “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transports or causes to be transported, or induces any person to travel in, or...
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This is an appeal from the denial of habeas corpus relief to Edwards, a prisoner of the State of Texas. We affirm. Edwards attacks the validity of his conviction for the murder with malice of his four-month-old son. The jury assessed Edwards’ punishment at life imprisonment, to which he was sentenced on November 3, 1965. No direct appeal was taken, but Edwards exhausted other available state po...
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446 F.2d 18 Richard Dale EDWARDS, Petitioner-Appellant,v.Dr. George J. BETO, Director, Texas Department ofCorrections, Respondent-Appellee.No. 30816 Summary Calendar.**(1) Rule 18, 5 Cir. See Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. June 22, 1971. Richard Dale Edwards,...
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Taxpayer contends that complete liquidation of his solely owned corporation (HBDC) was effected under 26 U.S.C.A. § 331(a) 1 in 1964 rather than 1965 as held by the Tax Court. We affirm. There is really not a significant question of law. All agree that “complete” liquidation is tested in practical terms and that the liquidation need not be lit- erally complete. 2 This is essentially a fac...
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Carl William Powers’ petition to vacate and set aside conviction and sentence pursuant to Title 28, U.S.C. § 2255, was denied by the district court without a hearing on the basis of the petition, the government’s answer and the records and files of the court. This appeal asks that the judgment below be set aside and revérsed for full hearing in the trial court, with process to secure attendance o...
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446 F.2d 22 Carl William POWERS, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.No. 71-1352. Summary Calendar.**(1) Rule 18, 5 Cir.; See Isbell Enterprises, Inc.v.Citizens Casualty Company of New York et al., 5 Cir., 1970,431 F.2d 409 Part I. United States Court of Appeals, Fifth Circuit. June 24, 1971. Carl W. Powers, pro se. Eldon B. Mahon, U.S....
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446 F.2d 24 UNITED STATES of America, Appellant,v.45,131.44 ACRES OF LAND, MORE OR LESS, IN EL PASO, FREMONTAND PUEBLO COUNTIES, STATE OF COLORADO, TractsNos. 403 and 428, General RefractoriesCompany and Pueblo Quarries,Inc., Appellees. No. 524-70. United States Court of Appeals, Tenth Circuit. July 28, 1971. George R. Hyde, Atty., Dept. of Justice, Washington, D.C. (Sh...
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This is an appeal by the government from a jury award in a condemnation case in the amount of $1,250,000.00. The government began condemnation proceedings to expand the Fort Carson Military Base near Colorado Springs, Colorado, and among other tracts took the fee to 592.71 acres of land owned in various interests by the defendants. The land at the time of taking was being actively mined for refrac...
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The issue on this appeal is whether a prisoner who has been released from a federal prison after serving his maximum sentence minus good time is subject to the continuing jurisdiction of the United States Board of Parole. Tippitt began to serve his ten year sentence on March 6, 1964, for the interstate transportation of a stolen motor vehicle and the sale or receipt of the vehicle in violation ...
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The appellant, Nancy Bigjoe, is the surviving spouse of John S. Bigjoe and the named beneficiary under a life insurance contract that had existed between her husband, the insured, and the appellee insurer (Pioneer). Pioneer, a Texas company qualified to do business in the State of Washington, had issued a policy upon the life of the insured in the amount of $10,000 with a provision for double ind...
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*31 OPINION OF THE COURT These are appeals from judgments of conviction following jury verdicts finding each of the two appellants guilty of armed bank robbery. The third participant, indicted with them, pled guilty and testified on behalf of the United States against appellants. One of the appellants claims he was denied a fair trial because he was not tried separately. He ...
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Appellant was indicted, tried and convicted in a jury trial on five counts of violations of 26 U.S.C. § 4705(a) [illegal sale of narcotic drugs]; two counts of violations of 21 U.S.C. § 331(q) (2) [illegal sale of drugs], and five counts of violations of 26 U.S.C. § 5861(d) [illegal possession of unregistered firearms]. Appellant was sentenced to five years imprisonment on certain of the counts a...
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This is an appeal from a directed verdict rendered in favor of Hull Corporation, the manufacturer of a mold press sold by Hull to Motorola, Inc., appellant’s employer. Appellant was working the press when injured, at which time her thumbs were burned and crushed after insertion in the heated press while it was in operation. Appellant urges the press was defectively designed, and relies on negli...
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This is an appeal from an order of the United States District Court for the Southern District of Iowa denying appellant’s petition for habeas corpus relief. An evidentiary hearing was held before the District Court at which time the appellant argued that his induction *37 into the Armed Forces was unlawful because he suffered from a disqualifying medical condition, specifically that he was af...
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This is an appeal from the United States District Court for the Eastern District of New York (Walter Bruch-hausen, Judge) from an order denying a motion made pursuant to 28 U.S.C. § 2255 to vacate a judgment of conviction and sentence imposed upon the appellant for violating the Selective Service Act [50 U.S.C. § 462(a)] by refusing induction into the Armed Forces of the United States. The appell...
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The Government seeks a writ of mandamus compelling the district court to set aside its order of November 16, 1970, dismissing the indictment against Eck, the real party in interest, and directing the district court to sentence Eck on his plea of guilty. Eck was indicted for a violation of 18 U.S.C. § 659 (theft from an interstate shipment). With the United States Attorney’s consent, Eck pleaded...
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This is a diversity tort action brought by plaintiffs-appellants in the District of Colorado wherein damages are sought for personal injuries suffered by plaintiffs through the claimed negligence of the defendant chemical company (Muske-gon). The trial court, at the conclusion of plaintiffs’ case, directed a verdict adverse to plaintiffs under Rule 50(a) Fed. Rules Civ.Proc. Appeal follows the ...
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The district court denied Charles Rueben Stewart coram nobis relief, and he brings this in forma pauperis appeal. We remand this case for appropriate additional proceedings on Stewart’s petition. In 1951, Stewart pleaded guilty in a United States district court to the charge of acquiring marijuana cigarettes without having paid the required transfer tax in violation of 26 U.S.C. § 2593(a) (now ...
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Affirmed. 1 See Local Rule 21. 2 1 . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s Local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir., 1969, 412 F.2d 981. 2 . See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir., 19...
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A careful study of the briefs and record in this case reveals that the trial court’s comments were not prejudicial in light of all of the facts and circumstances of the trial, and that any possible error was harmless. Leonard v. United States, 386 F.2d 423 (5th Cir. 1967). Affirmed. ...
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446 F.2d 44 UNITED STATES of America, Plaintiff-Appellee,v.Arthur BOYLES, Defendant-Appellant.No. 30827 Summary Calendar.**Rule 18, 5th Cir., see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. June 1, 1971, Rehearing Denied July 16, 1971. Gerald Kogan, Miami, Fla. (Court-...
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Affirmed. See Local Rule 21. 1 ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en bane, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied. ...
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446 F.2d 45 UNITED STATES of America, Plaintiff-Appellee,v.Jesus Oscar TREVINO, Defendant-Appellant No. 30691. United States Court of Appeals, Fifth Circuit. Aug. 19, 1971. Oscar Pena, Laredo, Tex., court-appointed, for defendant-appellant. Anthony J. P. Farris, U.S. Atty., James R. Gough, Edward B. McDonough, Jr., Anthony C. Aguilar, Asst. U.S. Attys., Houston, Te...
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Affirmed. See Local Rule 21.1 . See NLRB v. Amalgamated Clothing Workers of America, 5th Cir. 1970, 430 F.2d 966. ...
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446 F.2d 46 Richard James ROGERS, Plaintiff-Appellant,v.WHITE TRUCKS, a division of White Motor Corporation,Birmingham, Alabama, Defendant-Appellee.No. 71-1559 Summary Calendar.**Rule 18, 5 Cir.: see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409. United States Court of Appeals, Fifth Circuit. Aug. 13, 1971, Rehearing Denied Sept. 28, 1971...
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446 F.2d 46 Richard James ROGERS, Plaintiff-Appellant,v.WHITE TRUCKS, a division of White Motor Corporation, Birmingham, Alabama, Defendant-Appellee. No. 71-1559 Summary Calendar.* United States Court of Appeals, Fifth Circuit. August 13, 1971. Rehearing Denied September 28, 1971. Appeal from United States District Court, Northern District of Alabama; Frank H. McFadd...
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Hitchcock, an Arizona prisoner, appeals from the denial of this petition for a writ of habeas corpus following an ev-identiary hearing. 1 The only contention that merits discussion is Hitchcock’s claim that publicity preceding and during his homicide trial prejudiced him. The publicity consisted of a few newspaper stories. The pretrial accounts gave some of Hitchcock’s personal history and hi...
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Affirmed.1 See Local Rule 21.2 . Hyler v. Reynolds Metal Co., 5 Cir., 1970, 434 F.2d 1064. . See NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966. ...
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The Secretary of Labor brought this action under the Equal Pay Act of 1963, 29 U.S.C.A. § 206(d) (1), for relief in connection with defendant’s alleged wage discrimination on the basis of sex. This case is before the Court for the second time. The district court, in its first decision dismissing the action, concluded that the higher wages paid to men by defendant bank were due to the men’s part...
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Robert Glenn Jones pleaded guilty to a charge of stealing two suitcases that had arrived at Woodrum Airport, in Roanoke, Virginia, after a flight from Denver, Colorado, on airplane belonging to a common carrier. He was convicted of violating 18 U.S.C.A. § 659 on his plea of guilty. On this appeal he contends that the two suitcases did not constitute a part of an interstate shipment within the m...
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446 F.2d 49 UNITED STATES of America, Plaintiff-Appellee,v.James David WILLIAMS, Defendant-Appellant.No. 31132 Summary Calendar.**Rule 18, 5th Cir.; See Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 12, 1971. Theodore E. Smith, Atlanta, Ga., court appointed, for defen...
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446 F.2d 49 UNITED STATES of America, Plaintiff-Appellee,v.James David WILLIAMS, Defendant-Appellant. No. 31132 Summary Calendar.* United States Court of Appeals, Fifth Circuit. August 12, 1971. Appeal from the United States District Court for the Northern District of Georgia; William C. O'Kelley, District Judge. Theodore E. Smith, Atlanta, Ga., court appointed, fo...
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Affirmed. See Local Rule 21.1 See Carter v. United States, 10 Cir., 1964, 333 F.2d 354; Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). . See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966. ...
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The judgment of conviction is affirmed. Cook carried a concealed but empty .38 calibre pistol into the jetway connected to an Eastern Airlines’ plane at Los Angeles where he was stopped. For the purposes of 49 U.S.C. § 1472 (1) we hold that the empty gun was a dangerous or deadly weapon. ...
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446 F.2d 50 Lawrence J. ROUSSELLE, Jr., Plaintiff-Appellant,v.Leander H. PEREZ, Jr., et al., Defendants-Appellees.No. 71-1075 Summary Calendar.**Rule 18, 5th Cir.; See Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. July 7, 1971. Benjamin E. Smith, Smith & Scheuermann, N...
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446 F.2d 50 Lawrence J. ROUSSELLE, Jr., Plaintiff-Appellant,v.Leander H. PEREZ, Jr., et al., Defendants-Appellees. No. 71-1075 Summary Calendar.* United States Court of Appeals, Fifth Circuit. July 7, 1971. Appeal from the United States District Court for the Eastern District of Louisiana; James A. Comiskey, Judge. Benjamin E. Smith, Smith & Scheuermann, New Or...
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It being plainly obvious that this Court is without jurisdiction of this appeal, we, sua sponte, order the same dismissed. Dismissed....
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Mamengo brought this action in the District Court pursuant to 28 U.S.C. § 2201 (Declaratory Judgment Act) and 5 U.S.C. § 701 et seq. (Administrative Procedure Act) to review a decision of the Immigration and Naturalization Service denying her petition for third preference classification as a professional under sections 203(a) (3) and 101(a) (32) of the Immigration and Nationality Act...
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Section 208-d of the General Municipal Law of New York, McKinney’s Con-sol.Laws, c. 24, enacted by Laws 1967, ch. 812, effective May 2, 1967, authorizes any member of a police force of a city to engage in extra work for another employer outside his regular hours of duty but sets a limit of 20 hours a week. After unsuccessful challenge to the constitutionality of this statute through the hierarchy...
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The district court granted Peterson’s petition for a writ of habeas corpus. Estelle, the warden of the Montana State Penitentiary, appeals. Peterson and Evans were jointly tried in the Montana court for burglary. A single counsel was appointed to represent both. There was no direct evidence connecting Peterson to the burglary. However, a prosecution witness attributed to Evans an exculpatory st...
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446 F.2d 54 Antonio URTIAGA-ROGERS, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.No. 29271 Summary Calendar.**Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir. 1970. 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. July 14, 1971. Antonio Urtiaga-Rogers, pro se. Seagal V. Wheatley...
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This appeal is taken from the district court’s denial of the motion to vacate the judgment and sentence 1 of Antonio Urtiaga-Rogers. We affirm. Appellant was convicted on his plea of guilty of a violation of 26 U.S.C. § 4755(a) (1), by importing a quantity of marihuana without having registered and paid the special tax as provided under 26 U.S.C. §§ 4751-4753. He was sentenced on July 23, 196...
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On January 4, 1971, we remanded this case for an evidentiary hearing to determine whether Fernando Macias had been denied effective assistance of counsel when convicted of the unlawful sale of heroin [United States v. Macias, 435 F.2d 1294 (1971)]. The hearing was held, with adverse results to Macias. He again appeals. We affirm. The record clearly supports the findings and conclusions of the...
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ON PETITION FOR REHEARING In their petition for rehearing the defendants point out an error in our opinion which requires us to make a different disposition of the contract claim. We stated that the court erroneously granted a judgment n/o/v for the defendants, and we held that the plaintiff was entitled to entry of judgment on the jury verdict. In fact, the court granted defendants’ motion for...
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The judgment of the district court is affirmed but the cause is remanded with special instructions relating to the student assignment provisions of the judgment approving the school desegregation plan for the Choctaw County Board of Education. We have concluded that it is' appropriate for the district court to consider whether the student assignment provisions of the plan comply with the principl...
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The order denying relief under 28 U.S.C. § 2255 is affirmed. Petitioner’s attack on the legality of his sentence under the Youth Corrections Act was decided adversely to him in Ridenour v. United States, 438 F.2d 1239 (9th Cir. 1971). His remaining contentions concerning the manner of the execution of his sentence are not cognizable under § 2255, which is available only to test the sentence impos...
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Appellant in this case appeals from his conviction and sentence of five years (subject to the provisions of 18 U.S.C. § 4208(a) (2) (1964)) after pleading guilty to an information charging a violation of 26 U.S.C. § 4704(a) (1964), 1 prohibiting sale of heroin. Although defendant acknowledged in open court, with his retained counsel beside him, that he understood that the offense as to which ...
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Ewing appeals from his conviction for bank robbery (18 U.S.C. § 2113(a)). He contends that the line-up in which he was identified as the robber did not meet the standards of United States v. Wade (1967) 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, because the two public defenders attending the lineup did not actively participate in those *61 proceedings. Wade does not require any such acti...
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This is an appeal from the United States District Court for the Middle District of Tennessee, Nashville Division, of an order dismissing a petition for habeas corpus. This is the second time after Appellant was convicted and incarcerated in Tennessee in 1946 pursuant to a guilty plea on a charge of murder in the first degree that he has petitioned the federal courts with a writ of habeas corpus c...
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446 F.2d 65 Miriam WINTERS, on behalf of herself and all other personssimilarly situated, Plaintiff-Appellant,v.Alan D. MILLER, M.D., as Commissioner of Mental Hygiene ofthe State of NewYork, et al., Defendants-Appellees. No. 94, Docket 34521. United States Court of Appeals, Second Circuit. Argued Oct. 7, 1970.Decided May 26, 1971. Bruce J. Ennis and William H. Pratt, Ne...
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This is an appeal from an order of the United States District Court for the Eastern District of New York (Anthony J. Travia, Judge) granting defendants-appellees’ motion for summary judgment and dismissing the complaint in an action brought pursuant to the federal civil rights statutes [42 U.S.C. § 1983 and 28 U.S.C. § 1343(3)]. The opinion below is reported at 306 F.Supp. 1158 (1969). We reverse ...
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BY THE COURT: The order of the district court under review is vacated and the cause is remanded with direction that the district court required the school board to implement a student and faculty assignment plan for the 1971-1972 school term which complies with the principles established in Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Sing...
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Daugherty is a prisoner at California’s Folsom state penitentiary. Some regulation at the place requires him to get his hair cut. This he doesn’t like. So he filed a civil rights complaint against his warden, the attorney general, Governor Reagan and sundry other officials of the state. The district court dismissed. We affirm. While little vestige remains of the old concept that a convict is ci...
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Appellant was convicted on four charges under 18 U.S.C. § 2314 of having unlawfully caused stolen American Express money orders to be transported in interstate commerce. He was given concurrent sentences on the convictions of eight years each. We affirm. The four instruments were part of a series of money orders which had been stolen from a pharmacy in St. Louis, Missouri, in July, 1969. Each w...
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Mrs. Salapatas, a taxpayer, has appealed from a decision of the Tax Court. 2 The Tax Court decided, as had the commissioner, that certain payments received from her divorced husband were income. It upheld the commissioner’s determination of deficiencies and his additions to tax of 5% of the underpayments on the ground of negligence. 3 The issue was whether a series of payments of $50 per week...
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Once again this Court must face ecology, Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199, cert. denied, 1971, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808. This time it is not the air to breathe or the water to drink or the maintenance of some of God’s smaller creatures. Here it is primarily what one is to see. That this too is the by-product of our industrial mobile complex is the fact that the thing ...
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446 F.2d 90 Walter A. MITCHELL, Appellee and Cross-Appellant,v.TEXAS GULF SULPHUR COMPANY et al., Appellant and Cross-Appellee.George Gordon REYNOLDS, Appellee and Cross-Appellant,v.TEXAS GULF SULPHUR COMPANY et al., Appellant and Cross-Appellee.Arthur R. STOUT et al., Appellees and Cross-Appellants,v.TEXAS GULF SULPHUR COMPANY et al., Appellant and Cross-Appellee. Nos. 280-70 to 285-70. ...
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Appellees and cross-appellants Reynolds, Mitchell and Stout instituted actions in the Utah district against appellants and cross-appellees Texas Gulf Sulphur Company (hereinafter referred to as TGS) and Charles A. Fogarty, one of the principal officers of the company, to recover damages for violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) and Rule 10b-5, 17 C....
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This is an appeal in forma pauperis by Moses Cotton, fifteen years of age at the time, from a judgment of the district court finding that defendant was a juvenile delinquent and committing him to the custody of the Attorney General for and during his minority. The issues presented by this appeal are (1) the admissibility of defendant’s statement into evidence and (2) whether 18 U.S.C. § 5033 is i...
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The defendant was convicted after a jury trial of possessing a sawed-off shotgun in violation of 26 U.S.C. § 5861(d). He was sentenced to four years’ imprisonment. He contends (1) that the National Firearms Act, 26 U.S.C. § 5801 et seq., of which § 5861(d) is a part, is unconstitutional in that it denies him equal protection under the law; (2) that the act violates the due process requirements of...
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Sam Jiggetts appeals from the denial of his application for a writ of habeas corpus by the United States District Court for the Southern District of New York, Irving Ben Cooper, J., 308 F.Supp. 468. The trial court, however, granted a certificate of probable cause and this appeal followed. For reasons set forth below, we affirm. In January 1959, after a jury trial in County Court, Kings County,...
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Elizabeth Martinez appeals from a judgment of conviction for bank robbery in violation of 18 U.S.C. § 2113(a), (f) entered in the Southern District of New York after a jury trial held before Irving Ben Cooper, J. The only issue raised on appeal is whether the trial judge erred in giving a supplemental charge, the so called “Allen” charge, on his own initiative. For reasons explained below, we aff...
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Having obtained and accepted an arbitration award reinstating him in his position as a drill man in appellee’s plant, James Spann now seeks to have this court order an additional remedy which the arbitrator denied: back pay. We decline to do so, believing that Spann’s post-arbitration filing of his complaint with the Equal Employment Opportunity Commission, and ultimately this court, which occu...
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The United States appeals from a decision of the United States District Court for the District of Minnesota, granting a writ of habeas corpus to the plaintiff, Harold W. Huisinga. The writ directed the Commanding Officer of the Armed Forces Examining and Entrance Station in Minneapolis, Minnesota, to release Huisinga from the Armed Forces. Huisinga brought the writ contending that his order to ...
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446 F.2d 126 Marvin Eugene WHITEHEAD, Administrator of the Estate ofDella Mae Whitehead, Deceased, Plaintiff-Appellant,v.Elliott L. RICHARDSON, Secretary of U.S. Department ofHealth, Education and Welfare, Defendant-Appellee. No. 71-1035. United States Court of Appeals, Sixth Circuit. Aug. 11, 1971. Martin F. Sullivan, Jr., Louisville, Ky., for plaintiff-appellant. ...
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The issue presented by this case is whether the District Judge abused his discretion in refusing to make an award of attorneys’ fees for the representation before the District Court of a claimant under the Social Security Act. We hold that there was no abuse of discretion and therefore affirm the dismissal of the complaint. The facts of this case are not in dispute. Marvin Eugene Whitehead is the ...
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The appellant, Willie Clyde Harris, was found guilty after a bench trial of having failed to report as a Class 1-0 registrant for civilian work at the Elgin State Hospital, Elgin, Illinois, in violation of 50 App. U.S.C. 462. In both his motion for acquittal before the district court and in his principal brief before this court, Mr. Harris argued numerous contentions against his conviction...
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Defendant Forrest Edwin McCutcheon was charged in a two-count indictment with violations of Title 26, U.S.C.A. §§ 5861(c) and 5861(d), 1 respectively, of *134 the Gun Control Act of 1968, amending the National Firearms Act. Count I charges possession of a firearm on or about October 23, 1969, described as “a weapon made from a 12 gauge single barrel Nitro Marvel shotgun, with a barrell leng...
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446 F.2d 136 The CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, Plaintiff-Appellee,v.Lura Virginia Bickel Lee CARTER et al., Defendants-Appellants. No. 29435. United States Court of Appeals, Fifth Circuit. June 23, 1971. Certiorari Denied October 12, 1971. See 92 S.Ct. 104. J. A. McClain, Jr., John F. Turbiville, Hugh N. Smith, Asst. U. S. Atty., Thomas C. MacDonal...
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Defendants-Appellants, Alfonzo Dow-ell and Vivian Dowell, husband and wife, were convicted by a jury in the United States District Court for the Western District of Oklahoma of attempting to evade or defeat federal income taxes pursuant to 26 U.S.C. § 7201. 1 1. It is here contended by the appellants that the judgment should be reversed and the cause remanded because the trial court erred in ...
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Hubert Vernon Hardin’s motion to correct sentence was denied and he appeals. We affirm. On July 25, 1962, Hardin received the following sentence in the United States District Court for the Southern District of Florida: “JUDGMENT AND COMMITMENT “On this 25th day of July, 1962, came the attorney for the government and the defendant appeared in person and with counsel, Henry Gonzalez. “IT IS...
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446 F.2d 152 Alice K. SHARPE and Juanita Sharpe, by her next friend, H.L. King, Appellants,v.BRADLEY LUMBER COMPANY, Inc., Appellee. No. 71-1050. United States Court of Appeals, Fourth Circuit. Argued May 13, 1971.Decided July 19, 1971. John M. Minor, Winston-Salem, N.C. (Deal, Hutchins & Minor, Fred S. Hutchins, and William Kearns Davis, Winston-Salem, N.C., on bri...
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446 F.2d 156 HALCON INTERNATIONAL, INC., Respondent-Appellant,v.MONSANTO AUSTRALIA LIMITED, Petitioner-Appellee. No. 18669. United States Court of Appeals, Seventh Circuit. July 9, 1971. Rehearing Denied August 11, 1971. Lloyd W. Bowers, Chicago, Ill., Edward N. Costikyan, New York City, Gardner, Carton, Douglas, Chilgren & Waud, Chicago, Ill., Paul, Weiss, Goldb...
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Audry Keith Decker appeals from his conviction after a jury-waived trial in the United States District Court for the Western District of Missouri. The defendant was convicted on five counts for failure to make appropriate entries and to properly maintain records as required of a federally-licensed firearms dealer in violation of 18 U.S.C. §§ 922(m) and 923(g). He was convicted on additional cou...
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OPINION OF THE COURT The Township of Hopewell, New Jersey, appeals from a decision by the United States District Court granting summary judgment. Appellant contends that the District Court erred in ruling that the plaintiff was barred by the doc *169 trine of res judicata from proceeding in its suit against the State of New Jersey and precluded by collateral estoppel from mai...
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Appellant Frank Caracci was indicted in New Orleans with two other alleged conspirators on three counts charging conspiracy 1 to bribe and bribery of a *175 public official in violation of 18 U.S.C. §§ 2,201(b), 201(f). One of the accused, John Q. Adams, pled guilty, and the other, Robert Vaucresson, was granted a severance. Appellant Caracci was found guilty on all counts after a jury trial....
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*424 OPINION OF THE COURT ■ This case raises the interesting question as to whether the doctrine of interspousal immunity has continuing vitality in the Virgin Islands. Plaintiff, wife, appeals from an order of the district court of the Virgin Islands granting her husband’s motion to dismiss her complaint against him. Her complaint seeks damages allegedly resulting fr...
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Scaglione appeals from his conviction by a jury on all five counts of an indictment charging that, on each of five dates, he knowingly and intentionally caused to be sent in interstate commerce gambling paraphernalia consisting of flash paper intended to be used as a device in a numbers, policy, bolita, and other similar games, in violation of 18 U.S.C. § 1953. Flash paper, having been chemical...
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In this case, the debtor filed a petition for an arrangement under Chapter XI of the Bankruptcy Act and was allowed by the referee to remain in possession and act as its own trustee. 11 U.S.C. § 742; see In re Chesterfield Developers, Inc., 285 F.Supp. 689 (S.D.N.Y.1968). The debtor had bought inventory from two creditors on open account and was in possession of the inventory on the ...
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This appeal from a judgment of the District Court for the Southern District of New York, convicting Fred A. Cunningham and Rudolph J. Trumpler, after a verdict, of bank robbery in violation of 18 U.S.C. § 2113(a) and assault during its commission in violation of 18 U.S.C. § 2113(d), again raises the question of what the prosecution may properly do when a witness who was expected to give favorable ...
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Melvin Smith appeals his conviction in the United States District Court for the Eastern District of Virginia of the unlawful possession, in violation of 18 U.S.C.A. § 1708, of a $100 United States postal money order which had been stolen from the mails. He alleges that the *202 trial judge committed reversible error: (1) by admitting into evidence testimony concerning a crime other than the one...
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Patterson invoked the provisions of 29 U.S.C. §§ 185, 411, 412 in an effort to recover damages from his Union, Tulsa Local No. 513, the appellee. Judgment was entered in favor of the Union, and Patterson has appealed the trial court’s adverse rulings, alleging numerous errors. The issues tried below centered upon Patterson’s “breach of contract” claim based on the allegation that the Union...
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The National Labor Relations Board petitions to enforce its order directing Los Angeles-Yuma Freight Lines and Svensson Freight Lines (collectively, the Company) to cease and desist from refusing to recognize and bargain collectively with Locals 104, 208, and 357 of the International Brotherhood of Teamsters and from refusing to reinstate unfair labor practice strikers in violation of sections ...
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The dispute here presented is between two insurance companies. Plaintiff-appellant, Aetna sought a declaratory-judgment that defendant-appellee’s liability insurance policy, Lumbermen's, extended to one Harry Donahue who, at the time of the underlying collision, had been engaged in transporting a vehicle owned by one David K. Layser across country from Los Angeles, California to Tulsa, Oklahoma...
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The United States has taken this appeal from an order entered by the United States District Court for the District of New Mexico which granted the defendant’s motion to suppress certain evidence seized during the course of the defendant’s arrest. The motion was made prior to trial and was directed to a large number of pills or tablets which the Government asserts contained LSD or mescaline. The...
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The main objection is that one exhibit was admitted without sufficient foundation. But we hold there was some identification and that the objection to admission was not specific enough. As to the necessity of preserving material footprints, the point is a good jury argument, but such procedure is not a legal requirement. United States v. Hull, 9 Cir., 441 F.2d 1165, decided May 10, 1971. ...
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Plaintiff-beneficiary Bert A. Lynch, Jr., a citizen of the State of Missouri, initially sought relief against trustees of two testamentary trusts by bringing this diversity suit in two counts: (1) for restoration of trust funds allegedly *226 diverted by the trustee through self-dealing, 1 and (2) for removal of one of the trustees, Martha Ann Lynch Porter. In his compla...
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McBride has appealed in forma pau-peris from an Order overruling his motion to vacate sentence pursuant to 28 U.S.C. § 2255 entered by the trial court on May 28, 1970. He alleges that the court erred in denying his motion without an evidentiary hearing, and in rescinding his authorization to proceed in forma pauperis and denying issuance of subpoenas for witnesses on McBride’s behalf. McBride w...
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Appellant questions the lawfulness of the district court’s refusal to allow credit to him against his sentence for time spent in jail prior to sentence for lack of bail. We accord to appellant’s contentions a liberal construction on the procedural questions involved, and thus reach the merits of his substantive claim. Jurisdiction is conceded under 28 U.S.C. § 2255. Appellant, Myers, was indicted ...
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In this case the petitioner, Air Line Pilots’ Association International [hereinafter referred to as ALP A], seeks direct review by this Court 1 of a determination by the Federal Aviation Administration that the proposed construction of three high-rise complexes in downtown Dallas, Texas, taken together with proposed FAA adjustments in procedures governing flight operations into and o...
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Sister Carol Vericker appeals from an order of the District Court for the Eastern District of New York, Anthony J. Travia, Judge, which found her in contempt for refusing to answer questions before a grand jury sitting in that district and committed her to the custody of the United States Marshal for the life of the grand jury or until such time as she purged herself of the contempt. Although t...
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The plaintiff appeals from the district court’s dismissal of her in propria persona action charging the defendant with certifying to the Superior Court of Ala-meda County on July 21, 1954, that he had examined the plaintiff when he had not. The defendant, Dr. Small, was at the time a medical examiner for the Superior Court and acting within the scope of his employment. Plaintiff sought general an...
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Guy James Morrison, serving in the United States Army, filed for discharge as a conscientious objector under the provisions of Army Regulation 635-20. 1 His application was ultimately denied by the Conscientious Objector Review Board [CORB] and by the Adjutant General. Morrison filed a petition for writ of ha-beas corpus in the district court on the ground that the Army had wrongfully denied hi...
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The defendant was charged in Count II of a three count indictment with vio*258lations of 18 U.S.C. § 2314.1 Other defendants were charged in Counts I and III but this defendant was the only one charged in Count II.2 This count alleged that on or about October 8, 1967, the defendant with fraudulent intent transported ten counterfeit International Telephone and Telegraph bonds with a face falue of $...
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446 F.2d 261 ALLEN M. CAMPBELL COMPANY GENERAL CONTRACTORS, INC.,Defendant-Appellant,v.LLOYD WOOD CONSTRUCTION CO., Inc., Plaintiff-Appellee, andHilary J. Sandoval et al., Defendant-Appellee.No. 30518 Summary Calendar.**(1) Rule 18, 5 Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409. United States Court of Appeals, Fifth Circuit. J...
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We deal here with a judicial challenge to administrative action — more precisely, with an order of the District Court invalidating a Small Business Administration (SBA) size determination. After carefully reviewing the record and dispelling the aura of confusion that enshrouds this case, we have concluded that the judgment must be reversed. The facts are largely undisputed. The Allen M. Ca...
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446 F.2d 266 Marcus GORDON et al., Plaintiffs-Appellants,v.JEFFERSON DAVIS PARISH SCHOOL BOARD et al., Defendants-Appellees. No. 30075. United States Court of Appeals, Fifth Circuit. June 28, 1971. Supplemental Opinion August 4, 1971. Jack Greenberg, Norman J. Chachkin, Margrett Ford, Harvey Goldschmid, Samuel Gates, Peter E. Quint, New York City, A. P. Tureaud, New ...
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These appeals come to this court as two cases from the Tax Court and one case from the United States District Court for the District of Utah. Each case raises the question whether the taxpayer was entitled to the investment credit which was allowable under section 38 of the Internal Revenue Code of 1954. The Tax Court held, 54 T.C. 301, that the taxpayer for its tax years ended in 1962 and 1964...
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446 F.2d 272 UNITED STATES of America ex rel. Frank GRANO, Jr., Appellant,v.Raymond T. ANDERSON, Warden, New Castle County CorrectionalInstitution, Department of Corrections, State of Delaware. No. 71-1102. United States Court of Appeals, Third Circuit. Submitted on Briefs May 4, 1971.Decided July 9, 1971. Stephen B. Potter, Sullivan, Potter & Roeberg, Wilmington, De...
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OPINION OF THE COURT Appellant unsuccessfully sought a writ of habeas corpus in the district court challenging the legality of his confinement by the State of Delaware pending the resolution of extradition proceedings instituted in Delaware by the State of Louisiana. This appeal resulted. While appellant was incarcerated in Delaware, serving a sentence on an unrelated charge, the Governor of Louis...
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446 F.2d 281 Charles F. LEEPER, Appellant,v.UNITED STATES of America, Appellee. No. 536-70. United States Court of Appeals, Tenth Circuit. June 30, 1971, Rehearing Denied Aug. 17, 1971. Mac Oyler and John Romig Smith, Oklahoma City, Okl., for appellant. William R. Burkett, U.S. Atty., and John E. Green, Asst. U.S. Atty., Oklahoma City, Okl., for appellee. Bef...
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Cartrade, Inc. brought suit for damages, alleging that the Ford Dealers Ad *290 vertising Association of Southern California (FDAA) and the Ford Motor Company (Ford) had conspired to destroy Cartrade’s business, in violation of sections 1 and 2 of the Sherman Act (15 U.S.C. §§ 1, 2). The case was tried before a jury. The issue of liability was tried first, and after Cartrade rested...
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Georgia-Pacific Corporation (GP) appeals from a judgment of the United States District Court for the Southern District of New York, Charles H. Ten-ney, J., which awarded U. S. Plywood-Champion Papers Inc. (USP) $800,000 damages for infringement of a patent plus interest at the rate of six per cent per annum from the date of last infringement, September 1, 1958. For the reasons stated below, we ...
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This is another ease staking out a piece of the already crowded field of “sellers” and “purchasers” of securities under § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1964) and its enabling rule, Rule 10b-5, 17 C.F.R. § 240.10b-5 (1971). We are called upon to determine whether appellant George Dudley, acting as representative of Insurance Investors Trust Company (IITC), has...
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On November 22, 1926, the Supreme Court decided Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345, in which Mr. Justice Stone, delivering the opinion of the Court, wrote: “The only errors assigned which are pressed upon us concern proceedings had upon the recall of the jury after its retirement. The jury having failed to agree after some hours of deliberation, the trial judge...
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446 F.2d 309 UNITED STATES of America, Plaintiff-Appellee,v.Leon HAYES, Defendant-Appellant.No. 71-1519 Summary Calendar.**(1) Rule 18, 5 Cir.; See Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. July 13, 1971. Robert E. McDonald, Jr., Mobile, Ala., for defendant-appellant. ...
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In a two count complaint alleging unlawful trespass and invasion of privacy, the appellee-cross appellant, Mrs. Betty B. Rawls, a resident of Jacksonville, Florida, brought suit in the Circuit Court for Duval County, Florida, *314 against appellant-cross appellee, The Conde Nast Publications, Inc., a New York corporation engaged in the business of publishing magazines (including Vo...
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OPINION OF THE COURT The United States appeals from a judgment in a civil action in favor of taxpayers who sued for a refund of documentary tax stamp taxes paid by them in January of 1962. Taxpayers made a timely claim for refund, which was disallowed, and then filed a timely refund suit. In the district court the parties entered into a stipulation of facts which included relevant exhibit...
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Tyree Birdsong was indicted on three counts of possessing an unregistered distillery in violation of 26 U.S.C.A. § 5601 (a) (1); carrying on the business of a distillery without having given bond in violation of 26 U.S.C. § 5601(a) (4), and possessing non-tax-paid whiskey in violation of 26 U.S.C. § 5604(a) (1). He was tried before a jury, and acquitted of the first two counts, but convicted of t...
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Four claims for damage to fresh meat shipments were brought by a shipper against two common carriers, the Penn Central Railroad and the Scott Truck Lines. Following a motion by the railroad to quash service on the grounds that the minimum contacts required for in personam jurisdiction in Colorado were *331 not present, the claims against Penn Central were dismissed. This...
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This is a copyright infringement suit in which the plaintiff alleges that the defendants’ book, “Call Box,” was plagiarized from several of plaintiff’s novels. The trial court granted summary judgment for the defendants on the ground that 17 U.S.C.A. § 115(b), 1 the three year statute of limitations applicable to infringement actions, barred plaintiff’s suit. Finding that the last pu...
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Appellant Harris Percy Wynn was convicted, in July 1960 in the Superior Court of Muscogee County, Georgia, on his plea of guilty to robbery-by-force, and was sentenced to life imprisonment. 1 In November 1968 he filed a petition for habeas corpus in the Superior Court of Tattnall County, Georgia, primarily on the grounds that he had been denied his right to the assistance of counsel,...
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During recent years the federal courts have been deluged with petitions by state prisoners seeking writs of habeas corpus and petitions by federal prisoners seeking comparable relief under 28 U.S.C. § 2255. Most of these petitions are prepared without the assistance of counsel, and as a result it is often difficult to tell just what legal ground for relief, if any, the petitioner has. Moreover,...
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National Farmers Organization (NFO) 1 and several of its members appeal from the District Court’s order granting a preliminary injunction against them in an action alleging violations of §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1-2. We reverse. The fourteen plaintiffs 2 are processors of broiler chickens and operators of feed mills. They have large numbers of plant...
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Appellants Kress and Troy, together with their accomplices, Dougherty and Sheffield, were indicted for armed robbery in violation of Title 18 U.S.C. § 2113(a) (d). Dougherty and Sheffield pleaded guilty, while the appellants were found guilty by a jury and sentenced to 20 years each. It is from this conviction that they now appeal. The appellants first contend that they were denied a speedy tri...
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William Epton appeals from an order of the United States District Court for the Southern District of New York, Marvin E. Frankel, J., denying his petition for a writ of habeas corpus. After a jury trial in the New York State courts, petitioner was convicted in 1966 of criminal anarchy, former N.Y.Pen. Law §§ 160, 161, 1 conspiracy to advocate criminal anarchy, former N.Y.Pen.Law §§ 1...
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This case comes to us on application for enforcement of a Labor Board order against respondent, Granite State Joint Board, Textile Workers Union of America, Local 1029, AFL-CIO (the union). The Board found that the union committed a § 8(b) (1) (A) unfair labor practice 1 when it sought judicial enforcement of fines against thirty-one union members who, during the course of a lawful, ...
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The convictions of the three appellants above named, and William A. Spires, were affirmed in United States v. Stanley, (9 Cir. 1970) 427 F.2d 1066. All four petitioned for certiorari and on December 7, 1970, the Supreme Court granted the petition “insofar as it seeks review of affirmance by the Court of Appeals of count 5 (possession count) of convictions of petitioners Stanley, Thomas, and Mas...
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lone Jenkins was severely injured when the Corvair automobile in which she was a passenger suddenly veered off the road and landed in a ditch on April 15, 1962. She predicated her action against General Motors Corporation on the grounds of negligent failure to properly tighten and inspect a nut on a bolt in the left rear suspension system. A jury returned a verdict for plaintiff and awarded dam...
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This is an appeal from a minority shareholder’s derivative action brought on behalf of the shareholder’s corporation, Defiance Industries, Inc. (Defiance), against Victor Muscat, 1 former president, director and principal shareholder. Subsequent to the commencement of the action the nominal defendant, Defiance, was merged into El-Tronics, Inc. (El-Tronics). Both El-Tronics and plaintiff-shareho...
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Petitioners Jaffee and Jaffee & Co., a registered broker-dealer, seek review of an order of the Securities and Exchange Commission dated April 20, 1970, prescribing that each petitioner be disciplined on account of Jaffee’s violations of Rule 1 Ob-6, 17 C.F.R. § 240.10b-6, promulgated under Section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j(b). We affirm the order with re...
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446 F.2d 394 Earline WHISENANT, individually and as tutrix of her minorchildren, Sheila Dianne Whisenant, et al., Plaintiffs,v.BREWSTER-BARTLE OFFSHORE COMPANY et al.,Defendants-Appellees, v. LOOMIS HYDRAULIC TESTINGCO., Inc., et al., Third PartyDefendants-Appellants. No. 31020. United States Court of Appeals, Fifth Circuit. July 20, 1971, Rehearing and Rehearing En Banc Denied Sep...
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This multiparty maritime suit arose out of an accident which killed an employee of an independent contractor while he was engaged in specialized testing of an oil well drill aboard a submersible drilling barge. In the aftermath the decedent’s widow and minor children (heirs) sued the barge owner; the barge owner sued the decedent’s employer; and the decedent’s compensation insurer intervened for b...
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Tredwell A. Harrison and his wife Gale of the Town of Braintree, Massachusetts, brought this civil rights action against certain officials of said town 1 for damages caused by the failure of said officials to enforce the zoning by-laws of the town and for conspiring to protect and prefer the interests of Textron Industries, Inc., which had a factory there, over the legal rights of th...
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This is an appeal from denial of habe-as corpus relief wherein Pete Tapia, a prisoner of the State of New Mexico, seeks to collaterally attack his 1967 conviction, following trial by jury, for commission of the crime of armed robbery. Tapia was found guilty of having robbed one Louis Quintana, an employee of Foodway Store, Albuquerque, at a liquor drive-in window section of the store at about 9...
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On September 8, 1967, appellee Scogin entered a plea of guilty in the United States District Court for the Western District of Missouri to unlawfully acquiring marihuana without paying the required transfer tax in violation of 26 U.S.C. § 4744(a) (1), and on January 12, 1968, the court imposed a sentence of seven years imprisonment for that violation. 1 No appeal was taken from the j...
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The suit in the District Court was for infringement of the Marsh Patent No. *422 3,161,223, issued December 15, 1964, on a sheet metal brake, 1 which patent had been assigned to Tapco. Appellee Van Cleave had been in the employ of Tapco when the brake was being developed. After leaving Tapco’s employ he organized appellee Van Mark Products Corporation and commenced to pr...
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446 F.2d 429 Homer ARTHUR and Katherine Arthur, his wife, Plaintiffs-Appellants,v.CHRYSLER CORPORATION, a foreign corporation, and Square Deal Cartage Company, a Michigan corporation, jointly and severally, Defendants-Appellees. No. 21050. United States Court of Appeals, Sixth Circuit. August 11, 1971. Charles J. Barr, Detroit, Mich., for Robb, Millender, Goodman & B...
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This is a products liability suit filed by plaintiffs-appellants Arthur under diversity jurisdiction in the United States District Court for the Eastern District of Michigan. It was dismissed by the District Judge as to both defendants at the close of plaintiffs’ liability proofs. At the time of the accident in 1965, plaintiff Homer Arthur was a driver for Gates City Transport Company. He had driv...
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ORDER In its opinion accompanying this Court’s order upon the original writ of mandamus, this Court held that Rule 1 (d), Rules of the District Court for the Central District of California, was ambiguous. We remanded the case to the District Court with directions to resolve the ambiguity, and we indicated that the ambiguity should be resolved in favor of the applicant. Upon remand the District Cou...
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As stated by the appellant in its brief, this case presents a single, clear question of law: whether the Economic *438 Development Administration (EDA) and its agent, the Small Business Administration (SBA), may be subjected to an order of a bankruptcy court enjoining them from enforcing a lien which they possessed on the debtor’s property prior to the filing of the Chapter X petition for reorg...
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446 F.2d 437 In the Matter of DELTA FOOD PROCESSING CORPORATION.UNITED STATES of America, Appellant,v.Wade W. HOLLOWELL, Trustee, Appellee.No. 71-1336 Summary Calendar. **Rule 18, 5th Cir.; See Isbell Enterprises, Incv.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. July 12, 1971. H. M. Ray, U.S. Att...
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(concurring in part and dissenting in part): I concur in the judgment of the Court and the able opinion of Judge Moore to the extent that it affirms the judgment of the District Court awarding plaintiff $90,845, plus $5,910.99 interest, on its quantum meruit recovery against Fidelity and Casualty. With deference, however, I am constrained to dissent from the reversal of the District Court’s $50,00...
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OPINION OF THE COURT Appellant appeals from his conviction of unlawfully acquiring, concealing and transferring marihuana on two separate occasions in violation of 26 U.S.C. §§ 4744(a) (1), 4744(a) (2) and 4742(a), respectively. He claims he was denied due process of law when the government paid a known narcotics user to inform on him and then made no systematic effort to insure his ...
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On February 22, 1963, Darlene Tafolla was killed in an automobile accident. At the time, she was a passenger in a vehicle owned by one Stulc and being driven by her husband, Duane Tafolla. There was then an existing automobile *452 accident indemnity contract between Duane Tafolla and the appellee-cross-appellant Mid-Century. The appellant-cross-appellee Lewis, as Guardian of the deceased’s min...
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This appeal is from an order of the district court granting the Appellee’s petition for writ of habeas corpus. The principle issue on appeal is whether a prosecutorial conflict of interest deprived the Appellee due process of law. The petition arose out of the Appellee’s conviction by a jury, in 1963, in Ohio on four counts of unlawful possession for sale, and four counts of unlawful sale of narc...
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OPINION OF THE COURT During the years 1961 through 1964, John Stubin was Secretary-Treasurer of Local 158, International Hod Carriers, Building and Common Laborers’ Union of North America. The Local represents laborers engaged in heavy construction such as the erection of pipelines and related projects. Pursuant to a contract between the Union and various employers, union dues and initiat...
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446 F.2d 466 CIBA-GEIGY CORPORATION, a corporation of the State of NewYork, Petitioner,v.Elliott L. RICHARDSON, Secretary of Health, Education &Welfare and Dr. Charles C. Edwards, Commissionerof Food and Drugs, Respondents. No. 934, Docket 35614. United States Court of Appeals, Second Circuit. Argued June 28, 1971.Decided July 16, 1971. Clyde A. Szuch, Newark, N.J. ...
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Petitioner (“CIBA”) seeks review of a final order of the Commissioner of Food and Drugs, Department of Health, Education and Welfare, dated September 21, 1970, 35 Fed.Reg. 15233, which withdrew approval of CIBA’s drug product, Ritonic Capsules, on the ground that there was lack of “substantial evidence”1 to support claims of effectiveness made for the drug in CIBA’s promotional labeling. See Commi...
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Boswell was convicted for having failed to report for induction into the Armed Forces, in violation of 50 U.S.C.App. § 462(a). Boswell here concedes that he disobeyed the Order to Report, but he maintains that the Order was invalid. We disagree; hence, we affirm the judgment of the District Court. Boswell first argues that he should have been found disqualified for military service at his pre-i...
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This is a consolidated appeal arising from three separate petitions to review and set aside orders of the NLRB that dismissed complaints against three unions charging them with unfair labor practices in violation of 29 U.S.C. § 158 (b) (4). No question of the Board’s jurisdiction is raised and we find none. A separate statement of facts will be given where helpful to an understanding of the iss...
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Plaintiff brought this action as ad-ministratrix of the Estate of William Lane Wilkins, an officer in the merchant marine, against his employer, the owner of the ship on which he was serving, to recover damages for his death, which resulted from a heart attack suffered at sea. We are constrained to remand for a new trial because of error in the exclusion of evidence relevant to the issue of proxim...
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This appeal is from a judgment of conviction for unlawful possession of a firearm in violation of Title 26 U.S.C. §§ 5861(d) and 5871. Appellant, Tom Willie Williams, raises several legal issues on appeal, all of which have been previously considered by the Supreme Court or this Court and have been found to be without merit. Appellant first contends that the statutes under which he is charged a...
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We consider two appeals by several defendants from convictions in the Unit*490ed States District Court for the Eastern District of Kentucky for violating the Travel Act, 18 U.S.C. § 1952.1 We have consolidated these cases for purposes of this opinion because, although the facts differ in some respects, the decisive issues of law are the same. The Travel Act subjects to criminal penalties: (a) Whoe...
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Cleo Gregory, a federal prisoner serving time in the Atlanta Penitentiary, petitioned the district court for a writ of habeas corpus on the ground that he was denied a direct appeal of his 1953 criminal conviction. The court entered an order dismissing the petition and this appeal followed. We reverse and remand for resentencing so that petitioner may perfect a timely direct appeal. While confi...
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Petitioner seeks review of an adverse ruling of the FCC denying his request to present an opposing view to military recruitment announcements sponsored by the U.S. Armed Services and carried by radio station KFRC-AM, San Francisco, California. Petitioner asserted that the broadcasts presented one side of a controversial issue of public importance, and that the radio station by its denial had fa...
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The insurance company filed a suit for declaratory judgment as to its liability under an automobile insurance policy. Jurisdiction is based on diversity of citizenship. Michigan law controls. The only issue on this appeal is whether the District Court abused its discretion in dismissing the suit. The insurance policy provided liability coverage for an automobile owned by a husband and wife....
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Michael D. Wood appeals from the judgment convicting him of the crime of refusing to submit to induction into the armed forces of the United States, in compliance with the order of his Local Selective Service Board. 50 App. U.S.C. § 462(a). The bulk of Wood’s points have been foreclosed against him by the Supreme Court’s recent decision in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28...
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This is a post conviction appeal from a denial by the federal district court of habeas corpus to a state prisoner in South Dakota. The petitioner raises two issues on appeal: (1) whether the requirement of a $3,000 cash bond was in violation of the defendant’s “constitutional right to bail,” and (2) whether the defendant’s plea of guilty was involuntarily entered. The defendant was arrested on ...
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Scott appeals from his conviction for violating 21 U.S.C. § 176a. It is Scott’s second trip to this court. His prior appeal resulted in a reversal for error in instructing the jury upon the inference from section 176a, held unconstitutional in part in Leary v. United States (1969) 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. (United States v. Scott (9th Cir. en banc 1970) 425 F.2d 55.) The evidence ...
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R. B. Lacy was indicted and convicted of knowingly transporting stolen motor vehicles interstate, and of receiving and concealing stolen motor vehicles so transported, in violation of Title 18, U.S.C., Sections 2312 and 2313. He was sentenced to five years imprisonment. On appeal he raises four issues. Upon analysis, none of them supports reversal and we accordingly affirm. First, Lacy argues t...
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446 F.2d 511 UNITED STATES of America, Plaintiff-Appellee,v.R. B. LACY, Defendant-Appellant.No. 29909 Summary Calendar.**(1) Rule 18, 5 Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 9, 1971. Robert B. Harwood, Jr., Tuscaloosa, Ala. (Court-appointed), for def...
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The issue on this appeal is whether a bank messenger entrusted with funds of his employer for delivery to a branch bank may be prosecuted under 18 U.S.C. § 2113(b) for appropriating such funds to his own use. We answer this question in the affirmative and uphold the conviction of Dennis Ray Pruitt under § 2113(b) for larceny, of bank funds. Pruitt was employed as a messenger by the Second Nat...
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The single issue argued on this appeal by the defendant-appellant is the validity of a search warrant. The government contends that such issue need not be decided as the defendant lacks standing to challenge the legality of the search and seizure. We agree and affirm the judgment of conviction. Defendant was indicted and convicted by a jury of receiving and concealing twenty-six cases of taxpai...
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Eddie Albert Moehring has appealed a conviction of transporting a stolen automobile in interstate commerce in violation of the Dyer Act, 18 U.S.C.A. § 2312. He urges that his motion for acquittal made at the close of the prosecution’s case should have been granted and that it was error for the district court to allow the prosecution to reopen its case after the motion was made. The appellant an...
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Archuleta appeals from his conviction for receiving, concealing and facilitating the transportation of heroin in violation of 21 U.S.C. § 174. We affirm. 1. The arresting officer had probable cause to make the search of which appellant complains. Over a period of several months the arresting officer had received information from the New Mexico State Police and the Bureau of Narcotics and Dangerous...
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This appeal combines the perennial question of seaman status under the Jones Act, 46 U.S.C.A. § 688, with a challenge to an extraordinarily generous $100,000 jury verdict. The District Court concluded that the plaintiff was a Robison 1 seaman as a matter of law and granted his motion for summary judgment on that issue. We affirm that judgment but remand for additional consideration of the jury’...
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This is a petition to review a decision of the National Labor Relations Board. The petition to review is granted and the order of the Board modified. I. THE FACTUAL BACKGROUND. Petitioner Western Monolithics (doing business as California Concrete Systems) manufactures prefabricated masonry fireplaces. Its employees are represented by Local 10 of the Bricklayers’ and Stone Masons’ Unio...
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OPINION OF THE COURT This case is before us for the second time. The complaint, filed by the Secre *529 tary of Labor on January 18, 1966, charged the defendant with violations of the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1964), an amendment to the Fair Labor Standards Act of 1938. 29 U.S.C. § 201 (1964) et seq. The initial decision of the district court was a judgment i...
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Gough Industries, Inc., the reorganized debtor, appeals from an order denying its petition to review the referee’s disallowance of Gough’s claims against the receiver A. J. Bumb 1 and the debtor estate for penalties and interest assessed against Gough for late payment of California sales and use taxes. This dispute concerns the construction of the plan for arrangement, the recei...
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The appellant and its lessees operate a huge private shopping facility, embracing about fifty acres in the City of Portland, Oregon. The District Court enjoined the appellant from interfering with the appellees’ exercise, on the facility premises, of certain peaceful activities which the court found were protected under the guarantees of the First Amendment. The court’s legal conclusion followed ...
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This is an appeal from a grant of summary judgment against plaintiff in this private antitrust action. The sole rationale for the dismissal was that two releases given by the plaintiff-appellant here, in settlement of the similar actions brought by it against two defendants identified in the instant action as co-conspirators with defendant-appellee, operated to release defendant-appellee as a mat...
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446 F.2d 548 George Perlman ALVIS, Petitioner-Appellant,v.William G. KIMBROUGH, Chief of Police, Coral Gables, Fla.,Respondent- Appellee.Martha GRIFFIN, Petitioner-Appellant,v.Charles GOODLETT, Chief, Belle Glade Police Dept., BelleGlade, Florida, Respondent-Appellee. Nos. 71-1513, 71-1499.TCSummary Calendar.* United States Court of Appeals, Fifth Circuit. July 8, 1971. ...
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Each of these appeals emanates from the lower court’s denial of habeas corpus relief. Both appellants complain of deprivation of their right to the assistance of counsel in their defense in criminal proceedings in municipal misdemeanor eases. Each denial must be vacated and remanded for further proceedings which we deem justice requires under the circumstances.1 George Perlman Alvis was convicted ...
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Arthur E. Baum, Sr., a welder, was injured as a result of a fall from a ladder inside a graven or sunken building way used for new ship construction. He applied for compensation benefits under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act. Section 3 thereof, 33 U.S.C.A., § 903, reads as follows: § 903. Coverage (a) Compensation shall be payable under this c...
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The judgment of conviction is affirmed. We have here a ridiculous appeal of a conviction for violating the Mann Act. Sangetti hauled a prostitute around with him into several states, He put her out here and there to earn money and then took it from her. Not satisfied with her money, he would physically abuse her. She got tired of it. Thus, this prosecution. The instructions were quite accur...
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This case is before us on appeal from the order of the United States District Court for the Western District of Missouri denying appellant habeas relief. Appellant, presently incarcerated in the Missouri State Penitentiary, was convicted by a jury in the Circuit Court of Greene County, Missouri, of the offense of first degree robbery and was sentenced by that court to imprisonment for twenty ye...
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446 F.2d 554 71-2 USTC P 9532 S.S. BALLIN AGENCY, INC., Appellant in No. 19035,v.COMMISSIONER OF INTERNAL REVENUE (Tax Court Docket No. 6225-66).S.S. BALLIN AGENCY, INC., and Subsidiary Company, Appellantin No. 19036,v.COMMISSIONER OF INTERNAL REVENUE (Tax Court Docket No. 6226-66).Joseph DELMAN and Jeanette Delmanv.COMMISSIONER OF INTERNAL REVENUE, Appellant in No. 19037(Tax Court Docket...
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OPINION OF THE COURT These appeals from decisions of the Tax Court present the question whether appellant met its burden of establishing that certain acquired intangible assets qualified for amortization for a limited period of time and that the length of this period was estimable with reasonable accuracy. The Tax Court held that appellant1 failed to meet its burden. We affirm. By written contrac...
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On March 13, 1958, Leona Henderson, petitioner-appellant, was indicted in a four count indictment that charged two separate heroin transactions. After adjudging her guilty as charged the trial court sentenced appellant to confinement for ten years. We reversed the conviction and remanded the case for a new trial. Appellant’s second trial ended in a mistrial, but at the close of her third trial sh...
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446 F.2d 557 Leona HENDERSON, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee. No. 30786 Summary Calendar.**Rule 18, 5th Cir.; see Isbell Enterprises, Incv.Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431F.,2d 409, Part I. United States Court of Appeals, Fifth Circuit. July 13, 1971. Sam R. Wilson, Houston, Tex., for petitioner-appell...
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The parties will be referred to as in the court below. Defendant appeals from conviction of violation of 18 U.S.C., Appendix, Section 1202(a) (1), in that he, having been convicted of a felony, possessed a firearm. We find no merit to his first assignment of error, so will treat only his second assignment of error, that he was denied his constitutional right to trial by a fair and impartial j...
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446 F.2d 559 UNITED STATES of America, Plaintiff-Appellee,v.Raymond Melvin GILBERT, Defendant-Appellant.No. 30216 Summary Calendar.**Rule 18, 5 Cir.; See Isbell Enterprises, Incv.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409. United States Court of Appeals, Fifth Circuit. July 22, 1971, Rehearing Denied Sept. 15, 1971. George C. Phillips, Pensacola, Fla...
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The decision of the district court allowing a refund is affirmed. Mathena, prior to July 1, 1963, was employed by Akron Savings & Loan Association (Akron), doing business in Akron, Ohio. 1 Closely allied with Akron was Bankers Guaranty Title & Trust Company (Bankers). 2 3 An arrangement was made under which Mathena could “eat his cake and keep it, too.” He dr...
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Charles J. Robinson appeals his conviction for selling depressant drugs without a prescription in violation of 21 U.S.C. §§ 321 (v) and 331 (q) (2). 1 *563 Finding no merit in any of appellant’s contentions, we affirm. Appellant Robinson was a registered pharmacist employed by the Scotland Pharmacy in Seotlandville, Louisiana. On April 10, 1969, Yvonne Bechet, an undercover agent for the Fe...
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Appellant was convicted under three counts of an indictment charging concealment and sale of cocaine in violation of 21 U.S.C. § 174 and sale of cocaine without obtaining an order form in violation of 26 U.S.C. § 4705(a). We affirm. 1. The testimony of appellant’s accomplice was sufficient without more to establish appellant’s knowledge that the drug had been unlawfully imported. Profitt v. Uni...
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Each appellant was indicted, tried by a jury and convicted of a violation of 21 U.S.C. § 174, receiving, concealing and facilitating the transportation and concealment-of 36 ounces of heroin. BACKGROUND There is some dispute in the evidence but, viewing the evidence in the light most favorable to the government, it appears as follows: On January 20, 1970, customs agent Cavitt, acting as a pro...
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446 F.2d 567 James Morris FLETCHER, State Correctional Institution, Pittsburgh, Pennsylvania, Appellant,v.Mark G. SHULTZ, Sheriff of Waynesburg, Pennsylvania, and Harold A. Russell, Ex-Chief Deputy Sheriff of Waynesburg, Pennsylvania. No. 19419. United States Court of Appeals, Third Circuit. Submitted June 11, 1971. Decided June 24, 1971. James Morris Fletcher, pro s...
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Opinion of the Court This appeal from the dismissal of a civil rights complaint was untimely taken. It, therefore, will be dismissed....
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Appellant, Britt Warren, appeals from a conviction for a violation of 50 U.S.C. App. § 462, failure to submit to induction into the armed services. In 1967 he registered and was classified II-S because he was in high school. He stated his belief in a Supreme Being and wrote that “God is the only being with the right to kill.” In 1968 he was classified I-A, received Form 217 notifying him of his...
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The district court dismissed plaintiff’s action on the ground that plaintiff’s amended complaint showed on its face that suit on the claim was barred by limitations. The purported claim is one under the Civil Rights Act and is based upon an alleged civil conspiracy entered into by defendant with several others. The statute of limitations applicable to such claim is Cal.Civ.Proc. 338, subd. 1 [D...
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The Board’s order will be enforced. The early unilateral discontinuance of the health and welfare payments we conclude was an unfair labor practice. Hin-son v. N.L.R.B., 8 Cir., 428 F.2d 133. The finding that the company refused to bargain to an impasse is supported by the record considered as a whole. THOMPSON, District Judge, dissents on the refusal to bargain issue. ...
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OPINION OF THE COURT This is an appeal from a conviction for aiding and abetting three co-defendants in the commission of an armed robbery of a bank on May 26, 1969, in violation of 18 U.S.C. §§ 2113(a), 2113(b), 2113 (d) and Section 2 of Title 18. Defendant Chaney was found guilty of all four counts and on January 22, 1971, was sentenced to eight years’ imprisonment. Co-defendant Sheppard was ...
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OPINION OF THE COURT On September 11, 1969, defendant, along with three co-defendants, was indicted and charged with bank robbery in violation of Sections 2113(a), 2113(b), and 2113(d) of Title 18 of the United States Code. 1 In January 1970, defendant Sheppard was found guilty by a jury on all counts. On January 22, 1971, he was sentenced to eight years’ imprisonment. Prior to the verdict,...
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Appellant was convicted in a jury trial of transportation of marihuana in violation of 21 U.S.C. § 176a. Following conviction, he wap committed to the custody of the Attorney General for imprisonment under § 5010(b) of the Youth Corrections Act, 18 U.S.C. § 5005, et seq. He appeals. We affirm. FACTS About 7:50 P.M. on March 15, 1969, co-defendant Lucy Cook, a pedestrian, crossed the Mexican b...
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This is a direct criminal appeal from a conviction of Thompson-Hayward Chemical Company under a two-count indictment which charged Thompson-Hayward with knowingly violating I.C.C. regulations relating to the proper preparation of shipping papers and requiring the use of an exterior warning placard on a shipment of battery acid, both in violation of 18 U.S.C. § 834. We reverse and remand for a n...
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446 F.2d 586 William King HOWARD, Petitioner-Appellant,v.Walter CRAVEN, Warden, Respondent-Appellee. No. 26544. United States Court of Appeals, Ninth Circuit. June 15, 1971, As Modified on Denial of Rehearing Aug. 13, 1971. Roger S. Hanson, Woodland Hills, Cal., for petitioner-appellant. Evelle J. Younger, Cal. Atty. Gen., William E. James, Asst. Atty. Gen., Richa...
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Jack Scott Elder appeals his conviction for possession of marijuana and hashish in Yosemite National Park, a violation of 18 U.S.C. § 13 which adopts state law (namely Calif. Health & Safety Code § 11530) for federal reservations. We affirm. During a routine patrol of a campground at Yosemite, a group of federal officers passed by a large tent containing several young people. As they drew ...
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446 F.2d 588 AMERICAN BIBLE SOCIETY, a nonprofit organization of theState of New Yorkv.Winton M. BLOUNT, Postmaster General of the United States,et al., Appellants.(D.C. Civil Action No. 46-69)AMERICAN BOOK-STRATFORD PRESS, INC.v.Winton M. BLOUNT, Postmaster General of the United States,et al., Appellants.(D.C. Civil Action No. 941-68)MONTVILLE WAREHOUSING COMPANY, Inc., a Mew Jersey Corp.v.Wi...
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OPINION OF THE COURT These are appeals by the Postmaster General and Local Postmasters (hereinafter sometimes referred to as the Post Office) from orders dismissing as moot suits asking for permanent injunctions against them. The preliminary injunctions were conditioned on the posting of a bond by the plaintiffs to cover damages incurred during the pendency of *591the injunction. The Post Office ...
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Billy Ray Dillon appeals his conviction for violation of the Dyer Act, 18 U.S.C. § 2312, in that he transported a 1960 Cadillac from Missouri to Texas, with knowledge that the vehicle had been stolen. He contends that the evidence was insufficient to support a conviction, that the trial court’s denial of his right to have a material witness subpoenaed was prejudicial error, and that the court’s c...
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The National Labor Relations Board seeks enforcement of its order require-ing reinstatement of Jack Lenox, a North Arkansas Electric Cooperative, Inc. managerial employee, on the grounds that North Arkansas violated § 8(a) (1) and (3) of the National Labor Relations Act by discharging Lenox for failing to remain neutral during a union organizational campaign. We deny enforcement. This case...
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446 F.2d 610 78 L.R.R.M. (BNA) 2061, 66 Lab.Cas. P 11,976 LOCAL UNION NO. 186, UNITED PACKINGHOUSE FOOD AND ALLIEDWORKERS, AFL-CIO, an Unincorporated LaborCorporation, Plaintiff-Appellant,v.ARMOUR AND COMPANY, a Foreign Corporation, Defendant-Appellee. No. 71-1098.United States, court of Appeals, Sixth Circuit.Aug. 17, 1971. S. Del Fuston, Chattanooga, Tenn., for appellant....
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This appeal from a summary judgment raises questions of interpretation of a collective bargaining agreement between Local Union No. 186, United Packinghouse, Food and Allied Workers AFL-CIO, the appellant, and Armour and Company, appellee, concerning the company’s liability for vacation pay to its employees when it closed its plant in September, 1966. The union contends that all employees had “ear...
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Robert Thomas Mix was indicted September 17, 1969 by indictment charging him with the unlawful possession on September 4, 1969, of a Thompson Model 1921 submachine gun, a German MP 40 machine pistol, and an automatic rifle with a barrel length of 12% inches, that were not registered to him, in violation of Section 5861(d) Title 26, United States Code. 1 After a jury trial, he was found guilty o...
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Garland Edward Goff was tried by jury and found guilty of aiding and abetting other named inmates of the Federal Reformatory, El Reno, Oklahoma, in instigating, conniving, and wilfully attempting to cause and assist a riot and mutiny on April 27, 1968, in violation of 18 U.S.C. §§ 2, 1792. On appeal Goff claims that the trial court erred in (a) denying his Motion for Directed Verdict; (b) givin...
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In this diversity action the Chicago, Milwaukee, St. Paul and Pacific Railroad Company (the Railroad) appeals from a judgment entered on a jury verdict awarding damages to Broxson and from a judgment of dismissal of the Railroad’s third-party action against Thrifty 1 for indemnification. We affirm the judgment for Broxson, but reverse the dismissal of the Railroad’s claim against Thr...
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Petitioner is a state prisoner who is serving concurrent sentences of 7% to 10 years and 5 to 10 years imposed upon him by the Supreme Court, Queens County, New York, upon his conviction in 1965 of the crimes of felonious possession of marijuana with intent to sell and felonious possession of marijuana. In July 1969 he filed a petition for a writ of habeas corpus in the District Court for the Sout...
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Charles Thomas Czaplicki and Thomas Randolph Wallis were jointly tried and each was found guilty, by a jury, of various violations of 26 U.S.C. § 176a. Their appeals from the judgments, rendered on the respective verdicts, were consolidated. We conclude that both judgments should be affirmed. Since no motion for acquittal was made in the trial court, neither appellant is now entitled to urge th...
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ORDER ASSESSING PENALTY After a hearing, Bernard G. Wins-berg, counsel for appellant Heinrich, is assessed a penalty of $200 for failure to prosecute the appeal with diligence, particularly with reference to filing his opening brief promptly. This failure occurred notwithstanding District Judge Irving Hill’s order on February 1, 1971 (made while fixing the amount of bail) as follows: “By the wa...
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446 F.2d 641 Nathan A. CORMIE, and his wife Addie B. Cormie,Plaintiff-Appellee-Cross-Appellant,v.SECURITY INSURANCE COMPANY OF HARTFORD,Defendant-Appellant-Cross-Appellee. No. 71-1918 Summary Calendar.* United States Court of Appeals, Fifth Circuit. Aug. 19, 1971. P. A. Bienvenu, New Orleans, La., Timothy J. McNamara, Davidson, Meaux, Onebane & Donahue, Lafayette, La...
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Affirmed. See Local Rule 21.1 . See NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966. ...
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446 F.2d 642 William E. GODWIN, Plaintiff-Appellant,v.Curtis PHELPS and the City of Okeechobee, Florida,Defendants-Appellees.No. 71-1670 Summary Calendar.**Rule 18, 5 Cir.; See Isbell Enterprises Inc.,v.Citizens Casualty Company of New York et alM 5 Cir. 1970,431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 17, 1971. F. Malcolm Cunningham, Cunningham...
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Petitioner and his fiancee were charged with related state crimes. They were tried separately, but were represented by the same attorney. Petitioner claims the joint representation deprived him of the right to effective assistance of counsel. The district court denied a writ of habeas corpus. We affirm. Joint representation is permitted unless specific prejudice appears. Carlson v. Nelson, 443 ...
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446 F.2d 642 William E. GODWIN, Plaintiff-Appellant,v.Curtis PHELPS and the City of Okeechobee, Florida, Defendants-Appellees. No. 71-1670 Summary Calendar.* United States Court of Appeals, Fifth Circuit. August 17, 1971. Appeal from the United States District Court for the Southern District of Florida; C. Clyde Atkins, Judge. F. Malcolm Cunningham, Cunningham &...
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Affirmed. See Local Rule 21.1 . See NLRB v. Amalgamated Clothing Workers of America, 5 Cir. 1970, 430 F.2d 966. ...
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Raymond Paul Patrick .appeals from an order of the United Sjtates District Court for the Western District of Missouri denying his petition for a writ of habeas corpus. The appellant urges that the District Court erred in ruling adversely to the appellant on the substantive issues he raised below, and in failing to hold an evidentiary hearing. The District Court, in its order denying the petit...
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Appellant, a state prisoner, appeals from the dismissal of his civil rights action. He challenged the constitutionality of a part of California’s parole revocation procedure pursuant to which his parole was revoked and his sentence re-fixed to life imprisonment. We reject appellee’s contention that appellant’s appeal is untimely. Although the district court dismissed the action on April 13...
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Clarillo stands convicted on all counts of a three-count indictment charging him with conspiring to import, importing, and facilitating the transportation of nine ounces of heroin, all in violation of 21 U.S.C. § 174. On appeal he challenges the sufficiency of the evidence to support his conviction. Without detailing all of the evidence, we find it sufficient. Clarillo was implicated in the con...
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On direct appeal, Spinelli’s conviction was affirmed, United States v. Spinelli, 443 F.2d 2, decided May 17, 1971. Here we consider the denial of a motion for a new trial based upon the presence on the jury of two jurors who had been on one Battaglia’s criminal trial (Battaglia was .acquitted) where the name of one Spinelli was mentioned in an unfavorable light. We affirm, finding in context ...
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The district court dismissed plaintiff’s action on the grounds that the issues tendered in the complaint were ones which “should be raised by habeas corpus and not through the invocation of the federal civil rights statutes.” Plaintiff has appealed. Although plaintiff is a prisoner representing himself, his complaint contains allegations which unmistakably show that the sole relief he seeks is ...
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A careful review of the record in the case below shows there is no merit to the assertions of error 1 by the appellant at the trial or of the district court judge’s subsequent denial of the two extraordinary motions for a new trial. The judgment is therefore Affirmed. 1 . On this appeal, the assertions of error by the appellant are: 1. Whether the proof of an offense not charged in t...
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446 F.2d 648 UNITED STATES of America, Plaintiff-Appellee,v.John Joseph McCLAIN, Defendant-Appellant.No. 29224 Summary Calendar.**Rule 18, 5th Cir.; See Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 3, 1971. Kelly S. Brown, Miami, Fla., Stanley H. Nylen, Atlanta, Ga.,...
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Petitioner Burlee Carroll was convicted of murdering his wife in a Texas State court in 1948. After exhausting State remedies, he filed his petition for the writ of habeas corpus in the court below, which was denied. The first appeal resulted in a remand to the district court to determine whether petitioner was competent to stand trial in 1948. See Carroll v. Beto, 421 F.2d 1065 (5th Cir., 1970)....
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Affirmed. 1 See Local Rule 21. 2 1 . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s Local Rule 9(c), (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981. 2 . See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir. 197...
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446 F.2d 650 John B. TARLTON, Jr., and Harry Boyd, Petitioners-Appellants,v.Honorable John N. MITCHELL, Attorney General of the United States, etc., et al., Respondents-Appellees. No. 71-1823 Summary Calendar.* United States Court of Appeals, Fifth Circuit. August 18, 1971. Appeal from United States District Court, Northern District of Georgia; Sidney O. Smith, Jr., Chie...
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446 F.2d 650 John B. TARLTON, Jr., and Harry Boyd, Petitioners-Appellants,v.Honorable John N. MITCHELL, Attorney General of the UnitedStates, etc., et al., Respondents-Appellees.No. 71-1823 Summary Calendar.**Rule 18, 5 Cir., Isbell Enterprises, Inc.v.Citizens Casualty Company of New York et al., 5 Cir., 1970,431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 18,...
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On October 9, 1953, petitioner entered a plea of guilty to nine counts of an indictment charging him with transporting and concealing stolen motor vehicles in interstate commerce. He was represented by counsel of his own choosing. His motion alleges that at the time his plea was taken, the District Judge did not explain to him the consequences of a guilty plea and that he did not understand the...
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Affirmed. See Local Rule 21.1 . See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966. ...
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446 F.2d 651 UNITED STATES of America, Plaintiff-Appellee,v.Thomas Ewan DEBARRE, Defendant-Appellant.No. 71-1740 Summary Calendar.**Rule 18, 5 Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409. United States Court of Appeals, Fifth Circuit. Aug. 16, 1971. Max P. Engel, John A. Boccabella, Miami, Fla., for defendant-appell...
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446 F.2d 651 UNITED STATES of America, Plaintiff-Appellee,v.Thomas Ewan DEBARRE, Defendant-Appellant. No. 71-1740 Summary Calendar.* United States Court of Appeals, Fifth Circuit. August 16, 1971. Appeal from United States District Court, Southern District of Florida; C. Clyde Atkins, District Judge. Max P. Engel, John A. Boccabella, Miami, Fla., for defendant-appe...
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Affirmed. See Local Rule 21.1 . See N. L. R. B. v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966. ...
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In December 1967, the Attorney General of the United States brought an action against the Bethlehem Steel Corporation in the United States District Court for the Western District of New York. Suit was filed pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., a historic legislative attempt to deal with the national problem of discrimination in employment. The compla...
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Leslie Bacon appeals from a civil contempt order of confinement entered on May 19, 1971, pursuant to 28 U.S.C. § 1826. The order is based upon a finding that appellant had refused to obey the *668 court’s prior order of the same day, issued pursuant to 18 U.S.C. §§ 6002 and 6003, granting her immunity and ordering her to answer the questions asked by the grand jury which she had previously refu...
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The defendant Hilton Jerry Kelton (hereinafter called Jerry) was found guilty under 18 U.S.C. § 2113 of willfully aiding and abetting the commission of a robbery of the Empire State Bank of Kansas City, Missouri. Defendant was acquitted of the charge of conspiring to commit the same robbery. On appeal we reverse the conviction and hold that the defendant is entitled to a judgment of acquittal on ...
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This is an appeal by Myron A. Anderson and his wife from an adverse Tax Court decision involving their federal income tax liability for the calendar year 1966. The sole question is whether taxpayers were entitled to an investment credit under Section 38 of the Internal Revenue Code of 1954 1 on oil and gas well equipment, where the funds used to purchase the equipment were acquired t...
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This appeal is taken from a judgment of conviction of three offenses charged in connection with a demonstration at which two United States Forest Service signs were burned in the Santa Fe National Forest. The convictions were based on an indictment charging (1) that appellant and his wife willfully injured a Forest Service sign near Gallina, New Mexico, causing damage in excess of $100 in viola...
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Robert Willard Adams appeals from his conviction on a jury verdict of receiving stolen United States postage stamps in violation of 18 U.S.C. § 641, and burglary of a United States Post Office, in violation of 18 U.S.C. § 2115. The only question presented is whether, under the circumstances of this case, the district court erred in admitting into evidence hearsay testimony of a declaration impl...
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446 F.2d 685 Timothy RICE et al., Plaintiffs-Appellees,v.AMERICAN PROGRAM BUREAU et al., Defendants-Appellants. No. 1032. No. 1041. Docket 71-1483. Docket 71-1538. United States Court of Appeals, Second Circuit. Argued June 1, 1971. Decided July 8, 1971. 1 Eastman & Eastman, New York City, for plaintiffs-appellees; Robert J. Osterberg, New York ...
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Two principal issues are presented by these appeals from the district court’s denial of federal income tax refunds: (I) whether organization or reorganization expenses incurred by appellant’s predecessors, and concededly capital in nature and not deductible when incurred, became deductible upon the occurrence of statutory mergers carried out pursuant to 26 U.S.C. § 368(a) (1) (A); (II) whether ...
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446 F.2d 701 UNIVERSITY HILL FOUNDATION, etc., Petitioner-Appellee,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. No. 24929. United States Court of Appeals, Ninth Circuit. May 17, 1971. Rehearing Denied September 20, 1971. Gilbert E. Andrews (argued), Atty. Tax Div., Johnnie M. Walter, Asst. Atty. Gen., Washington, D. C., for respondent-appellant. Au...
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In this products liability case the plaintiff-appellant Marshall claims defective design because of the failure of an automobile manufacturer to provide a lock or catch on the folding back of a split front seat. Jurisdiction is based on diversity. The jury found for the defendant and this appeal followed. On December 5, 1968, plaintiff was a passenger occupying the right front seat of a 19...
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446 F.2d 715 J. L. LeFLORE et al., Plaintiffs-Appellants,v.James ROBINSON et al., Defendants-Appellees. No. 28632. United States Court of Appeals, Fifth Circuit. June 25, 1971. Vernon Z. Crawford, Mobile, Ala., Jack Greenberg, Jonathan Shapiro, Charles L. Becton, New York City, for plaintiffs-appellants. Alfred J. Tighe, Jr., Washington, D. C., Fred G. Collins, Mob...
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BY THE COURT: This appeal was originally decided November 12, 1970. See 434 F.2d 933. While petition for rehearing and for rehearing en banc filed by the defendants-appellees was pending before this Court, the Supreme Court on February 23, 1971 decided the eases of Younger v. Harris, 1971, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669; Samuels v. Mackell, 1971, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 68...
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Robert Jackson Gibson was convicted by a jury on November 6, 1970 of offering and giving money to Frederick Haag, an officer and employee • of the United States Penitentiary, Leavenworth, Kansas, with intent to induce Haag to do an act in violation of his lawful duty; to-wit: to obtain contraband for Robert Jackson Gibson, an inmate, in violation of 18 U.S.C. § 201. On appeal Gibson contends that...
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446 F.2d 722 9 UCC Rep.Serv. 339 In the Matter of KING-PORTER COMPANY, Inc., Bankrupt.MILLS MORRIS COMPANY OF MISSISSIPPI, INC., doing business asAppliance Distributors of Mississippi, Appellant,v.Pat H. SCANLON, Trustee in Bankruptcy, Appellee. No. 30976. United States Court of Appeals, Fifth Circuit. July 19, 1971. A. Spencer Gilbert, III, Jackson, Miss., for appel...
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In this bankruptcy case, the District Court, on a petition for review filed by claimant Mills Morris Company, sustained the referee in bankruptcy’s denial of claimant’s reclamation petition and granted the counterclaim of the trustee. The reclamation petition sought to recover eleven air conditioners from the bankrupt King-Porter Company, Inc.’s estate, and the counterclaim prayed for $27,-494.07 ...
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Appellant Woodring appeals from a conviction for the robbery of the South Ogden Branch of the First Security Bank of Utah in violation of 18 U.S.C. § 2113(a) and (d). Shortly before the closing hours on December 5, 1969, the aforesaid bank was robbed by a lone gunman who first approached a bank teller and demanded that she deposit her cash in a cloth bag which he furnished. The robber then, at ...
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Plaintiff and defendants are engaged in the design, manufacture, and sale of fine jewelry. Plaintiff charged defendants with infringing plaintiff’s copyright registration of a pin in the shape of a bee formed of gold encrusted with jewels. A consent decree was entered, reciting that the parties had agreed to a settlement of the action and entry of the decree. It provided that plaintiff’s c...
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446 F.2d 742 Daniel William ALESI, Petitioner-Appellee,v.Walter E. CRAVEN, Respondent-Appellant. No. 25331. United States Court of Appeals, Ninth Circuit. July 21, 1971. Frederick R. Millar, Jr., Deputy Atty. Gen. (argued), William E. James, Asst. Atty. Gen., Evelle J. Younger, Atty. Gen., Los Angeles, Cal., for respondent-appellant. Norman Elliott (argued), John W...
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The appellant, Chared Corporation, seeks to recover taxes paid to the United States. The issue before this Court is stated by the appellant in the following language: “Whether advances made by The British-American Oil Producing Company to its Canadian parent corporation, The British-American Oil Company, Limited were loans or dividends. The district court held that the advances were dividends as ...
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The appellant, Hudson Valley Lightweight Aggregate Corp. [Hudson Valley], was the owner of a steel deck barge, Solite No. 5, which Windsor Building and Supply Co., Inc. [Windsor] chartered under an oral contract. These companies were shipping aggregate to a construction site at West Point, New York, with Hudson Valley coordinating the shipping arrangements for both. Hudson Valley engaged the Tu...
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OPINION OF THE COURT On June 23, 1966, appellant Cal R. DeVyver and his co-defendant Dennis Callaway were convicted by a jury on three counts of transporting stolen motor vehicles in interstate commerce in violation of 18 U.S.C. § 2312, and one count of wrongfully impersonating a diplomat in violation of 18 U.S.C. § 915. DeVyver was sentenced to a total of seven years imprisonment pursuant to 1...
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Following a nonjury trial, appellant was convicted on June 22, 1967, in the Superior Court of the State of California, in and for the County of Alameda, of possessing a narcotic (codeine) in violation of the Health and Safety Code of the State of California, § 11500, and was committed to prison for the term prescribed by law. By stipulation the case was submitted for decision, to the court, on ...
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Billie Jean Webb, the seventeen year old daughter of a retired United States Army warrant officer, in a melodramatic attempt to bring about a reconciliation with the man from whom she had recently been divorced, swallowed fifty (50) Colchicine tablets between 3:00 P. M. and 3:30 P.M., on August 20, 1968. Colchicine is a poison sometimes prescribed for the control of inflammation due to gout (the ...
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446 F.2d 760 Jeanne Maxine WEBB, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.No. 71-1258 Summary Calendar.**(1) Rule 18, 5 Cir.; See Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York, 5 Cir. 1970, 431 F.2d409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 9, 1971, Rehearing Denied Sept. 9, 1971. Owen G. Roberts, Jr., William C. ...
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446 F.2d 763 ARKANSAS EDUCATION ASSOCIATION et al., Appellants,v.BOARD OF EDUCATION OF the PORTLAND, ARKANSAS SCHOOL DISTRICT, et al., Appellees.ARKANSAS EDUCATION ASSOCIATION et al., Appellees,v.BOARD OF EDUCATION OF the PORTLAND, ARKANSAS SCHOOL DISTRICT, et al., Cross-Appellants. No. 20412. No. 20413. United States Court of Appeals, Eighth Circuit. July 26, 1971. ...
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This is an appeal from the dismissal of a class action brought by Arkansas Teachers Association, Inc. (ATA) on behalf of the black teachers of Portland, Arkansas School District requesting a mandatory injunction against that School District requiring it to cease discriminating against black teachers in the payment of salaries, and further requiring it to pay back wages alleged due the black teache...
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OPINION OF THE COURT Appellant, Henning brought this suit under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. to recover damages for: “(a) causing the plaintiff to contract the disease of tuberculosis; “(b) failing to discover that plaintiff had contracted the disease of tuberculosis both before and after discharge; “(c) failing to properly administer x-rays both before ...
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I. Louis Sposato was tried and convicted of perjury in 1969. We affirmed his conviction, 1 and the Supreme Court denied certiorari. 2 He now appeals from Judge Bryan’s order denying him a new trial, for which he had moved on the ground of newly discovered evidence. The evidence he relies on is the 1970 arrest of the Internal Revenue Agent who was the government’s chief witness against him a...
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Petitioner is a state prisoner who was convicted by a jury verdict on March 23, 1962, in the Court of General Sessions, New York County, of the crimes of sodomy, assault with intent to commit sodomy, and robbery in the first degree. In April 1968 he applied to the District Court for the Northern District of New York for a writ of habeas corpus. He claimed that both at the time of the commission o...
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Fred Lawton, asserting that his induction into the army was illegal, appeals from the denial of a writ of ha-beas corpus. Because we find no infirmity in the procedures that led to Law-ton’s induction, we affirm. Lawton was classified I-A on November 9, 1970. His random sequence number was reached by his local board in 1970, but insufficient time remained in the calendar year to induct him...
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George M. Wiggin, appellant, instituted this action against Kohlmeyer & Company (Kohlmeyer) and two of its Columbus, Georgia employees, Robert Martin and Jerre Pound, under the Securities Act of 1933, as amended [15 U.S.C.A. § 77a et seq.], the Securities Exchange Act of 1934 [15 U.S.C.A. § 78a et seq.], the Commodity Exchange Act [7 U.S.C.A. § 1 et seq.], the Sherman Anti-trust Act [15 U.S.C.A...
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This is an appeal by plaintiff Floyd Meredith from a judgment entered in the Western District of Missouri in favor of the defendants Robert Gavin and New Hampshire Insurance Company, following a jury verdict of no liability on a complaint based on 18 U.S.C. § 2520 of the federal wiretap laws. The plaintiff contends for a directed verdict on liability. We disagree and affirm the judgment of the ...
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Plaintiff corporations brought this action to recover damages based on the alleged misrepresentations and deceptions of the defendant, Hal C. Newman, in connection with the January 1969 sales by Newman to each of the plaintiffs of 10,000 shares of unregistered stock 1 of Diversa, Inc. On the instructions of the Trial Judge, pursuant to Fed.R.Civ.P. Rule 49(a), the jury returned a spe...
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In this case (involving an official decision at a state university not to reemploy a non-tenured professor) the parties each made motions for summary judgment. The district court decision is reported at 310 F.Supp. 972. Defendants’ motion was denied, and plaintiff’s motion was granted in part. The order appears on pages 983 and 984. Defendants have appealed from the judgment accordingly entered. A...
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446 F.2d 815 SYSTEM COUNCIL T-4, comprised of Local Unions 134, 165, 315, 336 and 399 of the International Brotherhood of Electrical Workers AFL-CIO, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent. No. 18161. United States Court of Appeals, Seventh Circuit. July 19, 1971. Rehearing Denied August 11, 1971. Robert E. Fitzgerald, Jr., Chicago, Ill., Anna R. Lav...
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This is a petition to review and set aside an NLRB order1 dismissing a complaint issued after unfair labor charges by System Council T-4 (“Union”) against the Illinois Bell Telephone Company. We deny the petition. I The Union first charges the Company with a violation of Section 8(a) (1) of the National Labor Relations Act.2 Approximately 11,800 employees in units represented by the Union went out...
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446 F.2d 820 UNITED STATES of America For the Use and Benefit of JAMES E. SIMON CO., Inc., and James E. Simon Co., Inc., Appellants,v.ARDELT-HORN CONSTRUCTION CO. and St. Paul Fire & Marine Insurance Company, Appellees. No. 20544. United States Court of Appeals, Eighth Circuit. August 17, 1971. Allen L. Overcash, of Woods, Aitken, Smith, Greer, Overcash & Spangle...
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This is a timely appeal by plaintiff James E. Simon Co., Inc., a subcontractor on a government building project covered by the Miller Act from final order dismissing with prejudice its third claim for relief, which is based upon a Miller Act performance bond. Rule 54 (b) determinations for entry of final judgment on the third claim were made by the trial court. Rulings upon other claims for relief...
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This appeal concerns the application of the Freedom of Information Act of 1966, 5 U.S.C., § 552. The District Court granted summary judgment against James O. Evans, who was the plaintiff below and is the appellant here. We affirm. Invoking the provisions of the Act, on May 1, 1969, James O. Evans filed suit against the Department of Transportation of the United States, seeking disclosure of let...
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Cornwell Quality Tools Co. (“Corn-well”) and C.T.S. Company, Inc. (“CTS”) filed cross-appeals from the adverse portions of the district court’s judgment entered after each party had moved successfully against the other for directed verdicts. The case breaks into four parts: (1) Cornwell’s claim against CTS to recover the purchase price of merchandise it sold to CTS, its former distributor,...
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446 F.2d 833 Phillip CROSSEN, Fran Pozzuto, Peter Scott, Pat Craddock andLexington Women's Liberation Group, Plaintiffs-Appellants,v.John BRECKENRIDGE, Attorney-General of the Commonwealth ofKentucky, and George Barker, Commonwealth Attorneyfor the 22nd Judicial District ofKentucky, Defendants-Appellees. No. 20852. United States Court of Appeals, Sixth Circuit. June 23, 1971. ...
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This appeal arises from the dismissal of a complaint challenging the constitutionality of the Kentucky anti-abortion statute, Ky.Rev.Stat. 436.020.1 The appellants are Phillip Crossen, a physician specializing in obstetrics and gynecology, a pregnant woman, Pat Craddock, who allegedly has been denied an abortion, Fran Pozzuto, a non-pregnant woman, Peter Scott, a minister, and a women’s rights org...
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This is an appeal from a decision of the United States Tax Court which upheld a determination by the Commissioner of Internal Revenue that the appellant is liable for a deficiency of over $60,000 for the two taxable years ended June 30, 1964, and June 30, 1965. The opinion of'the Tax Court is reported in 54 T.C. 385 (1970). The appellant is a corporation which manufactures agricultural equ...
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Appellant Davis was convicted in the Federal District Court for the Northern District of Illinois of violating 21 U.S.C. § 174. He is presently serving a 20-year sentence at the federal penitentiary *848 at Leavenworth, Kansas. At the time of sentencing on November 30, 1959, the trial judge denied bail pending appeal of Davis’s conviction. Pursuant to the provisions of Rule 38(a) (2) of the Fed...
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Appellant, in state custody following his conviction for a narcotics offense, appeals from an order denying his petition for federal habeas relief. 1 In his federal habeas application, appellant sought relief on three grounds that he had unsuccessfully urged in the state courts: (1) He had been denied- a fair trial by the method the prosecution had used in proving his prior narcotics offense ...
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Appellant, United States Fidelity & Guaranty Company, brought this action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674, seeking contribution from the United States as a joint tort-feasor with appellant’s insured, the C. H. Taylor Company. The trial court found appellant not entitled to recovery, and this appeal was taken. In 1965, Taylor ...
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On this appeal we need only decide whether the District Court properly invoked the doctrine of primary jurisdiction in refusing to consider a discrimination complaint prior to its submission to the Interstate Commerce Commission. Taylor County Sand Company (Shipper) sued Seaboard (Carrier) in a Georgia court for damages and injunctive relief, alleging that railroad cars previously promised...
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446 F.2d 853 TAYLOR COUNTY SAND COMPANY, Incorporated, Plaintiff-Appellant,v.SEABOARD COAST LINE RAILROAD CO., Defendant-Appellee.No. 71-1638 Summary Calendar.**(1) Rule 18, 5 Cir.; See Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409. United States Court of Appeals, Fifth Circuit. Aug. 12, 1971. Denmark Groover, Jr., W. Thomas Gr...
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This is an appeal from an order of the United States District Court for the Southern District of New York, denying a motion for a preliminary and permanent injunction and dismissing appellant’s complaint. After oral argument had been heard on the motion for a preliminary injunction, the district court permitted an appeal through military channels of the Army’s denial of appellant’s request for a ...
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This is an appeal by a state prisoner from the denial of an application for a writ of habeas corpus by the United States District Court for the Southern *858 District of New York, Marvin E. Frankel, J. For the reasons set forth below, we affirm. The issue raised on this appeal is whether the “show up” pretrial identification of the appellant by the victim of the crime was so unnecessarily sug...
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Adolpho Rodriquez appeals from his conviction on all counts of an eleven-count indictment charging a conspiracy to import and sell heroin, and concealment, facilitating the concealment, sale, facilitating the sale and facilitating the transportation of heroin, in violation of 21 U.S.C. § 174. The only issue raised on appeal which we find worthy of discussion, is whether, as defendant argues, th...
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A jury, sitting in the Superior Court of King County, Washington, found Huson guilty of murder in the first degree. It did not, however, fix the penalty at death, as the prosecutor demanded. On Huson’s appeal to the Supreme Court of Washington, his conviction was affirmed. State v. Huson, 1968, 73 Wash.2d 660, 440 P.2d 192. We do not repeat here the facts of the case; they are set out in the cite...
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446 F.2d 862 Thomas G. SEXTON, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.No. 71-1495 Summary Calendar.**(1) Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of N.Y. et al., 431 F.2d 409, Part I(5th Cir. 1970). United States Court of Appeals, Fifth Circuit. Aug. 19, 1971. Thomas G. Sexton, pro se. Robert W. Rust, U.S. Att...
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This appeal is taken from an order of the district court denying, without a hearing, the motion of a federal prisoner to vacate his sentence pursuant to 28 U.S.C.A. § 2255 (1971). We affirm. Sexton challenges his 1966 guilty plea convictions on a two-count indictment charging him with uttering and publishing forged United States postal money orders in violation of 18 U.S.C.A. § 500, for which h...
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This appeal is taken from an order of the district court denying the motion for a new trial filed by a federal prisoner pursuant to Rule 33, F.R.Crim.P. We affirm. Appellant was convicted of armed bank robbery, violations of 18 U.S.C. §§ 2113(a) and (d), and was sentenced to 25 years imprisonment. This court affirmed the conviction in United States v. Bankston, 5th Cir. 1970, 424 F.2d 714. Appe...
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446 F.2d 864 UNITED STATES of America, Plaintiff-Appellee,v.Albert Kenneth BANKSTON, Defendant-Appellant.No. 71-1655 Summary Calendar.**(1) Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. July 16, 1971. Albert K. Bankston, pro se. E. Donald Stra...
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The defendant was convicted in a three-count jury trial of possessing and transferring counterfeit obligations of the United States and of conspiracy to pass counterfeit obligations of the United States in violation of 18 U.S.C. §§ 472, 473 and 371. He was sentenced to an aggregate of seven years imprisonment. The only issue raised by defendant on appeal is a claimed lack at the trial stage of ...
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Appellant appeals from his conviction for bank robbery. He attacks his conviction on three grounds: (1) the district court erred in denying his motion to suppress evidence that he contends was the product of an illegal search and seizure; (2) the court abused its discretion in excluding a psychiatrist’s testimony, and (3) the prosecutor commented improperly upon the defendant’s failure to call a ...
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Appellant was convicted of receiving, concealing and facilitating the transportation and concealment of heroin, knowing the same to have been illegally imported in violation of 21 U.S.C. §§ 173, 174. Appellant complains of pre-indictment and pre-trial delay. A complaint was filed on July 6, 1967. The government’s attempts to locate Campopiano were unsuccessful until April 8, 1968. There wa...
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In December 1969, District No. 76, International Association of Machinists and Aerospace Workers, AFL-CIO (the Union), won a Board-conducted election and was certified as the exclusive bargaining representative of the employees of Cocker Saw Company, Inc. (the Company). The Union thereupon requested the Company to begin negotiations toward a collective bargaining agreement. In February 1970, th...
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Reserve Life Insurance Company (“Reserve”) appeals from a judgment awarding appellee Heer recovery upon a conditional insurance contract. Heer applied for a $20,000 insurance policy upon the life of her 49-day-old child. She paid Reserve’s soliciting agent the initial premium of $19.58, and he gave her a conditional receipt. The receipt recited, among other things, that “if the Company at its H...
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At issue on this appeal is the propriety of the district court’s order remanding a criminal prosecution to the state court and denying removal of the prosecution under 28 U.S.C. § 1443(1). 1 We reverse the court’s order with directions to hold an evidentiary hearing to determine whether removal is proper. Emmitt J. Douglas, a member of the Negro race, alleges that he was arrested and charged ...
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Guerrero-Peralta appeals from her conviction on two counts charging violations of 21 U.S.C. § 176a. We need consider only her contention that, in submitting the case to an eleven-man jury, the court failed to comply with Rule 23(a), F.R. Crim.P. We reverse. When the jury retired, the forelady sent a note to the court indicating that a file containing documents that were not in evidence was foun...
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The issue on appeal and before the Tax Court is whether the appellant realized a gain when it withdrew in 1964 a deposit which had been made by the state of Tennessee in a condemnation proceeding in Tennessee State court involving a taking of the plaintiff’s property. The amount deposited by the state and withdrawn by the taxpayer in the year 1964 was the sum of $722,476.00. The Commissioner dete...
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446 F.2d 879 J. B. KEYS, Plaintiff-Appellant,v.Clark CLIFFORD, Secretary of Defense, Defendant-Appellee. No. 71-1582 Summary Calendar.* United States Court of Appeals, Fifth Circuit. September 1, 1971. Appeal from the United States District Court for the Southern District of Texas; John V. Singleton, Jr., Judge. J. B. Keys, pro se. Anthony J. P. Farris, U. S....
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446 F.2d 879 J. B. KEYS, Plaintiff-Appellant,v.Clark CLIFFORD, Secretary of Defense, Defendant-Appellee.No. 71-1582 Summary Calendar.**Rule 18, 5 Cir.; See Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409. United States Court of Appeals, Fifth Circuit. Sept. 1, 1971. J. B. Keys, pro se. Anthony J. P. Farris, U.S. Atty., Jame...
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Affirmed. See Local Rule 21.1 . See NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966. ...
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446 F.2d 880 Jay LAMARCHE, individually and on behalf of all otherssimilarly situated, Plaintiff-Appellant,v.SUNBEAM TELEVISION CORPORATION a/k/a WCKT TelevisionStation, Defendant-Appellee.No. 71-1465 Summary Calendar.**(1) Rule 18, 5 Cir.; See Isbell Enterprises, Inc.v.Citizens Casualty Company of New York et al., 5 Cir. 1970,431 F.2d 409, Part I. United States Court of Appeals, Fifth Cir...
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Jay Lamarche appeals from orders of the district court denying motions (1) to proceed in forma pauperis, and (2) to maintain his suit? as a class action. We determine that under the circumstances present neither order is a final decision appealable under Title 28, U.S.C., Section 1291, nor an interlocutory order appealable under Title 28, U.S.C., Section 1292. The appeal is accordingly ordered ...
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James Lee petitions for review of an order of the Board of Immigration Appeals affirming an order of the special inquiry officer which denied him an adjustment of status under 8 U.S.C. § 1255. Lee contends the denial was an abuse of discretion. The officer and the Board denied Lee’s application as a matter of discretion because they found he had not demonstrated his bona fide nonimmigrant statu...
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Dance Town appeals from a verdict of a jury in favor of the Commissioner of Internal Revenue. The question is whether Dance Town was liable for the cabaret tax imposed by § 4231 of the 1954 Code. The issue in this case is whether the selling of food and refreshments was merely incidental to the operation of the ballroom, thus exempting Dance Town from the cabaret tax. The evidence in the record...
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The order of the District Court dismissing plaintiffs’ third amended complaint is affirmed. We agree with the District Court that plaintiffs failed to set out “a short and plain statement of the claim” as required by Rule 8(a), Fed. R.Civ.P. We do not reach other grounds asserted as basis for the dismissal which is, of course, without prejudice. Affirmed. ...
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446 F.2d 882 71-1 USTC P 15,994 DANCE TOWN, U.S.A., INC., Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.No. 71-1225 Summary Calendar.**Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Company of New York et al., 5 Cir. 1970,431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. May 20, 1971, As Amended on Denial of Rehearing Jun...
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De Carlo was convicted of robbing a suburban branch of the United States National Bank at Portland, Oregon. He has one point on appeal: A government witness blurted out something about his escaping from the Rocky Butte local jail while he was incarcerated after his arrest. For this a timely motion was made for a mistrial. The motion was denied. The point here does not amount to much. The evid...
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Abedon Saiz, an Arizona state prisoner, has taken this appeal from a District Court order denying his petition for writ of habeas corpus without an eviden-tiary hearing. We are not persuaded, in the circumstances of this case, that there was such inordinate delay between the time of the commission of the offense and the time of filing of a formal criminal complaint as to deny due process or the...
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The conviction of appellant for failure to submit to induction in violation of 50 U.S.C. App. § 462 is affirmed. The local board’s denial of his request for conscientious objector classification was not erroneous. Appellant’s SSS Form 150 was submitted after the mailing of a valid induction order, and the Form failed to show a change in circumstances beyond the registrant’s control since all th...
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446 F.2d 886 Carl E. HUBER and Oscar N. Gore, Plaintiffs-Appellants,v.STATE BOARD OF BAR EXAMINERS OF GEORGIA et al., Defendants-Appellees. No. 71-1479 Summary Calendar.* United States Court of Appeals, Fifth Circuit. August 17, 1971. Rehearing Denied September 24, 1971. Appeals from United States District Court, Northern District of Georgia; Albert J. Henderson, Jr....
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446 F.2d 886 Carl E. HUBER and Oscar N. Gore, Plaintiffs-Appellants,v.STATE BOARD OF BAR EXAMINERS OF GEORGIA et al., Defendants-Appellees.No. 71-1479 Summary Calendar.**Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of N.Y. et al., 431 F.2d 409, Part I(5th Cir. 1970). United States Court of Appeals, Fifth Circuit. Aug. 17, 1971, Rehearing Denied Sept. 24, 1971....
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Affirmed. See Local Rule 21.1,2 . See NLRB v. Amalgamated Clothing Workers of America, 430 F.2d 966 (5th Cir. 1970). . See Dacey v. Florida Bar, Inc., 414 F.2d 195 (5th Cir. 1969); Smith v. State Board of Bar Examiners of Georgia and Defee v. Ravan, 447 F.2d 1312 (5th Cir. 1971). ...
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BY THE COURT: The prior history of this litigation is reported, 305 F.Supp. 857 and 434 F.2d 609. The action of this Court was to remand the appeal from a preliminary injunction for consideration of its possible mootness by the lower court. On December 31, 1970, the district court vacated its preliminary injunction and dismissed the case as moot. On the face of the order of dismissal the atto...
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446 F.2d 887 Rezen D. AUSTIN, Plaintiff-Appellant,v.BERRY BROTHERS OIL FIELD SERVICE, INC., et al., Defendants-Appellees. No. 71-1503 Summary Calendar.* United States Court of Appeals, Fifth Circuit. September 1, 1971. Appeal from the United States District Court for the Western District of Louisiana; Richard J. Putnam, District Judge. William P. Rutledge, Domengea...
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Affirmed. See Local Rule 21.1 . See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966. ...
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Wimberley has been in California state prisons since 1965. In 1966 he filed a claim with the Secretary for social security benefit payments under Title II of the Act, claiming he had been disabled from working since 1962. A hearing examiner found him disabled since June, 1965, but found there was no medical evidence he had been unable to work since then because of any severe physical impairment...
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446 F.2d 889 Hubert WRIGHT, Petitioner-Appellant,v.Dr. George J. BETO, Director, Texas Dept. of Corrections, Respondent-Appellee. No. 71-1496 Summary Calendar.* United States Court of Appeals, Fifth Circuit. August 16, 1971. Appeal from United States District Court, Northern District of Texas; William N. Taylor, Jr., District Judge. Hubert Wright, pro se. Cra...
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446 F.2d 889 Hubert WRIGHT, Petitioner-Appellant,v.Dr. George, J. BETO, Director, Texas Dept. of Corrections,Respondent-Appellee.No. 71-1496 Summary Calendar.**Rule 18, 5 Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co., of New York et al., 5 Cir., 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 16, 1971. Hubert Wright, pro se. C...
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This appeal is without redeeming merit. It would have been appropriate for the district court to have denied the certificate of probable cause, thus terminating the processing of an insubstantial claim. Affirmed....
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446 F.2d 890 UNITED STATES of America, Plaintiff-Appellee,v.George Steven TRABER, Defendant-Appellant. Nos. 71-1462-71-1939 Summary Calendar.* United States Court of Appeals, Fifth Circuit. September 1, 1971. Appeal from the United States District Court for the Southern District of Florida; Ted Cabot, Judge. Milton E. Grusmark, Miami Beach, Fla., for defendant-appe...
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The final order of the district court is reversed and the case is remanded with directions to vacate the judgment of conviction and sentence of the appellant for violation of 26 U.S.C. § 4744(a). Harrington v. United States, 444 F.2d 1190 (5th Cir. 1971). The mandate of this Court will issue forthwith. Reversed and remanded, with directions. ...
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446 F.2d 890 UNITED STATES of America, Plaintiff-Appellee,v.George Steven TRABER, Defendant-Appellant.Nos. 71-1462-71-1939 Summary Calendar.**Rule 18, 5th Cir.; See Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Sept. 1, 1971. Milton E. Grusmark, Miami Beach, Fla., for defe...
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Affirmed. See Local Rule 21.1 . See NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966. ...
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446 F.2d 891 In the Matter of PIONEER BOOK PUBLISHERS, INC., Bankrupt.John NICHOLAS, Trustee, Appellant,v.PUBLISHERS COLLECTION SERVICE, INC., etc., the Miami National Bank, etc., Appellee. No. 71-1639 Summary Calendar.* United States Court of Appeals, Fifth Circuit. September 7, 1971. Rehearing Denied October 1, 1971. Appeal from the United States District Court for...
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This is an action by Francis R. Peck against the United States Steel Corporation, his employer, to recover for personal injuries which he sustained while engaged in the course of his employment. The case was tried without a jury before United States District Judge Earl R. Larson. Judgment was entered in favor of plaintiff in the amount of $69,795.43. United States Steel appeals, urging that the t...
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446 F.2d 891 In the Matter ofPIONEER BOOK PUBLISHERS, INC., Bankrupt.John NICHOLAS, Trustee, Appellant,v.PUBLISHERS COLLECTION SERVICE, INC., etc., the MiamiNational Bank, etc., Appellee.No. 71-1639 Summary Calendar.**Rule 18, 5th Cir.; See Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir., 1970,431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit....
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Affirmed. See Local Rule 21.1 . See NLRB v. Amalgamated Clothing Workers of America, 5th Cir. 1970, 430 F.2d 966. ...
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After trial by jury Charles Parker, appellant, was convicted of robbing a federally insured bank in Demorest, Georgia in violation of 18 U.S.C.A. § 2113(a). In this appeal Parker argues that his constitutional rights were violated immediately following his arrest and arraignment before the United States Commissioner; that the trial judge erred in refusing to suppress his confession; and that the ...
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446 F.2d 892 UNITED STATES of America, Plaintiff-Appellee,v.Charles PARKER, Defendant-Appellant,No. 30888 Summary Calendar.**(1) Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. July 15, 1971, Rehearing Denied Sept. 3, 1971. Joe B. Sartain, Jr., Gaines...
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446 F.2d 893 Jerry Bob COMBS, Petitioner-Appellant,v.Roger CARROLL, U.S. Probation Officer, Respondent-Appellee.No. 71-1676 Summary Calendar.**(1) Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir., 1970,431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. July 9, 1971. Jerry B. Combs, pro se. Eldon B. Ma...
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Combs, who is incarcerated in the Dallas County Jail awaiting trial on charges brought by the State of Texas, appeals the district court’s denial of his petition seeking the dismissal of a federal detainer lodged against him. We affirm. In December, 1965 the appellant received a six-year sentence for conspiracy to smuggle heroin into the United States, and was mandatorily released in December, ...
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Appellant stands convicted of assaulting a federal officer. 18 U.S.C. § 111. On appeal he contends for the first time that he did not knowingly and voluntarily waive a jury trial, that he had inadequate counsel, and that the government’s witnesses refused to be interviewed by him. As to the first two contentions, the record on direct appeal provides no basis for ruling on his conclusionary alle...
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In this civil rights (42 U.S.C. § 1983) suit, the summary judgment in favor of the defendant is affirmed. Campoy seized papers, it is asserted, from the plaintiff’s jail house lawyers. He can’t do this any more under In Re Harrell, 2 Cal.3d 675, 87 Cal.Rptr. 504, 470 P.2d 640. But at the time he did it he was enforcing prison regulations not yet declared invalid. Here this protects Campoy. Th...
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Appellant Burns was convicted for wilfully failing to register under the Military Selective Service Act of 1967, 50 U.S.C.App. § 462. He contends on appeal that admission of his oral statement to a government agent was improper under the Miranda guidelines, that the statute under which he has been prosecuted is unconstitutional, and that his three-year sentence constitutes cruel and unusual pun...
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446 F.2d 897 Mrs. Judith B. EMORY, Plaintiff-Appellant,v.GEORGIA HOSPITAL SERVICE ASSOCIATION, Inc., etc., Defendant-Appellee. No. 71-2033 Summary Calendar.* United States Court of Appeals, Fifth Circuit. August 20, 1971. Appeal from United States District Court, Middle District of Georgia; J. Robert Elliott, District Judge. Howard Moore, Jr., Peter E. Rindskopf, A...
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446 F.2d 897 4 Fair Empl.Prac.Cas. 921, 4 Empl. Prac. Dec. P 7786Mrs. Judith B. EMORY, Plaintiff-Appellant,v.GEORGIA HOSPITAL SERVICE ASSOCIATION, Inc., etc., Defendant-Appellee.No. 71-2033 Summary Calendar.**Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of N.Y. et al., 431 F.2d 409, Part I(5th Cir. 1970). United States Court of Appeals, Fifth Circuit. Aug. 20...
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Affirmed. See Local Rule 21.1 . See N.L.R.B. v. Amalgamated Clothing Workers of America, 430 F.2d 966 (5th Cir. 1970). ...
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446 F.2d 898 Douglas C. PLCKELL, individually and on behalf of all otherssimilarly situated, Plaintiff-Appellant,v.Commander W. C. REED, Individually and as Head, MilitaryPersonnel, U.S. NavalStation, Treasure Island etal., Defendants-Appellees. No. 71-1567. United States Court of Appeals, Ninth Circuit. June 21, 1971. Michael S. Sorgen, San Francisco, Cal., for plaintif...
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In his complaint for declaratory relief, appellant sought to enjoin the Navy from releasing him with an undesirable discharge. The district court dismissed the complaint and denied a preliminary injunction, 326 F.Supp. 1086. While his appeal was pending, appellant stipulated with Navy authorities that, subject to the court’s approval, he be given an undesirable discharge. This court approved the s...
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446 F.2d 899 Abel OROSCO-GARCIA, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.No. 28794 Summary Calendar.**Rule 18, 5 Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 27, 1971. Eugenio Cazorla, Dallas, Tex., for petitioner. John N. Mitc...
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446 F.2d 899 Abel OROSCO-GARCIA, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 28794 Summary Calendar.* United States Court of Appeals, Fifth Circuit. August 27, 1971. Petition for Review of a Deportation Order of the Immigration and Naturalization Service. Eugenio Cazorla, Dallas, Tex., for petitioner. John N. Mitchell, Atty. Gen., U. ...
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446 F.2d 899 James D. ANDRES, Plaintiff-Appellant,v.SOUTHWESTERN PIPE, INC., Defendant-Appellee. No. 71-1981 Summary Calendar.** United States Court of Appeals, Fifth Circuit. August 20, 1971. Appeal from the United States District Court for the Western District of Louisiana; Richard J. Putnam, Judge, 321 F.Supp. 895. George M. Strickler, Jr., Robert F. Collins, Ne...
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Affirmed. See Local Rule 21.1 Marin v. Immigration & Naturalization Service, 438 F.2d 932 (9th Cir. 1971). . See NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966. ...
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Affirmed.1 See Local Rule 21.** . The decision appealed from is reported as Andres v. Southwestern Pipe, Inc., W.D.La.1971, 321 F.Supp. 895. See NLRB v. Amalgamated Clothing Workers of America, 5 Cir. 1970, 430 F.2d 966. ...
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Appellant, a California state prisoner, appeals from an order of the district court denying his petition for writ of ha-beas corpus. Petitioner challenged his convictions of robbery, rape and kidnapping on constitutional grounds. The district court concluded that the petitioner’s allegations were without merit and invoked the presumption of the correctness of state court findings. There is noth...
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Appellant appeals from an order denying his petition for relief filed pursuant to 28 U.S.C. § 2255. His petition and this appeal are based on his contention that the district court’s sentencing of his codefendants Carbajal and Sendejas for a violation of 18 U.S.C. § 371 (the general conspiracy statute) and its sentencing appellant for a violation of 21 U.S.C. § 176a (marihuana smuggling), when al...
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Michael Da Grossa was convicted in the District Court for the Southern District of New York for possessing chattels stolen from interstate shipments in violation of 18 U.S.C. § 659. In August 1964 he was sentenced to imprisonment for a year and a day, but sentence was suspended and he was placed on probation. This has expired, but we are told that his federal conviction continues to have certain ...
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446 F.2d 904 Bruce SEXTON, Plaintiff-Appellee,v.Bruce GIBBS and Terry Stephens, Defendants-Appellants. No. 30127. United States Court of Appeals, Fifth Circuit. June 1, 1971. J. Bruce Aycock, City Atty., Amarillo, Tex., for defendants-appellants. Harris E. Lofthus, Amarillo, Tex., for plaintiff-appellee. Before CLARK, Associate Justice,1 and GEWIN and RONEY, ...
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446 F.2d 904 Ralph STELL et al., Plaintiffs-Appellants, United States ofAmerica, Plaintiff-Intervenor-Appellee,v.The BOARD OF PUBLIC EDUCATION FOR the CITY OF SAVANNAH ANDthe COUNTY OF CHATHAM et al.,Defendants-Appellees, Darnell Brawner etal., Defendants-Intervenors-Appellees. No. 71-2380. United States Court of Appeals, Fifth Circuit. Aug. 23, 1971, Rehearing Denied Aug. 31, 1971...
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This is a civil rights action under 42 U.S.C. § 1983 in which the appellee claims damages for an alleged unlawful arrest and an alleged unlawful search and seizure. After a hearing at which the facts were fully developed, the district court rendered judgment for the appellee. Our review of the record convinces us that the facts found by the district court are supported by substantial evidence and ...
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BY THE COURT: It is ordered that appellants’ motion for summary reversal of the District Court’s order of June 30,1971, is granted in part and the judgment of the District Court as it pertains to elementary schools is vacated and the cause is remanded with direction that the District Court require the School Board forthwith 1 to constitute and implement a student assignment plan for elementary sch...
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In our decision of June 18, 1969, 1 we affirmed the judgment of the district court to the extent that it denied the motion to suppress, but retained jurisdiction over so much of the appeal as deals with the return of the property until the Supreme Court disposed of the similar case of United States v. United States Coin & Currency, 7 Cir. 1968, 393 F.2d 499. The Supreme Court decided...
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Appellants appeal from an order dismissing their petition for review of a referee’s order approving the compromise and settlement of unliquidated claims, litigation on which was pending in the United States District Court for the Northern District of California at the time of the adjudication in bankruptcy. We find nothing in the record to distinguish this case from Skelton v. Clements, 408 F.2...
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446 F.2d 906 TRAVELERS INDEMNITY COMPANY, Plaintiff-Appellant,v.FEDERAL INSURANCE COMPANY, Defendant-Appellee. No. 27760. United States Court of Appeals, Fifth Circuit. January 5, 1970. Appeal from the United States District Court for the Northern District of Georgia at Atlanta; Newell Edenfield, Judge. James A. Eichelberger, Atlanta, Ga., for plaintiff-appellant. ...
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446 F.2d 906 Petsonella MORAGNE, as personal representative of the Estateof Edward Moragne, Sr., Deceased and PetsonellaMoragne, Individually, Appellants,v.STATES MARINE LINES, INC., et al., Appellees. No. 24198. United States Court of Appeals, Fifth Circuit. May 28, 1971. By Hardee, Ott & Hamilton, Tampa, Fla., for appellants. Dewey R. Villareal, Jr., David C....
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BY THE COURT: Whereas the Supreme Court of the United States, 403 U.S. 207, 90 S.Ct. 1772, 29 L.Ed.2d 418, vacated the judgment of this Court, 409 F.2d 32, and issued its judgment remanding the cause to this Court, it is now here ordered and adjudged by this Court that this cause be, and the same is hereby, remanded to the United States District Court for further proceedings in conformity with the...
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The judgment appealed from is affirmed on the basis of the opinion of the District Court: Travelers Indemnity Company v. Federal Insurance Company, N.D.Ga., 1969, 297 F.Supp. 1346. Affirmed....
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The within matter is remanded to the district court with direction that the district court at once issue a rule nisi to defendants as to why the student assignment plan now on file prepared by the Department of Health, Education and Welfare should not be made the student assignment plan for the school system for the 1971-72 school term. (The HEW plan referred to is described in the brief of plain...
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Upon consideration of this cause en banc the Court adopts the majority opinion and judgment of the panel, 428 F.2d 888 (5th Cir. 1970)....
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In reviewing the chronology and judicial peregrinations of this case, we feel compelled to suggest that the trial court not enter any order that will further impede or delay the absolute requirement that the dual system be eliminated, root and branch, here and now. New sprouts permitting freedom of choice of schools, classes, and subjects, which might even remotely tend to perpetuate segregation,...
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The order adjudging Olsen guilty of civil contempt is affirmed. This court’s stay of the district court’s order is terminated effective at noon, Pacific time, August 10, 1971....
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446 F.2d 913 UNITED STATES of America, Plaintiff-Appellee,v.James Thurmond BOATWRIGHT and Benjamin Frank Boatwright,Defendants-Appellants.No. 31119 Summary Calendar.**Rule 18, 5th Cir; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of N.Y. et al., 431 F.2d 409, Part I(5th Cir. 1970). United States Court of Appeals, Fifth Circuit. Aug. 11, 1971. Joe J. Harrell, Pensacola...
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Appellant Frank Boatwright was convicted after a jury trial for transporting a stolen motor vehicle in inter *914 State commerce in violation of 18 U.S.C.A. § 2312 (1970) and for conspiring, contrary to 18 U.S.C.A. § 371 (1966) [the general conspiracy statute], to violate 18 U.S.C.A. § 2312 and 18 U.S.C.A. § 2313 (1970) making it a crime to receive, conceal and store a stolen motor vehicle whic...
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Appellant was convicted and sentenced for importing marihuana contrary to law in violation of 21 U.S.C. § 176a. His contentions on appeal are: 1. The trial court committed plain error in its instruction to the jury; 2. The evidence was insufficient to sustain the conviction; 3. His privilege against self-incrimination was violated; 4. The trial court erred when it denied his motion for a ...
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After trial by jury Jack Graham Prentiss and his codefendant, Leon Hayes, were convicted of bank robbery in violation of 18 U.S.C.A. § 2113(a) and sentenced to imprisonment. In this appeal Prentiss contends that the trial judge prejudiced his chances for a fair jury verdict by asking for a numerical division of the jury; that the court erred in giving the “Allen” charge to the jury; that the cour...
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446 F.2d 923 UNITED STATES of America, Plaintiff-Appellee,v.Jack Graham PRENTISS, Defendant-Appellant.No. 30614 Summary Calendar.**(1) Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. July 13, 1971, Rehearing Denied Aug. 17, 1971. Robert E. McDonald, J...
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The fundamental issue before us is whether certain expenses incurred by a corporate executive may be personally *927 deducted as “ordinary and necessary” expenses of his employment under § 162 of the Internal Eevenue Code of 1954. 1 The taxpayer appeals from an adverse finding of the Tax Court. 29 T.C. Memo. 1126 (1970). During the taxable years of 1962, 1963 and 1964 the taxpayer, Dana Bro...
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446 F.2d 929 Barbara MORGAN, Plaintiff-Appellee,v.The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, acorporation, Defendant, Betty Parsons et al.,Cross-Defendants-Appellants, Walter F. McGinnis,Administrator c.t.a. of the Estate of Harvey R. Morgan,Deceased, Cross-Defendant. No. 314-70. United States Court of Appeals, Tenth Circuit. Aug. 10, 1971, Rehearing Denied Sept. 2,...
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The question is whether under Kansas law a widow, who has been convicted of killing her husband, can recover the proceeds of an insurance policy on the deceased’s life. The federal district court permitted recovery. The deceased, Harvey R. Morgan, had a $20,000 policy on his life issued by defendant Equitable Life Assurance Society. His widow, plaintiff-appellee Barbara Morgan, was found guilty of...
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446 F.2d 933 UNITED STATES of America, Appellee,v.WATSON CHAPEL SCHOOL DISTRICT NO. 24 et al., Appellants.UNITED STATES of America, Appellee,v.WATSON CHAPEL SCHOOL DISTRICT NO. 24 et al., Appellants.UNITED STATES of America, Appellee,v.COTTON PLANT SCHOOL DISTRICT NO. 1 et al.,In re John Norman Warnock, Appellant. No. 20699. No. 71-1175. No. 71-1180. United States Court of Appe...
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These appeals, consolidated for argument, involve (1) the propriety of the district court’s order in requiring Watson Chapel School District No. 24 to implement a H.E.W. plan for a unitary school system; (2) the district court’s order finding members of the school district guilty of civil contempt in failing to comply with the judgment of the court requiring implementation of that plan; and (3) th...
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446 F.2d 940 UNITED STATES of America, Appellee,v.Raul CONTRERAS, Defendant-Appellant. No. 878, Docket 71-1108. United States Court of Appeals, Second Circuit. Argued April 2, 1971.Decided July 7, 1971. Harold F. McGuire, Jr., Asst. U.S. Atty. (Whitney North Seymour, Jr., U.S. Atty., for the Southern District of New York and Charles B. Updike, Asst. U.S. Atty., of couns...
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This is an appeal from an order dismissing without a hearing the petition of appellant Thaddeus Swiatek (Swia-tek) for a writ of habeas corpus. By order of this court, Swiatek’s motion for a certificate of probable cause, for leave to proceed in forma pauperis and for the assignment of counsel to prosecute this appeal was granted. For the reasons stated below, we hold that in the course of a 19...
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This is an appeal from convictions under two counts of possession of unstamped distilled spirits and one count of transporting unstamped distilled spirits, in violation of 26 U.S.C. §§ 5205(a) (2) and 5604(a) (1). The first and second counts concern alleged violations on August 29, 1970 and the third activities on August 30, 1970. In this appeal appellant contends that searches and seizures on th...
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Defendant, a resident within this Circuit, was indicted by a grand jury of the Central District of California on June 28, 1971, for violation of 18 U.S.C. §§ 793(e) and 641. On the same day he delivered himself for arrest in Boston. 1 Hearing on the question of defendant’s removal to California was held before a U. S. Magistrate on July 15. Since the identity of the defendant and the propriety ...
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Defendants John A. 0. Swaving and A. R. Henderson, a/k/a Bobby Henderson, appeal their convictions on two counts of securities fraud under 15 U.S.C.A. § 77q(a). Henderson additionally appeals his conviction on two counts of mail fraud under 18 U.S.C.A. § 1341. The jury found Swaving innocent of the mail fraud counts and both defendants were found not guilty of a conspiracy count. 1 T...
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This is the second time this case has come before this Court. In July, 1970, we affirmed the conviction of Appellant —a member of the Jehovah’s witness faith and a conscientious objector — for failing to comply with an order of his local selective service board to report to said board for instructions to commence with civilian employment, as alternate service, in violation of 50 U.S.C. App. § 462...
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Subsequent to the date of the district court’s decree from which this appeal has been taken, the Supreme Court decided Swann v. Charlotte-Mecklen-burg Board of Education, 1971, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554. We think that the district court, because of its familiarity with local conditions, should have the first opportunity to determine whether the school desegregation plan the court ...
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William E. McKee, convicted of refusing to submit to induction, appeals on the grounds that his draft board failed to consider his application for classification as a conscientious objector. McKee requested reclassification as a conscientious objector for the first time after his induction order had been issued. * The Supreme Court has held that a registrant whose conscientious objection crysta...
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The defendants appeal from judgments entered upon convictions following a jury trial in the Northern District of Oklahoma for (1) conspiring to traffic in Heroin in violation of 21 U.S.C. § 174 and (2) conspiring to sell and exchange Heroin without a written order form required by 26 U.S.C. § 4705(a) in violation of 26 U.S.C. § 7237(b). Various errors are charged including the denial of a change ...
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ORDER The National Labor Relations Board petitions for enforcement of its order against the Union reported at 180 N.L.R.B. 124. The Board ordered that the Union make Samuel Lindsey and Kenneth Mar *981 cel whole for any loss of pay they suffered as a result of discrimination against them. Reference is made to the published decision of the Board for a detailed recitation of facts. The sole...
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These appeals involve the calculation of the percentage depletion permitted to Barton Mines Corporation (Barton) which mines ore containing eight to ten per cent garnet by volume and reduces it to garnet grains and powders of 98% purity by means of various processes, designed both to convert the garnet to desired sizes and to attain a purity level dictated by competition in the abrasives indust...
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An unknown person or persons broke into an F.D.I.C. insured state bank facility located at Swaledale, Iowa, on November 2, 1970, and removed three hundred blank money orders. On or about November 6, 1970, Clarence Eugene Evans, the appellant here, received $150 in exchange for one of these bank money orders, which had been filled in to show a face value of that amount. This transfer furnished the...
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Barry Everett Kilby was convicted of failing to submit to induction into the *1003 armed forces of the United States, in violation of 50 U.S.C. App. § 462, and appeals. Six days after having received his notice to report for induction, appellant, allegedly a member of the Jehovah Witnesses sect, claimed for the first time a conscientious objector exemption. The local board declined to reopen ...
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Page 1002
446 F.2d 1002 UNITED STATES of America, Plaintiff-Appellee,v.Barry Everett KILLBY, Defendant-Appellant.No. 28781 Summary Calendar.**(1) Rule 18, 5 Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York, et al., 5 Cir., 1970, 431F.2d 409. United States Court of Appeals, Fifth Circuit. June 17, 1971. William C. O'Kelley, Atlanta, Ga., Benjamin Landey, O'Kelley, ...
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Frank Lee, Jr., a Texas state prisoner, appeals from an order of the district court denying his petition for the writ of habeas corpus. We affirm. This is Lee’s second appeal in this case. On his first appeal we affirmed the judgment of the district court in part but remanded for further findings “related to ‘the fundamental fairness of Petitioner’s original trial in Limestone County; the evide...
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Page 1004
446 F.2d 1004 Frank LEE, Jr., Petitioner-Appellant,v.Dr. George J. BETO, Director, Texas Department ofCorrections, Respondent-Appellee.No. 71-1287 Summary Calendar.**(1) Rule 18, 5 Cir., see Isbell Enterprises, Inc.v.Citizens Casualty Company of New York, et al., 5 Cir. 1970,431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. June 14, 1971. Frank Lee, Jr., p...
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The United States sued the estate of Abraham Brown, taxpayer, in the district court, seeking to collect taxes in the amount of $97,000. The government asserted that Brown had been in the business of accepting wagers in the years 1958-62 and that he had failed to pay the annual occupational tax of $50 and the excise tax of ten percent on gross wagers received. After presentation of all the evide...
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Page 1005
446 F.2d 1005 71-2 USTC P 16,002 UNITED STATES of America, Plaintiff-Appellee,v.Irving FIRTEL, as Executor of the Estate of Abraham Brown,Deceased, Defendant-Appellant.No. 71-1419 Summary Calendar.**(1) Rule 18, 5 Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Company of New York et al., 5 Cir. 1970,431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. June 2...
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Defendant Richard Cable has taken this timely appeal in forma pauperis from his conviction by a jury on four counts of an indictment charging counterfeiting violations under 18 U.S.C.A. §§ 472 and 473, and upon a count charging conspiracy to pass counterfeit money. Concurrent sentences of four and one-half years were imposed. The sole issue relied upon for reversal is that “the Court erred in a...
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In 1965, petitioner, Victor Vaughn, was convicted of first degree robbery in a state court of Missouri on his plea of guilty. He now seeks habeas corpus relief, claiming that his guilty plea was not voluntarily entered under the standards of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and that the state trial court, which originally considered his Boykin claim, failed...
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Appellant Lewis, a Louisiana state prisoner, appeals from the district court’s denial, after an evidentiary hearing, of his petition for the writ of habeas corpus. We affirm. The sole contention presented upon this appeal is that appellant’s court-appointed attorney rendered ineffective representation at trial by his failure to subpoena an alleged alibi witness as requested by appellant. The ...
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Page 1010
446 F.2d 1010 Tracy LEWIS, Petitioner-Appellant,v.C. Murray HENDERSON, Warden, Louisiana State Penitentiary,Respondent-Appellee.No. 30729 Summary Calendar.**(1) Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. July 15, 1971. Tracy Lewis, pro se. ...
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BY THE COURT: The judgment of the district court is vacated, 1 and the cause is remanded with directions to the district court to order the school board to implement a plan for the 1971-72 school term which will achieve a greater degree of desegregation among the Grey, Vereen, Wright, Cox, and Central elementary schools than now exists under the present elementary attendance zone plan. Such p...
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We enter a new battleground in this case, guided by the solemn expression of Congressional will to preserve parklands and the environment from harm or destruction at the hands of federal aid projects. This appeal challenges the construction of a six-to-eight lane federal-aid expressway through the Bracken-ridge-Olmos Parklands located in the City of San Antonio, Texas. It comes to us from the dist...
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“Facts relevant to this title dispute have been developing since Jean Lafitte was appointed Governor of Galveston Island in 1819 by the Republic of Mexico.” 1 One hundred and forty years later, in 1959, the United States brought suit to remove cloud and, in the alternative, to condemn whatever interest defendant City Company 2 might have in 1,078.27 acres of land situated ...
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At the time of the commencement of this action, the petitioner Charles H. Baldwin was an inmate in the Vermont *1044State Prison.1 Baldwin sought declaratory relief under 42 U.S.C. § 1983, asking that the Court declare 28 V.S.A. § 252 (Supp. 1969) unconstitutional and that it declare the plaintiff to be entitled to a reduction of sentence. 28 V.S. A. § 252 reads as follows: “If he [a person confin...
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Jose Juan D’Agostino 1 commenced this action against the Curtiss National Bank of Miami Springs, Florida, 2 a national banking corporation, on April 17, 1967. On January 11, 1967, and prior thereto, through February 9, 1967, and subsequent thereto, D’Agostino maintained a regular checking account in the Bank, identified on the Bank records by the following: “122-...
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These diversity suits for damages grow out of a grade crossing accident in Monroe County, Georgia, which occurred on a clear September night, at about 8:30, when an automobile ran into the 30th car of a moving Southern Railway Company freight train. Two separate suits were filed, one by Mrs. Barbara R. Gross, mother of the deceased Don C. Gross, Jr., for damages growing out of his death in the ...
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Page 1066
446 F.2d 1066 James F. PLOTNER, Jr., Sp. 4, United States Army, Petitioner-Appellee,v.Stanley R. RESOR, Secretary of the Army, and John C. F. Tillson, III, Commanding General, Fort Gordon, Georgia, Respondents-Appellants. No. 31030. United States Court of Appeals, Fifth Circuit. June 29, 1971. R. Jackson B. Smith, Jr., U. S. Atty., William T. Morton, Barnee C. Baxter, Jr...
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Appellee, James Plotner, was granted a writ of habeas corpus releasing him from service in the U. S. Army. Appellants argue he was not entitled to the deferment he sought and, therefore, had been legally inducted. We disagree and affirm, in part, the judgment of the trial court, but remand for the resolution of a factual issue. Plotner graduated from Bridgewater State College in June of 1967. He c...
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This is a civil rights ease brought pursuant to 42 U.S.C. §§ 1983 and 1985. According to the complaint, the thirteen plaintiffs are all either members of, or related to members of, an organization composed of Spanish-speaking Americans known as Alianza Federal de Mercedes. The nineteen defendants are grouped as follows: (1) Alfonso Sanchez, the district attorney for the first judicial dist...
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Page 1079
446 F.2d 1079 UNITED STATES of America ex rel. Joseph VACCA, Jr.,Detainee, Petitioner-Appellant,v.COMMANDING OFFICER, FT. HAMILTON, UNITED STATES ARMED FORCESEXAMINATION AND ENTRANCE STATION, BROOKLYN, NEWYORK, Custodian of Joseph Vacca, Jr.,Respondent-Appellee. No. 778, Docket 71-1031. United States Court of Appeals, Second Circuit. Argued March 17, 1971.Decided May 20, 1971. ...
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Appellant Vacca, having been inducted into the Armed Forces of the United States on December 22, 1970 and on the same day having filed a petition for a writ of habeas corpus claiming he was being unlawfully detained pursuant to an order for induction issued by his local board in violation of the Military Selective Service Act of 1967, 50 U.S.C. App. § 451, et seq. (Supp. V, 1965-69), appeals from ...
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Page 1085
446 F.2d 1085 UNITED STATES of America, Plaintiff-Appellee,v.Joseph Calvin CRAWFORD, a/k/a J. C. Crawford, Defendant-Appellant.No. 30632 Summary Calendar.**(1) Rule 18, 5th Cir., see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 10, 1971. PER CURIAM: ...
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In conformity with the requirements established by Anders v. California, 1967, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, we have carefully considered this cause in its entirety, and conclude that there is no arguable merit in the appeal. It is therefore ordered, that the motion filed by John F. Tomlin, Esquire, for leave to withdraw as court-appointed counsel for Appellant is granted, and the ...
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Appellant, Stephen Leroy Andrews, refused to submit to induction into the armed forces after his claim for conscientious objector status was rejected by the selective service. He was indicted, tried and convicted in the United States District Court for the Western District of Oklahoma for violating 50 U.S.C. App. § 462 and sentenced to the maximum term of five years. He appeals and we reverse. ...
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Blackburn appeals from a judgment entered upon a jury conviction for knowingly and willingly using facilities of interstate commerce in the furtherance of an illegal gambling enterprise in violation of 18 U.S.C.A. § 1952. Defendant argues that the trial judge committed reversible error: (1) in ruling that certain F.B.I. investigative reports were not within the purview of the Jencks Act, 18 U.S.C...
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This is a class action, brought on behalf of all the students at Madison College, for a declaratory judgment that certain regulations governing demonstrations at such college were constitutionally invalid as overbroad and vague and as impermissible restraints on freedom of speech and assembly. Madison College is a State-supported institution, located at Harrisonburg, Virginia, with a student body...
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This is a diversity suit to recover for damage to plaintiffs’ building insured against loss by defendant insurance company. Judgment for $15,000 was entered on the jury’s verdict 2 and defendant has appealed. We affirm. Plaintiffs’ brick veneer and concrete building in Elizabethtown, Hardin County, Illinois, was occupied by a United States Post Office. About three feet slightly ...
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In this appeal defendant, Ford Motor Company, seeks to overturn a judgment entered on a jury verdict in favor of plaintiff Adkins, in the amount of $7,-500, for property damage to his truck and for loss of its use, the truck having been badly damaged in an accident allegedly caused by a defect in its manufacture by defendant. The defendant’s contentions are all related to the weight and suffici...
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OPINION OF THE COURT These consolidated appeals contest two orders promulgated by the United States District Court for the Eastern District of Pennsylvania, sitting as a railroad reorganization court, Penn Central Transportation Company, debtor. Order No. 232 prohibits the appellants 1 from “instituting or maintaining any litigation directly affecting the continuance or di...
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446 F.2d 1109 In the Matter of PENN CENTRAL TRANSPORTATION COMPANY, Debtor(two cases).Appeal of CONGRESS OF RAILWAY UNIONS, in Nos. 71-1366 and 71-1386.Appeal of RAILWAY LABOR EXECUTIVES' ASSOCIATION, in Nos.71-1367 and 71-1387.Appeal of COMMONWEALTH OF PENNSYLVANIA et al., in No. 71-1403. Nos. 71-1366, 71-1367, 71-1386, 71-1387 and 71-1403. United States Court of Appeals, Third Circui...
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Page 1115
446 F.2d 1115 UNITED STATES of America, Plaintiff-Appellee,v.Aaron Ronald WILLIAMS, a/k/a Ronnie Williams, Defendant-Appellant.No. 71-1008 Summary Calendar.**(1) Rule 18, 5 Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 9, 1971, Rehearing Denied Sept. 3, 1971. ...
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Defendant Williams was convicted of four separate counts, each for assaulting a different federal officer, in violation of 18 U.S.C. § 111, by throwing rocks at them. Williams and another were fishing in restricted waters. A Coast Guard boat with the four officers on board approached the boat in which Williams was fishing; the latter “took off at high speed,” and the Coast Guard vessel gave chase...
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Bennie Ray Smith was convicted on two counts of selling and facilitating the sale of narcotics in violation of 21 U.S.C. § 174. The judgment of conviction was affirmed on appeal on February 26, 1968, 390 F.2d 401. On January 27, 1969 Smith filed a motion, pursuant to 28 U.S.C. § 2255, to vacate his sentence, contending that he was denied the effective assistance of counsel by reason of the failur...
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This is an income tax evasion case. Harry Britt Brown, Jr., hereinafter referred to as the defendant, was charged in a six-count indictment with attempting to evade income taxes for the calendar years of 1959, 1960 and 1961, and in connection therewith he was also charged with having willfully subscribed to false income tax returns for the same calendar years, all in violation of 26 U.S.C. §§ 720...
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The primary question raised on this appeal is the validity of an amendment to the St. Louis, Missouri, Milk Marketing Order. The amendment requires handlers with plants in three southern counties of the marketing area to pay producers an additional fifteen cents per hundredweight for milk. The District Court *1126 held that the differential was not a statutorily permissible one. ...
Views: 1
The single issue raised on this appeal from Judge Tenney’s dismissal of this antitrust action brought by a group of insurers, commonly known as The Kemper Insurance Companies, was framed by an earlier decision of this Court, reported at 388 F.2d 272 (1967), reversing the district court’s previous award of summary judgment to defendant-appellee, American Broadcasting-Paramount Theatres, Inc. (ABC)...
Views: 5
On July 29, 1968, at approximately 11:20 P.M., appellant and her twleve year old daughter, Michelle Ann, entered the United States by automobile from Mexico at the San Ysidro, California, Port of Entry. Following routine questioning regarding citizenship (“United States”) and purchases made in Mexico (“plaster of paris and glass items”), the Customs Inspector requested appellant to open the trunk...
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This is an appeal from the denial of three petitions for writs of habeas corpus. They were consolidated because the facts in each case are the same. Petitioners were convicted of burglary in the Hamilton County Common Pleas Court, and the convictions were affirmed by the Ohio Court of Appeals. The Ohio Supreme Court denied leave to appeal. There is no issue of exhaustion of available state remedi...
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Plaintiff Woodstream Corporation, a Pennsylvania corporation and long-time manufacturer and seller of animal traps, brought an action against the defendants, Herter’s, Inc., a Minnesota corporation, and its president, George L. Herter, for patent infringement and unfair competition. Plaintiff, formerly the Animal Trap Company of America, is the assignee of the patents allegedly infringed. Woods...
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This is an appeal from an order dismissing an action under Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et seq.) and 42 U.S.C. § 1982 by tenants of a large apartment complex challenging allegedly racially discriminatory practices of their landlord. On August 18, 1970 plaintiffs-appellants, Paul J. Trafficante, a Caucasian, and Dorothy M. Carr, a Negro, filed a complaint all...
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Page 1164
446 F.2d 1164 UNITED STATES of America ex rel. Arthur KAMESHKA, Appellant,v.Col. Donald F. NEFF, Commanding Officer, Armed ForcesExamining and Entrance Station, Pittsburgh,Pennsylvania, and Stanley R. Resor,Secretary of the Army. No. 19383. United States Court of Appeals, Third Circuit. Argued Dec. 18, 1970.Decided Aug. 17, 1971. George E. Schumacher, Esquire, Schumacher...
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OPINION OF THE COURT In the court below petitioner Arthur Kameshka, a registered Pennsylvania pharmacist who had been drafted into military service, sought a writ of habeas corpus for release from the Armed Forces on the ground that his I-A classification and resultant induction order were illegal because his employment as a pharmacist in Allegheny County qualified him for a II-A occupational defe...
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Green was convicted of the theft 1 of 525 cases of Cutty Sark Scotch Whiskey, 105 cases of Hennessy Cognac, and 95 cases of De Vin Wine, which were moving as an interstate shipment by motor truck from the Alabama State Docks in Mobile to the Collector of Customs in Nashville, Tennessee. He was sentenced to imprisonment for six years. The Government’s evidence went to prove that ...
Views: 1
Under a fourteen-count indictment, Arthur J. Cobb was convicted together with his co-defendant, Abraham Gold-stein, of conspiracy to defraud the United States in the ascertainment and collection of certain information used by the Internal Revenue Service in determining tax liability of the defendants and others, and also of violation of 26 U.S.C. § 7206(2), in procuring and causing the preparatio...
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This appeal is from a decision denying the motion of plaintiff-appellant, American Family Life Assurance Company of Columbus, Georgia (AFL), for a permanent and temporary injunction against eight defendants-appellees. 1 AFL contends that a provision uniformly adopted in defendants’ group health insurance policies, the Coordination of Benefits (COB) provision, results in a boycott o...
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OPINION OF THE COURT Public Law 88-664 of October 13, 1964, 78 Stat. 1096, 38 U.S.C. § 725, provided for the temporary reopening of the veterans’ insurance program and authorized the issuance of policies of National Service Life Insurance to veterans, including those otherwise not insurable because of non-service-connected disability. In implementing this authorization, the Administrator ...
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Dr. Carl Ramzy, convicted of three separate unlawful sales of depressant and stimulant drugs in violation of 21 U.S.C.A. § 331 (q) (2), was sentenced to concurrent fifteen month prison terms. Finding no merit in any of his allegations of error, we affirm. Appellant first contends that his status as a doctor of medicine required the indictment to expressly negate the statutory provision exemptin...
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Page 1184
446 F.2d 1184 UNITED STATES of America, Plaintiff-Appellee,v.Carl Oslin RAMZY, Jr., Defendant-Appellant.No. 31136 Summary Calendar.**(1) Rule 18, 5 Cir.; See Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409. United States Court of Appeals, Fifth Circuit. July 16, 1971, Rehearing Denied Sept. 9, 1971. Charles W. Tessmer, Dallas, Te...
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This case presents an excellent example of the problems confronting a pleader in a federal court of limited jurisdiction, who is accustomed to preparing pleadings in a state court of general jurisdiction. Appellant Fifty Associates and its lessee of Arizona real estate, Mayer-Central Building Company, executed a mortgage on certain property in Phoenix, to Prudential Insurance Company of America. A...
Views: 0
This is an appeal from an order denying appellants relief from final judgment under the “newly discovered evidence” part of Rule 60(b) F.R.Civ.P., 28 U.S.C. The trial court denied the motion on three grounds: (1) that the motion was untimely; (2) that the judgment was merged in a compromise agreement which superseded the judgment; and (3) the due diligence requirement of Rule 60(b) was not met. ...
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In 1963, the plaintiff Clinton E. Gardner commenced an action against the United States under 26 U.S.C. § 7422 and 28 U.S.C. § 1346(a) (1) for refund of tax penalties 1 allegedly assessed in error against him by the Internal Revenue Service pursuant to 26 U.S.C. §§ 6671 and 6672. The United States served a third-party summons and complaint upon the appellant Kyle who, it contended, would be lia...
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Appellant shipowner instituted suit in the United States District Court for the Southern District of New York against the defendant-appellee, seeking damages resulting from alleged delays of its vessels during October and November of 1966 near the port of Calcutta. The District Court (Thomas F. Croake, Judge) dismissed one of the three causes of action alleged in appellant’s second amended compla...
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AS TO FISHBEIN Sam Ford Fishbein, convicted on Count 1 (Conspiracy), 18 U.S.C. § 371, Counts 2 to 8, and 10 to 15 (Fraud in the Sale of Securities), 15 U.S.C. § 77q(a) and Count 21 (Use of Mails to Defraud), 18 U.S.C. § 1341, of a 22-count indictment, appeals. In June, 1961, a group consisting of Fishbein and four others acquired interests in six motels, two of which were located in P...
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This is an appeal from the dismissal of a petition for habeas corpus brought by a state prisoner, Walsh, whose sentence was increased by the Appellate Division of the Superior Court. The Appellate Division is authorized to review sentences on the appeal of a defendant, and to diminish, affirm, or, after hearing, increase the sentence. Mass.G.L. c. 278 § 28A-D. There is no statutory requirement tha...
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Tommie Lee Dunmore and Ronald Eugene Johnson appeal from their convictions, by a jury, of the crime of robbery of the Central State Bank of Kansas City, Missouri, on May 28, 1970. Following trial, defendant Johnson was sentenced to twenty years’ imprisonment, and defendant Dunmore to ten years’ imprisonment, to be served consecutively with a twenty year sentence on another charge. On appeal, th...
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This case is here, on habeas corpus, for the second time. We had previously remanded it, Pendergraft v. Cook, 5 Cir., 1970, 433 F.2d 969. Upon remand, the District Court held that the search and seizure involved in this case was not constitutionally invalid, Pendergraft v. Cook, 323 F.Supp. 967 (S.D., Miss., 1971). For the reasons set forth in the reported opinion of the District Court, we affirm ...
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This is a timely appeal by defendant Glenn Beverly Reed from his conviction by a jury on an indictment charging Reed, his wife Marjorie Reed, and John and Wesley McClish with aggravated robbery of the Decatur County State Bank at Leon, Iowa, a federally insured bank, on April 9, 1970, and with forcing a bank officer to accompany John Me-Clish, in violation of 18 U.S.C.A. §§ 2113 (e) and 2. Defe...
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This is an application for enforcement of an order of the National Labor Relations Board (Board), 182 NLRB 57. The Board found that Intalco Aluminum Corporation (Respondent) violated section 8(a) (1) of the National Labor Relations Act (28 U.S.C. § 158(a) (1)) by wrongfully discharging 26 employees and suspending one employee, and by refusing to reinstate 15 striking employees upon their applicat...
Views: 1
446 F.2d 1234 UNITED STATES of America, Plaintiff-Appellant,v.1,053.27 ACRES OF LAND IN OSAGE COUNTY, KANSAS (Tracts Nos. 109 and 118, Harold E. and Mary J. Tobler), Defendants-Appellees. No. 598-69. United States Court of Appeals, Tenth Circuit. August 27, 1971. Raymond N. Zagone, Atty., Department of Justice, Washington, D. C. (Shiro Kashiwa, Asst. Atty. Gen., Robert J...
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This is an appeal by the Government from a judgment adopting a Commission’s report and award in a condemnation proceeding. The Government’s essential objection on the appeal is to the Commission’s limitation on the proof by the parties to four comparable sales for each side, and the resulting exclusion of proof of three additional sales offered by the Government. The Commission’s ruling was in fur...
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Plaintiff appeals from dismissal by the United States District Court for the Western District of Tennessee, Western Division, of her complaint against the named defendants. The District Judge held that the complaint did not state any cause of action. The Civil Rights Statute, 42 U.S.C. § 1983 and § 1985(3) and the Sherman Anti-Trust Act, 15 U.S.C. §§ 1 and 2, and the Clayton Act, 15 U.S.C. § 15, ...
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OPINION OF THE COURT This is an appeal from an Order of the District Court dismissing plaintiff’s pro se civil rights complaint pursuant to Fed.R.Civ.P. 12(b) for lack of jurisdiction. The action was brought under various Amendments to the Constitutions of both the United States and the Commonwealth of Pennsylvania and pursuant to various state and federal civil rights statutes. The substan...
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There is no majority opinion in this case. Judges Van Dusen, Adams and Rosenn join in the opinion of Judge Biggs that Bannister’s judgments of conviction must be reversed and the case dismissed. Judge Aldisert joins in Judge Hastie’s opinion that Bannister’s judgments of conviction should be affirmed. Chief Judge Seitz equates his view to Judge Gibbons’ opinion that the indictment is invalid and t...
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Robert Wyman Boyd was convicted of receiving, concealing and retaining two stolen mechanic’s tool boxes containing tools, all the property of the United States Government and having a value in excess of $100, in violation of 18 U.S.C. § 641. 1 Boyd was named in the second count of a two-count indictment. 2 Count one charged Bobby Gene Goble, George Lewis Winburn and Charle...
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The issues presented by this appeal are related to the parties’ dispute over the correct interpretation of the Florida Workmen’s Compensation Law, 15 F.S.A. § 440.01 et seq., and the *1277 question of whether it provides the exclusive remedy for the plaintiff-appellant, thus barring her common law action against the employer for the death of her husband. Because assessments of legislative polic...
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OPINION OF THE COUET This is an appeal from a conviction and sentence on a two-count indictment charging appellant White with the interstate transportation from Baltimore, Maryland to Easton, Pennsylvania, of a tractor trailer and goods of the value of more than $5,000, knowing them to have been stolen, in violation of 18 U.S.C. §§ 2312 and 2314. White’s most substantial contention on this ap...
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Nooks, Hughes and Brown were jointly indicted, tried and convicted for the crime of bank robbery in violation of Section 2113(a) (d), Title 18, United States Code. 1 The court imposed sentences of imprisonment of twenty (20) *1285 years on Nooks and Hughes, and twenty-five (25) years on Brown. As to each appellant the only substantial questions presented for review ...
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Bethel Raymond Fairris, a Texas state prisoner, has taken this appeal from the denial of his petition for habeas corpus by the District Court. The case is well stated in the final order of the court below, which is appended hereto. We affirm on the reasons stated and authorities cited in the order appealed from. See, also, Langford v. Alabama, 5 Cir., 1969, 422 F.2d 760, cert. denied 1970, 400 U....
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Page 1290
446 F.2d 1290 Bethel Raymond FAIRRIS, Petitioner-Appellant,v.Dr. George J. BETO, Director, Texas Department ofCorrections, Respondent-Appellee.No. 71-1743 Summary Calendar.**(1) Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 17, 1971. Bethel R. F...
Views: 0
Panzavecchia, hereinafter referred to as the defendant, was charged by a two-count indictment with violations of 18 U.S.C. § 472. The first count charged that “on or about January 12, 1968, at Shatkin Drugs, in Hollywood, Broward County, in the Southern District of Florida, John Emanuel Panzavecchia with intent to defraud, did pass and utter a certain counterfeit obligation of the United S...
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The within appeals bring before us for the second time the well-known combinations of situations that arose out of Texas Gulf Sulphur’s (hereinafter TGS) discovery of rich ore deposits near Timmins, Ontario, and the accompanying stock transactions by the appellants. A detailed description is set forth in our prior opinion, 401 F.2d 833 (2 Cir. 1968) (in banc). 1 In that decision we r...
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Appellant, a federal employee in the classified service, complained in the District Court of the termination of her employment by the Department of Health, Education, and Welfare at the close of the probationary period. On cross-motions for summary judgment, appellees prevailed. This appeal presents two claims of error as undermining that judgment. One is that the dismissal was invalid because ap...
Views: 4
In this appeal from a conviction under 18 U.S.C. § 751(a), the so called federal escape law, the only question raised is that of whether that statute is applicable. Appellant, while awaiting trial for robbery, was by order of the court permitted to participate in the work release program. This meant that he was released from the D.C. Jail for a few hours each day for the purpose of working for ...
Views: 1
The petition to review, and the cross-application to enforce an order of the National Labor Relations Board, presents secondary activity and “struck-work ally” problems under § 8(b) (4) (i) and (ii) (B) of the National Labor Relations Act. McDonald Bros. Cast Stone Co. (McDonald) had as customers for its stone, Thomas B. Byrne, Inc. (Byrne), Citadel Construction Company, Inc. (Citadel) and...
Views: 1
446 F.2d 1322 UNITED STATES of America, Appellant,v.The WASHINGTON POST COMPANY et al. No. 71-1478. United States Court of Appeals, District of Columbia Circuit. Argued June 18, 1971. Decided June 19, 1971. As Amended June 22, 1971 and July 2, 1971. Mr. Kevin T. Maroney, Atty., Department of Justice, with whom Messrs. Thomas A. Flannery, U. S. Atty., and Daniel J...
Views: 1
This is an appeal by the United States from an order of the district court denying a preliminary injunction against the publication of material derived from a document entitled “History of U. S. Decision-Making Process on Vietnam Policy”. We affirm the district court. The district court denied the preliminary injunction after a hearing. By affidavits and the testimony of witnesses at the hearin...
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The controversy which occasions this appeal arises from an automobile collision that took place in the District of Columbia on November 8, 1967. The Ryens — husband, wife and infant daughter — brought suit to recover for personal injuries suffered in the accident, and prevailed in the district court below. This appeal is taken only on behalf of the wife and infant daughter, and draws in questio...
Views: 2
This appeal from a decision and order of the F.C.C. involves mutually exclusive applications to operate a radio station on 900 kHz with a power of 1 kw, daytime only, in Calhoun, Georgia. The application of appellant Gordon County Broadcasting Company seeks renewal of its broadcasting license to operate station WCGA in Calhoun. Appellant Roach seeks a license to operate a new station. In a...
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Page 1339
446 F.2d 1339 Simon WILLIAMSON, Plaintiff-Appellee,v.COMPANIA ANONIMA VENEZOLANA DE NAVIGACION (VENEZUELAN LINE),Defendant-Appellant, and Westinghouse ElectricInternational Co., Defendant-Appellee.COMPANIA ANONIMA VENEZOLANA DE NAVIGACION (VENEZUELAN LINE),Third-PartyPlaintiff-Appellant,v.JOHN W. McGRATH CORPORATION and Westinghouse ElectricInternational Co.,Third-Party Defendants-Appellees. ...
Views: 0
This is an appeal by the shipowner, Venezuelan Line, from a judgment for plaintiff, a longshoreman injured when a slat in a cargo crate on which he was standing during the course of his work broke. On appeal the shipowner claims the liability over of the stevedore (Mc-Grath) and/or the shipper (Westinghouse), contributory negligence of the plaintiff, an error in the trial court’s charge on unseawo...
Views: 1
OPINION OF THE COURT Plaintiffs appeal from a March 11, 1971, order of the United States District Court for the District of New Jersey, 324 F.Supp. 1220, denying plaintiffs’ motion for a preliminary injunction and dismissing plaintiffs’ complaint 1 Plaintiffs, thirty-seven named individuals, filed a complaint under the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1964), on beh...
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Appellant was indicted, tried and convicted in a jury trial of a violation of 18 U.S.C. § 2312 (Dyer Act). ISSUES (1) Did the trial court err in overruling appellant’s motion to suppress ? (2) Was the government’s Exhibit 3 properly admitted into evidence? FACTS On the motion to suppress, two officers testified that they observed a dark Thunderbird automobile traveling at a rate of 80 t...
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JOHNSEN, Senior Circuit Judge. Appellant is a bankrupt wage-earner. She had accrued vacation pay of $763.40 at the time of her bankruptcy, which could not under the terms of her employment be drawn by her except for vacation leave or upon employment termination. The Referee held the funds to be “property” under § 70(a) (5) of the Bankruptcy Act, 11 U.S.C. § 110(a) (5), of which the Trustee was ...
Views: 2
Page 1357
446 F.2d 1357 Robert FARMER, Petitioner-Appellant,v.Dr. George J. BETO, Director, Texas Department ofCorrections, Respondent-Appellee.No. 71-1338 Summary Calendar.**(1) Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of N.Y. et al., 431 F.2d 409 (5th Cir.1970), Part I. United States Court of Appeals, Fifth Circuit. Aug. 16, 1971. Robert Farmer, pro se....
Views: 0
This appeal is taken from an order of the district court denying the petition of *1358 a Texas state prisoner for the writ of habeas corpus. We affirm. Farmer is serving a life sentence for rape, having been convicted upon his plea of guilty. In his petition for ha-beas corpus, Farmer alleged that his privately-retained trial counsel was ineffective because he allowed appellant to plead guilt...
Views: 0
Page 1358
446 F.2d 1358 UNITED STATES of America, Plaintiff-Appellee,v.Clyde Kingsley PATTERSON, Defendant-Appellant.No. 71-1229 Summary Calendar.**(1) Rule 18, 5th Cir.; See Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 25, 1971. Louis Francis Ray, Jr. (Court Appointed), Holsb...
Views: 0
Appellant, an alien, was convicted in the United States District Court for the Northern District of Florida of unlawful reentry into the United States after deportation, in violation of 8 U.S.C. § 1326. His defense was that he was within the exception to § 1326 in that the Attorney General of the United States had expressly consented to his reapplying for admission to this country. On voir dire...
Views: 0
*1361 OPINION OF THE COURT This appeal by a state prisoner, who is serving a life sentence for murder, from a denial of his petition for habeas corpus presents the question whether the district court erred in deciding against the appellant his claim that a confession used against him at his trial had been coerced. The district court did not hear testimony but decided upon the basis of the sta...
Views: 6
446 F.2d 1362 Hugh Larry BELL et al., Plaintiffs-Appellants,v.WEST POINT MUNICIPAL SEPARATE SCHOOL DISTRICT et al.,Defendants-Appellees. No. 30175. United States Court of Appeals, Fifth Circuit. July 8, 1971. Fred L. Banks, Jr., Melvyn R. Leventhal, Reuben V. Anderson and John A. Nichols, Jackson, Miss., Jonathan Shapiro, Jack Greenberg, James Nabrit, III, Norman Chachki...
Views: 1
OPINION OF THE COURT The appellant, a selective service registrant, has been convicted of the crime of willful refusal to submit to induction in the armed forces, 50 U.S.C. App. § 462(a), and has been sentenced to imprisonment for five years. In disposing of this appeal from that conviction we consider only the appellant’s challenge to the denial of his claim to occupational deferment. Early ...
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This is an appendage to what Chief Judge Brown aptly referred as “the ever-expanding volume of Mississippi speaker ban litigation which culminated in Stacy v. Williams, 1969, N.D. Miss., 306 F.2d Supp. 963.” (Footnotes omitted.) Molpus v. Fortune, 5 Cir. 1970, 432 F.2d 916, 917. See also, Stacy v. Williams, 1970, 312 F.Supp. 742. The final judgment in Stacy v. Williams 1, reported in 306 F.Supp...
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Appellant Varney bases the right to remove his state court criminal prosecution upon 28 U.S.C.A. § 1443 (1950). 1 *1369 We have jurisdiction of the appeal under 28 U.S.C.A. § 1447(d) (Supp. 1971). Varney complains that the district court erred in remanding the case without hearing his allegations. Varney’s indictment for theft by deception resulted from the alleged sale...
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Page 1368
446 F.2d 1368 Johnnie VARNEY, Petitioner-Appellant,v.The STATE OF GEORGIA, Respondent-Appellee.No. 71-1574 Summary Calendar.**(1) Rule 18, 5th Cir.; see Isbell Enterprisesv.Citizens Casualty Co. of N.Y., 431 F.2d 409, Part I (5th Cir. 1970). United States Court of Appeals, Fifth Circuit. Aug. 16, 1971. Arthur P. Tranakos, Atlanta, Ga., for petitioner-appellant. George ...
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This appeal is taken from an order of the district court denying the petition of a Texas state prisoner for the writ of habeas corpus. We vacate and remand. Appellant is challenging his convictions in three separate Texas counties which total 160 years imprisonment. In Shelby County he was convicted on his pleas of guilty of three counts of burglary. On March 9, 1956, he was sentenced to consec...
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Page 1370
446 F.2d 1370 Gerald Clifford HOWARD, Petitioner-Appellant,v.Dr. George J. BETO, Director, Texas Department ofCorrections, Respondent-Appellee.No. 71-1877 Summary Calendar.**(1) Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 13, 1971. Gerald C. H...
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Harold Richard Kirkpatrick, Jr. was classified II-S, a student deferment, in February of 1966. On December 25, 1969, he wrote his draft board that he was opposed to the “genocidal war machine” and that he refused to accept a II-S deferment any longer. The local board mailed Kirkpatrick SSS Form 127 and SSS Form 150. Form 127 is the Current Information Questionnaire and Form 150 is a conscientious...
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The judgment of the district court in this tax refund case involving the federal excise tax on blackjack gambling units is affirmed. The question is whether the tax should have been levied on each unit or on each player position served by the unit. Involved are taxes for the tax year ending June 30, 1967. The district court ruled that each player position was a “coin-operated gaming device,” ta...
Views: 2
Page 1375
446 F.2d 1375 Mario TARABOCCHIA, Plaintiff-Appellee-Appellant,v.ZIM ISRAEL NAVIGATION CO., Ltd., Defendant and Third-Party Plaintiff-Appellant-Appellee,v.JOHN W. McGRATH CORP., Third-Party Defendant. No. 945. Docket 33492. United States Court of Appeals, Second Circuit. On Remand from the Supreme Court of the United States, March 31, 1971. Decided August 12, 1971. ...
Views: 0
Plaintiff, an employee of John W. McGrath Corp., stevedores, was injured while engaged in an unloading operation from the M/V Beersheva, a vessel owned by Zim Israel Navigation Co. The accident occurred when a loading platform on which plaintiff and a coworker were standing suddenly became dislodged causing plaintiff to fall. The Trial Court found that the platform was not an appurtenance of the v...
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OPINION OF THE COURT This appeal is from an order denying a petition for a writ of habeas corpus by a state prisoner who contends that he was not “brought to trial” within 180 days after he requested final disposition of a pending indictment while he was serving a sentence on another state charge as required in 19 P.S. § 881. 1 See *1378 United States ex rel. Wilcox v. Commonwealth of Pa., ...
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This appeal from the district court’s denial of the petition for habeas corpus filed by the appellant, a federal prisoner, is affirmed for the reasons expressed by District Judge Charles A. Moye, Jr. in his unpublished memorandum order denying relief, which is appended hereto. Affirmed. APPENDIX IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ERNI...
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Page 1379
446 F.2d 1379 Ernie Lee BUCHANAN, Petitioner-Appellant,v.J. J. CLARK, Warden, Respondent-Appellee.No. 71-2187 Summary Calendar.**(1) Rule 18. 5th Cir.: see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir., 1970,431 F.2d 409, PartI. United States Court of Appeals, Fifth Circuit. Aug. 18, 1971. Ernie Lee Buchanan, pro se. John W. Stokes, Jr., ...
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OPINION OF THE COURT This is an appeal from an Order of the District Court entering judgment in favor of the appellants in the amount of $2,100.00 in their action against the United States under the Federal Tort Claims Act 1 for personal injuries sustained by Mrs. Ethel Schwartz on July 28, 1964, when an Army truck collided with an automobile she was operating in center city, Philadelphia, Pe...
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OPINION OF THE COURT This appeal has been taken by a selective service registrant from a district court’s decision denying preinduction judicial review of his selective service classification. Summary judgment was granted the defendant on the basis of res judicata, with an alternative holding that the court lacked jurisdiction. *1383 Appellant was first ordered to report for...
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This appeal is taken from an order of the district court denying the petition of a Texas state prisoner for the writ of ha-beas corpus. We affirm. Appellant is serving a life sentence, having been convicted upon trial by jury of theft over $50 with two prior convictions used for enhancement of punishment. The conviction was affirmed on direct appeal. Wilson v. State, Tex.Cr.App.1965, 398 S.W.2d...
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Page 1384
446 F.2d 1384 Johnny M. WILSON, Petitioner-Appellant,v.Dr. George J. BETO, Director, Texas Department ofCorrections, Respondent-Appellee.No. 71-1615 Summary Calendar.**(1) Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431F.2d 409, Part. I. United States Court of Appeals, Fifth Circuit. Aug. 11, 1971, Rehearing Denied Sept. 10,...
Views: 0
Page 1385
446 F.2d 1385 UNITED STATES of America, Defendant-Appellee,v.Samuel Atkinson KIDD, Plaintiff-Appellant.No. 30843 Summary Calendar.**(1) Rule 18, 5th Cir.; See Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. June 17, 1971. Clyde Henly, Hardaway Young, III, Decatur, Ga., for ...
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This is an appeal from appellant Kidd’s jury conviction for conspiring to cause forged and falsely made securities to be transported in interstate commerce in violation of 18 U.S.C.A. §§ 371, 2314. Only one point of error is raised, i. e., that the trial court erred in overruling appellant’s motion for mistrial made on account of a particular witness’ testimonial references to appellant’s “charac...
Views: 0
In this case the District Court, without an evidentiary hearing, denied this Texas prisoner a writ of habeas corpus. We affirm. Petitioner, represented by retained counsel, was convicted in 1963 of the at *1388 tempted rape of his daughter. Originally indicted for rape, the petitioner was permitted to plead guilty of the lesser charge and was given a two to twenty-five year sentence. No direc...
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Page 1387
446 F.2d 1387 Clarence Stephen COOK, Petitioner-Appellant,v.Dr. George J. BETO, Director, Texas Department ofCorrections, Respondent-Appellee.No. 71-1571 Summary Calendar.**(1) Rule 18, 5 Cir.; See Isbell Enterprises, Inc.v.Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409. United States Court of Appeals, Fifth Circuit. July 22, 1971. Clarence Cook, pro se. C...
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Page 1388
446 F.2d 1388 UNITED STATES ex rel. Dewayne MASSEY, Plaintiff-Appellant,v.T. E. KENNEDY, Sheriff, Turner County, Georgia, Defendant-Appellee.No. 30879 Summary Calendar.**(1) Rule 18, 5 Cir.; Isbell Enterprises, Inc.v.Citizens Casualty Company of New York et al., 5 Cir. 1970,431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. July 13, 1971. Howard Moore, Jr.,...
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The petitioner, a Georgia prisoner who was convicted of rape in 1965, appeals from the denial without a hearing by the district court of his petition for writ of habeas corpus. The district court held that because the petitioner had to be retried on the penalty phase of his offense, the petition was premature. We affirm. Following the petitioner’s conviction, upon which he was sentenced to...
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Appellant appeals from a jury conviction and sentence under a four count indictment. Each count charged that appellant, a postal employee, knowingly and willfully embezzled a letter entrusted to him, in violation of 18 U.S.C. § 1709. He asserts four grounds for reversal, none of which is meritorious. Viewing the evidence in the light most favorable to the government, the evidence was sufficient...
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Affirmed 1 See Local Rule 21 2 ; Thompkins v. United States Board of Parole, 5 Cir., 1970, 427 F.2d 222. 1 . It is appropriate to dispose of this pro se 'case summarily, pursuant to this Court’s local Rule 9(c) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5 Cir., 1969, 412 F.2d 981. 2 ...
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Lee Odith Wickline appeals from the dismissal of a complaint in which he seeks review of the Veterans Administration’s denial of his claim for disability compensation. The federal courts, however, have no jurisdiction to review this decision of the Veterans Administration. 38 U.S.C. § 211(a), as amended, Pub.L. 91-376 (1970). Dispensing with oral argument, we affirm the district court’s order o...
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Benton C. Sullens has appealed from the district court’s grant of a summary judgment to members of a law firm whom he sued for malpractice. The cause of action was based on Attorney Bryant S. Carroll, Jr.’s representation of the appellant as his court-appointed counsel in a federal criminal case. See Sullens v. United States, 5th Cir. 1969, 409 F.2d 545. Federal jurisdiction was predicated on d...
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Page 1392
446 F.2d 1392 Benton C. SULLENS, Plaintiff-Appellant,v.Bryant S. CARROLL, Jr., et al., Defendants-Appellees.No. 71-1133 Summary Calendar.**(1) Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. July 13, 1971. Benton C. Sullens, pro se. Marion R. Sh...
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Affirmed. 1 See Local Rule 21. 2 1 . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s Local Rule 9(e) (2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1968, 412 F.2d 981. 2 . See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir., 197...
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Sylvester Copeland, a Florida state prisoner, appeals from the district court’s denial of his petition styled a civil rights complaint. The district court held that it was actually a petition for habeas corpus, and denied relief on grounds of failure to exhaust available state remedies as required by 28 U.S.C. § 2254. We affirm. A reading of the petition shows beyond doubt that the ruling of th...
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Appellant contends that the evidence is insufficient to establish guilt. We disagree; the record provides ample evidence of guilt. Appellant further contends that the trial court erred in denying voir dire interrogation aimed at uncovering bias among prospective jurors toward a person convicted of the crime of abortion. Prior to empaneling the jury, the court directed that on cross-examination ...
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William Jennings Harrison was convicted by a jury of the interstate transportation of a stolen motor vehicle from Richmond, Kentucky to Jacksonville, Florida, in violation of 18 U.S.C. § 2312. Upon review of the record and briefs we find the evidence sufficient to support the conviction and that no reversible error infected the proceedings below. Affirmed. ...
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This is an appeal in forma pauperis, on a certificate of probable cause grant *1397 ed by the District Court, from a denial of the writ of habeas corpus to a prisoner attacking his state court conviction. The grounds alleged in the petition filed in the court below were as follows: 1. He is entitled to credit on his sentence for time spent on parole. 2. His guilty plea was induced by co...
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Page 1396
446 F.2d 1396 Clemente P. VILLARREAL, Petitioner-Appellant,v.Dr. George J. BETO, Respondent-Appellee.No. 71-1617 Summary Calendar.**Rule 18, 5th Cir.; See Isbell Enterprises, Inc.v.Ctizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 13, 1971. Clemente P. Villarreal, pro se. Crawford C. Martin, ...
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Page 1397
446 F.2d 1397 UNITED STATES of America, Plaintiff-Appellee,v.Johnny Lincoln MILLS, Defendant-Appellant.No. 71-1219 Summary Calendar.**Rule 18, 5 Cir., Isbell Enterprises, Inc.v.Citizens Casualty Company of New York et al., 5 Cir. 1970,431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 5, 1971. Johnny L. Mills, pro se. Paul T. Marks, Tampa, Fla. ...
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The appellant was convicted by a jury of interstate transportation of a stolen motor vehicle, a violation of 18 U.S.C. § 2312. After sentencing, the appellant’s court-appointed attorney filed a notice of appeal in his behalf, but now moves this Court to relieve him as appellate counsel on grounds that the appeal is frivolous. In compliance with Anders v. California, 1967, 386 U.S. 738, 87 S.Ct. 1...
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Page 1398
446 F.2d 1398 James H. DUNN, Petitioner-Appellant,v.C. Murray HENDERSON, Warden, Louisiana State Penitentiary,Respondent- Appellee.No. 71-2175 Summary Calendar.**(1) Rule 18, 5 Cir., Isbell Enterprises, Inc.v.Citizens Casualty Company of New York et al., 5 Cir. 1970,431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 19, 1971. James Dunn, pro se. ...
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Dunn appeals the district court’s denial of his petition for habeas corpus, 312 F.Supp. 1370. Although the court’s order was entered on May 15, 1970, the appellant did not file a notice of appeal or any document which might reasonably be construed as such until the March 3, 1971 filing of his motion for a certificate of probable cause. The motion was granted on the same date by the district court...
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This appeal is taken from an order of the district court denying the motion of a federal prisoner brought pursuant to 28 U.S.C.A. § 2255. We affirm. Appellant is serving a five year sentence for conspiracy to violate the federal tax statutes regulating distillation of alcoholic beverages. In his § 2255 motion he alleged that information furnished to obtain a search warrant was obtained by tresp...
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446 F.2d 1399 Francis H. ROBINSON, Petitioner-Appellant,v.J. J. CLARK, Warden, Respondent-Appellee.No. 71-1808 Summary Calendar.*v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 16, 1971, Rehearing Denied Sept. 22, 1971. Francis H. Robinson, pro se. William Stafford, U.S. Atty., C. W. Egg...
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Responding to the mandate of this court on a prior appeal, United States v. Seay, 432 F.2d 395 (5th Cir. 1970), the District Court has conducted an evi-dentiary hearing and entered findings of fact as to the knowledge possessed by the Mobile, Alabama, police at the time they booked Seay for vagrancy and took his fingerprints, and has concluded that there was probable cause for the said arrest. Th...
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446 F.2d 1400 Mrs. Cecil R. WILSON, Plaintiff-Appellant,v.MISSISSIPPI RIVER FUEL CORPORATION et al., Defendants-Appellees. No. 71-1493 Summary Calendar.* United States Court of Appeals, Fifth Circuit. September 2, 1971. Appeal from the United States District Court, Western District of Louisiana, at Monroe; Benjamin C. Dawkins, Jr., Chief Judge. Foster C. Wilson, Be...
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Page 1400
446 F.2d 1400 Mrs. Cecil R. WILSON, Plaintiff-Appellant,v.MISSISSIPPI RIVER FUEL CORPORATION et al., Defendants-Appellees.No. 71-1493 Summary Calendar.**(1) Rule 18, 5 Cir., Isbell Enterprises, Inc.v.Citizens Casualty Company of New York et al., 5 Cir. 1970,431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Sept. 2, 1971. Foster C. Wilson, Beaumont, Tex., E...
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Affirmed. See Local Rule 21.1 . See N.L.R.B. v. Amalgamated Clothing Workers of America, 5 Cir. 1970, 430 F.2d 966. ...
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446 F.2d 1401 UNITED STATES of America, Plaintiff-Appellee,v.Ollie WILLIAMS, Defendant-Appellant. No. 71-1799 Summary Calendar.* United States Court of Appeals, Fifth Circuit. September 7, 1971. Appeal from the United States District Court for the Southern District of Mississippi; William Harold Cox, Judge. Eddie H. Tucker, Jackson, Miss. (Court-appointed), for def...
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Appellant was convicted of two counts of willfully and knowingly attempting to evade income taxes in the years 1963 and 1964. He was sentenced to pay a fine of $10,000 on each count. Appellant’s sole contention was that the trial court erred in dénying a motion for judgment of acquittal, pursuant to Rule 29(a), Fed.Rules of Criminal Procedure, said motion having been directed to the sufficiency...
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Affirmed. See Local Rule 21.1 . See NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966. ...
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Page 1402
446 F.2d 1402 UNITED STATES of America, Plaintiff-Appellee,v.Judge Mark ANKROM, Defendant-Appellant.No. 71-1595 Summary Calendar.**(1) Rule 18, 5th Cir.; see Isbell Enterprises, Inc.v.Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. Aug. 17, 1971. Lester L. Klein, San Antonio, Tex., Court-appointed, f...
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The appellant, whose name is Judge Mark Ankrom, was convicted by a jury of transporting in interstate commerce a stolen 1968 Mercury automobile in violation of 18 U.S.C. § 2312. He now seeks reversal on the following grounds: (1) the evidence was insufficient to support the conviction; (2) the prosecution *1403 should not have been allowed to impeach his testimony by proof of prior offenses; (3...
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Appellant, a conscientious objector, was convicted for refusing to comply with an order of his local board to report for civilian work in lieu of indue *1404 tion into the Armed Forces. 50 U.S.C. App. § 462. He contends that the Government failed to prove that the local board had ordered him to report because, according to the agreed statement of facts upon which the case was tried, “no order d...
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In our view the Complaint, Summons, Memorandum of Authorities, Order and Application for the Convening of a Three-Judge Court should be deemed filed in the District Court on September 16, 1970, the date on which they were originally tendered for filing, since rejection of filing on that date was unwarranted. The filing was, then, timely and dismissal of the case was error. Reversed and remand...
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On this appeal from the denial of habeas corpus relief below, we have carefully considered the appellant’s contention that he was convicted on the basis of a confession obtained from him when he had not knowingly, intelligently and voluntarily waived his Miranda rights. The court below found that appellant was given a full Miranda warning, and that he signed a written confession which contain...
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Page 1405
446 F.2d 1405 Aubrey Joe EASLEY, Petitioner-Appellant,v.Dr. George J. BETO, Director, Texas Department ofCorrections, Respondent-Appellee.No. 71-1576 Summary Calendar.**(1) Rule 18, 5 Cir., Isbell Enterprises, Inc.v.Citizens Casualty Company of New York et al., 5 Cir. 1970,431 F.2d 409, Part I. United States Court of Appeals, Fifth Circuit. June 29, 1971. Aubrey J. Easley, p...
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The Supreme Court of the United States, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810, having on June 28, 1971 reversed the judgment of this Court, 430 F.2d 165, which had affirmed the judgment of conviction below, It is ordered, adjudged and decreed by this Court that this case be remanded to the United States District Court for entry of appropriate decree reversing the judgment of conviction an...
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A careful review of the record discloses that the search involved in this case was a border search and that the motion to suppress was properly denied by the district court. Judgment affirmed. ...
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OPINION OF THE COURT In this appeal, the District Court denied appellant’s application under Title 28, U.S.C., Section 2255 for reduction of sentence imposed pursuant to the provisions of Title 26, U.S.C., Sections 4744 (a) and 7237, without making findings of fact and conclusions of law. The case is therefore remanded to enable the District Court to state its findings and conclusions and certi...
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The final order of the district court is reversed and the case is remanded with directions to vacate the judgment of conviction and sentence of the appellant for violation of 26 U.S.C. § 4744(a). Harrington v. United States, 445 F.2d 1190 (5th Cir. 1971). The mandate of this Court will issue forthwith. Reversed and remanded, with directions. ...
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