1450 on FEDERAL REPORTER, 2d SERIES on his Fifth Amendment privilege against self-incrimination. 18 U.S.C. § 6003(a). The statute authorizes the granting of "use" and derivative use immunity. 18 U.S.C. § 6002. Several points are notewor- thy. First, a United States Attorney does not have the power to grant formal immu- nity. Instead, he must first subpoena a witness and if the witness invokes the Fifth Amendment privilege, the prosecutor must obtain approval by the Attorney General or Deputy Attorney General and then request the court to order the witness to testify. 18 US.C. § 6003.' Second, the statute only authorizes use immunity, not transactional immunity. Third, since formal immunity is granted to overcome a witness' invocation of the Fifth Amendment, the Supreme Court has held that the scope of the immu- nity granted must be as broad as the privi- lege. Kastigar, 406 U.S. at 460, 92 S.Ct. at 1859. Due to the cumbersome requirements of obtaining properly authorized statutory im- munity, U.S. Attorneys often make infor- mal agreements with individuals in return for their cooperation. See United States a Quatermain, 613 F.2d 38, 45 (3d Cir.) (Al- disert. J., dissenting), cert. denied, 446 U.S. 954, 100 S.Ct 2923, 64 L.Ed.2d 812 (1980). The agreements are perfectly analogous to plea agreements: an individual with valu- able information bargains with the prosecu- tor with respect to pending charges in re- turn for that individual's cooperation. A usual condition of cooperation is that the individual not be subject to prosecution for any of the information he provides. See id A prosecutor's power to grant informal immunity derives from his inherent discre- tion over prosecuting cases; just as a pros- ecutor has the discretion to plea bargain, he has the discretion to grant an individual immunity from prosecution. We have held that "due process requires the prosecutor's promise to be fulfilled." Rowe ro. Gr(05n, 676 F.2d 524, 528 (11th Cir.1982); see also Plaster v. United States, 789 F2d 289, 293 (4th Cir.1986); United States v. Fountain, 776 F.2d 878, 882 (10th Cir.1985); United I. Immunity Is only available when the testimo- ny is necessary to the public interest and the individual has refused or is likely to refuse to Stales v. Carter, 454 F.2d 426, 428 (4th Cir.1972). This practice has been dubbed "informal immunity," "hip pocket immunity," see Quatermain, 613 F.2d at 45, or "equitable immunity." Rowe, 676 F.2d at 626. Addi- tionally, since the prosecutor often agrees not to prosecute at all, these agreements are sometimes carelessly labeled "transac- tional immunity." See Rowe, 676 F.2d at 526 (since prosecutor promised Rowe there would be no subsequent prosecution, court stated he was offered "transactional immu- nity"). All these terms are unfortunate misnomers because they lead to confusion with formal statutory immunity. Such con- fusion ignores the fact that the two types of immunity derive from totally different sources and that the source of the immuni- ty determines the scope of a specific grant of immunity. For example, 18 U.S.C. I 6002 only authorizes use immunity. More importantly, because statutory immu- nity is granted to avoid reliance on the Fifth Amendment privilege, the scope of immunity must be coextensive with the Fifth Amendment privilege. The Fifth Amendment only protects an individual against divulging information about future conduct if he faced a substantial risk of incrimination as to those events at the time. See United States v. Awn; 401 U.S. 601, 603, 91 S.Ct. 1112, 1115, 28 1...Ed.2d 356 (1971) (firearm registration requirement did not violate Fifth Amendment); Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 705, 19 1.-Ed.2d 889 (1968) (tax regis- tration requirements violated fifth amend- ment because registrants could expect pro- visions to serve as evidence of violation of gambling laws). It therefore follows that under a formal grant of immunity, a wit- ness is only immunized with respect to conduct if he faced a substantial risk of incrimination as to those events when he testified. In cases of informal immunity, however, the scope of the immunity is not limited by testify on the basis of the Privilege- 18 1-1.8.C- 6003. EFTA00191787

the Fifth Amendment. pointed out, under the self-incrimination clause of the filth amendment, evidence of guilt in- duced by a government promise of immu- nity is 'coerced' evidence and may not be used against the accused. For purposes of compelling testimony which otherwise would be privileged by the fifth amend- ment, all that is constitutionally required is a grant of use immunity. However, in order to wore testimony, evidence or other cooperation from a potential criminal defendant, a prosecutor may see fit to promise complete immunity from prosecution. Rowe, 676 F.23 at 627 (emphasis added). Rowe holds that the government must of- fer at least use immunity when an individu- al is induced to cooperate, but that there is no Limit to what the defendant can demand in return for his cooperation. See Quota- main, 613 F.28 at 45 (Aldisert, 3., dissent- ing) ("(71The United States Attorney is at liberty to impose conditions that usually relate to testifying or providing certain in- formation. For his part the ... informant often imposes conditions of his own, usual- ly relating to agreements not to prosecute but often covering other matters as well[.]"). If the potential informant de- mands too much, the government may de- cide that the information is not worth the price or the government can always sub- poena the potential informant to testify before a grand jury or at the trial thereby ensuring that the informant is only granted use immunity. This discussion illustrates that the scope of an informal grant of immunity depends on the bargain struck. The majority therefore is incorrect to assume the same principles apply to deter- mining the scope of formal and informal immunity. In determining that the Fifth Amendment defines the scope of a grant of informal immunity, the majority ignores the cited quotation from Rowe. The only case the majority cites as support for its 2. In 1965, the state Attorney General agreed not to prosecute Rowe in return for his testimony at the grand Jury and at trial. After new inform.. lion arose that Rowe might have lied about whether he actually fired any of the fatal shots. U.S. v. HARVEY 1451 otos 619 rid 1434 (11th at nen As Judge Fay has conclusion is United States v. Quour- main, 618 F.2d 88 (8d Cir.1984). Unfortu- nately, in Quaterntain, the court specifical- ly held that the informant was granted "the minimum immunity required by the Constitution"—that is, use immunity. Id at 88 (emphasis added). Therefore, the fact that the agreement provides use immunity made the Fifth Amendment case law rele- vant, not the fact that it was an informal grant of immunity. Rowe provides the appropriate analysis to apply in cases of informal immunity. In Rowe, the court considered a prosecutor's agreement not to prosecute a Ku Klux Klan informant in return for the informa- tion he provided the state concerning a murder during the Selma to Montgomery Civil Rights March. 676 F.2d at 525.2 The court held that such an agreement must be enforced when the defendant proves that an agreement was made, that he performed his side and that the prosecution was di- rectly related to the assistance the defen- dant had given. The court specifically analogized to the case law on plea agree- ments and held that "as a matter of fair conduct, the government (must) honor such an agreement(.]" Id. at 527. It follows then that the case law concern- ing the interpretation of plea agreements is relevant to the interpretation of this type of an agreement made by the prosecutor. See id at 528 ("this contractual analysis applies equally well to promises of immuni- ty from prosecution"). This court inter- prets a plea agreement consistently with what the defendant reasonably understood when he entered the plea. In re Arnett, 804 F.28 1200, 1201-02 (11th Cir.1986). The court first determines whether the written agreement is ambiguous on its face. If the agreement is unambiguous and there is no allegation of government overreaching, the court will enforce the agreement according to its plain words. United States v. (Michael) Harvey, 191 F.2d 294, 300 (4th Cir.1986). If the agree the state attempted to prosecute him for mut. der. Rowe brought suit under 42 US.C. § 1983 to enjoin the state prosecution. 676 F.24 at 525-26. EFTA00191788

1452 869 FEDERAL REPORTER, 2d SERIES ment is ambiguous, the ambiguity "should be resolved in favor of the criminal defen- dant" Rowe, 676 F.2d at 626 n. 4 (ambi- guity over whether Attorney General's promise bound future Attorney General was resolved in favor of the defendant); see In re Arnett, 804 F.2d at 1203 (govern- ment breached the agreement when it sought forfeiture of defendant's farm since written agreement ambiguous as to wheth- er government would seek forfeiture of property and government could not satisfy heavy burden of proving defendant under- stood government reserved right to seek property forfeiture): United States v. (Mi• chat!) Harvey, 791 F.2d at 301 (imprecision in terms of written agreement construed against the government). 11 In this case, Harvey was not granted formal statutory immunity. He was never called to testify and never invoked his Fifth Amendment privilege. If he had been granted statutory immunity, a discussion of the scope of Harvey's Fifth Amendment privilege would be relevant. Instead, Har- vey bargained with the government. In return for the information he provided, the government agreed to drop the charges against him in Mobile and agreed not to prosecute him for any crimes related to the information he gave. There is no doubt that Harvey entered an agreement with the government and that he performed his side. The crux of this case, therefore, depends on an interpretation of the agreement not to prosecute. The magistrate reconstructed the agree- ment and found that Harvey had been granted both "transactional" and "use" im- munity for the information he provided. The magistrate also determined that Har- vey had told the government about the Cayman Islands funds. The majority ap- parently takes comfort from this finding, stating "we are working solely with the familiar categories of transactional and use immunity, and do not face any different 'species' of immunity—e.g., an express agreement not to prosecute for future tax violations with respect to the Cayman Is- lands." Supra at 1446 n. 10. Indeed as I read the majority opinion, its holding that Harvey's immunity is only as broad as the fifth amendment Is explicitly dependent on this factual finding. See supra at 1446 ("By the same token, we believe that—ab- sent any contrary factual finding—we should not conclude that the scope of the immunity Harvey received was any greater than that of the fifth amendment privilege he gave up.") (Emphasis added). I find this statement incomprehensible since the only "species of immunity" the prosecutor was 414lltonied to grant was an agreement not to prosecute. Additionally, the magistrate's use of the terms "transactional" and "use" immunity should not be given such great weight since the term "transactional" immu- nity has been used by this court to describe an agreement not to prosecute. See Rowe, 676 F.2d at 526; Quatermain, 613 F.2d at 44 (Aldisert, J., dissenting) (although the district court phrased its discussion in terms of transactional and use immunity, analyzing it as an agreement not to prose- cute leads to same result). Furthermore, it is clear from the magistrate's opinion that although she used the terms "transaction- al" and "use" immunity, she understood the critical distinction between formal and informal immunity. In rejecting the government's argument that it had no pow- er to grant "transactional" immunity, the magistrate held what the government confuses with re- spect to immunity is the court's power under 18 U.S.C. 6001 et seq. to force an unwilling defendant to testify versus the government's virtually unbridled discre- tion to plea bargain with any defendant as to terms offered by the government With respect to § 6001 immunity, the court can compel a defendant to testify, but can only grant him use and not transactional immunity. On the other hand, the executive branch can grant transactional immunity in the form of a bargain and does not need the blessing of the court to do so. Record, Vol. 3, Tab 72 at 22. Indeed, the magistrate applied the principles applicable to plea agreements to what she described "transactional" immunity. Therefore, de- EFTA00191789

U.S. I HARVEY 1453 Marlin filthCU. 1119) spite the majority's wishful thinking, we are dealing with an agreement not to prose cute. In this case, the government never wrote down the terms of the agreement. Addi- tionally, there is no record of the informa- tion Harvey provided. Clearly the written terms of the agreement would be the start- ing place for determining the scope of im- munity Harvey was granted. Due to the government's gross negligence, however, we are forced to reconstruct the terms of the agreement' In order to do so, the court must look to the testimony of those involved in negotiating the agreement to determine what Harvey believed the agree- ment provided and whether Harvey's ex- pectations were reasonable. Jerry Harvey testified that the govern- ment "agreed nothing I ever give (sic] them would be used against me, nor would any U.S. Attorney's Office seek to prose- cute me for anything; that I was just get- ting a clean walk, and I should stay on the Government's side and help them." Record Vol. 8, Tab 72 at 14. Harvey's attorney, Tom Haas, testified that "the understanding I had with gent] was that nothing that Je Ha to them, or any agent on nt would ever at any time be used against Jerry Harvey." Id. at 15. This testimony supports Harvey's argument that he believed he was immune from any prosecution related to the information he gave. Significantly, no testimony by either of the prosecutors involved in the negotia- tions rebutted Harvey's broad interpreta- tion of the agreement. In response to a question by the court, the U.S. Attorney for the Southern District of Alabama, Wil- liam Kimbrough, testified that Harvey was 3. I emphasize this point because the majority suggests. supra at 1442-1443, that the only prob. lea is that • record of the informauon IS provided by While that omission is Important. it is problematic (and ulti. mately decisive in my mind) that there is no record of the terms of the agreement. 4. This is despite the fart that a letter from Mr. Sullivan was introduced in which he asked a state prosecutor to consider the fact that Harvey had cooperated with both the U.S. Attorney and the Drug Enforcement Agency. Additionally. given use Immunity but that he did not know whether or not he was given transac- tional immunity. Finally, the prosecutor most intimately involved with the agree- ment Patrick Sullivan, an Assistant U.S. Attorney in the Southern District of Flor- ida had no recollection of any involvement with Jerry Lee Harvey.' He could not remember speaking to the Mobile U.S. At- torney's office or having any negotiations with Harvey. The court must interpret an agreement consistently with the defendant's reason- able interpretation of the agreement. In this ease, the government has failed to offer any evidence to disbelieve Harvey's view of the agreement Instead, the government argues that it was unreason- able for Harvey to believe that the agree- ment would shield him from prosecution for future tax violations relating to the Cayman Islands funds. I do not agree. It is not at all clear that a lay citizen would understand that a government's agreement not to prosecute for anything related to the Cayman Islands funds would not preclude prosecution for failure to declare interest from those funds. In addition, since we have no record of the agreement we have no way of knowing what the government officials represented to Harvey as the terms of the agreement- In the absence of some evidence that Harvey knew the agreement would not cover these crimes,' I cannot accept the government's position. See (Michael) Harvey, 791 F.2d at 300 (due process requires holding government to a greater degree of responsibility for ambi- guity in plea agreement than defendant). Furthermore, to the extent that the govern- ment's argument is based on the belief the Mr. Sullivan was unable to recall having used Harvey as a witness In a case In which he was the trial prosecutor some three to five years before the agreement. S. I emphasize the narrowness of such a holding. The terms of the agreement, if preserved, might have contradicted Hanty's interpretation. Even if the agreement was ambiguous, a tran- script or even notes of the negotiations might have shown that Harvey's position is unreason. able. EFTA00191790

1454 889 FEDERAL REPORTER, 2d SERIES government had no authority to enter the agreement as Haney perceived it because it granted immunity for future crimes, it is not persuasive. Pint, it is not apparent that Harvey would know that the govern- ment did not have the power to enter the agreement as he perceived it. Second, that argument ignores the possibility that the government may have lead Harvey to be- lieve (or at least contributed to his misun- derstanding) that the agreement offered such immunity. Finally, this court has nev- er refused to enforce a plea agreement just because the government made a bad deal. I would therefore hold that the govern- ment agreed that it would not prosecute Harvey with respect to the Cayman Islands funds and that Harvey believed that he would not be prosecuted for failing to re- port the interest on the Cayman Islands funds. This does not mean that Harvey was immunized from declaring the interest. Quite the contrary, I believe that Harvey was required to pay taxes on the interest and that the government may collect those back taxes. It may not, however, crimi- nally prosecute Harvey for failing to re- port his interest I also do not believe that the agreement forever insulates Harvey from criminal prosecution for failing to re- port his taxes. Because the government failed to provide any evidence to disbelieve Harvey's view of the agreement, it is ap- parent that the indictment entered against Harvey on November 25, 1985 for the fret time put Harvey on notice that his under- standing of the agreement conflicted with the government's view. After that point, it became unreasonable for Harvey to believe the agreement provided such broad immu- nity. III In conclusion I wish to emphasize that this case presents unique facts and con- cerns which fortunately are of infrequent occurrence. The concern of the majority is that my view provides carte blanche au- thority to U.S. Attorneys to enter into plea agreements that will insulate criminals from liability for future criminal conduct. That concern has many answers, the chief of which is that U.S. Attorneys are respon- sible persons who do not conduct them- selves as apprehended by the majority. I have tried to make clear that the holding is limited to the facts of this case. In this case, it was not unreasonable for Harvey to believe that the agreement covered the fu- ture tax consequences from the informa- tion he provided. Indeed, I have attached as an appendix excerpts from the testimo- ny before the magistrate which show that the government may have interpreted the agreement to cover even more than this. I have also made clear that once Harvey was put on notice by the government that he was required to include income from the Cayman Island bank accounts on his in- come tax returns, he no longer could con- sider himself immune from prosecution for failure to report the income. Due process of law in the context of this case requires that Harvey be provided advance notice of the government's interpretation of the agreement, especially if the government's interpretation changed. The majority contorts this simple case concerning an agreement not to prosecute into a use or transactional immunity case and then relies on irrelevant Fifth Amend- ment case authority. Here the same government that promised Harvey in a bona fide agreement that it would not seek to jail him based on information furnished in 1980 now seeks to breach that agree- ment. It must be remembered that the district court found: "that tainted evi- dence, evidence for which the defendant received both use and transactional immu- nity, was presented before the grand jury which returned the (tax evasion] indictment against hint" The majority fears that if the govern- ment is required to abide by its contract, a pandora's box will be opened where federal prosecutors will immunize criminals from being prosecuted for future crimes. That is obviously unreal. As I have explained, this case is an aberration. U.S. Attorneys seldom make oral agreements like this. We can have confidence that U.S. Attor- neys will not abuse the inform' method of granting immunity and presumably such agreements will be reduced to writing. EFTA00191791

U.S.I HARVEY 1455 Oa elbrt r (What 11909) Harvey's due process rights not to be prosecuted pursuant to the government's agreement are violated by the majority's reversal of the district court's dismissal of the tainted indictment. APPENDIX The following are excerpts from the magistrate's report. (Record, Vol. 8, Tab 72). Tom Ham [Harvey's attorney] and William Kimbrough, who was at the time of the agreement the U.S. Attorney in the Southern District of Alabama, testi- fied the deal negotiated with Harvey was that Haney would not be prosecuted for anything about which he told the Govern- ment nor would anything he said be used against him. Q. by Leonard Sands A. by Tom Haas Q. What was the bargain that was ulti- mately struck with the two of them? A. Once it had been understood that he might be able to supply these things, the understanding I had with Ruddy and Bil- ly was that nothing that Jerry Harvey said to them, or any agent on the Government would ever at any time be used against Jerry Harvey. Q. And what does that mean, "would ever be used against Jerry Harvey? A. That he wouldn't be prosecuted on the basis of what they found out from him. Q. What instructions or advice did you give Jerry Haney prior to his attending this meeting at the Sheraton? A. Well, I told him just what I just said, and I remember that Jerry was very skeptical about that He didn't seem to trust anybody, and maybe he didn't trust me either. Really, he didn't know me' anything about me. I was a small town lawyer in a small town to him, and I don't recall who had referred him to me. I usually try to find that out, particularly in drug cases, because I don't want to get in a situation where I am getting paid by somebody else. I 'mow that he was skeptical. I know he didn't trust anybody, and I had to literally force him to comply. I said, "I know these people, U.S. Attorney, and Assistant U.S. Attorney." I said, "I would stake my life on their honor and veracity." Mr. Sands asked Mr. Kimbrough: Q. In return for Harvey's furnishing information, what was he to receive? A. I was to dismiss the Indictment against him. Q. Do you know whether or not any— A. And I would not prosecute him for anything he said; and I would not use anything he said as a means of going beyond this agreement to try to stir up trouble for Harvey. Q. At that time as United States Attor- ney, you were speaking for yourself, and Southern District of Florida? A. I can't say that. It was certainly my understanding that somebody had touched base with South Florida who wanted the information, and I assumed, and I continued to assume that nobody would have— I certainly would not have asked Mr. Harvey to make a total disclosure had thought that in doing so, I, you know, turned him loose to prosecution in some other district. I have no personal knowl- edge of that. That is all I am saying. That is not the way we operated, I as- sure you. We tried to treat everybody as human beings, although we tried to put some of them in the penitentiary. • • • • • • THE COURT; I need to interrupt you, Mr. Sands. Mr. Kimbrough, you made the statement that you would not have prosecuted him for anything he told you about. Now, there are all different kinds of immunities, and we have been discussing that. We have been discussing transac- tional immunity versus use immunity. If in telling you about all drug-related murders about which he had knowledge, Mr. Harvey told you that he killed some- EFTA00191792

1456 869 FEDERAL REPORTER, 2d SERIES APPENDIX—Continued body in Mobile, Alabama, pursuant to this agreement, and this letter, and your understanding of this, could you prose- cute him for that murder? THE WITNESS: 1 don't know. I prob- ably •ouldn't have. THE COURT: Could you use his state- ment or facts that he gave you in the statement in building of the murder ease? THE WITNESS: No, because it would be derived from the statement he gave. • • • • • Q. by Leonard Sands A. by Jerry Lee Harvey Q. As a result of those conversations, was it your understanding you had an agreement with the U.S. Attorneys Of- fice in the Southern District of Alabama? A. I knew I did. Mr. Kimbrough, and Mr. Fevre told me, and Tom Haas told me. Q. What did they tell you your deal was? What were you supposed to do? A. I was supposed to tell them every- thing I knew about drug trafficking, peo. ple involved, how it took place, what hap- pened to the funds, how you would reg- ister airplanes fictitiously. Anything I knew from 1975, and everything I had done from '75 up to the present time. Q. And what was the Government's ob- ligation to you in return for your cooper- ation? A. They agreed nothing I ever give them would be used against me, nor would any U.S. Attorney's office seek to prosecute me for anything; that I was just getting a clean walk, and I should stay on the Government's side and help them. The best that can be said as a summa- ry of the evidence or statement made by Harvey to the Drug Enforcement Agents at that meeting is that Harvey told them all about his drug dealings in which he had been involved prior to his arrest in June of 1980, and including the arrest of 1980. This Court specifically finds from the facts adduced at the hearing that the defendant Harvey also divulged to the Drug Enforcement Administration his fi- nanci►l dealings with respect to his it legal drug deals. HATCHETT, Circuit Judge, dissenting. I join Judge Clark's dissent. The agree- ment in this case coven the subject funds. I hasten to add that nothing is gained by encouraging the government to enter into informal agreements, the terms of which are determined through evidentiary hear- ings in the district court and fact-finding in the in bane court, after the accused has completed performance. Roy LOHR and Larry Randolph. Plaintiffs-Appellees, U STATE OF FLORIDA DEPARTMENT OF CORRECTIONS, et al., Defendants, Ken Ault, Defendant—Appellant. No. 81-5122 Non—Argument Calendar. United States Court of Appeals. Eleventh Circuit. April 14, 1989. Keith C. Tischler, Parker, Skelding, Cos- tigan, McVey & Labasky, Tallahassee, Fla., for defendant-appellant. Evan I. Fetterman and Salvatore Seibet- ta. Fetterman & Associates, North Palm Beach, Fla., for plaintiffs-appellees. Appeal from the United States District Court for the Southern District of Florida. Before HILL, VANCE and CLARK, Circuit Judges. EFTA00191793

Page 1 of 3 Westlaw. CJS INJUNCTION § 281 43A C.J.S. Injunctions § 281 Corpus Juris Secundum Database updated December 2007 Page I Injunctions By John Bourdeau, J.D., Nicole D. Fox, J.D., John R. Kennel, J.D., of the National Legal Research Group, Charles J. Nagy, J.D., Thomas Muskus, J.D., Eric C. Surette, J.D. IV. Subjects of Protection and Relief H. Criminal Acts, Conspiracies, Prosecutions, and Judgments 2. Criminal Proceedings, Prosecutions, and Judgments Topic Summary References Correlation Table § 281. When injunctive relief available West's Key Number Digest West's Key Number Digest, Injunction C=105(1) There are circumstances under which the courts properly make exceptions to the general rule that equity will not interfere with criminal process by entertaining actions for injunction in advance of criminal prosecutions. An injunction to restrain a criminal prosecution may issue where a statute authorizes such relief,[FNI] and apart from statute, there are circumstances under which courts properly make exceptions to the general rule that equity will not interfere with criminal processes by entertaining actions for injunction in advance of criminal prosecutions.[FN2] More specifically, an injunction to restrain a criminal prosecution lies where it is shown that the prosecution is for the sole purpose of unlawfully taking property, destroying the business of the plaintiff,[FN3] or will result in irreparable injury to the plaintiff,[FN4) and the plaintiff has no adequate remedy at law.[FN5] Furthermore, there must be a grave danger of impending or imminent injury to the person or property rights; a mere threat or bare fear of such injury is not sufficient.[FN6) So long as the court has jurisdiction and the case is not moot,(FN7] the grant or denial of an injunction is a matter for the trial court in the exercise of its sound discretion according to the circumstances and exigencies of each particular case.[FN8] It is dependent on the establishment of a clear legal right to the relief sought.[FN9) Special circumstances making injunctive relief appropriate may involve prosecution in bad faith[FNIO] and the use of criminal statutes to suppress and chill constitutionally protected rights.[FN I I] In a proper case, unlawful proceedings in a criminal prosecution may be restrained,[FNI2] and injunctive relief may be available prior to an indictment.[FNI3] The action may or should be brought by one having standing to sue,[FN14] and equity is not restricted in affording relief to one who would be subject to prosecution under the law or ordinance,[FN15] but ordinarily, one who has not been indicted, arrested, or even threatened with prosecution has no standing to bring a 02007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Full&prft=HTMLE8cfn=_top&mt=... 12/27/2007 EFTA00191794

Page 2 of 3 OS INJUNCTION § 281 43A C.J.S. Injunctions § 281 suit for injunction.[FN16] Page 2 Suit relating to same matters pending in equity. Another exception to the general rule is that a court of equity will restrain a criminal prosecution begun while there is pending in equity a suit to try the same right between the same parties.[FN17] It has been stated that this rule is limited to cases where the parties sought to be enjoined have as plaintiffs submitted themselves to the court in the equity proceeding.(FN18] The suit must be pending in equity when the injunction is sought,(FN19) and the subject matter of the two proceedings must be identical.[FN20] It has been broadly stated that equity will enjoin a criminal proceeding if necessary to prevent a multiplicity of suits.[FN21] Furthermore, in some cases an exception to the general rule denying injunctive relief has been made on the ground that the prosecutions sought to be enjoined were vexatious and oppressive.[FN22] [FN1] Neb.—Webber'. City of Scottsbluff, 141 Neb. 363, 3 N.W.2d 635 (1942). [FN2] Ga.—Sarrio Gwinnett County, 273 Ga. 404, 542 S.E.2d 485 (2001). [FN3] Ark.-Billy/Dot, Inc. Fields, 322 Ark. 272, 908 S.W.2d 335 (1995). Ga.—Sarrio Gwinnett County, 273 Ga. 404, 542 S.E.2d 485 (2001). (FN41 U.S.-Scolaro I. District of Columbia Bd. of Elections and Ethics, 946 F. Supp. 80 (D.D.C. 1996). Ga.—Sarrio Gwinnett County, 273 Ga. 404, 542 S.E.2d 485 (2001). (FN5] U.S.—Metro Medical Supply, Inc. Shalala, 959 F. Supp. 799 (M.D. Tenn. 1996). Ga.—Sarrio Gwinnett County, 273 Ga. 404, 542 S.E.2d 485 (2001). (FN6) U.S.—Gersten Rundle, 833 F. Supp. 906 (S.D. Fla. 1993), affd, 56 F.3d 1389 (11th Cir. 1995). Ga.—Sarrio Gwinnett County, 273 Ga. 404, 542 S.E.2d 485 (2001). [FN7] Ark.—Dickey Signal Peak Enterprises, 340 Ark. 276, 9 S.W.3d 517 (2000). Tenn.-Storey'. Nichols, 49 S.W.3d 288 (Tenn. Ct. App. 2000). [FN8] Wyo.—Nation Giant Dmg Co., 396 P.2d 431 (Wyo. 1964). [FN9] N.Y.—Weiss'. Beckmann, 197 Misc. 414, 96 N.Y.S.2d 66 (Sup 1950). [FN 10] U.S.—In re Scott, 166 B.R. 779 (D. Mass. 1994). La.—Board of Com'rs of Orleans Levee Dist.'. Connick, 654 So. 2d 1073 (La. 1995). A.L.R. Library Proceedings for injunction or restraining order as basis of malicious prosecution action, 70 A.L.R. 3d 536. C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Full&prft=HTMLE8cfn=_top&mt=... 12/27/2007 EFTA00191795

Page 3 of 3 C.IS INJUNCTION § 281 Page 3 43A C.J.S. Iniunctions § 281 [FN11] U.S.—Metro Medical Supply, Inc. Shalala, 959 F. Supp. 799 (M.D. Tenn. 1996). [FN12] U.S.-U.S.'. Hasiwar, 299 F. Supp. 1053 (S.D. N.Y. 1969). [FN13] N.Y.-Simonsonil Cahn, 33 A.D.2d 790, 307 N.Y.S.2d 581 (2d Degn 1969), ordcr affd, 27 N.Y.2d I, 313 N.Y.S.2d 9 , 261 N.E.2d 246 (1970). [FN14] U.S.—Younger 1 Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971). [FNIS] U.S.—New Am. Library of World Literature I. Allen, 114 F. Supp. 823, 52 Ohio Op. 289, 67 Ohio L. Abs. 143 (N.D. Ohio 1953). [FN16] U.S.—Algs, Inc. Crosland, 327 F. Supp. 1264 (M.D. Ala. 1971), order af d, 459 F.2d 1038 (5th Cir. 1972). [FN17] U.S.—Packard 1 Banton, 264 U.S. 140, 44 S. Ct. 257, 68 L. Ed. 596 (1924). [FN18] Fla.—Gulf Theatres'. State ex rel. Ferguson, 133 Fla. 634, 182 So. 842 (1938). [FN191 U.S. Hartirader 1. Wadley, 172 U.S. 148, 19 S. Ct. 119, 43 L. Ed. 399 (1898). [FN20] Fla.—Coleman Greene, 136 Fla. 276, 186 So. 541 (1939). [FN21] Pa.—Pennsylvania Soc. for Prevention of Cruelty to Animals Bravo Enterprises, Inc., 428 Pa. 350, 237 A.2d 342 (1968). [FN22] Ala.—Quinnelly I. City of Prichard, 292 Ala. 178, 291 So. 2d 295 (1974). C 2007 Thomson/West. No Claim to Orig. U.S. Govi. alorks. aS INJUNCTION § 281 END OF DOCUMENT C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?sv=Full&prft=HTMLE&fn=_top&mt=... 12/27/2007 EFTA00191796

STOLT-NIELSEN, S.A.' U.S. 177 CIleas443 F.3d 177 Ordar. 3006) Count Three is ripe for federal adjudica- tion, and the District Court's dismissal on this ground will be reversed. We reserve judgment on whether a claim upon which relief can be granted has been stated. The facial SDP and EPC challenges to the Ordinance and the SDP challenge to appel- lees' obstructive course of conduct prior to the enactment of the Ordinance are ripe for review. The complaint states a facial SDP claim upon which relief can be grant- ed as to the Ordinance, and a SDP claim as to appellees obstructive course of con- duct, and the order of the District Court dismissing those claims on this ground will be reversed. The complaint fails to state an EPC claim, and the order of the Dis- trict Court dismissing on this ground will be affirmed. To the extent that the Dis- trict Court dismissed the SDP, EPC, Tak- ings and Tortious Interference claims (Counts One through Four) against the individual defendants on the ground of ab- solute legislative immunity, the order of the District Court will be vacated, and we will remand for findings consistent with this opinion. To the extent the District Court accorded the individual defendants legislative immunity as to appellants' SDP claim attacking defendants' pre-Ordinance conduct under Blanche Road the order of the District Court will be reversed. The order of the District Court granting sum- mary judgment on Counts Four and Seven will be affirmed as to all appellees, except Stern, with respect to whom the order will be reversed. The District Court's dismiss- al of Count Five on statute of limitations grounds will be affirmed,' and the order dismissing Count Six will be vacated. The cross-appeal will be dismissed. In sum, the following claims survive: a substantive due process facial challenge to the Ordinance; a substantive due process challenge to appellees' obstructive course S. Appellants have not argued that the dismiss. of conduct leading up to the enactment of the Ordinance; a Fifth Amendment Just Compensation Takings challenge to the face of the Ordinance; breach of the im- plied covenant of good faith and fair deal- ing; and the tortious interference and civil conspiracy claims, but only against Stern. STOLT—NIELSEN, S.A.; Stolt-Nielsen Transportation Group Ltd.; Richard B. Wingfield I UNITED STATES of America Appellant. No. 05-1480. United States Court of Appeals, Third Circuit. Argued Sept. 30, 2005. Filed March 23, 2006. As Amended May 16, 2006. Background: Company and officer, faced with possible criminal charges for antitrust violations, brought action to enforce terms of immunity agreement under United States Department of Justice's (DOJ's) corporate leniency program. The United States District Court for the Eastern Dis- trict of Pennsylvania, Timothy J. Savage, J., 352 F.Supp2d 553, enjoined prosecu- tion, and government appealed. Holding: The Court of Appeals, Ambro, Circuit Judge, held that, on issue of first impression in circuit, district court lacked authority to enjoin executive branch from fling indictment. Reversed and remanded. al on Count Five should be reversed. EFTA00191797

178 442 FEDERAL REPORTER, 3d SERIES 1. Federal Courts er•754.1, 814.1 District court's grant or denial of per- manent injunction is reviewed for abuse of discretion, while its underlying legal con- clusions are reviewed without deference. 2. Federal Courts e=.776 District court's determination of whether potential criminal defendant's co- operation agreement with government has been breached Ls legal conclusion, re- viewed de novo. 3. Injunction e=105(I) Although court generally lacks juris- diction to enjoin criminal prosecution, ex- ception exists when necessary to avoid chilling effect on First Amendment or sim- ilar constitutional rights. U.S.C.A. Cont. Amend. 1. 4. Criminal Law e=42.5(3), 273.1(2) Government must adhere strictly to terms of agreements made with defen- dants, including plea, cooperation, and im- munity agreements, to extent they require defendants to sacrifice constitutional rights. 5. Injunction e=,105(1) District court lacked authority to en- join indictment of corporation and officer for antitrust violations, despite claim that indictment would violate terms of immuni- ty agreement entered into as part of gov- ernment's corporate leniency program; though agreement may have been defense to conviction, it was not defense to indict- ment 6. Equity 4=46 Suit in equity does not lie where there is plain, adequate and complete remedy at • Then Judge. now Justice. Alito heard oral an gumcnt in this case but was elevated to the United States Supreme Court on January 31. 2006. This opinion is filed by a quorum of the panel. 28 U.S.C. § 46(d). law that is as complete, practical and effi- cient as that which equity could afford. R. Hewitt Pate, Assistant Attorney Gen- eral, Scott D. Hammond, Mahn Del shim, Deputy Assistant Attorneys General, John P. Fonte, John J. Powers, III, (Argued), United States Department of Justice, Anti- trust Division, Washington, D.C., Robert E. Connolly, Antonia R. Hill, Wendy B. Norman, Kimberly Justice, Richard S. Rosenberg, U.S. Department of Justice, Philadelphia, PA, for Appellant. Ian M. Comisky, Matthew D. L Blank Rome LLP, Philadelphia, PA, J. Tenvillinger III, John M. Gidley, Christo- pher M. Curran, (Argued), Lucius B. Lau, White & Case LLP, Washington, D.C., for Appellee Stolt—Nielsen S.A. and Stott- Nielsen Transportation Group Ltd. Roberta D. Liebenberg, Allen D. Black, (Argued), Gerard A. Dever, Fine, Kaplan & Black, Philadelphia, PA, James A. Back- strom, Jr., Philadelphia, PA, for Appellee Richard B. Wingfield. Before ALITO • and AMBRO, Circuit Judges and RESTANI,•• Judge. AMBRO, Circuit Judge. This case raises a significant constitu- tional question of first impression in this Circuit: whether federal courts have au- thority, consistent with the separation of powers, to enjoin the executive branch from filing an indictment. Although feder- al courts have this authority in narrow circumstances, we conclude that this is not **Honorable Jane A. Restani. Chief Judge, United States Court of International Trade. sitting by designation. EFTA00191798

STOLT-NIELSEN, S.A. U.S. ace al 442 F.341177 (3rdC1r. such a ease and therefore reverse the Dis- trict Court's judgment to the contrary. 1. A. Background Appellee Stolt-Nielsen, S.A., through its subsidiary Stolt-Nielsen Transportation Group Ltd. (collectively "Stolt—Nielsen" or the "Company"), is a leading supplier of parcel tanker shipping services. In March 2002, Stolt—Nielsen's general counsel, Paul O'Brien, resigned. According to a com- plaint O'Brien filed against Stolt-Nielsen in Connecticut Superior Court in Novem- ber 2002, and a subsequent article in The Wall Street Journal, O'Brien advised his superiors of illegal collusive trading prac- tices between Stolt-Nielsen and two of its competitors, and resigned after the Com- pany failed to take action to resolve the problem. On receiving O'Brien's Novem- ber 2002 complaint, Stolt-Nielsen hired John Nannes, a former Deputy Assistant Attorney General in the Antitrust Division at the U.S. Department of Justice, to con- duct an internal investigation of possible antitrust violations by the Company and advise it regarding any criminal liability. On November 22, 2002, Nannes met with the chairman of Stolt-Nielsen's tank- er division, Samuel Cooperman. Cooper- man informed Nannes that O'Brien "raisledl some antitrust concerns" in early 2002, and that in response Stolt-Nielsen revised its antitrust compliance policy and disseminated it to its employees and com- petitors. Cooperman also told Nannes that he believed an internal investigation would demonstrate that the Company was in violation of federal antitrust laws and asked Nannes about the possibility of le- niency from the Department of Justice. With Cooperman's permission, Nannes spoke with an Antitrust Division official later that day to inquire about amnesty if Stolt-Nielsen were to admit its violations, 179 and the Government informed him that an investigation had already begun. Specifically, Nannes inquired about pos- sible protection for Stolt-Nielsen and its officers under the Antitrust Division's Cor- porate Leniency Policy. Under this Poli- cy, the Government agrees "not Ito) charge) a firm criminally for the activity being reported" if (in the case of an appli- cant who comes forward after an investiga- tion has begun) seven conditions are met: (1) the applicant is the first to report the illegal activity; (2) the Government does not, at the time the applicant comes for- ward, have enough information to sustain a conviction; (3) the applicant, "upon its dis- covery of the illegal activity being report- ed, took prompt and effective action to terminate its part in the activity"; (4) the applicant's report is made "with candor and completeness and provides full, con- tinuing and complete cooperation" with the Government's investigation; (5) the appli- cant confesses to illegal anticompetitive conduct as a corporation and not merely through individual confessions by corpo- rate officers; (6) the applicant makes resti- tution where possible; and (7) the Govern- ment determines that granting leniency to the applicant would "not be unfair to oth- ers." The officers and directors of the corporation who assist with the investiga- tion are considered for immunity from prosecution on the same basis as if they had come forward individually. B. The Conditional Leniency Agree- ment The Government informed Nannes that Stolt-Nielsen would not be eligible for am- nesty under the Corporate Leniency Poli- cy if O'Brien's departure was involuntary and due to his exposure of the Company's antitrust violations. Nannes assured the Government that O'Brien left voluntarily and detailed the changes to the Company's EFTA00191799

180 442 FEDERAL REPORTER, 3d SERIES antitrust policy that were implemented in response to O'Brien's concerns. During the ensuing investigation, Nannes learned that between 1998 and 2001 a Stolt—Niel- sen executive, Andrew Pickering, ex- changed customer allocation lists with two of Stolt—Nielsen's competitors, presumably for the purpose of apportioning customers among the companies and restraining com- petition. In January 2003, Pickering's successor, appellee Richard Wingfield, provided Nannes with four such lists, which confirmed that Stott-Nielsen had in- deed engaged in illegal anticompetitive be- havior. Nannes promptly turned these lists over to the Government, which en- tered into a Conditional Leniency Agree- ment (the "Agreement") with Stolt-Niel- sen on January 16, 2003. Under the terms of the Agreement, the Government agreed "not to bring any criminal prosecution against [Stott-Niel- sen] for any act or offense it may have committed prior to the date of this [Agreement] in connection with the anti- competitive activity being reported." This promise was, of course, subject to Stolt- Nielsen's strict compliance with the afore- mentioned conditions, "[Aubject to verifi- cation [by the Government! and subject to [Stott-Nielsen's) full, continuing and com- plete cooperation." The Agreement fur- ther stated: If the Antitrust Division at any time determines that [Stott-Nielsen] has vio- lated this Agreement, rig shall be void.... Should the Antitrust Division revoke the conditional acceptance of [Stott—Nielsen) into the Corporate Le- niency Program, the Antitrust Division may thereafter initiate a criminal prose- cution against [Stott—Nielsen], without limitation. Should such a prosecution be initiated, any documentary or other in- formation provided by [Stoll-Nielsen), as well as any statements or other infor- mation provided by any current or for- mer director, officer, or employee of [Stott-Nielsen) to the Antitrust Division pursuant to this Agreement, may be used against Stott-Nielsen in any such prosecution. The Agreement also provided that the Government would not prosecute officers and directors of the Company who "admit their knowledge of, or participation in, and fully and truthfully cooperate with the An- titrust Division in its investigation of the anticompetitive activity being reported." Specifically, that cooperation entailed: (1) producing all documents and records re- quested by the Government; (2) being available for Government interviews; (3) "responding fully and truthfully to all in- quiries of the [Government) ... without falsely implicating any person or intention- ally withholding any information"; (4) vol- untarily providing any information or ma- terials not requested by the Government that were nonetheless relevant to the in- vestigation; and (5) testifying under oath when asked by the Government It con- cluded with a standard integration clause: "This letter constitutes the entire agree- ment between the (parties!, and super- sedes all prior understandings, if any, whether oral or written, relating to the subject matter herein." Using the information provided by Stolt-Nielsen and its executives (including Wingfield), the Government secured guilty pleas from Stolt-Nielsen's co-conspirators, resulting in prison sentences for individual executives at those companies and fines totaling $62 million. C. The Government Terminates the Agreement In the weeks following execution of the Agreement, the Government's investiga- tion revealed that Stolt-Nielsen's partic- ipation in the conspiracy persisted for EFTA00191800

STOLT-NIELSEN, SA.' US aleas442 FM 177 (2rdC1r. 2e06) several months after O'Brien raised his concerns to Cooperman in early 2002. The Government concluded that Stolt- Nielsen, and Wingfield in particular, con- tinued to collude unlawfully with competi- tors until November 2002. Based on this information, the Government informed Nannes on April 8, 2003 that it was sus- pending Stolt-Nielsen's obligations under the Agreement and considering withdraw- ing the grant of conditional leniency en- tirely because the Company did not take "prompt and effective action to terminate its part in the anticompetitive activity be- ing reported upon discovery of the activi- ty," as required by the Agreement. One of Wingfield's subordinates, Bjorn Jansen, then admitted that the anticompetitive agreement between Stolt-Nielsen and its competitors was still in place in the fall of 2002, despite having told Nannes that such conduct ceased in March 2002 once the Company learned of O'Brien's allega- tions and issued its new antitrust policy. In June 2003, the Government concluded that Wingfield had not fulfilled his obli- gations under the Agreement because he never informed the Government that his unlawful communications with Stolt-Niel- sen's competitors did not cease in March 2002 when Stolt-Nielsen issued its new antitrust policy. On June 24, 2003, the Government charged Wingfield by criminal complaint with violating the Sherman Act, 15 U.S.C. § I. The Government withdrew its grant of conditional leniency to Stolt- Nielsen on March 2, 2004, and announced that it intended to indict the Company and Wingfield for violations of the Sherman Act.I I. Although the Government "charged" Wing- field by criminal complaint in June 2003. it could not prosecute him without an indict- ment. See 1 Charles Alan Wright, Fed. Prac- tice & Procedure § 121, at 518 (3d ed. 1999) (-Although a criminal proceeding may 181 D. District Court Proceedings Shortly before the Government revoked Stolt-Nielsen's conditional leniency, the Company and Wingfield filed complaints in the United States District Court for the Eastern District of Pennsylvania seeking enforcement of the Agreement and an in- junction preventing the Government from filing indictments against them. The Gov- ernment agreed to postpone its indict- ments of both parties pending the District Court's consideration of the complaints. The District Court bifurcated the pro- ceedings into two phases. In Phase One, the Court considered whether Stolt-Nielsen's alleged conduct between March and November 2002 violated the terms of the Agreement. If so, Phase Two would determine whether the con- duct actually occurred. During the Phase One proceedings, the District Court consolidated consideration of Stolt— Nielsen's and Wingfield's requests for preliminary injunctions with the trial on the merits, and heard testimony from Nannes and James Griffin, a Deputy As- sistant Attorney General in the Antitrust Division at the Department of Justice. In January 2005, the District Court granted judgment in favor of Stolt-Nielsen and Wingfield and permanently enjoined the Government from indicting either of them for violations of the Sherman Act. See Stoit-Nielsen S.A. v. United States, 352 F.Supp.2d 553 (E.D.Pa.2005). The Court concluded that the Government could not unilaterally rescind the Agree- ment without a judicial determination that Stott-Nielsen and Wingfield breached it, be instituted by a complaint, this only per- mits issuance of a warrant for the arrest of the offender, and he cannot be tried unless an indictment or information. as the case may require, is brought against him."). EFTA00191801

182 442 FEDERAL REPORTER, 3d SERIES an issue appropriate for consideration be- fore indictment "because if an indictment were later determined to have been wrongfully secured, it would be too late to prevent the irreparable consequences." a at 560. The Court further found that the Agreement did not specify a discovery date and instead granted amnesty for ac- tivity before January 15, 2003, the date on which it was signed. Indeed, it found that "the date when (Stott-Nielsen] ended its participation (in the conspiracy] was never clearly established," id at 662 n. 10, and therefore, in light of the Agreement's inte- gration clause, "DOJ, especially because it drafted the agreement, cannot depend upon a tacit understanding of what it con- tends was meant Ito be the discovery date] but was not memorialized in the integrated agreement." Id at 562. The Court con- cluded: The agreement immunizes [Stolt- Nielsen] from prosecution for activity prior to January 15, 2003. Now DOJ contends the activity had to have stopped at an earlier unspecified date that is not set forth in the agreement. Had it wanted to fix the date sometime before January 15, 2003, it could have replaced the words "to the date of this letter" with the earlier date it now con- tends the parties contemplated. ... [The Government's] goals (in con- cluding the Agreement with Stott-Niel- sen] were to pursue [Stolz-Nielsen's] co- conspirators and break up the conspira- cy. It got what it had bargained for in the agreement.. .. Now that it has received the benefit of the bargain, DOJ cannot prosecute the party that incrimi- 2. The District Coun had jurisdiction over this case under 28 U.S.C. § 1331. as it is a civil action arising under the laws of the United States. Our jurisdiction arises under 28 nated itself when it delivered the evi- dence DOJ used to accomplish its goals. Id E. Appeal On appeal, the Government contends that the District Court erred in two re- spects. First, it argues that federal courts lack jurisdiction to enjoin the executive branch from filing an indictment. Second, it asserts that the District Court erred in holding that Stolt-Nielsen's and Wing- field's actions between March and Novem- ber 2002 did not violate the terms of the Agreement. For the reasons that follow, the District Court's judgment is reversed and the case remanded to that Court so that it may dismiss the appellees' com- plaints.2 (1, 2] We review a District Court's grant or denial of a permanent injunction for abuse of discretion, United States v. Belt, 414 F.Sd 474, 478 (3d Cir2005), but exercise plenary review over the District Court's underlying legal conclusions. Freethought Soe'y of Greater Phila. v. Chester County, 334 F.3d 247, 955...36 (3d Cir.2003). A District Court's determina- tion whether a cooperation agreement has been breached is a legal conclusion. Unit- ed States v. Baird, 218 F2d 221, 229 (3d Cir.2000). MI findings of fact are re- viewed for clear error. See Bell, 414 F.Sd at 478 (reviewing findings of fact related to a permanent injunction for clear error); Baird, 218 F.3d at 229 (reviewing findings of fact related to a cooperation agreement for clear error). U.S.C. § 1291. since the Government filed a timely notice of appeal from a final decision of the District Coun. EFTA00191802

STOLT-N1ELSEN, S.A. I US. 183 Cliess412 1,3d 171 (3rdC1r. 2006) 111. (31 The Supreme Court has observed that the executive branch "has exclusive authority and absolute discretion to decide whether to prosecute a case," United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed2d 1039 (1974), and the Gov- ernment therefore argues that courts lack jurisdiction to enjoin a criminal prosecu- tion. See United States v. Cox, 342 F2d 167, 171 (5th Cir.1965) (en bane) ("It fol- lows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions."). There is an exception to this general rule, however, in order to avoid a chilling effect on constitutional rights. See Dom- browski v. Pfister, 380 U.S. 479, 486-87, 85 S.Ct. 1116, 14 L.Ed2d 22 (1965) (recogniz- ing that the threat of criminal prosecution creates the potential for a serious chill upon First Amendment rights); Hynes a Grimes Packing Co., 887 U.S. 86, 98-99, 69 S.Q. 968, 93 L.Ed. 1231 (1949) (recogniz- ing that the threat of prosecution may deny fishermen the right to earn a liveli- hood); Truax v. Raich, 289 U.S. 88, 88-89, 86 S.Ct. 7, 60 L.Ed. 131 (1915) (recognizing that the threat of prosecution may lead to an unconstitutional denial of the right to earn a livelihood and to continue employ- ment). The Supreme Court has typically applied the exception in the First Amend- ment context, and in such cases has recog- nized, [al criminal prosecution under a stat- ute regulating expression usually in- volves imponderables and contingencies that themselves may inhibit the full ex- ercise of First Amendment free- doms. ... The assumption that defense of a criminal prosecution will generally assure ample vindication of constitution- al rights is unfounded in such cases.... (\Vie have not thought that the improba- bility of successful prosecution makes the case different. The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure. Dombrowski, 380 U.S. at 486-87, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); see also Ash- croft a ACLU, 642 U.S. 656, 670-71, 124 S.Ct. 2788, 159 L.Ed2d 690 (2004) (uphold- ing preliminary injunction against criminal enforcement of the Child Online Protection Act because, inter alio, "[w]here a prose- cution is a likely possibility, yet only an affirmative defense is available, speakers may self-censor rather than risk the perils of trial"). [41 It is also well established that the Government must adhere strictly to the terms of agreements made with defen- dants—including plea, cooperation, and im- munity agreements—to the extent the agreements require defendants to sacrifice constitutional rights. See, e.g., Santobello v. New York 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Hodge, 412 F.3d 479, 485 (3d Cir.2005) ("The government must adhere strictly to the terms of the bargains it strikes with defendants. Because defendants entering pleas forfeit a number of constitutional rights, courts are compelled to scrutinize closely the promise made by the govern- ment in order to determine whether it has been performed." (citation and internal quotation marks omitted)). Therefore, although the Government is certainly correct that there is no free- ranging jurisdiction on the part of courts to enjoin criminal prosecutions, that au- thority does exist in limited situations where the mere threat of prosecution would inhibit the exercise of constitutional freedoms. Federal courts also have juris- diction to consider, and hold the Govern- ment to, the terms of agreements it makes with defendants. The question thus be- comes whether, even when there is no risk of a chilling effect on constitutional rights, the existence of an immunity agreement provides federal courts with authority to EFTA00191803

184 442 FEDERAL REPORTER, 3d SERIES enjoin a federal criminal prosecution in order to avoid the filing of an indictment. The District Court relied on a Seventh Circuit case, United States v. Meyer, 167 F.3d 1067 (7th Cir.1998), as authority for conducting a pre-indictment review of the Agreement before us. See Stolt-Nielsen, 852 F.Supp2d at 560-61. In Meyer, the Seventh Circuit stated, in dicta, that "the preferred procedure, absent exigent cir- cumstances, would be for the government to seek relief from its obligations under the immunity agreement prior to indict- ment. Since the government is required to obtain a judicial determination of a de- fendant's breach prior to trial, it is but a de minimis inconvenience for the govern- ment to secure that determination pre- indictment" 157 F.3d at 1077. We have no quarrel with the Seventh Circuit's observation that, in many circum- stances, a pre-indictment determination of the parties' obligations under an immunity agreement might be useful. We point out, however, that no federal court (including the Seventh Circuit) has held that a pre- indictment determination is constitutional- ly required. Indeed, notwithstanding its dicta regarding the "preferred procedure," the Meyer Court held the defendant was constitutionally "entitled to a judicial de- termination of his breach before being de- prived of his interest in the enforcement of an immunity agreement," and that this "interest" was in not being convicted, rath- er than not being indicted Id. at 1076- 77.' As the Court noted, "a post-indict- ment evidentiary hearing on the defen- dant's alleged breach was sufficient to sat- isfy due process." Id at 1076 (citing United States v. Verrusio, 803 F2d 885, 889 (7th Cir.19136)). (51 Other immunity agreements that have promised not to charge or otherwise 3. In keeping with the case law discussed be: low, the Seventh Circuit reached this conclu- sion despite the (act that the immunity agree- ment before it stated that the Government would not "charge" the defendant. Meyer, 157 F.3d at 1077. 4. We do not address in this opinion those circumstances in which equity might serve to criminally prosecute a defendant, like the agreement at issue in this case, have like- wise been construed to protect the defen- dant against conviction rather than indict- ment and trial. See, e.g., Heike v. United States, 217 U.S. 423, 431, 30 S.Ct. 539, 64 L.Ed. 821 (1910) (construing the Sherman Act's immunity provision, which protected a testifying witness from being "prosecut- ed," see Act of Feb. 25, 1903, ch. 755, § 1, 32 Stat. 854, 904 (repealed 1970), "not ... to secure to a person making such a plea immunity from prosecution, but to provide him with a shield against successful prose- cution, available to him as a defense"); United States v. Bailey, 34 F.3d 683, 690- 91 (8th Cir.1994) (holding that an agree- ment "not to prosecute" protected the de- fendant from "the inherent risk of convic- tion and punishment as a result of the trial, not the trial itself'); United States v. Bird, 709 F2d 388, 392 (5th Cir.1983) ("While the agreement is phrased in terms of nonprosecution, its essence is a promise of immunity. [The defendant's] immunity from punishment will not be lost simply because she is forced to stand trial."). This distinction is grounded in the un- derstanding that simply being indicted and forced to stand trial is not generally an injury for constitutional purposes but is rather "one of the painful obligations of citizenship." Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 84 L.Ed. 783 (1940); see Deaver v. Seymour, 822 F2d 66, 69 (D.C.Cir.1987) ("Although it is surely true that an innocent person may suffer great harm to his reputation and property by being erroneously accused of a crime, all citizens must submit to a crimi- nal prosecution brought in good faith so that larger societal interests may be pre- served.").' As the District of Columbia enjoin an ultra vires prosecution brought in bad faith. The Supreme Court has only ap- proved federal injunctions against state crimi- nal proceedings on that basis. See Younger v. Harris. 401 U.S. 37, 55, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (noting that, although "the possible unconstitutionality of a statute 'on its face' does not in itself justify an injunc- EFTA00191804

STOLT-NIELSEN, SA. U.S. 185 Clicas442 Pad 177 Pratte. Circuit noted in Denver, in the absence of a chilling effect on constitutional rights, the adversary system "afford(s) defen- dants, after indictment, a federal forum in which to assert their defenses—including those based on the Constitution. Because these defendants are already guaranteed access to a federal court, it is not surpris- ing that subjects of federal investigation have never gained injunctive relief against federal prosecutors." 822 F2d at 69-70.6 Although this interpretation of agree- ments "not to prosecute" may seem coun- terintuitive, it comports with the federal courts' general reluctance to recognize a right not to be indicted or tried in the absence of an express constitutional (or perhaps statutory) command. In the con- text of interlocutory appeals challenging tion against (a state's) good-faith attempts to enforce it." a "showing of bad faith (or) harassment" might "justify federal interven- tion"); see also Howard W. Brill, Equity and the Criminal Law, 2000 Ark. L. Notes I, 3-4 (noting that state courts have sometimes used injunctions to prevent bad-faith prosecutions. such as those brought solely to "harass and to retaliate for the exercise of constitutional rights,- or where the prosecutor charges con- duct that is not illegal). As our precedent makes clear, however, in the absence of a state prosecution. federal-state abstention doctrine is irrelevant and Younger does not apply. Pic-A-Siate Pa., Inc.' Reno, 76 F.3d 1294. 1300 (3d Cir.1996). Moreover, even if the principles of Younger or the willingness of certain state courts to entertain injunctions against bad-faith or illegal prosecutions could be applied to a federal prosecution, we per- ceive no bad faith on the part of the Govern. mcnt in this case; rather, the parties are engaged merely in a good-faith dispute over the meaning of the Agreement. 3. We note that the District Court's finding that Stolt-Nielsen and Wingfield would be irreparably harmed by an indictment does not bring this case within the ambit of the cases in which injunctions against indictment and trial have been approved. Even assuming that irreparable harm is a factor that may the Government% authority to proceed with a prosecution, for example, the Su- preme Court has allowed those appeals only in very limited circumstances. For example, the Double if pardy Clause, see U.S. Cont. amend. ("Igor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ...."), protects interests that are "wholly unrelated to the propriety of any subse- quent conviction," in that it provides a "guarantee against being twice put to trial for the same offense." Abney v. United Stales, 431 U.S. 651, 661, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (emphasis added). Be- cause the prohibition against double jeop- ardy affords a defendant the right to "contest( ) the very authority of the Gov- ernment to hale him into court to face properly be considered in deciding upon a permanent (as opposed to preliminary) in- junction—which is a matter of some tension In our case law, compare Chao v. Rothemret 327 F.3d 223. 228 (3d Cir.2003) (stating that a permanent injunction may be granted "where the moving party has demonstrated that: (I) the exercise of jurisdiction is appro- priate; (2) the moving party has actually suc- ceeded on the merits of its claim; and (3) the 'balance of equities' (avon ranting injunctive relief"), and ACLU of NJ. Black Horse Pike Reg? Bd. of Edw., 84 F.3d 1471. 1477 nn. 2-3 (3d Cir.19%) (en banc (noting that a prelimi- nary injunction requires consideration of. in- ter alia, irreparable injury, while a pennannu injunction merely requires consideration of whether "the plaintiff has actually succeeded on the merits." and, if so. whether an injunc- tion is an "appropriate remedy" (intern' quotation marks omitted)), with Shields ZUCCOlilli, 254 F.3d 476, 482 (3d Cir.2001) (stating that a court may grant a permanent injunction if it finds, inter alia, that "the mov- ing party will be irreparably injured by the denial of injunctive relief' (citing Black Horse Pike. 84 F.3d at 1477 nn. 2-3))—we note that, as stated above, other courts have not accept- S the argument that the unpleasantness of an indictment brought in good faith constitutes an injury that may be remedied by a pre- indictment injunction, and neither have we. EFTA00191805

186 442 FEDERAL REPORTER, 3d SERIES trial on the charge against him," it neces- sitates an exception to the "firm congres- sional policy against interlocutory or 'piecemeal' appeals." Id at 656, 659, 97 S.Q. 2034. Likewise, the Speech and De- bate Clause, see U.S. Const. art. I, 6, el. 1 ("[F]or any speech or debate in either House, [members of Congress) shall not be questioned in any other Place."), has been construed "to protect Congressmen not only from the consequences of litiga- tion's results but also from the burden of defending themselves," thus allowing in- terlocutory appeals from denials of claims of immunity under that Clause. Helstoski v. Meanor, 442 U.S. 500, 508, 99 S.Ct. 2445, 61 L.Ed2d 80 (1979) (internal quota- tion marks omitted). Our case is not an interlocutory appeal, but the Supreme Court's cases in that field are instructive because they reinforce the narrowness of a defendant's ability to chal- lenge the Government's decision to pursue a prosecution. Just as the authority to enjoin criminal enforcement of a law regu- lating speech is grounded in the overriding need to avoid a chilling effect on the exer- cise of core constitutional rights, so too does the right not to be prosecuted recog- nized in Abney and Helstoski stem from express textual commands in the Constitu- tion that prohibit any interference with the rights against double jeopardy or of mem- bers of Congress to speak freely in legisla- tive session. In other contexts, however, courts have refused to allow interlocutory appeals to stop prosecutions. See, e.g., United States v. Hollywood Motor Car Co., 458 U.S. 263, 268, 102 S.Ct 8081, 73 L.Ed2d 754 (1982) (per curiam) (holding that a vindictive prosecution claim may not be raised in an interlocutory appeal to stop an ongoing prosecution, but rather may only be raised after the defendant has been convicted, because "reversal of the conviction and ... the provision of a new trial free of prejudi- cial error normally are adequate means of vindicating the constitutional rights of the accused"); Parr v. United States, 351 U.S. 513, 519, 76 S.Ct. 912, 100 L.Ed. 1377 (1956) (holding that the mere fact a defen- dant would have to "hazard a trial" in one venue before challenging the District Court's order transferring his case from a different venue did not warrant an inter- locutory appeal); ef United States v. P.H.E., Inc., 965 F.2d 848, 855 (10th Cir. 1992) (noting that, in comparing the vindic- tive prosecution claim in Hollywood Motor Car to a vindictive prosecution claim based on the defendants' dissemination of consti- tutionally protected speech, "[t]he wrong alleged is similar, but the right sought to be vindicated is not" because the "proce- dural rule [at issue in Hollywood Motor Carl raises concerns distinct from and less pressing than the courts' obligation to pro- tect the First Amendment right not to be subjected to a pretextual prosecution"). Indeed, when a district court rejects prior to trial a defendant's contention that an immunity agreement bars his conviction, the defendant may not avail himself of an interlocutory appeal challenging that deci- sion; rather, "the availability of dismissal after final judgment will adequately pro- tect and secure for the defendant the ben- efit of his bargain under the nonprosecu- tion agreement if he is entitled to it." Bailey, 34 F.3d at 691; see Bird, 709 F.2d at 392 (same). Here, Stolt-Nielsen and Wingfield may interpose the Agreement (as a defense to conviction) in a pre-trial motion. See, e.g., Meyer, 157 F.3d at 1077 ("In accordance with due process, [the defendant] was enti- tled to a judicial determination that he had breached the agreement before being sub- jected to the risk of conviction. The dis- trict court's pretrial [but post-indictment] evidentiary hearing satisfied this require- EFTA00191806

STOLT-NIELSEN, SA. U.S. Otems442 Fid 177 (3rdar. 1 ment."),I But their contention that the immunity they purportedly received under the Agreement precludes an indictment in the first place is belied by precedent, and we see no compelling reason to reach a different result in this case. • * • • • • [61 "[Al suit in equity does not lie where there is a plain, adequate and com- plete remedy at law ... !that is) as com- plete, practical and efficient as that which equity could afford." Terrace v. Thomp- son, 263 U.S. 197, 214, 44 S.Ct. 15, 68 L.Ed. 255 (1923). Here, Stolt-Nielsen and Wingfield have a practical and efficient— and indeed complete—legal remedy avail- able to them, i.e., access to a federal forum post-indictment in which they may assert the Agreement as a defense. Separation- of-power concerns thus counsel against us- ing the extraordinary remedy of enjoining the Government from filing the indict- ments. Although courts have carved out a narrow exception to this rule in those 6. In our view, the pretrial determination ap- proved by the Seventh Circuit in Meyer does not conflict with the observations of the Fifth and Eighth Circuits that non-prosecution agreements of the sort involved in this case protect against the risk of conviction and pun- ishment. not trial. See Bailey. 34 F.3d at 691; Bird, 709 F.2d at 392. For one thing, Bailey and Bird concerned attempted interlocutory appeals from district court denials of post• indictment claims that immunity agreements barred conviction, and as such were not con• cerned with the timing of the claims in the district court. In any event, it is not in the interest of defendants or the Government. once an indictment has been issued, to pro- ceed with a trial before determining whether an immunity agreement bars conviction. We therefore agree with the Seventh Circuit that a pretrial hearing is appropriate in these circumstances. We note, however, that this timing is not essential. and a defendant may raise an immunity agreement as a defense during the trial. 7. Because we conclude that the District Court lacked the power to enjoin the filing of indict- 187 cases in which the very act of filing an indictment may chill constitutional rights, this case does not implicate that concern. Instead, we are guided by other cases from the Supreme Court and Courts of Appeals that lead us to conclude that non- prosecution agreements may not form the basis for enjoining indictments before they issue. In this context, we conclude that the District Court lacked authority to employ the extraordinary remedy of enjoining the Government's indictments of Stole—Nielsen and Wingfield. The judgment is therefore reversed and the case remanded with the instruction that the District Court dismiss their complaints with prejudice? ments in this case, we do not consider, at this stage, the Government's alternative argument that the District Court inappropriately con- cluded that Stolt-Nielsen's and Wingfield's actions between March and November 2002 did not violate the terms of the Agreement. As stated, the District Courts lack of authori- ty compels us to reverse the judgment and remand to that Court so that it may dismiss the complaints. Because the judgment is t re- versed. it lacks preclui e effect. See, e.g., Joseph A. ex ref. Wolfe Ingram, 275 F.3d 1253, 1266 (10th Cir.200 ("A judgment that has been vacated, reversed• or set aside on appeal is thereby deprived of all conclusive effect. both as res judicata and as collateral estoppel.- (internal quotation marks omit- ted)). Therefore, if the appellees assert the Agreement as a defense after they arc indict- ed, the District Court must consider the Agreement anew and determine the date on which Stolt-Nielsen discovered its anticom- petitive conduct. the Company's and Wing. field's subsequent actions, and whether, in light of those actions. Stolt-Nielsen complied with its obligation under the Agreement to take "prompt and effective action to termi. EFTA00191807

188 442 FEDERAL REPORTER, 3d SERIES Earle B. GREGORY; Ken Blinko; Bet- ty C. Coley; Vicki Grainger; Ethel E. Graves; Becky Haitian; John S. Hal- sall, Ill; Jerry F. McDaniel; Veronica T. McDaniel; Laverne McKenzie; Marianne McKenzie; Nathan J. Neely; Zevie ti. Neely; Sulina Prather, Ka- thryn Roddey; Gina Tibbs; John A. Tibbs; John C. Tibbs; Brenda D. Watts; Gerald D. Watts; C. Ann Williams; Henry M. Williams, Wesley L. Williams, Jr.; Grant ; Tom Moore; Anna Nunnery; Charles Shope; Penelope Shope; Kathy An- nette Wood; Sam Jones Wood; Ruth Ann M, Plaintiffs-Appellees, FINOVA CAPITAL CORPORATION, Defendant-Appellant. No. 05-2118. United States Court of Appeals, Fourth Circuit. Argued Feb. 2, 2006. Decided March 14, 2006. Background: Noteholders filed class ac- tion securities fraud suit against now- bankrupt issuer's principal lender. The United States District Court for the Dis- trict of South Carolina, G. Ross Anderson, Jr., J., certified class, and lender appealed. Holding: The Court of Appeals, Luttig, Circuit Judge, held that class action was not superior method for fair and efficient adjudication of controversy. Reversed. King, Circuit Judge, concurred in part, dissented in part, and filed opinion. nate its part in the anticompetitive activity being reported upon discovery of the activi- 1. Federal Courts @'817 District court's class certification deci- sion is reviewed for abuse of discretion. Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A. 2. Federal Civil Procedure 4=172 Party seeking class certification bears burden of proving entitlement to same. Fed.Rules Civ.Proc.Rule 23, 28 U.S.C.A. 3. Federal Civil Procedure e=187 Class certification of noteholders secu- rities fraud claims against now-bankrupt issuer's principal lender was abuse of dis- cretion, absent showing that class action was superior method for fair and efficient adjudication of controversy; same claims were already pending against lender in bankruptcy adversary proceeding. Fed. Rules Civ.Proc.Rule 23(bX3), 28 U.S.C.A. ARGUED: Daniel P. Shapiro, Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Ltd, Chicago, Illinois, for Appellant. Gil- bert Scott Bagnell, Bagnell & Eason, L.L.C., Columbia, South Carolina, for Ap- pellees. ON BRIEF: Elizabeth Van Dor- en Gray, Allen J. Barnes, Sowell, Gray, Stepp & Laffitte, P.L.L.C., Columbia, South Carolina; Steven A. Levy, Andrew R. Cardonick, Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Ltd, Chicago, Illi- nois, for Appellant. Chad McGowan, S. Randall Hood, McGowan, Hood, Felder & Johnson, Rock Hill, South Carolina; Randall M. Eason, Bagnell & Eason, L.L.C., Lancaster, South Carolina, for Ap- pellees. Before WIDENER, LUTTIG, and KING, Circuit Judges. EFTA00191808

Page 1 of 2 westlaw Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2007 WL 1113646 (M.D.Pa.) (Cite as: 2007 WL 1113646 (M.D.Pa.)) Only the Westlaw citation is currently available. United States District Court, M.D. Pennsylvania. Michael Curtis REYNOLDS, Petitioner John GURGANUS, Prosecutor, Respondent. Civil No. 4:CV-07-675. April 12, 2007. Michael Curtis Reynolds, Scranton, PA, pro se. Dennis Pfannenschmidt, U.S. Attorneys Office, Harrisburg, PA, for Respondent. MEMORANDUM JAMES F. McCLURE, JR., United States District Judge. Background *1 Michael Curtis Reynolds ("Petitioner"), an inmate presently confined in the Lackawanna County Prison, Scranton, Pennsylvania initiated this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Reynolds' petition is accompanied by an in forma pauperis application. For the reasons set forth below, Reynolds' petition will be dismissed as meritless. Named as sole Respondent is Assistant United States Attorney John Gurganus of the Middle District of Pennsylvania. This is the latest in a series of civil rights complaints and habeas corpus petitions filed by Reynolds which challenge the legality of his ongoing federal criaiinal prosecution in this district. See United States I Reynolds, Case No. 3:05-CR-493. AUSA Gurganus is the prosecuting attorney. In his petition, Reynolds reasserts his previous claims that there has been a violation of his speedy Dial rights and perjured Page I testimony was presented before the grand jury. As relief, Reynolds seeks reversal of his federal criminal charges and release. Discussion Rule 4 ("Preliminary Consideration by the Judge") of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foil. § 2254 (1977) (applicable to § 2241 petitions under Rule 1(b)) permits summary dismissal of i§ 2241 habeas corpus petition.. See, e.g., Patton Fenton, 491 F.Supp. 156, 158-59 (M.D.Pa.1979). A judge may enter summary dismissal "pjf it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Dismissal under Rule 4 is appropriate "when the petition is frivolous, or obviously lacking in merit, or where ... the r necessary facts be determined from the petition itself...." Allen Perini, 26 Ohio Misc. 149, 424 F.2d 134, 141 ( th Cir.), cert. denied, 400 U.S. 906, 1 1 S.Ct. 147, 27 L.Ed.2d 143 (1970). Accord Love Butler, 952 F.2d 10, 15 (1 st Cir.1991). As repeatedly noted by this Court, Reynolds has not yet been convicted or even tried of the federal criminal offenses underlying this action. [FN1] The Court of appeals for the Third circuit has observed that, "simply being indicted and forced to stand trial is not generally an injury for constitutional purposes but is rather one of the paint obligations of citizenship." Stolt-Nielsen, S .A. United States, 442 F.3d 177, 184 (3d Cir.200 (internal citation omitted). More importantly, in Stott-Nielsen, the Court of Appeals indicated that a habeas corpus petition should not be entertained where the applicant has an available forum in which to assert his defenses toi fecleral criminal charges. See id. at 185; Deaver Seymour, 822 F.2d 66, 69-70 (D.C.Cir.1987). Clearly, the Petitioner has an available and adequate remedy at law. Specifically, he may assert his present claims as well as any O 2007 Thomson/West. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?sr=Full&prft=HTMLE&mt=FederalGo... 12/27/2007 EFTA00191809

Page 2 of 2 Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2007 WL 1113646 (M.D.Pa.) (Cite as: 2007 WI, 1113646 (M.D.Pa.)) additional defenses/arguments before the judge presiding over his ongoing federal criminal proceedings. FN I. Petitioner's federal criminal trial is presently scheduled for May 29, 2007. *2 Furthermore, even if convicted of the pending federal criminal charges, the appropriate avenue for Reynolds to pursue his present arguments would be via a direct appeal, and if not successful therein, to then seek collateral relief under 28 U.S.C. § 2255. As Petitioner has been previously told, it is simply not appropriate for this Court to entertain his claims of speedy trial violation and perjured grand jury testimony via a pre-trial federal habeas corpus petition. If Reynolds wishes to pursue his present arguments, he must do so in his ongoing federal prosecution, or thereafter before the Court of Appeals. The petition for writ of habeas corpus will be denied. An appropriate Judgment will enter. ORDER In accordance with the accompanying Memorandum, IT IS HEREBY ORDERED THAT: 1. Petitioner is granted leave to proceed in forma pauperis for the sole purpose of the filing of this action. 2. Reynolds' habeas corpus petition is DENIED. 3. The Clerk of Court is directed to close the case. 4. Based on the Court's determination herein, there is no basis for the issuance of a Certificate of Appealability. Not Reported in F.Supp.2d, 2007 WL 1113646 (M.D.Pa.) END OF DOCUMENT ID 2007 Thomson/West. No Claim to Orig. US Gov. Works. Page 2 https://web2.westlaw.com/print/printstreantaspx?svr-Full&prft—HTMLE8ant=FederalGo... 12/27/2007 EFTA00191810

Page 1 of 2 Westlaw. 173 Fed.Appx. 840 Page I 173 Fed.Appx. 840, 2006 WL 592928 (C.A.D.C.) (Cite as: 173 Fed.Appx. 840) H Miranda I. Gonzales C.A.D.C.,2006. This case was not selected for publication in the Federal Reporter.Please use FIND to look at the applicable circuit court rule before citing this opinion. District of Columbia Circuit Rule 28(c). (FIND CTADC Rule 28.) United States Court of Appeals,District of Columbia Circuit. Manuel A. MIRANDA, Appellant v. Alberto GONZALES, et al. Appellees. No. 05-5066. Feb. 16, 2006. Rehearing En Banc Denied May II, 2006. Background: Plaintiff filed complaint for injunctive and declaratory relief, seeking prevention of any criminal investigation related to past conduct as Senate aide and to immunize him from future prosecution. United States District Court for District of Columbia dismissed complaint, and plaintiff appealed. Holdings: The Court of Appeals held that: (1) plaintiff was not entitled to injunctive relief, and (2) denial of request for declaratory judgment was not abuse of discretion. Affirmed. West Headnote III Injunction II f)105(1) Injunction 21211 Subjects of Protection and Relief 2121I(H) Matters Relating to Criminal Acts 212k105 Criminal Prosecutions 212k105(1) k. In General. Most Cited Cases Plaintiff was not entitled to injunctive relief to prevent criminal investigation related to past conduct as Senate aide and to immunize him from future prosecution; if indicted, plaintiff could protect his rights under First Amendment and raise defense under Speech and Debate Clause of federal criminal procedure rules. U.S.C.A. Const.Amend. I Fed.Rules Cr.Proc.Rule 12(b), 18 U.S.C.A. 121 Declaratory Judgment 118A C=84 118A Declaratory Judgment I ISAR Subjects of Declaratory Relief 118A11(A) Rights in General 118Ak84 k. Criminal Laws. Most Cited Cases Denial of request for declaratory relief with respect to complaint to prevent criminal investigation into plaintiffs past conduct as Senate aide and to immunize plaintiff from future prosecution was not abuse of discretion, absent showing of special circumstances, and given considerations of practicality and judicial administration. 28 U.S.C.A. § 2201(a); Fed.Rules Civ.Proc.Rule 57, 28 U.S.C.A. *841 Appeal from the United States District Court for the District of Columbia. Arthur Duncan McKey, Hanson & Molloy, Adam Augustine Caner, Law Office of Adam A. Carter, Washington, DC, for Appellant. Neil Matthew Corwin, U.S. Attorney's Office, New York, NY, for Appellees. Before: and ROGERS, Circuit Judges, SIIIMnior Circuit Judge. JUDGMENT PER CURIAM. "1 This case was considered on the record from O 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Ful... 12/27/2007 EFTA00191811

Page 2 of 2 173 Fed.Appx. 840 173 Fed.Appx. 840, 2006 WL 592928 (C.A.D.C.) (Cite as: 173 Fed.Appx. 840) the United States District Court for the District of Columbia and on the briefs by counsel. For the reasons set forth below it is ORDERED that the judgment from which this appeal has been taken be affirmed. Miranda appeals the district court's dismissal of his complaint to enjoin any criminal investigation related to his past conduct as a Senate aide and to immunize him from future prosecution. It is well-settled, however, that a court will not act to restrain a criminal prosecution if the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief. See Deaver I Seymoj, 822 F.2d 66, 69 (D.C.Cir.1987) (citing Younger Harris, 401 U.S. 37, 91 S.O. 746, 27 L.Ed.2 669 (1971)). The district court correctly held that, if indicted, Miranda can protect his rights under the First Amendment and Speech or Debate Clause pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure. F.R.Crim. P. 12(b) (2005) (upon indictment, defendant may raise by motion defense based on "defects in the institution of the prosecution"). See also Deaver, 822 F.2d at 70 ("existence of Rule 12(b)( (3) ] suggests that appellant's constitutional challenge is not to be raised in a preindictment civil injunctive action"). [1] Miranda argues that without injunctive relief his First Amendment right will be "chilled" and that the chilling constitutes a special circumstance that *84 him to injunctive 2 entitles relief under Dombrowski Pfister. 380 U.S. 479, 85 S.O. 1116, 14 L.E . ! 2d 22 (1965). As the district court pointed out, however, injunctive relief is not appropriate unless the party seeking it can demonstrate that his "First Amendment interests [are] either threatened or in fact being impaired at the time relief us] sought." Joint Appendix 66 (quoting Wagner us Taylor, 836 F.2d 566, 576 n. 76 (D.C.Cir.1987)) (alteration in original). But Miranda himself alleges only that any infringement of his First Amendment right occurred while he was employed by the Senate. See Compl. 11 26-27, Joint Appendix 12-13 (alleging Senate Sergeant at Arms and Doorkeeper's investi tion chilled his speech rights). Compare Steffel I Thompson, 415 U.S. 452, 461, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974). Page 2 [2] Miranda's argument that he is entitled to declaratory relief under the Declaratory Judgment Act, 28 U.S.C. § 2201, is likewise unavailing. While it is true, as Miranda states, that an adequate remedy at law does not preclude declaratory relief if such relief is otherwise appropriate, see Fed.R.Civ.P. 57, the decision whether to grant that relief is squarely within the district cou discretion. See28 U.S.C. § 2201(a); Wilton Seven Falls Co., 515 U.S. 277, 287-89, 1:5 S. 2137, 132 L.Ed.2d 214 (1995); Hewitt Helms. 482 U.S. 755, 762, 107 S.O. 2672, 96 L. .2d 654 (1987). The district court failed to separately set out its basis for denying declaratory relief; instead it relied on general principles addressed to the inappropriateness of granting equitable relief here. This is not reversible error. See. e.g.. Deaver, 822 F.2d at 71 (complaint sought both injunctive and declaratory relief; in dismissing complaint court did not explicitly state grounds for denying declaratory relief as it did for denying injunctive relief but stated "[p]rospective defendants cannot, by bringing ancillary equitable proceedings, circumvent federal criminal procedure"). The district court did not abuse its discretion in denying declaratory relief in the absence of special circumstances and given its "considerations of practicality and wise judicial administration." See Wilton, 515 U.S. at 288, 115 S.Ct. 2137. **2 Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en bane. See Fed. R.App. P. 41(b); D.C.Cir. R. 41. C.A.D.C..2006. Miranda I. Gonzales 173 Fed.Appx. 840, 2006 WL 592928 (C.A.D.C.) END OF DOCUMENT C 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. https://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&destination=atp&sv=Ful... 12/27/2007 EFTA00191812

IN RE SEIZURE OF ALL FUNDS 577 Clterst4 F35 S77 (2550r. 1995) dismiss the complaint for lack of subject matter jurisdiction. In re the SEIZURE OF ALL FUNDS IN ACCOUNTS IN the NAMES REGISTRY PUBLISHING, INC., Sterling Who's Who, Inc., Who's Who of Retailers, Inc., William's Who's Who, Inc., Who's Who Executive Club, Bruce Gordon, Who's Who Worldwide Registry, Inc., Publish- ing Ventures, Inc., including but not limited to Marine Midland Bank Ac- count Nos. 018-78090-3, 018-78047-4, 018-78044-0, 018-78055-6, 018-78153-6, 018-78173-0, Sterling National Bank & That Company of New York Account Nos. 036-79716-07, 031-13410-01, 031- 43102-01, Republic National Bank for Savings Account No. 2601001775, and All Funds Traceable Thereto. Bruce GORDON, Who's Who Worldwide Registry, Inc., Sterling Who's Who, Inc., Registry Publishing, Inc., William's Who's Who, Inc., Who's Who Executive Club, Publishing Ventures, inc., Who's Who of Retailers, Inc., Petitioners-Ap- pellees, v. UNITED STATES of America, Respondent-Appellant. No. 474, Docket 95-6119. United States Court of Appeals, Second Circuit. Argued Aug. 81, 1996. Decided Oct. 17, 1996. Government appealed from order en- tered in the United States District Court for the Eastern District of New York, Arthur D. Spat J., 887 F.Supp. 436, vacating ex parte seizure warrant authorizing seizure of funds belonging to companies and their founder that were allegedly proceeds of mail and wire fraud scheme involving companies' sales of memberships in various "who's who" regis- tries. The Court of Appeals, Milton Pollack, Senior District Judge, sitting by designation, held that (1) remand was required for con- sideration of new evidence to determine ex- act nature of bargain between companies and members and thus whether salesmen's repre- sentations to members were material, and (2) district court lacked authority to enjoin gov- ernment from mailing additional question- naires to members to obtain further evidence of probable cause. Vacated and remanded. 1. Searches and Seizures 0, 83 In order to seize property under civil forfeiture statute, government must demon- strate that there was probable cause to be- lieve that property is subject to forfeiture. 18 U.S.C.A. 1 981. 2. Searches and Seizures ta•83 Whether probable cause exists must be determined on basis of totality of circum- stances and, in context of civil forfeiture pro- ceedings, such circumstances are not limited to evidence presented to magistrate who is- sued warrant. 18 U.S.C_A. § 981. 3. Forfeitures cla5 Findings supporting district court's de- termination as to probable cause to believe that property is subject to forfeiture are reviewed for clear error, but determination itself is conclusion of law reviewed do novo. 18 U.S.CA. 981. 4. Postal Service e=35(5) Essential element of mail fraud is intent to defraud; in order to establish that defen- dant acted with intent to defraud, govern- ment must show that some actual harm or injury was contemplated by schemer. 18 U.S.CA § 1341. 5. Postal Service cs7035(11-n In order for sales tactics to rise to level of mail fraud, misrepresentations must be material to bargain that customer is induced EFTA00191813

578 68 FEDERAL REPORTER, 3d SERIES to enter into with company. 18 U.S.C.A. 1811. 6. Forfeitures 0 ,5 Determination that probable cause did not exist to believe that companies and their founder had committed mail or wire fraud in connection with sales of memberships in com- panies' "who's who" registries, and thus that companies' funds were not subject to seizure, had to be remanded for reconsideration of nature of bargain between companies and members in light of members' responses to government questionnaires, and thus wheth- er salesmen's representations could be con- sidered material misrepresentations; while district court concluded that bargain between companies and members entailed purchase of membership in registry and companies mak- ing available other services or products, new evidence showed that members had bar- gained to join exclusive registries that would provide opportunities for networking among prominent group of individuals, and thus reg- istries more exclusive in nature than ones whose members were merely culled from mailing lists. 18 U.S.C.A. if 981, 1341, 1343. 7. Constitutional Law ew73 Injunction ta.106(1) In context of government's investigation of alleged mail and wire fraud scheme, and effort to seize funds as proceeds of those schemes, district court lacked authority to enjoin government from mailing additional questionnaires to purported victims of scheme to obtain further evidence of proba- ble cause; as incident to separation of pow- ers, court may not interfere with free exer- cise of discretionary powers of attorneys of United States in their control over criminal prosecutions. Barbara Underwood, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney for the East- em District of New York, Deborah B. Zwany, Arthur P. Hui, Sarah J. Lum, Gary R. Brown, Assistant United States Atter- •7he Honorable Milton Pollack of the United States District Court for the Southern District of New York, sitting by designation. neys, Brooklyn, NY, of counsel) for Respon- dent-Appellant. Vivian Shevita, Mount Kisco, New York (Gerald L Shargel, Jane Simkin Smith, Car- ol E. Gette, New York City, of counsel) for Petitioners—Appellees. Before MINER and CALABRESI, Circuit Judges, and POLLACK, Senior District Judges MILTON POLLACK, Senior District Judge: The government appeals from an order entered in the United States District Court for the Eastern District of New York (Spat, J.) vacating an ex park seizure warrant that authorized the seizure of funds belonging to petitioners-appellees Bruce Gordon and sev- eral companies under Gordon's control, and releasing funds seized pursuant to the war- rant The district court determined that. the government failed to establish probable cause to believe that petitioners had commit- ted mail or wire fraud In violation of 18 U.S.C. §4 1341 and 1343. For the reasons that follow, we vacate the order and remand for Blether findings and reconsideration in light of new evidence. BACKGROUND Petitioner Bruce Gordon founded and owns a controlling interest in the companies in- volved in this case, including: Who's Who Worldwide Registry, Inc., Sterling Who's Who, Inc., Who's Who Executive Club, Who's Who Worldwide Communications, Tribute Magazine, Registry Publishing, Inc., Publish- ing Ventures, Inc., Who's Who of Retailers, and William's Who's Who (collectively, the "Companies"). The oldest of the Companies, Who's Who Worldwide Registry, Inc., was incorporated in 1989.1 Gordon formed the Companies in order to solicit individuals to purchase memberships in the registries published by the Companies. The Companies' salespersons contacted po- t. These companies hare no affiliation with "Who's Who in America," published by Reed Elsevier. Inc., and first published in 1599. EFTA00191814

IN RE SEIZURE acesees F.341 577 tential customers either by telephone or by sending solicitation letters through the mail. The salespersons explained to potential cus- tomers that, upon becoming a member, they would receive a registry containing biograph- ical data and addresses of all members, a personalized plaque, and a camera-ready logo. In addition, customers were told that, as members, they could purchase a CD- ROM version of the registry, a subscription to Tribute, a magazine containing profiles of other members, a credit card, and discounted telephone and travel services. The salesper- sons also stressed that membership was ex- clusive and prestigious, and that membership would provide valuable networking opportu- nities. As a result of their sales efforts, the Companies had acquired more than 60,000 members by the end of 1994. In July of 1991, based on complaints re- garding the Companies' business practices received from the New York State Depart- ment of Law, the New York State Consumer Protection Board and the Better Business Bureau, the United States Postal Inspection Service commenced an investigation into Gordon and the Companies. The investiga- tion culminated in a complaint and affidavit (the "Complaint"), sworn to by Postal Inspec- tor Martin T. Biegelman. In the Complaint, Biegelman alleges that the Companies' bust- ness operations constitute a "telemarketing boiler room" operation using "high pressure telephone sales pitches that misrepresent the identity of the Company and the nature of its products in order to defraud customers into purchasing one of the Company's 'Who's Who' directories and other products." lie- gelman contends that the Companies' sales- persons made fraudulent representations re- garding the nomination and selection process for membership in the registries, the pres- tige of the registries, free placement in the registries, the identity of other members of the registries, the usefulness of the registries as a networking tool, and the intention of the Companies to hold seminars and conferences. Since 1989, according to Biegelman, Gordon and the Companies have defrauded their cus- tomers of more than $22 million dollars. The Complaint concludes with the allegation that the Companies' use of the mail and tele- phones to conduct the solicitations was in OF ALL FUNDS 579 US Cir. 1995) Airtherance of a scheme to defraud, and therefore constitutes a violation of the mail and wire fraud statutes. On March 22, 1995, based on the allega- tions in the Complaint, United States Magis- trate Judge Azrack signed arrest warrants for Gordon and twenty-nine of the Compa- nies' salespersons. The following day, the government obtained an a parte warrant of seizure, pursuant to Fed.FLCrim.P. 41, autho- the seizure of funds deposited in cer- tain of the Companies' bank accounts. Thereafter, on March 30, 1995, the govern- ment seized over $511,000 of the Companies' funds, allegedly the proceeds of the scheme to defraud. As part of its investigation, the government also began contacting and send- ing questionnaires to those who purchased registry memberships. On April 10, 1996, the district court issued a temporary restraining order ("TRO") en- joining the government from sending addi- tional questionnaires to members of the Companies' registries. On April 19 and 20, the district court held a probable cause hear- ing pursuant to United States tz All Assets of Statewide Auto Pads, Inc. 971 F2d 896, 906 (2d Cir.1992) and United States v. Monsanto, 924 F2d 1186, 1203 (2d Cir.1991). On May 30, 1995, the district court vacated the seizure warrant, finding that the govern- ment had failed to establish that there was probable cause to believe that the Companies had committed mail or wire fraud. Relying primarily on United States v. Regent Office Supply Co., 421 F.2d 1174 (2d Cir.1970), the court determined that the representations made by the Companies' salespersons were not part of a scheme to defraud. The court found that some of the representations were not false, such as the Companies statements that their registries were "selective" and "in- valuable tools for networking among mem- bers." Other representations were found by the court to be false or misleading but not material, such as the Companies' statements that they did not acquire new members by solicitation for their directories and that "the majority of new candidates who are nominat- ed are not accepted for inclusion." The dis- trict court concluded that the Companies' EFTA00191815

580 68 FEDERAL REPORTER, 3d SERIES representations did "not constitute a scheme or artifice to defraud, either singly or in the aggregate." In addition to vacating the sei- zure warrant, the district court vacated the TRO against the government. The government then moved for a stay of the release of the seized funds. On June 7, 1995, the district court granted a temporary stay pending application to this court for a further stay. On the same day, the govern- ment filed a Notice of Appeal of the district court's May 30 Order. On June 9, the court released $220,000 of the seized funds. On June 26, 1995, we denied the government's motion for a stay, pending appeal to this court, of the partial release of seized funds granted by the district court. In re AU Funds in Accounts in Neonate Registry Pub. lislting, Inc., 58 F.3d 855 (24 Cir.1996). Since the district court's May 30, 1995 vacatur of the TRO, the government has redesigned its questionnaire in order to gen- erate from the registry members information regarding the materiality of the misrepresen- tations. The government now has mailed over 49,000 questionnaires to the members, and has received approximately 7000 re- sponses. The government has moved in this co or permission to supplement the rec- ord th the responses to these question- naires or, in the alternative, for remand to allow the district court to consider whether its order should be modified in light of these questionnaires. DISCUSSION I. Probable Cause (1) In order to seize property under 18 U.S.C. § 981, the government must demon- strate that there was probable cause to be- lieve that the property is subject to forfei- ture. Marine Midland Bank N.A. v. Unit- ed States 11 P.M 1119, 1124 (2d Clr.1993). In the context of the seizure of bank accounts allegedly forfeitable under f 981, (p)robable cause is established if the gov- ernment can show that it has reasonable grounds, more than mere suspicion, to be- lieve that, the property is subject to forfei- ture. The government must be able to show a nexus between the illegal conduct and the seized property. The government is not required to link a bank account to a particular illegal transaction, but it must have probable cause to connect the account to criminal activity. Id. at 1126 (citations omitted). (2,3) Whether probable cause exists must be determined on the basis of the totali- ty of the circumstances. United States v. Ceballos. 812 F2d a 50 (24 Cir.1987). In the context of civil forfeiture proceedings, these circumstances are not limited to evi- dence presented to the magistrate who is- sued the warrant. United States v. .(492 South Livonia Rd., 289 F.2.:1 1258, 1268 (24 Cir.1989) ("Once a forfeiture proceeding is brought, if further evidence is legally ob- tained to justify (a finding of probable cause), there is no persuasive reason to bar its use."). The findings supporting a district court's determination as to probable cause are reviewed for clear error, but the determi- nation itself is a conclusion of law reviewed de nova United States v. Holder, 990 F.24 1327, 1328 (D.C.Cfr.1993). l41 The mail fraud statute, 18 U.S.C. § 1341, prcnides, in relevant part, that a person is guilty of mail fraud if, having devised or intending to devise any scheme or artifice to defraud, or for ob- taining money or property by means of false or fraudulent pretenses, representa- tions, or promises . .. for the purpose of executing such scheme or artifice or at, tempting so to do, (the person) places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Ser- vice. An essential element of mail fraud, and the element that is in dispute here, Is intent to defraud. See United States v. D'Amata 89 FM 1249, 1256-57 (2(1 Cir.1994). In order to establish that the defendant acted with an intent to defraud, the government "must show that some actual harm or injury was contemplated by the schemer." Id. at 1267 (internal quotations omitted). (5) In United States v. Regent Office Supply Co., 421 F2d 1174 (2d Cir.1970), we stated that an intent to defraud could be EFTA00191816

IN RE SEIZURE OF ALL FUNDS 581 Cheat' IF-Id 171 (Saar. I 1724) found in sales tactics that misrepresent the usefulness of an Item. Id at 1180. We asserted that: cases sustaining convictions for mail fraud have involved sales tactics and representa- tions which have tended to mislead the purchaser, or prospective purchaser, as to the quality or effectiveness of the thing being sold, or to mislead him with regard to the advantages of the bargain which should accrue to him. Thus claims or statements in advertising may go beyond mere puffing and enter the realm of fraud where the product must inherently fail to do what is claimed for it. And promotion of an inherently useful item may also be fraud when the scheme of promotion is based on claims of additional benefits to accrue to the customer, if the benefits as represented are not realistically attainable by the customer. Id (internal quotations omitted). According- ly, in order for sales tactics to rise to the level of mail fraud, misrepresentations must be material to the bargain that the customer is induced to enter into with the company. See id at 1182. In Regent, we held that the particular mis- representations made by the salespersons were not material to the nature of the bar- gain between the companies and the custom- cm. Id In that case, customers bargained for office stationery, and, although misrepre- sentations were made by the stationery com- panies in order to gain the attention of the customers, the customers received the prod- ucts for which they had bargained. Id at 1180. Accordingly, such false claims were not material to the bargain between the cus- tomers and the companies. We affirmed the conviction for mail fraud in United States v. Rota 66 F2d 741 (2d Cir.), cert. denied, 286 U.S. 654, 62 S.Ct. 679, 76 L.Ed. 1289 (1932), involving a scheme to sell worthless land. Although the victims of the scheme did not prove that they had suffered any loss, this court held that the defendants had committed mail fraud be- cause (a) man is none the less cheated out of his property, when he is induced to part with it by fraud, because he gets a quid pro quo of equal value. It may be impossible to measure his loss by the gross scales avail- able to a court, but he has suffered a wrong; he has lost his chance to bargain with the (acts before him. /d at 749. In Regent, we noted that the "formulation of law stated in the Rowe deci- sion" affirmed the proposition "that a wrong has been suffered when a man Is deprived of his chance to bargain 'with the facts before him' where the absent facts are facts materi- al to the bargain he is induced thereby to enter." 421 F2d at 1182 (emphasis added). [6) In the present case, the government contends that the Companies' misrepresenta- tions likewise were material to the bargain between the members and the Companies. The government argues that networking and the financial opportunities that networking might generate were the principal purposes for which the members had joined the Com- panies' registries. According to the govern- ment, the value of the networking, and hence the value of the membership, largely was dependent on the selection criteria and pro- cesses used to choose the members. Since the Companies misrepresented these criteria and processes, the government argues, the false claims were material to the nature of the bargain between the members and the Companies, and therefore constituted mail fraud. The district court, however, found that the misrepresentations of the Companies did not rise to the level of mail fraud. The court stated that the bargain between the Comps. nies and the members entailed both 1) the purchase of "membership in a registry that the member will be listed in," and 2) the Companies' making available "other services or products that either accompany the pur- chase free of charge" or are available to the members for a cost. In evaluating whether the Companies' sales tactics were material to this bargain, the court examined separately each of the nineteen misrepresentations al- legedly made by the Companies. The court concluded that the misrepresentations did "not constitute a scheme or artifice to de- fraud, either singly or in the aggregate. EFTA00191817

582 68 FEDERAL REPORTER, 3d SERIES In making this determination, the district court largely relied on our description of fraudulent sales tactics in Regent and found that the sales tactics used by the Companies did not amount to mail fraud. Although the court determined that some of the Compa- nies representations were "false or deceiv- ing," it found that these representations were "not material to the bargain struck between the membership purchaser and the Compa- ny." The court stated that the representa- tions were "not directed at 'the quality, ade- quacy or price of the goods,' nor (did) they concern facts 'essential in deciding whether to enter the bargain.'" Furthermore, the court found that the members "received ex- actly what [they] paid for when they pur- chased a membership," and that there was not a "discrepancy between benefits reason- ably anticipated because of the misleading statements and the actual benefits which the defendant delivered, or intended to deliver" Accordingly, the court determined that the government had not shown that it had proba- ble cause to believe that the Companies had committed mail or wire fraud. Although the court concluded that the Companies' misrepresentations were not ma- terial to the bargain between the Companies and the members, we think that the court did not flatly evaluate the true nature of the bargain. The members had bargained with the Companies to join exclusive registries that would provide opportunities for net- working among a prominent group of individ- uals. Although the members did obtain membership in "selective" registries, they had bargained to join registries of a more exclusive nature than ones whose members merely were culled from mailing lists. As a result, this may be a different situation than that presented in Regent, where the consum- ers received the products for which they had bargained. In the present case, membership in the registries may not have provided the members with the full networking capability that they expected to receive from the Com- panies. On remand, the district court should re-examine, with the benefit of the informa- tion provided by the new questionnaires, the nature of the bargain and the inducements that impelled the members to join and whether any misrepresentations were mate- rial to the bargain. t The Injunction (71 The injunction ordered by the district court enjoined the government from mailing additional questionnaires to obtain further evidence of probable cause. This injunction was improper. In United States a Burzyn- ski Cancer Research Inst., 819 F.2d 1301 (5th Cir.1987), cart denied, 484 U.S. 1066, 108 S.Ct. 1026, 98 L.Ed2d 990 (1988), the Fifth Circuit held that "faIs an incident to the separation of powers founded in the Consti- tution, the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions." 819 F2d at 1312 (internal quotation omitted); see also taRoucht v. Webster, 666 F$upp. 415, 417 (S.D.N.Y.1983) (holding that the separa- tion of powers prevents courts from interfer- ing in federal criminal investigations except in the "rarest of circumstances"). We agree. In the present case, the injunction especially resulted in improper interference because, according to our decision in 4495 South Livo- nia Rd, 889 12d at 1268, the government may use poet-seizure evidence at a probable cause hearing. On remand, the district court should allow the government to continue collecting ques- tionnaires. We note that, after the vacatur of the injunction, the government redesigned its questionnaires in order to generate from the registry members information regarding the materiality of the misrepresentations. The district court, on remand, should consid- er the responses to these questionnaires, along with the evidence previously intro- duced, and reconsider whether the Compa- nies' misrepresentations were material to the bargain between the Companies and the members. The totality of the circumstances should inform the district court's determina- tion of probable cause. CONCLUSION For the foregoing reasons, we vacate the order of the district court and remand for EFTA00191818

U.S.' NELSON cite as 68 F 593 (9nd Cir. 1993) further findings and reconsideration in actor- justice to grant transfer. dance with the foregoing. § 6032. UNITED STATES of America, Appellant, I Lemrick NELSON, Jr., Defendant- Appellee. No. 421, Docket 95-1271. United States Court of Appeals, Second Circuit. Argued Aug. 29, 1996. Decided Oct. 17, 1996. The United States District Court for the Eastern District of New York, David G. Trager, J., denied government's motion to transfer juvenile for adult prosecution. Gov- ernment appealed. The Court of Appeals, Miner, Circuit Judge, held that: (1) juvenile's age at time of transfer proceeding should have been considered; (2) district court should have assumed juvenile committed of- fense charged in information and not exam- ined strength of government's evidence; (3) juvenile's conviction as adult for actions after alleged offense should have been considered; (4) "glimmer of hope" test for rehabilitation was explicitly rejected; and (5) finding re- garding availability of programs designed to treat juvenile's behavioral problems was in- adequate. Vacated and remanded. 1. Infants 4=68.7(2) Juvenile alleged to have committed act after 16th birthday which, if committed by adult, would be felony that is crime of vio- lence may be proceeded against as adult where district court, after transfer motion by Attorney General, finds it is in interest of 583 18 U.S.C.A. 2. Infants .068.7(3) Burden is on government to establish that transfer of juvenile to adult status is warranted, as there is presumption in favor of juvenile adjudication. 18 U.S.CA § 5032. 3. Infants .2=68.7(2) In determining whether transfer of juve- nile to adult status would be in interest of justice, district court must consider, and make findings in record regarding, statutory factors of juvenile's age and social back- ground, nature of offense alleged, nature and extent of any prior delinquency record, pres- ent psychological maturity and intellectual development, juvenile's response to past treatment efforts nature of those efforts, and available programs designed to treat juve- nile's behavior problems; factors need not be accorded equal weight by district court, and it may balance factors in any way that seems appropriate. 18 U.S.C.A. § 6032 4. Infants 4=68.7(2), 68.8 Decision of district court concerning transfer of juvenile to adult status is discre- tionary and will not be disturbed except upon finding of abuse of discretion and court abus- es its discretion when it fails to make re- quired factual findings or where findings it makes are clearly erroneous; district court's interpretation of each statutory factor pres- ents question of law, and Court of Appeals reviews interpretation de novo. 18 U.S.CA § 5032. 5. Infants dlors8.7(3), 68.8 District court erred in refusing to con- sider juvenile's age at time of transfer pro- ceeding where juvenile was 20; unless gov- ernment intentionally delayed filing of juve- nile charges, there was every reason to give weight to age at time of transfer motion. 18 U.S.CA § 5032. 6. Infants az.68.7(2) In evaluating statutory factor concerning transfer of juvenile to adult status, while court correctly focused on juvenile's age of time of offense, but statutory factor specifies only "age" and current age was significant EFTA00191819

372 945 FEDERAL REPORTER, 2c1 SERIES 723, 79 L.Ed.2d 184 (1984) (listing alterna- tive methods of exhausting federal consti- tutional issues in state court without spe- cifically referring to them in constitutional terms). Instead, they need only present the substance of a federal constitutional claim to the state courts in order to ex- haust the issue and preserve it for review in a federal habeas corpus proceeding. Pi- card V. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971). When a federal habeas petitioner presents what amounts to "a mere variation in the same claim rather than a different legal theo- ry...." Wilk. v. Israel, 627 F.2d 32, 38 (7th Cir.1980), cert denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981), he has presented the state courts with the sub- stance of his claims and thus has properly exhausted them. In Hutchins v. Wain- wright, 715 F.2d 512 (11th Cir.1983), cert. denied, 465 U.S. 1071, 104 S.Ct 1427, 79 L.Ed.2d 751 (1984), we concluded that a petitioner who had challenged the admis- sion of certain out-of-court statements on state hearsay grounds had adequately presented and preserved a federal constitu- tional claim concerning the violation of his Sixth Amendment right to confront the wit- nesses against him. (III To the extent that defendant's con- stitutional claim is based on the failure of the Florida court to follow Florida law, petitioner presented both the state and fed- eral courts with the identical claim, namely that he had been convicted despite the pros- ecution's failure to demonstrate each ele- ment of the offense. In both forums, the only question is whether all of the elements of sexual battery under Florida law have been demonstrated in this case. CI Lani- gan v. Maloney, 853 F.2d 40, 44-46 (1st Cir.1988), cert. denied, 488 US. 1007, 109 S.Ct. 788, 102 L.Ed.2d 780 (1989) (objection to reasonable doubt instruction in state court sufficient to exhaust constitutional claim premised on same issue); Hawkins v. West, 706 F.2d 437, 439 (U Cir.1983) (same). As a result, we conclude that by contending that the trial court misapplied Florida law and allowed the jury to convict without the necessary showing of criminal intent, petitioner adequately raised and ex- hausted in state court the federal due pro- cess claim he now presents to this Court. AFFIRMED. Saul KENT, William Faloon, the Life Extension Foundation. Plaintiffs- Appellants, v. James BENSON, Commissioner. Food and Drug Administration, U.S. Depart- ment of Health and Human Services. Dexter Lehtinen, U.S. Attorney for the Southern District of Florida, Defen- dants-Appellees. No. 90-5710. United States Court of Appeals, Eleventh Circuit. Oct. 22, 1991. Targets of federal grand jury investi- gation involving inquiry about whether they and their companies had participated in criminal offenses involving distribution of prescription drugs without prescription and distribution of unapproved new drugs sued to enjoin grand jury proceeding and for advisory opinion from Food and Drug Administration (FDA) with respect to whether their activities were illegal. The United States District Court for the South- ern District of Florida, No. 90-1603-CIV- CCA, C. Clyde Atkins, J., dismissed com- plaint. Plaintiffs appealed. The Court of Appeals held that: (1) targets of grand jury investigation were not entitled to en- join grand jury proceeding or obtain adviso- ry opinion from FDA with respect to whether their activities were illegal, and (2) appeal from dismissal of complaint was frivolous justifying imposition of economic sanctions. Affirmed. EFTA00191820

KEN CF. es 945 F T.1 2 1. Grand Jury 32.33 Injunction 4=.105( 1 ) Targets of federal grand jury investi- gation involving inquiry about whether they and their companies had participated in criminal offenses involving distribution of prescription drugs without prescription and distribution of unapproved new drugs were not entitled to enjoin grand jury pro- ceedings or to secure advisory opinion from Food and Drug Administration with respect to whether their activities were illegal. Federal Food, Drug, and Cosmetic Act, § 305, 21 U.S.C.A. § 335. 2. Federal Civil Procedure e=2840 Appeal from district court's denial of suit to enjoin grand jury proceedings in- volving plaintiffs and seeking advisory opinion from Food and Drug Administra- tion with respect to whether plaintiffs' ac- tivities were illegal was frivolous justifying imposition of economic sanctions including reasonable attorneys fees and double costs. Michael PIIMMO, Zuckerman, Speeder, Taylor & Evans, Humberto J. Pena, Guy A. Basco, Miami, Fla, for plaintiffs-appel- lants. Richard Essen, Essen & Essen, P.A., North Miami Beach, Fla., for William Fa- loon. Dexter W. Lebtinen, U.S. Atty., Miami, Fla., Barbara K. Bisno, Ant. U.S. Atty., Deborah S. Smolover, U.S. Dept. of Justice, Jacqueline H. Eagle, Office of Consumer Litigation, U.S. Dept of Justice, Washing- ton, D.C., for defendants-appellees. Appeal from the United States District Court for the Southern District of Florida. Before KRAVITCH and EDMONDSON, Circuit Judges, and CLARK, Senior Circuit Judge. PER CURIAM: This is a frivolous appeal from the dis- trict court's denial of plaintiffs' suit to en- join the United States Attorney from con- ducting a grand jury proceeding involving the plaintiffs. On or about April 9, 1990, appellants were advised by letter that they BENSON 373 Olds Ct. 1991) were targets of a federal grand jury inves- tigation. The investigation involved an in- quiry about whether plaintiffs and their companies had participated in criminal of- fenses involving the distribution of pre scription drugs without a prescription and the distribution of unapproved new drugs. [1) The opening paragraph of appel- lant's complaint describes their cause of action. This is an action in the nature of man- damus and pursuant to Title 5, United States Code, Section 702, to compel James Benson, the acting Commissioner of Food and Drug Administration, to fol- low his own statute, rules and regula- tions and to give the Plaintiffs appropri- ate notice and an opportunity to present information and views to show cause why criminal prosecution against them should not be recommended to the Unit- ed States Attorney for the Southern Die trict of Florida. This action also seeks to compel the United States Attorney for the Southern District of Florida to re- frain from pursuing a federal criminal grand jury investigation of Plaintiffs and attempting to secure Plaintiffs' indict- ment until such time as James Benson, the acting Commissioner of Food and Drugs, has complied with the require- ments of the Food and Drug Act and accompanying regulations. This Court has jurisdiction pursuant to Title 28, United States Code, Sections 1846 and 1361. Record Excerpts at 2-1. The relevant statute is Title 21 U.S.C. § 335, and provides: Before any violation of this chapter is reported by the Secretary to any United States attorney for institution of a crimi- nal proceeding, the person against whom such proceeding is contemplated shall be given appropriate notice and an opportu- nity to present his views, either orally or in writing, with regard to such contem- plated proceeding. The district court diamiased the com- plaint, holding that the court lacked the authority to grant relief. The appellants in effect were seeking an injunction of the grand jury proceeding and an advisory opinion from the Food and Drug Adminis• EFTA00191821

374 945 FEDERAL REPORTER, 2d SERIES tration with respect to whether their activi- ties were illegal. The court was obviously correct in dismissing the complaint. With- out getting into a lengthy history of the statute, suffice it to say that it was enacted on June 30, 1906. The law has been twice interpreted by the United States Supreme Court to deny the relief sought by appel- lants here. First, in United States v. Mor- gan, 222 U.S. 274, 32 S.Q. 81, 56 L.Ed. 198 (1911), the Court closed its opinion with the following sentence: There is nothing in the nature of the offense under the pure food law, or in the language of the statute, which indi- cates that Congress intended to grant violators of this act a conditional immuni• ty from prosecution, or to confer upon them a privilege not given every other person charged with a crime. The Supreme Court confirmed this holding in United States v. Dotterweieh, 320 U.S. 277, 64 S.Ct... 134, 88 L.F.d. 48 (1943). 121 Appellants cite no authority to sup- port the appeal of the district court order to this court and, of course, they have none. The arguments being without argu- able merit, economic sanctions are in order• including reasonable attorneys fees and double costs. Upon receipt of the mandate, the district court, after hearing, should de. termine the amount. See Hopson v. Fisch- beck, 758 F.2d 579 (11th Cir.1985). AFFIRMED. H. POWELL. Plaintiff- Appellant, I UNITED STATES of America, Defendant-Appellee. No. 90-6034. United States Court of Appeals, Eleventh Circuit. Oct. 22, 1991. Member of Church of Scientology filed complaint against Internal Revenue Service (IRS) seeking tax refunds on grounds that IRS inconsistently administered charitable deductions for quid pro quo payments to religious organizations. The United States District Court for the Southern District of Florida, No. 90-8271—CIV4LK, James Law- realty Ring, J., granted a motion to dismiss. Church member appealed. The Court of Appeals, Dubins, Circuit Judge, held that church member's allegation of administra- live inconsistency stated claim upon which relief could be granted. Vacated and remanded. 1. Federal Courts 4 1494 Court of Appeals must accept plain- tiffs allegations as true when reviewing dismissal of complaint for failure to state claim. Fed.Rules Civ.Proc.Rule 12(bX6), 28 U.S.C.A. 2. Federal Civil Procedure 01772 District court may dismiss complaint for failure to state claim only if it is clear that no relief could be granted under any set of facts that could be proved consistent with allegations. Fed.Rules Civ.Proc.Rule 12(bX6), 28 U.S.C.A. 3. Constitutional Law a=84.5(7) Allegations by member of Church of Scientology that Internal Revenue Service (IRS) inconsistently administered charitable deductions for quid pro quo payments to religious organizations on federal income tax returns stated cause of action for dis- crimination among religions prohibited by establishment clause of First Amendment. 26 U.S.C.A. § 170; Fed.Rules Civ.Proc. Rule 12(b)(6), 28 U.S.C.A.; U.S.C.A. Conan. Amend. 1. 4. Constitutional Law 4=,84(I) Establishment clause of First Amend- ment prohibits denominational preferences, including those created by discriminatory or selective application of facially neutral statute; Government may not discriminate among religions by applying or enforcing EFTA00191822

Page 1 of I Westlaw. AMJUR INJUNCTION § 180 Page I 42 Am. Jur. 2d Injunctions § 180 C American Jurisprudence, Second Edition Database updated November 2007 InJunsaggs Richard B. Gallagher, J.D., Timothy M. M, J.D., Gary A. Hughes, J.D, Steven D. Najarian, J.D., Jeffrey A. Schafer, J.D., and Jeffrey J. Shampo, J.D. III. Kinds of Rights Protected and Matters Controllable G. Acts of Public Bodies or Officials 3. Enforcement of Statutes, Ordinances, or Administrative Orders b. Types of Laws Topic Summary; Correlation Table; References § ISO. Criminal or penal statutes--Grand jury proceedings A grand jury cannot be enjoined from conducting lawful investigations and deliberations.[FN351 Thus, targets of a federal grand jury investigation involving an inquiry about whether they and their companies had participated in criminal offenses involving the distribution of prescription drugs without a prescription and distribution of unapproved new drugs were not entitled to enjoin grand jury proceedings or to secure an advisory opinion from Food and Drug Administration with respect to whether their activities were illegal. (F/436] The target of a federal grand jury investigation had an adequate remedy at law for any irregularity in the investigative process and was not entitled to injunctive relief to prevent the grand jury from returning an allegedly tainted indictment.[FN371 (FN35) Ex pane Jones County Grand Jury, First Judicial Dist., 705 So. 2d 1308 (Miss. 1997). [F1436) Kent I. Benson, 945 F.2d 372 (11th Cir. 1990. [F1437) Blalock LU.S., refill; denied, 856 F.2d 200 (11th Cr. 1988) and (distingured by, estin McDaniel, 760 F. Supp. 1563 (M.D. Ga. 1991)) and (disagreed with on other grounds by, Finn Schiller, 72 F.3 1182 (4th Cir. 1996)). 0 2007 Thomson/West AMJUR INJUNCTION § 180 END OF DOCUMENT O 2007 Thomson/West. No Claim to Orig. US Gov. Works. hups://web2.westlaw.com/print/printstreantaspx?sv—Full&prft=HTMLE8cmt=FederalGo... 12/27/2007 EFTA00191823

US. I BURZYNSKI CANCER RESEARCH INSTITUTE 1301 dose 819 Fad 1301 (331. CAr. 1987) EDITH H. JONES, Circuit Judge, con- curring: I write separately to emphasize what I believe is most salient in the majority's careful exposition of 28 U.B.C. §§ 2680(a) and (h): these sections of the FTCA must be harmonized. In achieving harmony, a task made no simpler by Congress's drafts- manship and the sketchy legislative history of the law enforcement proviso, it is not necessary to conclude with the majority that "even Divots and Collinsville would not pass muster" if the law enforcement proviso, § 2680(h), is subject to the discre- tionary function exception, § 2680(a). As the majority elsewhere observe, this court has held that violations of agency regula- tions do not fall within the discretionary function exception so as to immunize the federal government from tort liability. See, e.g., Collins v. United States, 783 F.2d 1225 (5th Cir.1986). What I believe will require particular sensitivity in this task of statutory con- struction is preserving prosecutorial and discretionary law enforcement immunity. Compare Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 889 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967) (decisions on when, where and against whom to prose- cute are discretionary under § 2680(a)); Cray v. Beg 712 F.2d 400, 505 (D.C.Cir. 1988) ("Although the concepts of 'discre- tion' in official immunity law and under the FTCA are not of identical scope, they are similar and may have a common origin"). In law enforcement, while the opportunities for government abuse abound, the incen- tive for oppressive use of FTCA lawsuits is powerful and pervasive. What better way to "get even" with one's accuser than t file suit against the government on account of hi investigatory conduct? Such law- suits are hardly less deleterious to consci- entious law enforcement than are actions seeking to impose personal liability, be- cause they equally threaten careen and reputations, divert official time and re- sources, and imperil impartial decisionmak. ing. The doctrines of absolute prosecutori- al and qualified official immunity from per- sonal liability axe essential to shield the law enforcement community from unwarranted interference with their vital functions. See flarlow v. Fitzgarakl, 457 U.S 800, 808, 102 S.Ct. 2727, 2732, 73 L.Ed.2d 396 (1982). The discretionary function exception to the Federal Tort Claims Act should perform a similar role as the courts continue to inter, pret the law enforcement proviso. The panel's use of the Elliott v. Perez pleading standard in cases involving §§ 2680(a) and (h) is a step in the direction of creating the necessary harmony. UNITED STATES of America, Plaintiff- Counter Defendant-Appellee, U BURZYNSKI CANCER RESEARCH IN- STITUTE. et at, Defendants-Counter Plaintiffs-Appellants and Janice Kuharzyk, and Other Patients of Dr. Stanislaw It Surzynski, et al. In- tervenors-Counter Plaintiffs-Appel- lants. No. 86-2183. United States Court of Appeals, Fifth Circuit June 25, 1987. Action was brought against physician and research center seeking to enjoin them from violating Federal Food Drug, and Cosmetic Act by interstate distribution of product used in cancer chemotherapy, anti- neoplastons, on ground that they were "new drugs" within meaning of Act, and were being distributed without prior ap- proval by Food and Drug Administration. Government also sought to enjoin manufac- turer in distribution of antineoplastons on ground that drugs were adulterated within meaning of Act. Physician's patients were permitted to intervene. After execution of EFTA00191824

1302 819 FEDERAL REPORTER, 2d SERIES criminal search warrant, physician filed counterclaim seeking damages, injunctive relief, and contempt orders against Govern- ment and certain FDA employees. The United States District Court for the South- ern District of Texas, Gabrielle K. Mc- Donald, J., dismissed counterclaims, and appeal was taken. The Court of Appeals, Alvin B. Rubin, Circuit Judge, held that: (1) claims under Federal Tort Claims Act required, as jurisdictional prerequisite, ad- ministrative review; (2) employees involved in obtaining criminal search warrant were entitled to immunity from common law and constitutional tort claims; (3) physician and patients were not entitled to return of seized patient records; (4) physician and patients were not entitled to injunction against use of records; (5) physician and patients were entitled to develop facts to support their claim to injunctive relief with respect to Government's allegedly provid- ing insurance companies with false and misleading information; and (6) Govern- ment complied with obligations under per- manent injunction and, thus, it and its em- ployees were not in contempt. Affirmed in part, reversed in part, and remanded. 1. Federal Civil Procedure em1957 District court did not, in electing not to restate, in its dismissal order, legal analy- sis it had already set forth in denial of preliminary motions for a temporary re- straining order, return of property, and contempt, conduct trial on merits, much less impermissibly consolidate trial with hearing on preliminary motions. 2. Federal Civil Procedure .3251836 Order denying preliminary motion for a temporary restraining order, return of property, and contempt, and order dismiss- ing action, taken together, adequately presented full review of actions taken by district court and its reasons therefor; dis- trict court elected not to restate in its dis- missal order legal analysis it had already set forth in its denial of preliminary mo- tions. 3. United States ea127(2) Failure of physician and patients, as- serting claim under Federal Tort Claims Act in connection with seizure of patient- treatment records during fraud and drug investigation pursuant to criminal search warrant, to file administrative claim for relief required that claim be dismissed, in that administrative review was jurisdiction- al prerequisite under Act; it would not have been appropriate merely to stay suit until claim could be filed once issue was raised. 28 U.S.CA. ft 1846, 2671 et seq. 4. Federal Civil Procedure ex.2533 Affirmative defense may be raised on motion for summary judgment only if that motion is first pleading responsive to sub- stantive allegations. Fed.Rules Civ.Proc. Rule 8(c), 28 U.S.C.A. 6. Federal Civil Procedure a1823, 2632 None of Government's initial filings was responsive "initial pleading," such as would preclude, due to waiver, raising af- firmative immunity defenses on part of in- dividual government employees in motion to dismiss or for summary judgment. Fed. Rules Civ.Proc.Rule 8(c), 28 U.S.C.A. 6. United States 4=50.6(3) Federal employees are absolutely im- mune from common-law tort suits for dam- ages arising out of performance of either mandatory or discretionary acts that are within outer perimeter of their line of duties; immunity extends even to allegedly malicious acts. 7. United States e=60.10(3) Activities of federal employees with respect to application for and execution of criminal search warrant, pursuant to which physician's patient-treatment records were seized, were within scope of their duties and, therefore, employees wore absolutely immune from suit for common-law torts allegedly committed in connection with search warrant 8. United States 4=50.10(3) Federal employees involved in obtain- ing and executing warrant for search of business premises occupied by physician were entitled to qualified immunity shield- EFTA00191825

U.S. v. BURZYNSICI CANCER RESEARCH INSTITUTE cmurn FM 1301 (31bar. 19.7) mg them from liability for their acts with 13. Injunction 0.106(1) respect to constitutional tort claims of phy- sician and patients; employees followed es- tablished constitutional procedures and vio- lated no norms of clearly established law. ConstAmends. 4, 5, 8. 9. Searches and Seizures wo.26. 160 Witnesses 4=0212 Patients had no legitimate expectation of privacy in records maintained by physi- cian that could be asserted against criminal search warrant and, thus, no standing to seek return of records; under Texas law, seizure pursuant to search warrant issued as part of criminal investigation was ex- empt from physician-patient privilege. Vernon's Ann.Texas Civ.St. art. 44956, § 5.08(6) (Repealed); Fed.Rules Cr.Proc. Rule 41(e), 18 U.S.C-A. 10. Searches and Seizures 4=450 Physician and patients alleged no basis on which it could be found that seizure of patient-treatment records pursuant to crim- inal search warrant was unlawful, such as would entitle them to obtain return of records. FecLRules Cr.ProcSule 41(e), 18 U.S.C.A. 11. Injunction O.105(1) District court could not enjoin Govern- ment in its use of patient-treatment records seized, pursuant to criminal search war- rant, from physician's business, absent alle- gation of any improper use of seized records by Government 12. Injunction O.105(1) Government would not be enjoined from communicating with physician's present and former patients and their in- surance carriers, in connection with seizure of patient-treatment records pursuant to criminal search warrant, in that such in. junction would interfere with free exercise of discretionary powers of attorneys of the United States in their control over criminal prosecutions; injunction would have imped- ed or totally frustrated Government's abili- ty to pursue its investigation of, among other things, interstate distribution of anti- neoplastons, fraudulent over-billing and double-billing of insurance companies, and false statements to Government 1303 Allegations of unlawful seizure of pa- tient-treatment records could not form cog- nizable basis for claiming that Government had é would interfere impermissibly with physician's treatment of patient's solely within State of Texas, such as would entitle physician and patient's to injunctive relief against interference; there was simply no geniune issue of such threat raised. 14. Administrative Law and Procedure 4=0232 Drugs and Narcotics 0.23 Physician failed to make good-faith ef- fort to obtain investigational new drug sta- tus for antincoplastons from FDA and to exhaust administrative remedies with re- spect to application, and, therefore, he could not be entitled to injunctive relief against government's interfering with his treatment of patients with antineoplastons by refusing to grant IND status to drug. 15. Drugs and Narcotics 4=10 Failure to allege facts establishing that investigational new drug status was improperly withheld from antineoplastons precluded patients' indirect challenge to FDA action, based on allegations that their constitutional right to travel freely be- tween states was being infringed. 16. Drugs and Narcotics rtz>23 Patients had no claim for injunctive relief against Government's interference with interstate distribution of antineopla- stens based on asserted constitutional right to obtain medical treatment that was en- compassed by the right to privacy. 17. Injunction 4=105(1) Physician and patients were entitled to develop facts that could entitle them to injunctive relief with respect to claim that Government provided insurance company's with false and misleading information, giv- en finding that at least two statements by government employee in response to in- quiries about physician and his treatment were nearly inappropriate, exceeded his duties and responsibilities as officer of EFTA00191826

1304 819 FEDERAL REPORTER, 2d SERIES FDA, and misled audience by asserting charges still subject to investigation. 18. Injunction 4=223 FDA advised physician of its position with respect to manufacturing practices of research institute and, thus, was in compli- ance with terms of permanent injunction; accordingly, Government and employees could not be in civil contempt Christian P. Di Ferrante, John T. John- son, Calvin, Dylewski, Gibbs, Maddox, Rus- sell & Verner, Houston, Tex., for Burzynski Cancer Research Institute. Margaret A. Harris, Stuart M. Nelkin, Nelkin & Nelkin, Houston, Tex., for Juan- ice Kuharzyk, etc., et al. Gerald C. Kell, Atty., U.S. Dept of Jus- tice, Office of Consumer Lit, Washington, D.C., Linda M. Cipriani, Asst. U.S. Atty., Henry K. Oncken, U.S. Atty., Frank A. Conforti, James R. Gough, Met U.S. Ate tys., Houston, Tex., for the U.S. Appeals from the United States District Court for the Southern District of Texas. Before RUBIN, FtANDALL, and JOHNSON, Circuit Judges. ALVIN B. RUBIN, Circuit Judge: Armed with a search warrant, the government seized a doctor's patient-treat- ment records during an investigation to determine whether the doctor had violated criminal fraud statutes and a criminal stet- ute forbidding the interstate shipment of drugs that had not been approved by the Food and Drug Administration. The doc- tor and some of the patients, as inter- venors, sought to have the records re- turned and to obtain damages and other relief by filing a counterclaim in a previous- ly pending civil action filed by the govern- ment to enjoin interstate distribution of the drug. The district court properly held that the doctor and his patients have failed to establish any basis entitling them to a hear- t. 21 US.C. § 301, et seq. (1982). 2. 21 US.C. § 321(p). ing on the validity of the search warrant or any grounds for finding that the seizure of the records was unconstitutional. We therefore affirm its dismissal of all coun- terclaims regarding the seizure or contin- ued government retention of documents from the doctor's offices. Because, how- ever, in the absence of an opportunity to conduct discovery regarding their conten- tion that the government had provided in- surance companies with false and mislead- ing information, the doctor and his patients have not had a chance to develop facts that may entitle them to injunctive relief on that score, we remand that counterclaim for further proceedings. I. In 1983, the United States sued Dr. Stan- islaw R. Burzynski and the Burzynski Can- cer Research Institute (together referred to as Dr. Burzynski) in this civil action seek- ing to enjoin them from violating the Fed- eral Food, Drug, and Cosmetic Act' by interstate distribution of a product used in cancer chemotherapy, antineoplastons, on the ground that the antineoplastons were "new drugs" within the meaning of the Act,' and were being distributed without prior approval by the Food and Drug Ad- ministration. Dr. Burzynski manufactures the natural type of antineoplastons from urine, and synthetic forms, called antineo- plastons 10, from various chemicals. The government also sought to enjoin the man- ufacture and distribution of antineopla- stons on the ground that the drugs were adulterated within the meaning of the Act' because Dr. Burzynski's manufacturing methods, facilities, and controls did not comply with the FDA's current good manu- facturing practice regulations. A number of Dr. Burzynski's patients were allowed to intervene. After a two-day hearing, the district court issued an injunction granting most of the relief sought by the govern- ment It also directed Dr. Burzynski to bring his research and manufacturing facil- ity into compliance with FDA's current 3. 21 US.C. § 351(a)(2)03). EFTA00191827

U.S. I. BURZYNSKI CANCER RESEARCH INSTITUTE 1305 Chew 019 Fad 1301 (kb Clr. 1987) good-manufacturing procedures, ordering ter to make copies. On the advice of his the FDA in turn to act promptly on their submission for approval. The order, how- ever, expressly allowed Dr. Burzynski to continue manufacturing and prescribing the drug in Texas. The court expressly retained continuing jurisdiction to enforce or modify its order. Two years later, in July 1985, as part of a criminal investigation based on a referral from the FDA to the Department of Jus- tice, the government applied for and ob- tained a warrant to search an office com- plex that, as the warrant stated, housed the administrative offices of Dr. Burzynski and the Burzynski Research Institute, Ince rated, a separate legal entity from Bum ski Cancer Research Institute, which h been a defendant in the civil action. The application for the warrant was supported by the affidavit of FDA Compliance Offi- cer, Kenneth P. Ewing. Ewing stated that the application was based on FDA inspec- tions and investigations of Dr. Burzynski and the Institute, information supplied by insurance companies that had received claims from Dr. Burzynski, information supplied by the surviving spouse of one of Dr. Burzynslci's patients, and information supplied by confidential informants. In terms set forth in full in the footnote,' the warrant authorized a search for and seizure of records and other property that reflected distribution of antineoplastons outside the State of Texas and other records that would show the antineopla- stens had been and were being distributed in interstate commerce in violation of Title 21, United States Code S31(d), the court injunction, and Title 18, United States Code, Sections 286, 287, 871, 401, 1001, 1841, and 1505. During the search Dr. Burzynaki's employees were allowed to take records to a commercial copying cen- 4. Records and other property. including anti. ncoplastons, of Stanislaw FL Burrinski. M.D., Burzynski Research Institute, Incorporated. Cameron Frye. and North American Consul. tains, Limited, that reflect: (a) distribution of antineoplastons outside the State of To= (b) the true addresses of persons to whom anti. neoplastons have been and arc being distribut- ed: employees, Dr. Burzynski himself "decided to give away filing cabinets along with the records" in order to protect the records. Since the execution of the search warrant, Dr. Burzynski has been allowed to install a copying machine in the FDA offices in Houston where the seized patient treat. ment records arc being held and has made copies of those treatment records that he desires. After the warrant bad been executed, Dr. Burzynski and the Burzynski Research Institute, Inc. filed a counterclaim in this civil action seeking damages, injunctive re- lief, and contempt orders against the government and certain FDA employees, including the FDA Compliance Officer Ew- ing, Sharyn Miller, an investigator who had assisted Ewing in executing the warrant, and other unknown agents of the FDA and the United States. Certain named patients of Dr. Burzynski were given leave to file their own counterclaim as intervenors and sought a temporary restraining order com- manding return of the records and other emergency relief. During a twelve-day hearing on the mo- tion for a temporary restraining order and contempt ruling, Dr. Burzynski testified that he had continued to treat patients in Texas. Based on what some of them told him, he suspected that antineoplastons were supplied from the Institute to patients in other states, but he testified that he did not believe it would be possible to detect such shipments with certainty unless every one of the Institute's employees had "a spy on his back." After the hearing was com- pleted, the district court denied all of the motions. The government then responded to the counterclaims by moving for their dismis- (c) patient treatment, patient accounts, and pa- tient billings; and (d) insurance claims and receipt of insurance payments that show that anilneoplastons have been and are being distributed in interstate commerce in violation of Titk 21 United States Code, Section 331(d) and the injunction of this Court and that evidence violations of Title IS, United States Code, Sections 286, 287, 371, 601, 1001. 1311. and 1505. EFTA00191828

1806 819 FEDERAL REPORTER, 2d SERIES sal for failure to state a claim for which relief could be granted or, in the titans- tive, for summary judgment In a brief order, which referred to the evidence ad- duced in the earlier hearing on the motion for a temporary restraining order, the court dismissed the counterclaims. II. [11 Dr. Burzynski and the patients con- tend that the district court impermissibly consolidated the hearing on the motions for TRO, return of property, and contempt (the preliminary motions) with trial on the mer- its of their counterclaims. The simple fact is that no such consolidation occurred. At the close of the hearing on the preliminary motions, the district court orally denied those motions. Thereafter, the court en- tered a nine-page order setting forth its findings with respect to the preliminary motions and its legal basis for denying those motions. Subsequent to the hearing on the preliminary motions, the govern- ment filed its motion to dismiss for failure to state a claim or, alternatively, for sum- mary judgment on all of the counterclaims. In an order separate from the order deny- ing the preliminary motions, the district court dismissed the counterclaims. The district court did state in the later order that, because the issues raised in the counterclaims "raise legal questions which were decided against the Defendants and Intervenors (Dr. Burzynski and the pa- tients] in the hearing of October 23, 1985" (the hearing on the preliminary motions), it would not repeat its discussion of those issues. in other words, the district court simply elected not to restate in its dismissal order legal analysis it had already set forth in its denial of the preliminary motions. In deciding, based on that legal analysis, to dismiss the counterclaims, the district court did not conduct a trial on the merits, much less impermissibly consolidate trial with the hearing on the preliminary motions. 5. 731 Fid 281, 283 (5th Cir.1984). 6. United States Y. Shenvood 312 US 584, 586, 61 S.Ct. 767, 769, 85 LEd. 1058 (1941k Zapata v. Smith, 437 Fld 1024, 1025 (5th Cir.1971); Caner v. UMW, 411 F.2d 767, 770 (5th Ctr. I2I The patients also attack the dismis- sal order as being "pithy to the point of being incomplete" and ask this court to vacate it and remand the case for further consideration. In support of that request, they rely on Myers v. Gulf Oil Corpora- tion,' in which we held that a district court's explanation that the defendant should be granted summary judgment "be- cause the Plaintiff has failed to state a claim on which relief can be granted" was insufficient to explain that court's reason- ing. The patients' argument focuses on the length of the district court's dismissal order rather than on its content Taken together, the two orders adequately present for our review both the actions taken by the district court and its reasons. Claims for Monetary Relief Dr. Burzynski and the patients seek mon- etary damages from the United States FDA, FDA employees Ewing and (both individually and in their officira- pacities), and unknown agents of the Unit- ed States and the FDA. We discuss these claims separately. A. Claims Against the Government 131 Neither the United States, its agen- cies, nor its officials acting in their official capacities, may be sued without the United States' specific consent's The Federal Tort Claims Act 7 permits certain claims to be asserted against the United States, as sov- ereign, and its agents but exacts the filing of an administrative claim for relief as a jurisdictional prerequisite to suit. No such claim has been filed. Therefore, the dis- trict court properly dismissed the damage claims against the United States, the FDA, and federal officials acting in their official capacities. Because the requirement of ad- ministrative review is a jurisdictional requi- site, it would not have been appropriate merely to stay the suit until a claim could 1969). an. denied 397 US. 941.90 SQ. 953. 25 LEdid 121 (1970). 7. 28 liS.C. § 2671, et seq. (1982). EFTA00191829

B. Claims Against Individual Government Employees In seeking monetary damages against the government employees as individuals, Dr. Burzynski and the patients asserted both common law tort claims and claims under the Constitution. All of the dam- ages claims asserted against individual government employees related to and arose out of the application for and execution of the criminal search warrant for Dr. Bur- zynski's business premises, and all are barred by immunity doctrines. 1. Waiver of immunity Defenses (41 Dr. Burzynski and the patients con- tend that the government cannot rely on immunity defenses for the individuals named as defendants because such affirma- tive defenses may not be raised by means of a motion to dismiss or for summary judgment The circuit courts disagree whether the affirmative defenses listed in Fed.R.Civ.P. 8(c) must be asserted in the defendant's answer or may be raised for the first time in a motion to dismiss or other diapositive motion.* In Funding Systems Leasing Corp. v. Pugh, a panel of this court stated that a defendant may raise an affirmative defense by a motion for summary judgment only when that mo- tion "is the initial pleading tendered by [the] defendant." 11 Although the rule quoted above suggests that any prior pleading will defeat the defendant's right to raise an affirmative defense in a summa- ry judgment motion, in the context of the decision as a whole it becomes apparent that the Funding Systems opinion was re- ferring only to pleadings responsive to the substantive issues charged. The Funding Systems decision itself specifically noted that the defendant in that case had failed & Gregory v. Mitchel( 634 F.2d 199. 203-04 (5th Cir.1981). 9. See C. Wright and Pnxedure 11277, pare Williams and A. Federal Practice a 29 (1969). Com- Murdoch, 330 F.2dt 741 (3d M 530 F.2d 91, 96 (5th Cir.1976). Cir.1964); Continental Collieries, Inc. 11. Id rr, 130 F.2d 631 (3d Cir.1942) with 15ber Sin. U.S. I BURZYNSKI CANCER RESEARCH INSTITUTE 1307 Cho sell, Pad III, (Mbar. tell7) be filed, as Burzynski sought, once the to allege his affirmative defense in any issue was raised' "responsive pleading." The decision, therefore, did not address the issue wheth- er prior pleadings that are unresponsive to the substance of the allegations should pre- clude the possibility of raising affirmative defenses in a subsequent responsive plead- ing. Because no other panel of this court has had occasion to apply the rule that Funding Systems sets forth, the proper interpretation of the rule remains undecid- ed, and we adopt what we believe to be the most principled interpretation of the stan- dard: An affirmative defense may be raised on a motion for summary judgment only if that motion is the first pleading responsive to the substance of the allega- tions. (51 Although in this case the govern- ment filed a brief memorandum in opposi- tion to Dr. Burzynski's original counter- claim and several preliminary motions be- fore filing its motion to dismiss or for summary judgment, none of those filings is a responsive "initial pleading" within the meaning of Funding Systems. The government's initial memorandum is not a "pleading" and did not purport to respond to the substantive charges of the counter. claim. It presented only a legal analysis of the procedural posture of the case, raising issues about whether the counterclaim was filed in accordance with the Federal Rules of Civil Procedure and about the propriety of using civil counterclaims as a means of hampering criminal investigations. Sim- ilarly, the government's ensuing motions— which are "pleadings" within the meaning of the Rules—were not responsive to the substance of the counterclaims, but sought only to preserve counter-defendants' rights pending preparation of an answer or dia- positive motion. Because the government, therefore, set forth its affirmative argu- ment in its first responsive pleading, it has preserved its immunity defenses. Chill Prairie Oil Ca. 35 FSupp. 296 (E.D.Olda. 1940). We/ 120 F.2d 746 (10th Cir.1941). EFTA00191830

1308 819 FEDERAL REPORTER, 2d SERIES 2. Common Law Tort Claims (6) Federal employees are absolutely immune from common law tort suits for damages arising out of the performance of either mandatory or discretionary acts that are, as the Supreme Court stated in Barr Matteo, "within the outer perimeter of the (employees.) line of duty." 12 This immuni- ty extends even to allegedly malicious acts." 171 It is difficult to sort out the com- mon law claims of Dr. Burzynski and the patients from their constitutional claims. Reading the counterclaims as broadly as possible, however, it. appears that, with re- spect to the application for and execution of the search warrant, Dr. Burzynski as- serted common law claims for abuse of process and for some type of tortious inter- ference with his relationship with his pa- tients, while the patients asserted a com- mon law claim for abuse of process. Ewing's duties as a compliance officer with FDA included reviewing investigative records of FDA and other evidence gath- ered by FDA to determine whether there were apparent violations of the FDC Act or other laws, making recommendations for appropriate civil or criminal legal action, conducting investigations, and collecting of information and samples. FDA compliance officers and investigators also are re- quired, in conjunction with a United States Marshal, to execute criminal search war- rants. Moreover, Ewing was the person within FDA chiefly responsible for the in- vestigation of Dr. Burzynski. Acting upon information gathered in the course of previous FDA investigations of Dr. Burzynski and others, and upon infor- mation supplied to him by named individu- lif d confidential informants, Ewing, and other federal employees pur- l?, Ban v. Maned, 360 US. 564, 575, 79 S.Ct. 1335. 1341, 3 L.Edld 1434 (1959). Accord Ev- an v. Wright 582 F.2.<1 20, 21 (sth Or.19711). 13. Barr, 360 U.S. at 575.79 SQ. 1341; Nortaenj McShane, 332 F.2d 855.858 (5th ar.I964), . denied 380 U.S. NI, 85 S.Ct. 1345, 14 L.E.elid 274 (1965). 14. 403 US. 388, 91 S.Q. 1999, 29 L.Ed.26 619 (1971). sued a new investigation of Dr. Burzynski to determine if Dr. Burzynski had violated the Act and other federal criminal statutes by failing to adhere to the requirements of the permanent injunction entered by the district court in May 1983. That investiga- tion included the application for and execu- tion of the criminal search warrant. The activities of Ewing, and the other federal employees wi Meet to the search warrant were clearly within the scope of their duties. Therefore, they are absolutely immune from suit for the com- mon law torts allegedly committed in con- nection with the search warrant, and dis- missal of the damage claims based on those alleged torts was proper. 3. Constitutional Tort Claims (81 In Sirens v. Six Unknown Named Agents of Federal Bureau of Narcotics," the Supreme Court held that federal offi- cers who, acting under color of their feder- al authority, but without a warrant, en- tered and searched the plaintiffs apart- ment and arrested him, could be personally sued for monetary damages for deprivation of the plaintiff's rights under the fourth amendment. The holding of Bivens was extended to deprivations of fifth amend- ment due process rights in But: v. Econo- mou,15 to violations of the right to equal protection as embodied in the fifth amend- ment In Davis v. Postman," and to the eighth amendment's prohibition against cruel and unusual punishment in Carlson v. Green." Shortly after its recognition of a right of action for constitutional torts under Bi- vent, the Supreme Court began to develop the defense of qualified immunity to pro- tect federal employees against liability for, 15. 438 U.S. 478, 98 S.Ct. 2694, 57 LEd.2d 895 (1978). 16. 442 US. 228. 99 S.Ct. 2264. 60 LEd.2d 846 (1979). 17. 446 US. 14, 100 ta. 1468, 64 LEd.2d IS (1980). EFTA00191831

U.S. I BURZYNSKI CANCER RESEARCH INSTITUTE 1309 On 819 12.241 2301 (560. 1W) and the burden of defending themselves against, alleged violations of constitutional rights. As first formulated in Butz v. Zoo- nomou, qualified immunity had both an objective and subjective element the feder- al official was entitled to immunity if then were reasonable grounds to believe that the challenged conduct did not violate a constitutional right (the objective element) and the official undertook the challenged conduct in a good-faith belief that the con- duct was valid (the subjective element)." On further consideration, however, the Court in Harlow v. Fitzgerald stated, "[t]he subjective element of the good-faith defense frequently has proved incompatible with our admonition in Butz that insub- stantial claims should not proceed to tri- al."" Therefore, the Court eliminated the subjective element of the qualified immuni- ty defense. Government officials perform- ing discretionary functions, it held, are shielded from liability for civil damages whenever their conduct does not violate dearly established statutory or constitu- tional rights of which a reasonable person would have known? Reading Dr. Burzynski's counterclaim most broadly, it appears to allege that Ew- ing violated the fourth amendment by ob- taining the criminal search warrant for Dr. Burzynski's business premises "to accom- plish purposes outside the proper scope of a search warrant," i.e., "for the apparent ulterior purpose of forcing [Dr. Burzynski] out of business." The government con- tends, however, that the warrant was is- sued by an independent judicial officer, the United States Magistrate, and that under this court's decision in Jureczki v. City of It 438 U.S. at 495-98, 507. 98 S.Ct. at 2905-07, 2911. 19. Maslow v. Flegerald. 457 US. 800, 815-16, 102 5.O. 2727, 2737. 73 LEdid 396 (1982). 20. 457 US. at 817-18, 102 S.Ct. at 2737-38. See oho David v. &hew, 468 US. 181 104 5.Ct. 3012, 3018, 82 LEd.2d 139 (1984); Mitchell v. Forsyth, 472 U.S. 511, 535 a. 12, 105 S.Ct. 2106, 2820 a. 12. 86 LEd.2d 411 (198.5): Saldana v. Can, 684 F.2d 1159, 1163 (5111 CIr.1982), an. derde4 460 US. 1012, 103 S.Ct. 1253, 75 LEd.2d 481 (1983). Seabrook, Texas," "[a] judge's determina- tion of probable cause breaks the chain of causation and insulates the initiating party from liability."" Dr. Burzynski counters by correctly pointing out that the Supreme Court rejected the rationale underlying that broadly-stated rule in Malley v. Briggs." In Malley, the Court held that an officer may not rely on the judgment of a judicial officer in finding that probable cause exists if "a reasonably well-trained officer would have known that his affidavit failed to es- tablish probable cause and that he should not have applied for the warrant" 24 This holding, however, does not signal a retreat from the principle that, to give rise to liability, the actions of a public official must be objectively unreasonable in the light of clearly established law. Malice, therefore, remains "irrelevant in obtaining a warrant where probable cause exists."" Dr. Burzynski's counterclaim alleges no misstatements or omissions in Ewing's affi- davit that would have obviated probable cause if corrected. Indeed, Dr. Buraynski in effect supported its correctness by testi- fying that, based on the affidavit as well as his own independent suspicions, he suspect- ed that antineoplastons were being trans- ported out of Texas, that the Institute has been obliged to refund hundreds of insur- ance overpayments resulting from insur- ance companies being billed for services already paid for by patients, and that on at least one occasion an insurance claim was submitted for an office visit when the pa- tient did not actually come to the Institute. Dr. Burzynski's counterclaim does con- tain an allegation that the search warrant 21. 760 F.2d 666.668 (5th Cir.19115), apt den/id — US, 106 5.O. 1261, 89 LPAL2t1 571 O984 22. id (citing Smith x Coma; 670 9.241 522. 526 (3111 opt. &Rued 459 U.S. 1137. 103 S.Ct 772. 74 L.Ed.2d 984 (1982)). 23. 475 US. 335, —.106 S.Ct. 1092, 1098-99, 89 LEd.2d 271 (1986). 24. /d (footnote omitted). 25. /antler 760 F.2d se 668. EFTA00191832

1810 819 FEDERAL REPORTER. 2d SERIES "was not supported by affidavits and evi- dence sufficient to establish probable cause." Based on no more than this unsup- ported charge, and despite the admonition of the Supreme Court in Franks v. Dela- ware" that to mandate an evidentiary hearing such a charge must also assert deliberate falsehood or reckless disregard for truth and must be accompanied by an offer of proof, the district court allowed a lengthy cross-examination of Ewing re- garding his affidavit Nonetheless, the dis- trict court found no basis even to proceed with a hearing on the validity of the search warrant, much less to justify a finding that the warrant was not validly supported. In this circuit, once a government employee has asserted qualified immunity and estab- lished that the allegedly tortious acts were undertaken within the scope of his discre- tionary authority, the burden shifts to the party seeking damages to show that quali- fied immunity does not bar recovery? Dr. Burzynski has failed to suggest any factual basis upon which a trier of fact could find that probable cause was lacking or that agent Ewing's action in seeking the search warrant was objectively unreasonable. Therefore, the individual defendants were entitled to have those charges against them dismissed. In addition, both Dr. Burzynski and the patients asserted constitutional claims with respect to the government employees' exe- cution of the warrant Both Dr. Burzynski and the patients challenged the warrant as overly broad (not properly limited in scope), Dr. Burzynski alleging a fourth amend- ment violation and the patients a fifth amendment violation. Additionally, the pa- tients alleged that seizure of their medical records was unreasonable, in violation of the fourth amendment, and infringed their constitutional rights to privacy, to life, and 26. 438 US. 154, 171-72, 98 S.Ct. 2674. 2684, 57 LEd.2d 667 (1978). 27. See SaWane v. Cana. 684 F.2d at 1163 n. 14 (chins Garth v. Rowlan4 678 Fld 1264, 1271 (5th Cir.1982); Rheatune v. Tex. Dept of Public Safety. 666 F2d 930 (5th ar.1982); United Carolina Bank Board of Tutu, 665 F.2d 553. 562 (5th Cir.I k Baker Norman, 651 F.2d 1107. 1121 (5th Cir.1981))• to obtain medical treatment Again, these claims could survive the government de- fenses of qualified immunity only if Dr. Burzynski and the patients demonstrated a reasonable basis to believe that the execu- tion of the search warrant violated "clearly established law."" They simply failed to do so. According to the counter-claimants' own witnesses, the documents seized were only those described in the warrant Since the seizure of these specific documents was thus authorized, the seizure was in accord with, rather than in contravention of, clear- ly established law. The patients also assert that seizure of their treatment records, which belonged to Dr. Burzynski or the Institute and were in the possession of the Institute, invaded their right to privacy. That they have a privacy interest in such documents" does not establish the immunity of the doc- uments from seizure. The patients do not cite a single case in which seizure of doc- uments authorized by a warrant has been found to be an unconstitutional invasion of privacy. The absence of such citations is not surprising since a warrant issued upon "[p]rior review by a neutral and detached magistrate is the time-tested means of ef- fectuating Fourth Amendment rights." i 0 In any event, seizure of the patients' treat- ment records pursuant to a warrant did not violate clearly established law so as to sub- ject the government agents to individual liability. The patients also assert that seizure of their treatment records deprived them of their right to life and to medical treatment This claim was unsupported by factual alle- gations creating any basis to believe that the treatment of patients would be sub stantially hindered. All of the parties agree that the records are available for 28. Marlow j Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 27 . 29. See In re Search Warrant, 810 F.2d 67, 71 (3d Cir.1987). 30. United Stares v. United States District Court, EA Mich., 407 US. 297, 318, 92 S.Ct. 2125, 2137, 32 1—Ed.2d 752 (1972). EFTA00191833

US. I. BURZYNSKI CANCER RESEARCH INSTITUTE Canaan Fad 1301 (StaCtr. 1987) copying. As the district court determined Both the patients and Dr. Burzynski ac- below, the patients have shown no basis to believe that "an opportunity would not be made available to [Dr. Burzynski] to secure a copy of those documents in sufficient time to treat his patients effectively...." In sum, the federal employees involved in obtaining the warrant for the search of the business premises occupied by Dr. Bur- zyriski and in executing that warrant fol- lowed established constitutional proce- dures. They violated no norms of clearly established law. As federal agents per- forming discretionary functions within the scope of their duties, they were entitled to qualified immunity shielding them from lia- bility for their acts. The district court's dismissal of the constitutional claims against the federal employees was there- fore proper. IV. Injunctive Relief The counterclaims requested injunctions requiring return of the records seized pur- suant to the search warrant, prohibiting use of the seized records by the govern- ment, prohibiting government contact with patients and their insurance carriers, pro- hibiting the government from interfering with Dr. Burzynski's treatment of the pa- tients with antineoplastons, and prohibiting the government from disseminating alleg- edly false or misleading information re- garding antineoplastons. A. Return of the Seized Records Fed.R.Crim.Proc. 41(e) provides the ave- nue by which a person may obtain return of property seized by the government. Be- cause neither Dr. Burzynski nor the pa- tients stated any basis for a finding that the records were illegally seized and the patients did not even allege a basis for finding that were entitled to lawful posses- sion of the records, the district court was required to dismiss the injunctive claims for return of the records, whether under Rule 41(e) or its general equity jurisdiction. 31. Dickens v. Lewis, 750 F.2d 1251, 1254 (5th Cir.1984). 32. Id (citing Rakes v. Illinois, 439 U.S. 128, 99 S.Ct. 421. 426-27, 58 LEd.2d 387 (1978)). 1311 knowledged that the medical records were seized from Dr. Burzynski's business prem- ises. On appeal, the patients state that their "property interest [is] in the informa- tion contained in their medical treatment records." Thus, the patients' own allega- tions demonstrate that they were not "enti- tled to lawful possession of the property" which was seized and, therefore, that they did not have standing to seek return of the seized records. Since the medical records were seized from Dr. Burzynski's business premises, the patients would have had standing to I ch enge the search and seizure only if th had a "legitimate expectation of priva- cy [those] premises," a business belong- ing to others.31 Even if the seized medial records had been the property of the pa- tients, "[t]he fact that [their) property be- came the 'target' of the search is irrele- vant."ts (91 The patients attempt to ground their asserted privacy interest in their medical records on a physician-patient privi- lege as codified in Texas state law, Tex. Rev.Civ.StatAnn. art. 44956 § 5.08(b) (Ver- non Supp.1985). The seizure of the records, however, took place pursuant to search warrant as part of a criminal inves- tigation, and was therefore exempt from the Texas shield. In the context of federal criminal proceedings, no physician-patient privilege exists.'3 Therefore, the patients had no legitimate expectation of privacy in the records maintained by Dr. Burzynski that could be asserted against the search warrant and no standing to seek the return of the records. flO) Even if the patients had alleged circumstances sufficient to afford them standing to seek return of the medical records, they alleged no basis on which the district court could have found the seizure of the records unlawful. The patients ar- 33. United States v. Meagher, 531 Fid 752, 753 (5th Cir.), ten. denied, 429 US. 853, 97 S.Ct. 146, SO LEd.2d 128 (1976): United States v. Mancuso, 444 F.2d 691. 694-95 (5th Cir.1971). EFTA00191834

1312 819 FEDERAL REPORTER, 2d SERIES gue that their sole challenge to the warrant authorizing the seizure was to the face of the warrant, not the supporting affidavit Yet the only specific deficiency alleged by the patients was that the warrant autho- rized the seizure of virtually all medical records at the Institute while the support- ing affidavit stated that patients' true home addresses were recorded only on pa- tient billing and insurance records. The patients' argument rests on the premise that the only purpose of the warrant was to "ascertain evidence of interstate ship- ment of antineoplastons." The warrant was sought, however, to authorize the sei- zure of evidence of numerous criminal of- fenses in addition to interstate distribution of antineoplastons. Since the seized medi- cal records were relevant to all of those possible violations the warrant was facially valid, and the patients stated no basis for the district court to find seizure of the medical records unlawful, a prerequisite to mandating their return." Unlike the patients, Dr. Burzynski did attack the affidavit supporting the war- rant. However, he neither alleged nor proved a single fact on which the district court could have found the affidavit defi- cient and the resulting warrant and seizure unlawful. B. Use of the Seized Records [11) Both the patients and Dr. Burzyn- ski seek to enjoin the government from providing the records seized pursuant to the search warrant to any other agents or agencies of the United States Government or to any commercial entity or to any other entity or person. While not alleging any basis to believe that the government had made improper use of the seized records or was likely to do so, Dr. Burzynski and the patients sought an injunction that, if grant, ed, would have totally prevented the government from pursuing its criminal in- vestigation of Dr. Burzynski insofar as the 34. Fed.R.O1m.P. 41(e). 35. United States v. Co.t, 342 Fid 167, 171 (5th Cir.) (en basic). cert. denied, 381 US. 935, 85 S.O. 1767 (1965). seized records constituted evidence of crimes or suggested avenues of investiga- tion. Aa an incident to the separation of pow- ers founded in the Constitution, "the courts are not to interfere with the free exercise of the discretionary powers of the attor- neys of the United States in their control over criminal prosecutions!" x Further- more, to the extent that an injunction against providing the seized documents to "any other person or entity" would prohibit presenting the documents to a grand jury, such an injunction would improperly inter- fere with the mission of the grand jury which "must be free to pursue its investi- gations unhindered by external influence or supervision ...." " "The Fifth Amend- ment guarantees that no civilian may be brought to trial for an infamous crime 'un- less on a presentment or indictment of a Grand Jury.' This constitutional guarantee presupposes an investigative body 'acting independently of either prosecuting attor- ney or judge....' " Since neither Dr. Burzynski nor the pa- tients alleged even one arguably improper use of the seized records, the district court had no proper choice but to dismiss the requests to enjoin use of the seized records by the government C. Communications with Patients or Insurance Companies (12) Similarly, the requests of Dr. Bur- zynski and the patients that the govern- ment be enjoined from communicating with Dr. Burzyriski's present and former pa- tients and their insurance carriers, would, if granted, have impeded or totally frus- trated the government's ability to pursue its investigation of, among other things, interstate distribution of antineoplastons, fraudulent over-billing and double-baling of insurance companies, and false statements to the government Such an injunction 36. United Stater v. Dionino, 410 US. 1, 17, 93 S.Ct. 764, 773, 35 L-Edid 67 (1973). 37. /I at 16, 93 S.Q. at 772 (quoting Stirone v. United Stater, 361 US. 212, 218, 80 S.Ct. 270, 273. 4 L.Ed.2d 252 (1960)). EFTA00191835

U.S. I BURZYNSKI CANCER RESEARCH INSTITUTE 1313 ateas5M F.2d 1301 (Mbar. 1987) would obviously have interfered with "the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions."" D. Alleged Interference with Treatment of Patients and Dissemination of False Information Dr. Burzynski and the patients also asked the district court to enjoin the government from interfering with Dr. Bur- zynsid's treatment of the patients with an- tineoplastons, both intrastate and inter state. [IS) The interference alleged included the seizure of patient records pursuant to the search warrant, the refusal of the FDA to grant investigational new drug status (IND) to the form of antineoplastons Dr. Burzynski is currently using, and the dis- semination of false or misleading informa- tion about Dr. Burzynski and his treatment to insurance companies and current or pro- spective patients. Many of these claims are patently groundless. Just as the alle- gations of unlawful seizure of patient records cannot support injunctive relief re- quiring return of the seized records, they cannot form a cognizable basis for claiming that the government has or would interfere impermissibly with Dr. Burzynski's treat- ment of patients solely within the State of Texas. There simply has been no genuine issue of such a threat raised. [141 Similarly, neither Dr. Burzynski nor his patients have alleged facts suggest- ing that the FDA has acted improperly by denying antineoplaston AIO IND status. Although, in his brief before this court, Dr. Burzynski contends that he has never ar- gued that he is entitled to IND status for his new drug but only that the FDA has treated his application differently than oth- er IND applications, the language of his counterclaims belles that assertion. In his countercomplaint, Dr. Burzynski asserted 38. United Stara, Cox, 342 Fld at 171. 39. See Rutherford American Medical Associa- tion. 379 F.2d 641 th ar.1967), art. denied 389 US. 1043. 89 S.Ct. 787, 19 LF_d1d 835 (1968). $10F.20-30 that "Dr. Burzynski's patients will be irrep- arably harmed if this Court [the district court) fails to require the FDA to grant IND status to the Antineoplaston Al0 com- pound ... in that many patients who could be helped by the use of antineoplastons will be denied their Constitutional right of ac- cess to Dr. Burzynski's treatment...." The district court, therefore, construed his counterclaim correctly. Dr. Burzynski's own testimony demon- strates that the FDA notified him in Febru• ary 1984 that it found deficiencies in his IND application and required additional data. He candidly admits that he has nei- ther provided the data requested nor ex- plained to the FDA his reasons for consid- ering that data unnecessary. Thus, he has failed to make a good faith effort to obtain an IND or to exhaust his administrative remedies. His claim for injunctive relief with respect to his IND was, therefore, properly dismissed.* [15) The patients indirectly challenge FDA's action with respect to the IND, alleging that their "constitutional right to travel freely between the states ... is be- ing infringed by the Government and its agents through their continued refusal to allow the interstate distribution and ship- ment of antineoplastons." Because Dr. Burzynski and his patients have failed to allege facts suggesting that IND status was improperly withheld, this claim was also dismissed properly. Moreover, to the extent that the patients' counterclaim can be construed as a challenge to the authori- ty of the FDA to bar interstate distribution of unapproved drugs, the claim is friv- olous.* 1161 The patients' separate claim for in- junctive relief against interference with in- terstate distribution of antineoplastons based on the asserted "constitutional right to obtain medical treatment that is encom- passed by their right to privacy," was also so. Set United Stair v. Lehman, 464 F2d 61. 73-74 (Stb Cir.), cat. dm ied 409 US. 950, 93 S.Ct. 271, 34 LEd.2d 220 (1972). EFTA00191836

1314 819 FEDERAL REPORTER, 2c1 SERIES unsupportable. The patients asserted that they should be free to obtain antineopla- stens interstate because of "the unavaila- bility of any other treatment that would be effective in treating their cancer." Similar claims were raised and rejected in United States v. Ruthinfordu As in the present case, the plaintiffs in Rutherford wore cancer patients, alleged to be terminally ill, desiring treatment with an unapproved drug, and arguing that the restrictions on interstate distribution of new drugs imposed by the Act should not be allowed to interfere with their access to the drug. The Supreme Court rejected the patients' claims. The Court agreed with FDA that the new drug approval provisions of the Food, Drug, and Cosmetic Act spe- cifically applied to the situation presented. (171 In one respect, however, the fact that Dr. Burzynski and his patients were denied any opportunity for discovery has unfairly prejudiced their opportunity to al- lege facts in support of counterclaims that may entitle them to relief. The district court found that at least two statements made by Ewing in response to inquiries about Dr. Burzynski and his treatment were "near to inappropriate," exceeded "his duties and responsibilities as an officer of the FDA," and misled his audience by asserting, as established fact, charges still subject to investigation. The district court also noted that, by showing that such state- ments were made to at least one insurance company, Dr. Burzynski and his patients demonstrated that "the above conduct has had an impact on their ability to treat pa- tients because over fifty percent of [the Institute's] income is derived from insur- ance payments." Whether additional ex- amples of such questionable conduct exist and, if so, in numbers justifying injunctive relief can only be discerned through dis- covery. The claim seeking an injunction to stop the government from disseminating false or misleading information to outside 41. 442 US. 544, 99 S.O. 2470, 61 LEd.2d 68 (1479). 42. United States v. Haney Cancer Clinic. 198 Fld 273, 280 (5th Cir.1952), cerr. dented, 346 US. 897, 74 SCI. 220. 98 LEd. 398 (1953). parties, therefore, should not have been dismissed until Dr. Burzynski and his pa- tients had an opportunity to discover the scope of the problem and to provide evi- dence that an injunction is necessary. Of course, nothing in this opinion should be construed as suggesting that the FDA acted improperly by expressing its position with regard to the status of antineopla- stons, i.e., that they are drugs that may not lawfully be introduced into interstate com- merce because they are not approved by the FDA or the subject of an acceptable 1ND. Such information is not false, mis- leading, or inaccurate. The FDA also cannot be required to com- municate what the patients view as "favor- able" information. According to Dr. Bur- zynski and some of his patients, relevant "favorable information" is that antineopla- ston therapy has proved beneficial to some cancer patients. The views of Dr. Burzyn- ski and his patients, however, do not consti- tute "favorable" information on which FDA may properly rely. "[W]hen the sub- ject of investigation is the existence of cancer, the personal testimony of the lay sufferer is entitled to no weight...... 4I Furthermore, as the Supreme Court found in Weinberger v. Hynson, Westeott and Dunning, Ine.,43: (FDA's] strict and demanding standards, barring anecdotal evidence indicating that doctors "believe" in the efficacy of a drug, are amply justified by the legisla- tive history (of the Food, Drug, and Cos- metic Act). The hearings underlying the 1962 Act show a marked concern that impressions or beliefs of physicians, no matter how fervently held, are treacher- ous. I The Civil Contempt Claim Against the Government and its Employees [181 The same conduct by the govern- ment and its employees alleged as the basis 43. 412 US. 609, 619. 93 &Ct. 2469. 2478, 37 LEd.2d 207 (1973) (footnote omitted). EFTA00191837

OWENSBY & KM Clue ims119 Pad for the damages and injunctive claims of Dr. Burzynski and the patients formed the basis of their requests to bold the govern- ment and its employees in civil contempt Dr. Burzynski and the patients apparently do not appeal from the dismissal of their civil contempt claims. Their briefs to this court assign no error to the dismissal of those claims. But, even if they do appeal this ruling, the requests for a finding of civil contempt were also without founda- tion, and the district court's dismissal of those claims was proper. The permanent injunction, of which the government and its employees were alleged to be in contempt, imposed no restrictions or obligations on the government or its employees, except that FDA was directed to review, evaluate, and appraise the manu- facturing practices of the Burzynski Re- search Institute and promptly advise Dr. Burzynski of any violations of current good manufacturing practices. Although nei- ther Dr. Burzynski nor the patients raised that issue in their counterclaims as a basis for a contempt citation or any other relief, the issue was raised at the hearing on Dr. Burzynski's motion for a temporary re- straining order. However, as the record shows, FDA has advised Dr. Burzynski of its position with respect to his manufactur- ing practices, and so is in compliance with its obligations under the permanent injunc- tion. VI. The patients who appear in this suit are in a critical plight They seek any treat- ment that offers them the slightest hope, for they think it better to exhaust any possibility than to resign themselves to a fate that seems otherwise certain. The FDA has been assigned the duty of protect- ing such desperate persons from deception, abuse, and exploitation and of assuring that the treatment they are given is safe and effective. It cannot perform these tasks if those professing to offer new cures refuse to work with the system and obey the law, whether their motives be noble or ill. This court, therefore, must not allow sympathy for the plight of persons suffer- ing from cancer to cause us to interfere TIKOS, INC .011 C.I.R. 1315 1315 (551aOr. I hastily with the mission of FDA or to dis- tract us from our duty to uphold the law. For the reasons given, the judgment of the district court is AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. OWENSBY & KRITIKOS, INC., Petro- Marine Engineering. Inc. & Subsidiar- ies, John W. Owensby & Dolores G. Owensby, Theodore A. ICritikos & Be Jo Kritikoe, Petitioners, I COMMISSIONER OF INTERNAL REVENUE, Respondent No. 86-4078. United States Court of Appeals, Fifth Circuit June 26, 1987. Two shareholder employees of three closely held corporations disputed determi- nation of Commissioner of Internal Reve- nue that amounts paid to the individuals exceeded reasonable compensation for ser- vices. The United States Tax Court found that amounts paid as compensation for two taxable years were in part unreasonable. Taxpayers appealed. The Court of Ap- peals, Wisdom, Circuit Judge, held that finding that compensation paid to individu- als in part constituted a dividend, rather than compensation for services rendered, was not clearly erroneous. Affirmed. 1. Internal Revenue 4=3321, 8323 A corporation may deduct compensa- tion paid to employees only to the extent it EFTA00191838

OLAGUES v. RUSSONIELLO 791 ate u770 F24 791 (INS) either a clear probability or well-founded fear of persecution. The applications for withholding of deportation and political asylum were properly denied. DENIED. Jose J. OLAGUES, on Behalf of himself and all others similarly situated, Plaintiffs-Appellants, U Joseph P. RUSSONIELLO, individually and In his capacity as United States Attorney for the Northern District of California, et al., Defendants-Appellees. Jose J. OLAGUES, on Behalf of himself and all others similarly situated; His- panic Coalition for Human Rights, Chi- nese for Affirmative Action, and San Francisco Lation Voter Registration Education Project, Plaintiffs-Appel- lants. Joseph P. RUSSONIELLO, individually and in his capacity es Untied States Attorney for the Northern Ca; O'Mal- ley, William A., individually and in his capacity as District Attorney for Con- tra Costa County; Underwood, Lon, in- dividually and in his capacity as regis- trar of voters for Contra Costa County; Smith, Arlo, individually and in his ca- pacity as District Attorney for San Francisco County, et aL, Defendants- Appellees. Nos. 82-4427, 83-2581. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 12, 1984. Decided Sept. 3, 1986. Citizen and organizations promoting voting rights of Americans with ethnic backgrounds sued for damages and declar- atory injunction relief arising from a pre- liminary investigation into possible viola- tions of the Voting Rights Act. The Unit- ed States District Court for the Northern District of California, Spencer Williams and Stanley A. Weigel, M., dismissed injunction claims and granted summary judgment in favor of the United States Attorney and county officials. Appeal was taken. The Court of Appeals, Wallace, Circuit Judge, held that (1) the citizen did not have stand- ing to challenge the investigation, but the organizations did; (2) there were no ex- traordinary circumstances to warrant in- junctive relief; (3) the organizations were not entitled to a declaratory judgment; (4) there was not basis for an injunction against county officials which would, in effect, enjoin the United States Attorney from pursuing his investigation; and (5) there was no implied private action under the Voting Rights Act for damages. Affirmed. Nelson, Circuit Judge, concurred in part and dissented in part with opinion. 1. Federal Courts 4=12 Claims for equitable relief become moot when challenged activity ceases if subsequent events show that activities could not reasonably be expected to recur, unless there is possibility of continuing, present adverse effects. 2. Federal Courts 4=,12 Voluntary cessation of challenged ac- tivity by government official is insufficient to render case moot if legality of chal- lenged practices is still in dispute because official is free to return to his old ways. 3. Federal Courts 4=12 Case or controversy for purposes of Article Ill may remain live following cessa- tion of challenged activity if actions are capable of repetition and of evading re- view. U.S.C.A. Cont. Art. 3, § 1 et seq. EFTA00191839

792 770 FEDERAL REPORTER. 2d SERIES 4. Federal Courts iag 3.20 Action challenging investigation by United States Attorney as to whether reg- istered voters were American citizens was not rendered moot by Attorney's termi- nation of investigation where Attorney ter- minated investigation solely because it failed to produce evidence supported any further investigative activities, Attorney argued vigorously that his actions were lawful and there was no showing that in- vestigation conducted in same manner against same groups would not recur. U.S.C.A. Const Art. 3, § I et seq. 5. Injunction es.114(2) Citizen did not have standing to seek to enjoin prosecutorial activities concerning whether noncitizens were registered to vote where possibility that voter registra- tion records would again be scrutinized was entirely speculative and no official action was taken other than verifying citizenship status of voters. 6. Injunction 4=114(2) Organizations which conducted voter registration drive among ethnic groups had standing to challenge investigation into whether registered voters were citizens where they alleged that their voter regis- tration and education efforts had been hin- dered as direct result of challenged investi- gation, organizations asserted that both they and their members were threatened with possible prosecution, interests orga- nization sought to protect were "germane" to their purposes and relief sought did not require participation of individual members in suit U.S.C.A. Const. Art. 3, § 1 et seq. 7. Injunction '126 Although case may not be moot, plain- tiff still has burden of showing that eq- uitable relief is necessary and mere possi- bility of future injury is insufficient to en- join official conduct. 8. Federal Courts 42414 There must be strong showing of abuse of discretion to overturn denial of injunctive relief against official conduct. 9. Injunction *0,110 District court had jurisdiction over complaint seeking to enjoin preliminary in- vestigation of United States Attorney into whether registered voters were citizens. 10. Administrative Law and Procedure aw701 District court has no power to monitor executive investigations before case or con- troversy arises. IL Injunction 4=105(1) There were no extraordinary circum- stances to justify injunctive relief against investigation by United States Attorney into citizenship status of recently reg- istered, foreign-born voters. 12. Constitutional Law e=213.1(1) Language-based classification is not equivalent of national origin classification and does oot denote suspect class requiring heightened scrutiny. U.S.C.A. Conn. Amend. 14. 13. Constitutional Law 4=42(8) Although voting is considered funda- mental right, no "burden" was placed on anyone's right to vote by United States Attorney's preliminary investigation into citizenship status of recently registered foreign-born voters so as to require height- ened scrutiny. U.S.C.A. Const.Amend. 14. 14. Constitutional Law 4=42(8) United States Attorney's investigation into citizenship status of recently reg- istered foreign-born voters and circum- stances surrounding their registration did not violate First Amendment rights of or- ganizations which conducted registration drives among ethnic groups. U.S.C.A. ConstAmend. 1. 15. Constitutional Law eana.1(2) When no "suspect class" is involved and no fundamental right is burdened, ra- tional-basis test is used to determine legiti- macy of classification. U.S.C.A. Const Amend. 14. 16. Elections 4=324 Voter fraud investigation limited to re- cently registered foreign-born voters seek- EFTA00191840

OLAGUES v. RUSSONIELLO 793 Ole as 770 F2d 791 (1985) ing bilingual ballots was reasonably limited ligation into citizenship status of those vote in both its scope and its use of classifies- era where there was no intent to intimidate lions. U.S.CA. ConstAmend. 14. voters. 17. Injunction *' 18t78 Organizations which conducted voter registration drives among ethnic groups were not entitled to preliminary injunction against United States Attorney's investiga- tion into possible voter fraud resulting from registration of noncitizens. 18. Declaratory Judgment 4=s5 Decision whether to grant declaratory relief is within sound discretion of district court. 28 U.S.C.A. §§ 2201, 2202. 19. Declaratory Judgment u=s4 Declaratory relief may be appropriate even when injunctive relief is not. 28 U.S. CA. §§ 2201, 2202. 20. Declaratory Judgment s=r84 Organizations which conducted voter registration drives among ethnic groups were not entitled to declaratory judgment against investigation of citizenship status of recently registered foreign-born voters seeking bilingual ballots where organiza- tions were not generally hindered from pursuing their lawful voter registration ac- tivities at time of imminent criminal prose- cution. 28 U.S.C.A. §§ 2201, 2202. 21. Injunction 4..105(1) Where county officials forwarded names of recently registered foreign-born voters who requested bilingual ballots at specific request of United States Attorney, who was investigating possible voter fraud, there was no basis for injunction against county officials which would, in effect, en- join United States Attorney from pursuing his investigation. 22. Elections 0012(4) There was no violation of Voting Rights Act (42 U.S.C.A. § 1971(b); Voting Rights Act of 1965, §§ 11(b), 208, as amended, 42 U.S.C.A. §§ 19731(b). 1973aa- la) in county officials' conduct of forward- ing names of recently registered foreign- born voters who requested bilingual ballots to United States Attorney as part of invert- 23. Elections no12(9) There is no implied private right of action for violations of Voting Rights Act. 42 U.S.C.A. § 1971(b); Voting Rights Act of 1965, §4 11(b), 203, as amended, 42 U.S. C.A. 4419131(6), 1973aa-la. 24. Civil Rights C•13.8(3. 6) United States Attorney and county of- ficials who participated in investigation of recently registered foreign-born voters who requested bilingual ballots, for pur- poses of determining whether voter fraud occurred, were entitled to at least qualified, good-faith immunity from liability under civil rights statute. 42 U.S.C.A. § 1983. Joaquin G. Avila, Ronald T. Vera, Alan L. Schlosser, American Civil li berties Un- ion, San Francisco, Cal., and Kathleen A. Pool, California Rural Legal Assistance, Marysville, Cal., for plaintiffs-appellants. William T. hfcGivens, and John D. O'Con- nor, Tarkington, Carey, O'Connor & O'Neill, San Francisco, Cal., for defend- ants-appellees. Appeal from the United States District Court for the Northern District of Califor- nia. Before WALLACE, ALARCON, and NELSON, Circuit Judges. WALLACE, Circuit Judge: Olagues, a citizen, and certain organiza- tions promoting the voting rights of Ameri- cans with Hispanic or Chinese ethnic back- grounds in the San Francisco Bay area (the organizations) sued for damages and de- claratory and injunctive relief arising from a preliminary investigation by the United States Attorney and various state officials into possible violations of the Voting Rights Act of 1965, 42 US.C. § 1973i(c), (d) (the Act), which prohibits the illegal regis- tration of voters or conspiracies to illegally register voters. Olagues and the organize- EFTA00191841

794 770 FEDERAL REPORTER, 2d SERIES lions claim violations of their rights under the Act and the first, fifth, fourteenth, and fifteenth amendments to the Constitution. The district court dismissed the injunctive claims on the ground that it lacked jurisdic- tion to enjoin an investigation by the Unit- ed States Attorney. The district court also granted summary judgment in favor of the United States Attorney and the state offi- cials on the remaining claims. We have jurisdiction pursuant to 28 U.S.C. 1291. and we affirm. In March and April of 1982, United States Attorney Russoniello received infor- mation from the Santa Clara County district attorney indicating that a substantial num- ber of foreign-born individuals who had recently registered to vote were not United States citizens. The information was con- tained in a study of recent voter regis- trants whose primary language was not English. Many of the noncitizen regis- trants apparently believed or were told that they were entitled to vote on the basis of marriages to United States citizens or a long period of residence in the United States. Russoniello also was informed that the Spanish translation of the voter regis t-ation form erroneously stated that regis- trants "should be" a United States citizen, rather than stating one "must be" a citizen. Russoniello then sent a letter on April 19, 1982, to law enforcement officers and voter registrars in nine local counties with- in his jurisdiction requesting their coopera- tion in obtaining a sampling of names from voter registration lists in order to deter- mine whether the improper registration problem noticed in Santa Clara County was more widespread. The letter requested the forwarding of 25 names, randomly select- ed, of recently registered, foreign-born vot- ers who requested bilingual ballots. The letter indicated that upon receipt of the sampling, the names would be forwarded to the Immigration and Naturalization Ser- vice (INS) to determine each individual's citizenship status. He recommended that those individuals who the INS indicated were not citizens be interviewed thereafter. Russoniello stated that he did not intend to prosecute any improperly registered you en, but that he would consider prosecuting individuals who deliberately conspired to register unqualified voters if evidence of such impropriety surfaced. The local officials responded by forward- ing the names of 168 persons, one of whom was Olagues, from the public voting lists which were subsequently checked by the INS. At Russoniello's request, local offi- cials then conducted voluntary interviews with some of the 113 individuals whom the INS could not positively identify as citizens to determine their citizenship and, if the individuals proved not to be United States citizens, the circumstances surrounding their registration. No further investiga- tion occurred. II Because the investigation has terminat- ed, we first must determine whether there remains a live controversy for purposes of granting equitable relief. There is no question that a controversy remains with respect to damages. (1) We begin this analysis with the rec- ognition that "[p]ast exposure to illegal conduct does not in itself show a present case or controversy" for equitable relief. OShea v. Littleton, 414 U.S. 488, 495, 94 &Ct. 669, 675, 38 L.Ed.2d 674 (1974) (0Shea). Claims for equitable relief there- fore become moot when the challenged ac- tivity ceases if subsequent events show that the activities "could not reasonably be expected to recur," Chinese for Affirma- tive Action v. Leguennec, 580 F2d 1006, 1009 (9th Cir.1978), art denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 LEd.2d 90 (1979), unless there is a possibility of "continuing, present adverse effects." 0Shea, 414 U.S. at 496, 94 S.Ct 676. (2, 3) There is a heavy burden, how- ever, on the defendant to show that there is no reasonable expectation of repetition. United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct 894, 897, 97 LEd. 1308 EFTA00191842

OLAGUESI cite es (1953) (W.T. Grant). Voluntary cessation of the challenged activity by the official is insufficient to render a case moot if "the legality of the challenged practices" is still in dispute because "(t)he defendant is free to return to his old ways." Id. at 682, 78 S.Ct. at 897. See Allee v. Medrono, 416 U.S. 802, 810-11, 94 S.M. 2191, 2197-98, 40 L.Ed.2d 566 (1974); Waning a HeImerich & Pare, Ina, 823 U.S. 87, 43, 65 S.Ct. 11, 14, 89 LEd. 29 (1944); Pomerantz v. County of Los Angeles, 674 F.2d 1288, 1291 (9th Cir.1932) (claim is moot if subse- quent "events have completely and irrevo- cably eradicated the effects of the alleged violation"). Moreover, a case or controver- sy for purposes of article III may also remain live following cessation of the chal- lenged activity if the actions are capable (1) of repetition and (2) of evading review. See, e.g., Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 1698, 40 L.Ed.2d 1 (1974). Finally, the existence of "a public interest in having the legality of the practices settled ... mili- tates against a mootness conclusion." W.T. Grant, 345 U.S. at 632, 73 S.Ct. at 897 (emphasis added). lel Applying this framework to the case before us, we fmd several factors pointing toward the continuing existence of a case or controversy for purposes of eval- uating plaintiffs' equitable claims. First, the United States Attorney did not volun. tarily cease the challenged activity because he felt that the investigation was improper. Rather, Russoniello terminated the investi- gation solely because it failed to produce evidence supporting any further investiga- tive activities. Russoniello has at all times continued to argue vigorously that his ac- tions were lawful. Second, there has been no showing that an investigation conducted in the same manner against the same groups would not recur. Although Russoniello and the state officials point out that the Director of the Census now has determined that these counties no longer must provide bilingual ballot materials, see 49 Fed.Reg. 25,887-88 (June 25, 1984), Olagues and the organize- RUSSONIELLO 795 F2d 791 (1910) lions correctly observe that election offi- cials in San Francisco, Santa Clara, Alame- da and Monterey counties will continue to provide the same bilingual ballot materials as previously required by section 203(b) of the Voting Rights Act, 42 U.S.C. 0 1978aa- le()). Thus, Russoniello will continue to have the means available to conduct an investigation similar to the one challenged here. It. is immaterial that the tools useful for discriminatory purposes are furnished by the state rather than by the federal government what matters is whether fed- eral officials may utilize them. ello is certainly empowered to in- election fraud; it would not be unreasonable to believe that a similar in- vestigation might arise at some point in the future. Thus, the same issues are capable of repetition. At the same time, these in- vestigations, such as the one in the present case, may be of very short duration, mak- ing Im effectively capable of evading re vie by an appellate court £g., Ne- braska Press Association v. Stuart, 427 U.S. 539, 546-47, 96 S.Ct 2791, 2796-97, 49 L.Ed.2d 688 (1976). Other factors also suggest a live contro- versy. The organizations argue that their organizational efforts have been handi- capped as a result of the fear engendered by this investigation. They contend that unless the legality of the investigation is determined, they may continue to suffer these chilling effects despite the termi- nation of the initial investigation. Further- more, there is a significant public interest in addressing both the appropriateness of permitting a challenge to a federal investi- gation, which raises separation-of-powers concerns, and the appropriateness of the investigatory methods employed, which raises voting rights and first amendment concerns. This case is distinguishable from O'Shea and City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 76 L.Ed.2d 675 (1983) (Lyons). In O'Shea, the plaintiffs chal- lenged certain arrest and bail procedures employed by state law enforcement and judicial officials. In order to be subject to EFTA00191843

796 770 FEDERAL REPORTER, 2d SERIES these alleged unlawful procedures, how- ever, one would first have had to violate some law and then have been arrested. 414 US. at 4%, 94 S.Ct. at 676. The Supreme Court found that plaintiffs failed to show any case or controversy because it presumed that plaintiffs would obey the law, and therefore they never would be- come subject to any unlawful procedures in the future. Id. at 497, 94 S.Ct- at 676. Unlike the situation before us, the O'Shea plaintiffs did not claim any constitutional right to act as they had prior to their arrest See id at 498, 94 S.Ct. at 677. In Lyons, the plaintiff challenged the use of chokeholds by Los Angeles police on arres- tees. The Court again held that there was no case or controversy for equitable relief because whether Lyons would again be ar- rested and subjected to a chokehold a sec- ond time was purely speculative. See 461 U.S. at 105-06. 103 S.Ct at 1667. Here, Olagues and the organizations claim that the actions of the officials have interfered with their constitutionally pro- tected first amendment activities in reg- istering voters. Unlike °Shea and Lyons, neither Olagues nor the organizations had to break any law in order to be subjected to alleged unlawful conduct by the officials. Certainly the legality of the investigation at issue remains in dispute; both sides continue forcefully to advocate their posi- tions. Rusaoniello has never seriously at- tempted to make any showing that the challenged investigative techniques will never be employed again; rather, he vigor- ously defends his investigative tactics. Thus, he fails to meet his "heavy burden" of showing mootness. W.T. Grant, 345 U.S. at 633, 73 S.Ct at 897. III We next examine the standing of Ola- gues, a foreign-born citizen who requested bilingual election materials, and the orga- nizations, which claim that the challenged investigatory activities will "effectively deny their right to participate in the elec- toral process." We recently summarized the law relating to standing required by article III of the Constitution: Standing is a threshold question in ev- ery case before a federal court. Before the judicial process may be invoked, a plaintiff must "show that the facts al- leged present the court with a 'case or controversy' in the constitutional sense and that the) is a proper plaintiff to raise the issues sought to be litigated." A party seeking to invoke the court's au- thority must demonstrate "such a per- sonal stake in the outcome of the contro- versy as to assure that concrete adverse- ness which sharpens the presentation of the issues upon which the court so large- ly depends...." The question of whether the plaintiff has standing involves both constitutional and prudential limitations. The constitu- tional limitations of article III involve three separate but interrelated compo- nents: first, a "distinct and palpable" injury to the plaintiff, be it "threatened or actual"; second, a "fairly traceable causal connection" between that injury and the challenged conduct of the de- fondant; and third, a "substantial likeli- hood" that the relief requested will re- dress or prevent the injury. McMichael County of Napa, 709 F.2d 1268, 1269-7 (9th Cir.1983) (citations omit- ted). [51 Olagues would generally have standing under the Act if he is an "aggriev- ed person," broadly defined as one who has suffered an injury. See Allen v. State Board of Elections, 393 U.S. 544, 554-57, 89 S.Ct 81'7, 825-27, 22 LEt1.24i 1 (1969) (Allen). He has alleged an injury: his request for s bilingual ballot triggered an investigation of his records by the FBI and the INS and an interview by the local Dis- trict Attorney. Juxtaposed against the holding in Allen, however, is the general bar against the invocation of federal equity jurisdiction in criminal prosecutions when the plaintiff is not being prosecuted or threatened with prosecution. See Linda R.S. v. Richard D., 410 U.S. 614, 617-19, EFTA00191844

(1978); Younger v. Harris, 401 U.S. 37, 50-64, 91 S.Ct. 746, 763-55, 27 L.Ed.2d 669 (1971) (Younger). In order to harmonize these conflicting strains of precedent aris- ing in this particular factual circumstance, we find it necessary to focus on the nature of the relief sought by Olagues. Here, Olagues is not seeking any affirm- ative injunctive relief in order to permit him to vote, such as demanding that he be listed as an eligible voter. Rather, he seeks to enjoin prosecutorial activities which are focused on persons other than himself. Moreover, it does not appear that Olagues has demonstrated that he would suffer irreparable harm without equitable relief. Unlike the organizations, who al- lege that their current voter registration efforts are being hindered by the fear that they may possibly be subject to a similar investigation in the future, the possibility that Olagues's voter registration records will be scrutinized again is entirely specula- tive. Olagues thus faces the brinier of Lyons, which emphasizes that the irrepara- ble harm showing is "a requirement that cannot be met where there is no showing of any real or immediate threat that the plain- tiff will be wronged again." 461 U.S. at 111, 103 S.Ct. at 1670. Under these circumstances, we conclude that Olagues has failed to overcome the prudential limitations on standing that are particularly important when evaluating claims for equitable relief regarding a crim- inal investigation. The injuries he alleges are insufficient to warrant such an intru- sive remedy. Since he is a citizen, it cannot be seriously contended that Olagues has been or will be denied his right to vote as a result of an examination of public records. No official action has been taken against him, other than verifying his citizenship status along with those individuals who were initially identified as improperly reg- istered. The principal claim of present in- jury is that the investigation has had a "chilling effect" on and "stigmatized" him. However, mere "allegations of a subjective 'chill'" do not suffice to present a justicia- ble claim. Laird v. Tatum, 408 U.S. 1, OLAGUESI RUSSONIELLO 797 Ow es Rid 791 MSS) 93 S.Ct. 1146, 1148-49, 86 LEd.2d 636 13-14, 92 S.Ct. 2318, 2325-26, 33 LEd.2d 154 (1972). We need not pass on the "stig- ma" claim as a basis for standing. The only time it could have arisen was after public disclosure that the investigation was taking place, which apparently was self-in- duced by the filing of this lawsuit. In the absence of standing to pursue equitable relief, Olagues' individual claim for relief is therefore relegated to one for damages only for any direct injuries which might have occurred as a result of the investiga- tion directed at others. See Lyons, 461 U.S. at 111, 108 S.Ct. at 1670 (damage remedy is adequate when there is no show- ing of future injury). (SI The organizations' standing re- quires more extensive analysis. Chinese for Affirmative Action is a voluntary mem- bership group that seeks to protect the rights of Chinese-Americans. It monitors compliance with bilingual election require- ments and encourages Asian-Americans to register and to vote. The Hispanic Coali- tion for Human Rights is an association of Hispanic organizations and persons of Mex- ican descent, with a goal of securing the civil rights of Hispanics. It encourages them to register and to vote, and advises them on the availability of bilingual elec- tion materials. The San Francisco Latino Voter Registration Education Project is a coalition of Hispanic groups that was con- ducting a voter education and registration drive at the time of the investigation. The organizations allege that the investigation has hindered their efforts to encourage citi- zens of Hispanic and Chinese ethnic back- grounds to participate in the electoral pro- cess and that it was aimed at investigating how they registered voters, thus intimidat- ing them in such activities. They also fear disclosure of their organizational member- ship. They claim direct injury both to themselves and to their members. An associational plaintiff has standing to seek redress of direct injury to the orga- nization itself. See Simon v. Eastern Kentucky Wetictre Rights Organization, 426 U.S. 26, 27, 40, 96 S.Ct. 1917, 1919, EFTA00191845

798 770 FEDERAL REPORTER, 2d SERIES 1926, 48 LEd.2d 450 (1976) (Simon); Worth o. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 2211, 45 LEd.2d 843 (1976) (Worth ); NAACP v. Sutton, 371 U.S. 416, 428, 83 S.Ct. 828, 335, 9 L.Ed.2d 405 (1963). Under certain circumstances, an association may also be entitled to seek redress of injury to its members. See, e.g., Runt a Wash- ington State Apple Advertising Commis- sion, 432 U.S. 333, 342, 97 S.Ct 2434, 2440, 58 L.Ed.2d 383 (1977) (Hunt k Simon, 426 U.S. at 40, 96 S.Ct. at 1925; Worth, 422 U.S. at 611, 96 S.Ct at 2211; Sierra Club v. Morton, 405 U.S. 727, 739, 92 S.Ct. 1361, 1868, 81 L.Ed.2d 636 (1972) (Sierra Club). In Hunt, the Supreme Court established a three-part test to determine whether an association has standing: (1) either the group or its members must have suffered some direct, cognizable injury; (2) the In- terests the group seeks to protect must be "germane to the organization's purpose"; and (3) the claim or relief sought must not require the participation of the individual members in the suit. 432 U.S. at 348, 97 S.Q. at 2441. A mere "abstract concern," Simon, 426 U.S. at 40, 96 S.Ct. at 1925, or "special interest" in a public issue, Sierra Club, 405 U.S. at 739, 92 S.Ct. at 136$, however, is legally insufficient to confer standing. The organizations claim standing on two grounds. First, they assert a direct injury: their voter registration and educational ef- forts have been hindered as the direct re. suit of the challenged investigation, in vio- lation of their first amendment and associa- tional rights. They claim that the investi- gation has discouraged members from par- ticipating in their asaociational activities and that it will lead to disclosure of orga- nizational membership, thus undermining their voter education and registration ef- forts. Because the investigation involved questioning of voter registrants as to who had assisted them in registering, they con- tend, it inherently delved into their associa- tional activities and membership in viola- tion of their constitutional rights. Second, the organizations assert that both they and their members are threat- ened with possible prosecution for viola- tions of the Voting Rights Act. They cite Russoniello's letter as evidence that such prosecution was possible. They further as- sert that they are undoubtedly the targets of Russoniello's investigation and may be charged with improperly influencing ineli- gible persons to register. A preliminary issue is whether the inves- tigation may be fairly characterized as hav- ing been "targeted" at these organizations or their members. The investigation sought to determine whether there existed any unlawful conspiracies to register ineli- gible foreign-born voters. The random sample of voters employed focused solely on foreign-born registrants who sought bi- lingual ballots. Russoniello's letter indi- cates that groups targeting citizens of Chi- nese and Hispanic ethnic backgrounds were the source of his concern. Although he stated that he did not challenge their right to conduct registration drives, he did not disavow future prosecutions against per- sons conspiring to register noncitizens. When any voter whose name was chosen at random initially appeared to be unqualified, he sought follow-up questioning to deter- mine who registered the voter and what representations had been made as to the qualifications necessary to vote. It is not difficult to conclude from this fact that the investigation was sufficiently "targeted" at the organizations and their members for purposes of our analysis. Their principal activities were directed specifically at reg- istering and counseling voters who would fall within the classification on which the investigation was based. That they were not specifically named as targets does not change this conclusion. We now analyze these organizations' standing under Hunt's three-part test. The first hurdle is whether the groups or their members may have suffered any di- rect, cognizable injury. We conclude that the organizations' allegations raise suffi- cient claims of potential direct injury to both themselves and their members. The Supreme Court has recognized previously that a group may have standing even if it is only derivatively injured as the result of EFTA00191846

OLAGUES v. RUSSONIELLO 799 ast as 7701,14 Al (19IS) the prosecution or threat of prosecution of the mere possibility of future injury is in- its members. See Alice a Medrano, 416 sufficient to enjoin official conduct More- U.S. 802, 82940 & n. 6, 94 S.Ct. 2191, 2207 over, there must be "a strong showing of & n. 6, 40 Ltd.2d 666 (1974) (Burger, J., abuse" of discretion to overturn a denial of concurring in part and dissenting in part). such relief. Id. We also keep in mind the In the case before us, the organizations' Supreme Court's admonition that any in- voter education and registration efforts are junction regarding government functions is unquestionably protected from unwarrant- generally only permitted in "extraordinary ed interference by prosecutorial officials; circumstances," Rizzo v. Goods, 423 U.S. whether the investigation actually involved 362, 379, 96 S.Ct 598, 608, 46 L.Ed2d 661 any unwarranted intrusions into their sato- (1976), as officials should be given the ciational activities solely affects the merits "widest latitude" possible while performing of their claim, not their standing. More- their official duties. Id at 3'78, 96 S.Ct. at over, unlike Olagues, members who partici- 607. pated in the organizations' counseling ac- tivities and voter registration drives are potential targets of future prosecutions. Thus, the bar to invocation of federal equi- ty jurisdiction faced by a plaintiff who is not being prosecuted or threatened with prosecution is not applicable. See Linda R.& v. Richard O, 410 US. 614, 93 S.Ct 1146, 35 L.Ed.2d 586 (1973); Younger a Harris, 401 U.S. 87, 91 S.Ct 746, 27 L.Ed.2d 669 (1971). The next inquiry is whether the interests the organizations seek to protect are "ger- mane" to the purposes of the organiza- tions. Hunt, 432 US. at 343, 97 S.Ct. at 2441, We conclude that they are. The organizations' activities are centered on voter education and registration. Such ac- tivities are directly related to the individual members' interests in pursuing counseling and registration of voters free from unwar- ranted prosecutorial intrusions. Finally, the relief sought by the orga- nizations does not require the participation of individual members in the suit The principal claims are for injunctive and de- claratory relief; such equitable relief is particularly suited for group representa- tion. See Werth, 422 U.S. at 516, 96 S.Ct. at 2213. Thus, we conclude that the orga- nizations have standing. IV 17, 8) Although a case may not be moot, a plaintiff still has the burden of showing that equitable relief is necessary, see W.T. Grant, 846 U.S. at 688, 73 S.Ct. at 897, and (91 The organizations seek to enjoin a preliminary investigation of a United States Attorney. The district court dis- missed the organizations' complaint on the grounds that "as a matter of law," it lacked "jurisdiction to enjoin or otherwise control" such an investigation. We review the legal question of jurisdiction de novo. Kg., United States a Oregon, 718 F2d 299, 908 & n. 5 (9th Cir.1983). The district court erred in its ruling that it lacked juris- diction. See, e.g., Jett a Castaneda, 578 F.2d 842, 845 (9th Cir.1978) (felt). 1101 We have recognized, however, that as a general proposition, a district court has no "power to monitor executive investi- gations before a case or controversy arises." Jett, 678 F.2d at 846. See also United States a Cox, 342 F.2d 167, 171 (5th Cir.) (en bane) ("courts are not to inter- fere with the free exercise of the discre- tionary powers of the attorneys of the United States in their control over criminal prosecutions"), cert. denied, 381 U.S. 995, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). We emphasized that intrusions into the investi- gative process of a United States Attorney present "difficult problems of separation of powers." Jett, 678 F.2d at 845. We there- fore recognized that only in extraordinary circumstances would we entertain an action to enjoin a prosecutor's investigatory activ- ities. See id ("prosecutor may be subject to a suit to enjoin egregiously illegal con- duct"). See also United States v. Charon; 549 F.2d 1806, 1313 (9th Cir.) ("a court may not exercise its 'supervisory power' in a EFTA00191847

800 770 FEDERAL REPORTER. 2d SERIES way which encroaches on the prerogatives of [a prosecutor] unless there is a clear basis in fact and law for doing so," because of separation of powers constraints), cart denied, 434 U.S. 825, 98 S.Ct 72, 54 LEd.2d 83 (1977) (Charism). (11) The organizations alleged that the United States Attorney lacked a reasonable basis for initiating the investigations. The district court should therefore have deter- mined whether any extraordinary circum- stances were present. Because we may affirm the district court's ruling on any basis fairly presented b rd, how- ever, see Keniston v. 717 F.2d 1295, 1300 n. 3 (9th Cir.1983), we consider whether there were extraordinary circum- stances, Jets, 578 F.2d at 845, present re- quiring injunctive relief. We conclude that no extraordinary circumstances are sug- gested in the rti, as indicated in our discussion in Part Because we hold that injunctive relief would not be appropriate, we need not determine whether, as Olagues and the organizations claim, an action for such relief may lie against federal officials under the Act itself. Other courts have been equally reluctant to intrude into the sphere of prosecutorial authority. See Reporters Committee for Freedom of the Press v. American Tele- phone & Telegraph, 693 F.2d 1030, 1065 (D.C.Cir.1978) ("Only the most extraordi- nary circumstances warrant anticipatory judicial involvement in criminal investiga- tions."), cert denied, 440 U.S. 949, 99 S.Ct. 1431, 59 LEcI2d 639 (1979) (Reporters Committee); LaRouche v. Webster, 566 FSupp. 415, 417 (S.D.N.Y.1983) ("party seeking to enjoin a criminal investigation bears an almost insurmountable burden") (LaRouche); accord In re Grand Jury of the Southern District of Alabama, 508 F.Supp. 1210, 1214 (S.D.Ala.1980); In re Grand Jury Subpoena to Central States, 225 F.Supp. 928, 925 (N.D.III.19t34). Only one court has actually found the presence of sufficiently extraordinary cir- cumstances. In Pollard v. Roberts, 283 FSupp. 248 (E.D.Ark.), Ord, 393 U.S. 14, 89 S.Ct 47, 21 LEd.2d 14 (1968) (per cu- rism), the district court enjoined the en- forcement of a subpoena requiring the dis- closure of contributions to a political party. Such disclosure of what was then con- sidered confidential data would have result- ed in immediate, irreparable harm to the plaintiffs' clear first amendment interests. As a result, the court placed a minimal burden on the prosecutor to show that the subpoena was rationally related to a legit- imate investigation, 283 F.Supp. at 256, a burden that he failed to meet. Id. at 257. Courts have rejected attempts to inter fere with an investigation by a United States Attorney in two similar instances. In LaRouche, contributors and organiza- tions supporting a Congressman sued for injunctive and declaratory relief in regard to an investigation into his campaign. The investigation was triggered by a series of newspaper stories indicating potentially il- legal campaign financing activities. Plain- tiffs argued that the investigation was in bad faith with the intention of both chilling the plaintiffs' exercise of their first amend- ment rights of association and discourag- ing future contributions. The United States Attorney's activities had been limit- ed to questioning various contributors. Af- ter noting the "almost insurmountable bur- den" plaintiffs faced, the district court em- phasized that: "The decision to investigate, like the decision to prosecute, is one which the Constitution places in the executive branch. The constitutional separation of powers prevents the courts from interfer- ing with the exercise of prosecutorial dis- cretion except under the rarest of circum- stances." 666 F.Supp. at 417. That court limited its review to a determination of whether there was "reasonable cause to believe that criminal activity may have tak- en place." Id. at 418. Beyond that, the court held that it was not its function to examine the "wisdom" or "motives" behind the decision to investigate. Id In denying all of plaintiffs' claims for relief, the court found that the mere "possibility of crimi- nal activity" as alleged in the newspaper articles was "sufficient to justify a criminal investigation." Id. Because the plaintiff EFTA00191848

OI.AGUES ate as made no showing of future investigatory misconduct, an injunction with respect to future investigations was also denied. Id. at 419. 'As to the fear that first amend- ment rights were being chilled, the court emphasized that the "compelling govern- mental interest in investigating possible" crime overrode such interests and that "the more asking of material questions does not constitute a First Amendment violation." Id. at 418. See also Jona v. Unknown Agents of the Federal Election Commis- sion, 613 F.2d 864, 877-78 (D.C.Cir.1979) (reasonable questioning by Commission agents about campaign contributions does not chill first amendment rights), cert. de- nied, 444 U.S. 1074, 100 S.Ct. 1019, 62 L.Ed.2d 755 (1980). Reporters Committee involved two newspapers which sought injunctive and declaratory relief from a telephone compa- ny policy of providing toll call records to law enforcement officials, claiming first and fourth amendment violations. The court held that the first amendment provid- ed no additional "shield" respecting privacy interests beyond the fourth amendment's protection in the context of a good faith criminal investigation. 593 F.2d at 1054- 55, 1058. The court emphasized the "par- ticularly heavy burden" on plaintiffs de- manding equitable relief in such circum- stances dictated by separation of powers concerns, id. at 1065, and that mere specu- lation as to irreparable harm would not suffice. Id. at 1067. In order to meet the burden, plaintiffs would have to establish "a clear and imminent threat of future [prosecutorial] misconduct" /d. at 1071. Plaintiffs urge that the preliminary in- vestigation in this case should be reviewed by this court with "heightened scrutiny" because it focused on a "suspect class" and because a fundamental right is burdened. We disagree. [12) Initially, the organizations argue that a classification based on an individu- al's choice of language is a form of discrim- ination based on race or national origin. TA F20-20 RUSSONIELLO 801 FS 791 MSS No court has yet held that a language- based classification is the equivalent of one based on race or national origin requiring heightened scrutiny as a "suspect class." Indeed, those courts which have faced this issue have held that language-based classi- fications are not the equivalent of national origin classifications. See Soberal-Peres v. Heckler, 717 F.2d 36, 41 (2d Cir.1983), art. denied, — U.S —, 104 S.Ct. 1713, 80 L.Ed.2d 186 (1984); Frontera v Sindell, 522 F.2d 1215, 1219-20 (6th Cir.1975); see also Garcia v. Gloor, 618 F.2d 264, 268 (5th Cir.1980) ("Neither [Title VII] nor com- mon understanding equates national origin with the language one chooses to speak"), ctn. denied, 449 U.S. 1113, 101 S.Ct. 923, 66 L.Ed.2d 842 (1981). We agree with these courts and hold that a language- based classification is not the equivalent of a national origin classification, and does not denote a suspect class. Unlike race, place of birth, or sex, lan- guage is not one of those "immutable char- acteristic[s] determined solely by the acci- dent of birth" which typically are the basis for finding a suspect class. Frontier* v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 36 L.Ed.2d 583 (1973). Al- though our first choice of language may be initially determined to some extent "by the accident of birth," id., we remain free thereafter to choose another should we de- cide to undertake the initiative. Indeed, bilingualism or multilingualism is hardly an extreme rarity today, as Olagues's own bilingualism exemplifies. Moreover, even if a significant percentage of those speak- ing a particular language can bo shown to be of one "discrete and insular" racial or ethnic minority, United States v. Carotene Products Co., 304 U.S. 144, 152 n. 4, 58 S.Ct. 778, 783 n. 4, 82 L.F.d. 1234 (1938), not all persons speaking that language would be so situated. The court would thus face the problem of blurred lines defining those persons entitled to heightened protection from use of the challenged classification, with the possibility of overbroad protection leading to the striking down of otherwise rationally based official action. The orga- EFTA00191849

802 770 FEDERAL REPORTER, 2d SERIES nizations' request therefore urges us "to extend its most exacting scrutiny to review [government action] that allegedly discrimi- nates against a large, diverse, and amor- phous class, unified only by the common factor" of language. San Antonio School District v. Rodrigues, 411 U.S. 1, 28, 93 S.Ct. 1278, 1293, 36 L.Ed.2d 16 (1973). We agree that within a society "of multitudi- nous origins, customs, tongues, beliefs, and cultures, ... (i)t would hardly take extraor- dinary ingenuity for a lawyer to fmd 'insu- lar and discrete' minorities at every turn in the road." Sugarman v. nougat:, 113 U.S. 634, 657, 93 S.Ct. 2842, 2865, 37 L.Ed.2d 853 (1973) (Rehnquist, .1., dissent- ing). We therefore decline to equate one's choice of language with one's race or na- tional origin, classification on the basis of which would require exacting scrutiny. (131 Heightened scrutiny is also appro- priate if a fundamental right is burdened, and voting is considered a fundamental right. E.g., Dunn v. Blumstein, 405 U.S. 330. 336, 92 S.Ct. 995, 999, 81 L.Ed.2d 274 (1972). It is difficult to see how any "bur- den" was placed on anyone's right to vote, however, since no individual citizen was denied his right to vote. Russoniello's pre- liminary inquiry was aimed at ferreting out potential voting fraud, in order to enhance the right to vote of those who qualified. individual citizens who were initially identi- fied as not qualified thereafter were only the subject of narrowly confined, noncoer- cive follow-up interviews probing potential- ly unlawful activities of others. Even if we construe this as a "burden," it is a burden that all citizens must be asked to bear when they are potential witnesses to un- lawful conduct. (141 The organizations' first amend- ment claims are equally lacking in sub- stance. Whatever incidental burden (if any) on their associational rights which may have occurred must give way to the government's need to ensure the sanctity of the polls. See, e.g., LaRouche, 566 F.Supp. at 418 ("associations] rights ... (often] must give way to compelling gov- ernments) interests in investigating possi- ble criminal activity"). Investigative activi- ty inherently "affects or 'implicates' First Amendment activity." Reporters Commit- tee, 593 F2d at 1059 (emphasis omitted). The review of public records cannot involve any violation of first amendment rights. Moreover, the follow-up questioning of po- tential witnesses also is lawful. Sea e.g., Jones v. Unknown Agents of the Federal Election Commission, 618 F.2d 864, 877- 78 (D.C.Cir.1979) (upholding questioning of campaign contributors regarding illegal contributions), cert. denied, 444 U.S. 1074, 100 S.Ct. 1019, 62 L.Ed.2d 755 (1980); LaR• ouch., 566 F.Supp. at 418 ("As long as reasonable cause to investigate exists, the mere asking of material questions does not constitute a First Amendment violation."). 116,161 When no "suspect class" is in- volved and no fundamental right is bur- dened, a rational basis test is used to deter- mine the legitimacy of the classification. See Massachusetts Board of Retirement a Murgia, 427 U.S. 307, 311-12, 96 S.Ct. 2562, 2665-66, 49 L.Ed.2d 620 (1976) (per curiam). Here, the scope of the investiga- tion was limited to recently-registered for- eign.born voters seeking bilingual ballots. The impetus for the investigation was a study indicating problems with persons whose primary language was other than English, in part because of mistranslations in the Spanish language applications. The initial review was randomly based among this group in order to readily obtain some indication of the scope of any impropriety. When no significant level of impropriety was noticed, the investigation was termi- nated. Thus, it appears to have been rea- sonably limited in both its scope and its use of classifications. We realize that the separation of powers doctrine does not require us to ignore any and all activities by executive officials re- gardless of whether their actions constitute clear violations of individual rights. At the same time, however, even the organizations recognize that a United States Attorney is entitled, indeed required, to conduct an in- vestigation into allegations of voting fraud. They only quarrel with the scope and man- EFTA00191850

ner of the investigation subsequently un- dertaken. But ours is not the role of a "super prosecutor" empowered to monitor all prosecutorial activities on a day-to-day basis, absent compelling, extraordinary cir- cumstances. Chanen, 549 F.2d at 1312-13. (171 We only hold that on the facts of this case, no such extraordinary circum- stances exist warranting intrusion into the actions of the executive branch. This is not to say that the organizations' charges are not serious; we reach this conclusion only after careful scrutiny of the record before us. We are compelled, however, to refrain from injecting ourselves into the midst of what essentially was only an em- bryo of an investigation. A narrowly fo- cused preliminary inquiry using public records was undertaken in order for the United States Attorney to determine whether a problem even existed. Without the ability to make such a narrow inquiry, in the face of a study indicating potentially significant voter registration problems, the United States Attorney would be deprived of the information he needs to perform his duties. The organizations would have us either forbid any preliminary investigation, or mandate one of significantly broader scope. But matters such as the scope of a preliminary investigation are delegated to the sound discretion of the executive branch. VI (181 The organizations also sought de- claratory relief. The district court dis- missed this claim without elaborating its reasons. The decision whether to grant declaratory relief is within the sound dis- cretion of the district court. See, e.g., Doe o. Callinot, 657 F.2d 1017, 1024-25 (9th Cir.1981). (191 Declaratory relief may be appropri- ate even when injunctive relief is not. See Steffel v. Thompson, 415 U.S. 452, 469, 94 S.Ct. 1209, 1220, 89 L.Ed.2d 506 (1974) (Mesabi). There is a considerable differ- ence between ordering a government offi- cial to conduct his activities in a certain manner, and simply pronouncing that his DISCUSS v. RUSSONIELLO 803 Ole x779 Fad TM (1965) conduct is unlawful and should be correct. ed. Nevertheless, there remains the con- cern that an award of declaratory relief in favor of the organizations could later pro- vide grounds for seeking injunctive relief against the same officials should the orga- nizations believe they are again the targets of a similar investigation, see Samuels v. Mackell, 401 U.S. 66, 72, 91 S.Ct 764, 767, 27 I....Ed.2d 688 (1971) (Samuels), even though the investigative techniques may not be identical. Therefore, if declaratory relief based on a lesser showing leads to an injunction, the distinction between the two types of relief would be lost, despite the strong policy disfavoring such disruptive relief which we previously outlined. See Steffel, 415 U.S. at 481-82 & n. 3, 94 S.Ct. at 1226-27 & n. 3 (Rehnquist, J., concur- ring) (expressing concern over potential use of declaratory relief as a bootstrap). (201 Thus, the Supreme Court has rec- ognized that "ordinarily a declaratory judg- ment will result in precisely the same inter- ference with and disruption or' law en- forcement activities as an injunction, Sam- uels, 401 U.S. at 72, 91 S.Ct. at 767, and therefore "'the practical effect of [injunc- tive and declaratory] relief will be virtually identical." Doran v. Salem Inn, Ina, 422 U.S. 922, 981, 95 SAX 2561, 2567, 45 LEd.2d 648 (1976), quoting Samuels, 401 U.S. at 78, 91 S.Ct. at 768. Notwithstand- ing the difference in effect between injunc- tive and declaratory relief, we conclude that the same general equitable principles should apply here in determining whether to grant declaratory relief as to the lawful- ness of Russoniello's investigation. See Samuels, 401 U.S. at 73, 91 S.Ct. at 768. The central purpose of the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, is to provide parties with a declaration of their rights prior to incurring actual injury. In the typical case requesting declaratory relief with respect to law enforcement offi- cials, a declaration of rights is sought with respect to a party's ongoing or intended conduct in light of existing criminal stat- utes. The party desires a declaration that EFTA00191851

804 770 FEDERAL REPORTER, 2d SERIES his conduct is lawful, and therefore may not be interfered with by state or federal officials. See Steffel, 415 U.S. at 478, 94 S.Ct. at 1225 (Rehnquist, J., concurring). Declaratory relief thus provides an "alter native to pursuit of the arguably illegal activity." Id. at 480, 94 S.Ct. at 1226. Here, however, there is no claim seeking a declaration that the organizations' voter registration activities are lawful. Rather, they seek a declaration that the govern- ment's activities are unlawful. Thus, the organizations are not seeking any alterna- tive to being forced to continue arguably lawful conduct with the fear of imminent criminal prosecution. E.g., Doran v. Sa- lem Inn, Inc, 422 U.S. 922, 95 S.Ct. 2561, 45 L.FA 9d 648 (1975). In these circumstances, we hold that the district court's denial of declaratory relief was not an abuse of discretion. The orga- nizations were not generally hindered from pursuing their lawful voter registration ac- tivities at the risk of imminent criminal prosecution, unlike the restaurant owners in Doran. Declaratory relief in this action would raise the same concerns regarding interference with the activities of prosecut- ing officials that we pointed out in our discussion of injunctive relief. VII [211 The separation of powers concerns with regard to equitable relief against a United States Attorney are absent when examining the appropriateness of equitable relief against the county officials. But similar considerations of restraint in order- ing such relief arise out of principles of comity and federalism, as emphasized in Lyons, °What, and Younger. "[RJecogni- tion of the need for a proper balance be- tween state and federal authority counsels restraint in the issuance of injunctions against state officers engaged in the ad- ministration of the States' criminal laws...." Lyons, 461 U.S. at 112, 103 S.Ct. at 1670, citing O'Shea, 414 U.S,„ at 499, 94 S-Ct. at 677, and Younger, 401 at 46, 91 S.Ct. at 761. "(N)ormal principles of equity, comity, and federalism ... should inform the judgment of federal courts when asked to oversee state law enforcement authorities." Lyons, 461 U.S. at 112, 103 S.Ct. at 16/0. Here, the actions of the county officials of which the orga- nizations complain were all performed at the specific request of the United States Attorney. Enjoining the county officials' activities would thus, to some effect, enjoin the United States Attorney from pursuing his investigation. Because we find no ba- sis for interfering with the United States Attorney's investigation, we fmd no basis for equitable relief concerning the means he has to conduct it. Cf Gravel v United States, 408 U.S. 606, 621, 92 S.Ct. 2614, 2625, 33 LEd.2d 583 (1972) (committee counsel gathering information for con- gressman is entitled to invoke congression- al immunity). [22) Even absent these concerns, the organizations' claims under the Voting Rights Act against these officials do not appear to have merit. Assuming that the search of voting records intimidated bilin- gual voters, such intimidation would satisfy only one part of a two-pronged test for violations of 42 U.S.C. §§ 1971(b) and 1973i(b): the voters and organizations were intimidated, but the officials did not in tend to intimidate. See United States a McLeod 385 F.2d 734, 740-41 (5th Cir. 1967). As we discuss in Part IX, the offi- cials acted in good faith. Although a de- claratory judgment for violation of 42 U.S.C. § 1973aa-la could not be denied on the basis of intent, see Chinese for Affirm- ative Action, 580 F.2d at 1008-09 (good faith is no defense to equitable relief re- garding bilingual ballot provisions), there has been no violation of this section, which concerns solely the provision of bilingual ballots. There has been no allegation that bilingual ballots have not been provided in accordance with that section. VIII [23) The organizations' First Amended Complaint seeks "statutory damages" un- der the Voting Rights Act. Pursuant to Allen v. State Board of Elections, 393 U.S. EFTA00191852

OLAGUES J RUSSONIELLO Ow as 770 Fad Al (1ims) 544, 555, 89 S.Ct. 817, 826, 22 L.Ed.2d 1 (1969), private litigants are held to have an action against state officials for declarato- ry and injunctive relief under section 5 of the Act, 42 U.S.C. § 1973c. The Act, however, does not specify any statutory damage remedies. No case has been cited nor have we found one in which damages were recovered. In determining whether to construe an implied cause of action, the principal focus must be on con- gressional intent. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cumin, 456 U.S. 353, 877, 102 S.Ct. 1825, 1838, 72 L.Ed.2d 182 (1982). The Act itself limits the recov- ery of any fine for criminal sanctions to 85,000. See 42 U.S.C. § 1973aa-3. The legislative history nowhere suggests any action for damages, but instead observes that a private litigant is entitled to "the same remedy" as the Attorney General, as well as attorneys' fees as in 42 U.S.C. 44 1981-1988. S.Rep. No. 295, 94th Cong., 1st Sess. 89-48, reprinted in 1975 US. Code Cong. & Ad.News 774, 806-10. That history points out that title sole conse- quence" of the provision for a private cause of action under the Act "is to broad- en the scope of equitable relief which may be requested" to include the "special reme- dies" specified in the Act. Id. at 49, re- printed in 1976 U.SCode Cong. & Ad. News at 816 (emphasis added). Moreover, Supreme Court precedent sug- gests that private plaintiffs are limited to damage actions under 42 U.S.C. § 1983. See Smith v. Allieright, 321 U.S. 649, 64 S.Ct. 767, 83 L.Ed2d 987 (1944 In Smith, plaintiffs were awarded damages for viola- tion of their voting rights under 8 U.S.C. § 81 (now echoed in 42 U.S.C. § 1978), in a suit under 8 U.S.C. § 48 (now codified at 42 U.S.C. § 1983). Equitable relief suffices to fulfill the purpose of the statute, which is to ensure the right to register and vote at the polls. See, ag., Webber v. White, 422 F.Supp. 416, 426 (N.D.Tex.1976) ("the most relief that a federal district court can grant to a private litigant under the Allen inter- pretation of 42 U.S.C. § 1973c" is declara- tory and injunctive relief). We decline to imply any action for damages. 805 IX (241 There is also an issue of whether the organizations' complaint can be read fairly to include a request for damages based on constitutional claims or statutory claims such as section 1983, 42 U.S.C. § 1983. We agree with the district court, however, that the officials involved in this action would be entitled to immunity from such damage claims. Under hnbter v. Pachtman, 424 U.S. 409, 96 S.CL 984, 47 L.Ed.2d 128 (1976), state prosecutors are absolutely immune from damage suits with respect to their quasi-judicial activities. Federal prosecu- tors receive the same protection. Bute v. Economou, 436 U.S. 478, 516-17, 98 S.Ct. 2894, 2915-16, fi7 L.Ed.2d 895 (1978). Oth- er executive officials are entitled to quali- fied immunity, see, e.g.. Scheuer v. Rhodes, 416 U.S. 232, 247-49, 94 S.Ct. 1688, 1691- 92, 40 LEd.2d 90 (1974) (state executive officials), as are prosecutorial activities that are merely administrative or investiga- tive. Jacobson v. Rose, 592 F2d 515, 524 (9th Cir.1978), cert. denied, 442 U.S. 930, 99 S.Ct. 2861, 61 L.Ed.2d 298 (1979). We have previously employed Imbler's functional approach for determining the de- gree of immunity for prosecutorial activity. See Ybarre r. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 678 (9th Cir. 1984). Quasi-judicial activities are not lim- ited to post-indictment matters, but also include "lijnvestigative functions carried out pursuant to the preparation of a prose- cutor's case." Freeman on Behalf of the Sanctuary a little, 708 F.2d 442, 443 (9th Cir.1983) (per euriam). See also Atkins v. tanning, 656 F.2d 485, 488-89 (10th Cir. 1977) (per curiam). The district court held that the actions in question were investigatory rather than prosecutorial in nature. The limited inves- tigative activities undertaken by Russoniel- lo, however, may be encompassed within those activities essential to the initiation of a prosecution. His decision to request a sampling of voting records can hardly be EFTA00191853

806 770 FEDERAL REPORTER, 2d SERIES described as a purely administrative act. The Third Circuit has highlighted this as- pect of a prosecutor's duties: We recognize that the decision of the Attorney General, or a prosecuting attor- ney, to initiate a prosecution is not made in a vacuum. On occasion, the securing of additional information may be neces- sary before an informed decision can be made. To grant a prosecuting attorney absolute immunity over his decision to initiate a prosecution while subjecting him to liability for securing the informa- tion necessary to make that decision would only foster uninformed decision- making and the potential for needless actions. We believe the right to make the decision without being subject to suit must include some limited right to gather necessary information. Forsyth v. Illeindienet, 599 F.2d 1203, 1215 (3d Cir.1979), cert. denied, 453 U.S. 913, 101 S.Ct. 3147; 69 L.Ed.2d 997 (1981). We need not determine whether the dis- trict court erred in denying absolute immu• nity, because we agree that all those sued are entitled at least to qualified, good faith immunity. The controlling standard is "the objective reasonableness of an official's conduct, as measured by reference to clear ly established law." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.CL 2727, 2738, 73 LEd.2d 896 (1982). Moreover, summary judgment is encouraged as an appropriate tool to "avoid excessive disruption of government" Id. Under this objective standard, all the of- ficials are entitled to immunity. The coun- ty officials did no more than submit infor- mation in the public record to the United States Attorney at his request, with some later, voluntary interviews of those voters whose citizenship the INS was unable to ascertain. Such actions do not violate any "clearly established" rights. Examining information in the public record violates no one's rights. The Northern District Di- rector of the INS, David Iichert, similarly did no more than provide information to Ruasoniello that was available to anyone on request. Russoniello's actions were limited to con- ducting a preliminary investigation of po- tential voting fraud by examining and cross-checking public records. The limited scope of the investigation was reasonably related to his need to secure a preliminary indication of the scope of potential illegali- ties. No further activities were under- taken or contemplated. These actions also violated no individual's "clearly estab- lished" rights; indeed, it was Russoniello's duty to perform this investigation under the Voting Rights Act. The organizations' claims rest entirely on their contention that an investigation using a language-based classification to define its scope is subject to strict scrutiny as invid- ious discrimination on the basis of national origin. This contention is further depend- ent upon a finding that the illegality of using such a classification was "clearly es- tablished!' See Capoemon v. Reed, 754 F.2d 1512, 1514 (9th Cir.1985) (establishing framework for determining whether a right was clearly established for purposes of qualified immunity). We already have con- cluded that such a classification does not call for strict scrutiny. But even if it did, the illegality of such a classification was not "clearly established." The district court's order finding qualified immunity for all federal and state officials sued is therefore affirmed. AFFIRMED. NELSON, Circuit Judge, concurring and dissenting I agree that the controversy is not moot (section II), that the organizations have standing (section 111), and that the defend- ants are entitled to good faith immunity from damages under 42 U.S.C. § 1983 (sec- tion iX). I dissent from the holdings that Olagues lacks standing (part of section III), that "extraordinary circumstances" are re- quired to enjoin an investigation that in- fringes upon First Amendment rights (sec- tion IV), that heightened scrutiny is not warranti for the equal protection claim (section , that declaratory and injunctive relief should be judged under the same EFTA00191854

OI.AGUES aka* standards (section VI), and that the plain- tiffs have no claims under the Voting Rights Act (sections VII and VIII). I would remand on the injunction and one Voting Rights Act claim, and reverse the denial of a declaratory judgment which pro- vides that the investigation violated the Equal Protection Clause. For clarity and brevity, I will limit my comments on this complex case to these issues. Standing should not be denied to Ola- gues. Neither rationale employed by the majority is convincing. The prudential analysis speaks of "equitable relief" but then considers solely the request for an injunction, ignoring the declaratory relief sought. The majority concedes that Ola- gues has alleged an injury, but then cate- gorizes the harm as "subjective" an fore nonjusticiable under Laird v. 408 U.S. 1, 92 S.Ct. 2318, 33 LEd. (1972). Yet Lairs( recognizes that when the complainant is subject to the challenged exercise of government power, whereby the government improperly imposed an aft firmative obligation likely to have a deter- rent effect on the exercise of his rights, Lamont v. Postmaster General, 381 U.S. 301, 308, 85 S.Ct. 1493, 1497, 14 LEd.2d 398 (1965), the requirements of standing are met. Laird, 408 U.S. at 11-13, 92 S.Ct. at 2324-25 (citing Lamont). Olagues satisfies the requisites of stand- ing under the very case upon which the majority relies. See McMichael v. County of Napa, 709 F.2d 1268, 1269-70 (9th Cir. 1983). The burden which Olagues alleges upon his exercise of the franchise—that his request for a bilingual ballot triggered an investigation of him by the INS, the FBI. and the United States Attorney, and an interview with the local District Attorney at which he was to prove his citizenship—is t. See Ritto v. Goode 423 is. 362. 379. 96 5.O. 5911. 608, 46 LEdld 561 976) (federalism sues in injunction of municipal police); lea Castings:1a, 578 F.741 842. 845 (9th Clr.1978) immediate controversy on discovery until prose- cution had commenced); Milted Smuts v. Chan. en, 549 Ficl 1306, 1313 (9th Cir.) (Prosecutoes choice of evidence to present to grand Jury). eert. denied, 434 US 825. 98 SQ. 72, 54 LEdld 83 (1977): United States v. Cox, 342 F.24 167, RUSSONIELLO 807 F2d 741 (1185) concrete. He has a personal stake in the controversy and the relief requested would prevent the injury from recurring. More- over, the majority's suggestion that any stigma attributable to the government's ac- tion was Olagues' own fault, because all publicity concerning the investigation re- sulted from the filing of this lawsuit, has neither legal support nor a factual basis in the record. The majority accords standing to the or- ganizations because the investigation threatened their members. The identical threat is posed to the group of voters to which Olagues belongs—Hispanic citizens who request bilingual ballots. This lan- guage minority group is explicitly protect- ed against voting discrimination. See 42 U.S.C. 4 1973b(f)(2). The injury to Olagues as a member of this group is another ground for his standing under the Equal Protection Clause. See United Jewish Or- ganizations of Williamsburgh, Ina v. Wit son, 510 F.2d 512, 622 (2d Cir.1975). The majority misstates the standard for injunctive relief in this context. Instead of the "extraordinary circumstances" thresh- old, drawn from federalism and criminal cases; this investigation should have been enjoined if it lacked a reasonable basis or was initiated in bad faith. See Branzburg a Hayes, 408 U.S. 665, 699-701, 707-08, 92 S,Ct. 2646, 2665-2666, 2669-2670, 33 LEd.2d 626 (1972); Reporters Committee for Freedom of the Press v. American Telephone & Telegraph, 593 F.2d 1030, 1064 (D.C.Cir.1978), cart denied, 440 949, 99 S. 59 LEd2d 639 (1 Pollard to 288 F.Supp. 248, 256- 58 (E.D.Arlra 393 U.S. 14, 89 S.Ct. 47, 21 LEd.2d 14 (1968) (per curiam). The First Amendment protects citizens from investigations which do not meet this 171 (5th Cir.) (en bane) (United States Attorney arrested for contempt for refusing to sign a grand jury indictment). cert. denied 331 U.S. 935. 85 S.Ct. 1767, 14 LEd.2d 700 (1965); In r4 Grand Jury of the Southern District of Alabama, 508 F.Supp. 1210, 1214 (3.D.Ala.1980) (prosecu. tonal vindictiveness); In 74 Grand Jury Subpoe- na to Central States, 225 FSupp. 923, 925 (N.D. 111.1964) (motion to quash grand jury subpoe. nas). EFTA00191855

808 770 FEDERAL REPORTER, 2d SERIES "reasonable basis" standard. Pollard, 283 FSupp. at 258; Reporters Committee, 693 F2d at 1064. See also Bran:burg v. Hayes; 408 U.S. 665, 699-01, 707-08, 92 S.Ct. 2646, 2665-66, 2669-70, 33 L.Ed.2d 626 (1972). The organizations alleged that the Unit. ed States Attorney lacked a reasonable ba- sis for initiating the investigations. The district court should have made a finding on this issue. See La Rouen* v. Webster, 566 F.Supp. 415, 418 (S.D.N.Y.1983); Pol- lard, 283 F.Supp. at 258. The relief sought by the organizations was not anticipatory, since the investigation presented a current case or controversy. CI Jett v. Castane- da, 678 F.24 842, 845 (9th Cir.1978) (no case or controversy); Reporters Committee, 593 F.2d at 1065. The denial of the prelimi- nary injunction should be affirmed, there- fore, only if the organizations failed to show that the investigation was not reason- able or initiated in bad faith. The question should be remanded. Contrary to the majority's view, declara- tory relief raises different concerns than an injunction. To quote one case cited by the majority, "critical distinctions make declar- atory relief appropriate where injunctive relief would not be." Steffel v. Thompson, 415 US. 452, 481, 94 S.Ct. 1209, 1226, 39 L.Ed.2d 505 (1974) (Rehnquist, J., concur- ring). The majority echoes the mistake of the panel which was reversed in Strife! for holding that a failure to demonstrate irrep- arable injury precluded the granting of de- claratory relief. Id at 471-72, 94 S.Ct. at 1221-22. It reasons that where injunctive relief is inappropriate, declaratory relief should also be denied, because "an award of declaratory relief in favor of the orga- nizations could later provide grounds for seeking injunctive relief against the same officials should the organizations believe they are again the targets of a similar investigation." This concern is misplaced, because an injunction should issue if the government so flouts a judgment declaring certain action unconstitutional. Declarato- ry relief is a separate remedy to be award- ed when warranted, even if an injunction under the same circumstances would be denied. Steffel, 415 U.S. at 471-72, 94 S.Ct. at 1221-22. This case warrants the award of a declar- atory judgment under the Constitution. The investigation fails before the scrutiny required for a classification which burdens the voting rights of a suspect class. The majority recognizes that the investi- gation targeted "recently registered, for- eign-born voters who requested bilingual ballots," at —, but then analyzes the class as if it were defined solely by lan- guage ability. The classification was of those who requested bilingual ballots, not just of individuals who speak more than one language, and it included two other factors—foreign birth and recent registra- tion to vote. The class should be analyzed as defined by these three characteristics. Foreign birth is "an immutable charac- teristic determined solely by an accident of birth," Frontiero v. Richardson, 411 U.S. 677, 686, 93 S.Ct. 1764, 1770, 86 L.Ed.2d 688 (1978), and is similar to a national origin classification. Together with the re- quirement of recent registration, the target class appears composed of immigrants who have recently obtained United States citi- zenship but prefer Spanish or Chinese-lan- guage ballots. Like the class of Hispania; in Hernandez v. Tezas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954), these charac- teristics taken together define a suspect class. The investigation by the FBI and INS, together with the interviews requiring proof of citizenship, amount to "different treatment" of these citizens. Such addi- tional requirements imposed on voters "solely because of their ancestry are by their very nature odious to a free people" Hirabapashi v. United States, 820 U.S. 81, 100, 63 S.Ct. 1875, 1385, 87 LEd. 1774 (1943). The fundamental right to vote was bur- dened by this investigation. The majority finds otherwise, perhaps because it equates "burden" with outright denial of the right EFTA00191856

to vote. Precedent does not define "bur- den" so narrowly, however. See, e.g., Har- per a Virginia Board of Election& 383 U.S. 663, 66647, 86 S.Ct 1079, 1081, 16 L.Ed.2d 169 (1966) (poll tax constitutes bur- den). Nor is "denial" of the right to vote the only behavior prohibited under the Void- ing Rights Act. See 42 U.S.C. § 1973 ("no voting qualification or prerequisite to vot- ing, or standard, practice, or procedure ... to deny or abridge ..."); 42 U.S.C. § 1978i(b) ("intimidate, threaten, or coerce"). The opinion states that "it is difficult to see how any 'burden' was placed," but I do not share this difficulty. An investigation by the FBI and INS and a summons to the district attorney to prove one's citizenship, as I noted above concerning the injury to Olagues, constitutes a burden on the exer- cise of the right to vote in this case The impact of the investigation on the class went beyond any ordinary inconvenience caused to witnesses. These individuals are not fluent in English, are new to this coun- try, and through their recent acquisition of citizenship have experienced the INS bu- reaucracy, which misrepresented the citi- zenship status of more than half of those investigated. When a citizen's request for a bilingual ballot—which is specifically made available by Congress to eliminate voting discrimination against those more comfortable in another language, Chinese for Affirmative Action v. Lequennec, 580 F.2d 1006, 1008 (9th Cir.1978), ctn. denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d 90 (1979)—triggers such consequences, a bur- den has been imposed. The Voting Rights Act forbids intimidation of voters, and in my view this investigation intimidated those foreign-born, recently registered vot- ers who requested bilingual ballots. Having examined the character of the classification in question and the impor- tance of the individual interests at stake, Illinois State Board of Elections a So- cialist Workers Party, 440 US. 173, 183, 99 S.Ct. 988, 989, 59 L.Ed.2d 230 (1979), we OLAGUES I RUSSONIELLO 809 Men 710Fid (3965) examine the interests asserted in support of the classification. Id. The classification must be necessary to serve a compelling interest, and it must employ the least dras- tic means to achieve that end. Id. at 184- 85, 99 S.Ct at 990. This investigation can- not withstand such scrutiny. It was not narrowly tailored to catch those wrongly registered, because it targeted recently registered citizens, who are required by law to be literate in English. It assumed that individuals who speak Spanish or Chi- nese are likely not to be citizens, though the statistical predominance of Spanish— and Chinese-speaking citizens is the very reason why provision of bilingual ballots was required under federal law. The in- vestigation was unconstitutional under the Equal Protection Clause, and a declaratory judgment should be granted. Relief may also be required under the Voting Rights Act I would remand the issue of potential violation of 42 U.S.C. § 1973aa-la. See Lequennec, 580 F2d at 1008-09. Good faith is not a defense under this provision, which does not require in- tent to discriminate. Id Finally, even absent its legal infirmities, this investigation violated the spirit behind the Voting Rights Act, which charges the Attorney General with eradicating discrimi- nation against language minority voters and discrimination based upon national ori- gin. Instead, this U.S. Attorney's efforts engendered such discrimination. I cannot join the majority's wholesale affirmance of the district court's judgment EFTA00191857

PENTHOUSE INTERN, LTDJ McAULIFFE 925 Mesas 702 rid elts (t RB., 429 F2d fir (10th Cir.1970), and more • nay by the Fourth Circuit, Air Transit NLRB, 879 F2d 1101 (4th Cir.1982), Board sought to impose the same infes- tation on the Eleventh Circuit. The effort is to no avail. [24] We hold that the daily lessees are independent contractors and not employees of the Company and contrary finding of the Board is unsup by substantial evidence. N.LR.B. Beaton, Inc., 502 F2d at 1222 The does not support "two fairly conflict' views," NLRB v. United Insurance Co., 890 U.S. at 260, 88 S.Ct at 992, but only one: the daily lessees are independent contractors. A fortiori the annual lessees, over whom the Company concededly exercises even less control and who have a greater investment and entre- preneurial interest in the taxicabs than the daily lessees also are independent contrac- tors.' Accordingly, the enforcement of the order of the Board is DENIED. PENTHOUSE INTERNATIONAL, LTD.. Plaintiff-Appellee, v. Hinson HeAULIFFE, Individually and as Solicitor General for the County of Ful- ton, State of Georgia, Defendant-Appel- lant No. 81-7426. United States Court of Appeals, Eleventh Circuit. April 11, 1983. Opinion on Granting of Rehearing En Banc June 30, 1983. Owner of rights to film brought suit to enjoin county prosecutor in Georgia from 4. Haring reached this result It Is unnecessary for us to reach the Issue of whether the annual lessen are supervisors because. as Independent contractors, they do not qualify as employees prosecuting or threatening to prosecute, un- der Georgia obscenity statute, any person exhibiting the film. The United States Dis- trict Court for the Northern District of Georgia at Atlanta, Richard C. Freeman, J., denied permanent injunction but granted declaratory relief in favor of the plaintiff. On appeal by the county prosecutor, the Court of Appeals, Tjoflat, Circuit Judge, held that: (1) injunctive relief was properly denied where reasonable prosecutor could believe there was probable cause that those who would be involved in exhibition of the film would violate the Georgia obscenity statute as constitutionally applied, but (2) district court erred in proceeding to deter- mination of the obscenity vel non of the film where such Issue could not be resolved as matter of federal constitutional law. Affirmed in part; reversed in part and remanded. Lynne, District Judge, sitting by desig- nation, dissented and filed opinion. 1 Injunction x106(1) Where prosecutor threatened to en- force valid criminal statute against behav- ior that fell within ambit of statute, in that reasonable prosecutor could have believed there was probable cause that those who would be involved in exhibition of film would violate Georgia obscenity statute as constitutionally applied, such prosecutorial threat under such circumstances gave rise to no cause of action for injunction. O.C. G.A. § 16-12-80; U.S.CA. ConatAmend. 2. Constitutioaal Law 4=401(8) Obscenity is not protected under the First Amendment, and states are free to enact statutes making exhibition of obscene matter aiming'. 0.C.GA. § 16-12-80; U.S.CA. ConstAmend. 1. 3. Criminal Law eag1 It is fundamental that some innocent persons may be charged with violating and therefor*. supervisors or not. would not properly be included in a bargaining unit 29 U.S.0 # 152(3). EFTA00191858

926 702 FEDERAL REPORTER, 2d SERIES criminal statutes, and, absent prosecutorial misconduct, no constitutional claim exists to relieve burden on those innocent persons of defending valid criminal prosecutions. 4. District and Prosecuting Attorneys sag Prosecutor was well within his discre- tion in threatening to prosecute persons as- sociated with showing of film, in that rea- sonable prosecutor could have believed there was probable cause that those in- volved in exhibition of such film would be violating Georgia obscenity statute as con- stitutionally applied. O.C.GA. § 16-12-80; U.S.C.A. ConstAmend. 1. 5. Courts *408(7) Though county prosecutor threatened to enforce valid criminal statute against behavior falling within ambit of statute, in sense that reasonable prosecutor could have believed there was probable cause that those who would be involved in exhibition of film would violate Georgia obscenity statute as constitutionally applied, owner of rights to film was not entitled to ruling from federal district court that film was not obscene unless it was proved that film was not obscene as matter of federal consti- tutional law regardless of factual context in which movie was shown. 0.C.GA. §§ 16- 12-80, 16-12-30(b); U.S.C.A. ConatAmend. I. George Weaver, Atlanta, Ga., for defend- ant-appellant. • Honorable Seybourn H. Lynne, U.S. District Judge for the Northern District of Alabama, sitting by designation. 1. Jurisdiction was predicated on 28 U.S.C. + 1343(3) (1976 & Supp. IV 1980), through which 42 U.S.C. S 1983 (1976) is Implemented 2. Penthouse makes no attack on the facial lidity of the Georgia obscenity statute. In such an attack would be frivolous because that statute amlickly incorporates the constitution- al standards emanated In Miller v. California, 413 U.S. 15, 90 SAX 2807. 37 LE424 419 (1973). Ga.Code S 18-12-80 (1980). We recognize that Penthouse ntr cross-ap- pealed the district court's denial Injunctive relief. Therefore, we discuss such denial at the Grutinan, Schafrann & Miller, Norman Roy Grutman, New York City, Gambrel' & Mobley, James L Paul, Atlanta, Ga., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of Georgia Before TJOFLAT and HENDERSON, Circuit Judges, and LYNNE', District Judge. TJOFLAT, Circuit Judge: Penthouse brought this suit to enjoin the Solicitor General of Fulton County, Geor- gia, Hinson McAuliffe, from prosecuting or threatening to prosecute under the Georgia obscenity statute, GaCode § 16-12-80 (1980), any person who exhibited the movie "Caligula," the rights to which Penthouse owns.' Penthouse also sought a declaration that "Caligula" is not obscene within the meaning of that obscenity statute as consti- tutionally applied.' After a trial before the district court and an advisory jury, the court declared "Caligula" not obscene under state or federal law. The court denied Penthouse's prayer for a permanent injunc- tion because it assumed that a declaratory judgment would have the same practical effect as an injunction of restraining prose- cution or threats thereof. McAuliffe ap- peals from the district court's entry of de- claratory relief in favor of Penthouse. We affirm the district court's denial of the injunction, although our reasoning dif- fers from that of the district court' We risk of pontificating oblter dictum. We believe our discussion Is necessary, however, for two reasons. First. our discussion of the district court's pant of declaratory relief would not be complete without a discussion of Its dental or injunctive relief. Although the two prayers for relief are separate, they are closely related A typical complaint, such as the one Penthouse brings. would contain both prayers. Neither should be considered In a vacuum; profitable comparison results from • discussion of both. Second, the district court denied injunctive re- lief solely because it thought declaratory relief would be suffinent- We now reverse the dis- kin court's grant of declaratory relief. Our reasons for ir with the district court that It should not granted Injunctive relief an EFTA00191859

PENTHOUSE INTERN, LTD. MeAULIFFE 917 aussialridin reverse the district court's grant of Pent- house's prayer for declaratory relief and remand this claim because the court erred in proceeding to a determination of the obscenity vel non of "Caligula." The anew° of Penthouse's complaint is that McAuliffe is infringing on Penthouse's first amendment rights by threatening to prosecute persons involved in the showing of "Caligula."' Penthouse alleges that it cannot obtain an exhibitor in Fulton County because of McAuliffe's threats of prceecu- tion." To remedy this infringement, Pent- house seeks two remedies: an injunction against prosecution or threats thereof, and a declaration that "Caligula" is not obscene. Careful analysis reveals that these two rem- edies are in fact based on separate causes of action. so different from that of the lower court that we believe we are compelled to state them. 4. Penthouse's complaint desalbes the threats as follows: Defendant McAuliffe's Conduct 16. Defendant McAuliffe has publicly an- nounced that he considers Caligula to be ob scene by commencing a lawsuit In United States District Court for the Southern Die Ilia of New York in the name and style: Morality in Media, Inc., individually, and Morton A. Hill, S.), for himself and all others similarly (ski sltuatect and Hinson McAu- liffe, In his official capacity as Solicitor Gen- eral of Fulton County, Georgia,lisr elf and all others shags* (sk) situated One Mo- tion Picture Film Entitled ," a rex Edward R. Korman, in his official capacity as United States Attorney for the Eastern Dia- trice of New York; and Benjamin R Chianti in his official capacity as Attorney General of the United Staten Civil Action No. 80-0840 (hereinafter the "Southern District of New York Lawsuit"). Defendant McAuliffe, legedly In his capacity as Solicitor General of Fukon County, Georgia, and as Part of the Southern District of New York Lawsuit, caused to be Issued by the Clerk of said court, a warrant for the seizure of Caligula 17. In the Southern District of New York Law- suit Initiated by Defendant McAuliffe and others. Defendant McAuliffe alleged under oath that Caligula is obscene; and Defendant McAuliffe alleged that If Caligula Is exhibited in Fulton County, Georgia, Defendant McAu- liffe will commit public funds and resources to Institute prosecutions under Georgia law. [I] The focus of Penthouse's suit for an injunction is on McAuliffe's conduct, McAuliffe threatened to enforce a valid criminal statute against behavior that falls within the ambit of the statute, in the sense that a reasonable prosecutor could have be- lieved there was probable cause that those who would be involved in the exhibition of "Caligula" would violate the Georgia ob- scenity statute as constitutionally applied. Prosecutorial threats in such circumstances give rise to no cause of action for an injunc- tion." To sustain a cause of action for an injunction, Penthouse would have to show some sort of "bad-faith" conduct on McAu- liffe's part. We do not mean subjective bad-faith conduct; rather, if Penthouse could show that no probe reason- ably could have existed to that those who would be involved in e exhibition of Record, vol. I. at 8-9. Penthouse's complaint also alleges that the plaintiffs In the Southern District of New York lawsuit, including McAu- liffe, sought to compel the defendants therein to Initiate some type of action to prevent the exhibition or distribution of "Caligula" In the United States. Id. at 9. 5. We have no reason to question the district court's findings that McAuliffe has threatened to prosecute and that Penthouse cannot obtain an exhibitor in Fulton County. 6. Indeed, the Supreme Court has, In dicta, ad- dressed a similar, if not Identical, situation. Bantam Books, Inc. v. Sullivan 372 U.S. 58, 83 S.Ct. 831, 9 LEI.2d 584 (1963). After holding an act creating a censorship commission tin. stOustitutional, the Court stated: (Wle do not mean to suggest that private consultation between law enforcement offi- ces I4 and distributors prior to Methadon of a judicial proceeding can be consti- tutionally permissible. We do hold that law enforcement officers must renounce all informal i ts with persons suspected of violating laws prohibiting obscenity. Where suc consultation la genuinely under- taken with the purpose of aiding the distribu. tot to comply with such laws and avoid pros- ecution under them, it need not retard the full enjoyment of First Amendment freedoms id at 71-72, 83 S.C. at 640. Thus, the Su- preme Court has at least Intimated that then may be no constitutional problem arising from threats of enforcement of a valid obscenity statute against conduct that falls within the reach of the statute. EFTA00191860

928 702 FEDERAL REPORTER. 2d SERIES "Caligula" would be violating the Georgia obscenity statute as constitutionally ap- plied, because "Caligula" is so clearly not obscene, the requisite objective bad faith would be shown. (2,3) We base this reasoning on several premises. Our initial and most basic premise is that obscenity is not under the first amendment. See California, 413 U.S. 15, 23, 93 S.1111, 2614, 37 LEd2r1 419 (1978). Thus, states such as Georgia are free to enact statutes making the exhibition of obscene matter criminal. See GaCode § 16-12-80 (1980). Our second premise is that states may en- force their valid criminal statutes within constitutional limits. They may also charge certain public officials, such as McAuliffe, with the responsibility of enforcing such laws. Our third premise is that it is funda- mental that some innocent persons may be charged with violating criminal statutes, and that absent prosecutorial misconduct, no constitutional claim exists to the burden on those innocent personsillend- ing valid criminal prosecutions. We believe the validity of these three premises is be- yond question. We believe also that these premises lead inescapably to the conclusion that law enforcement officials must be al- lowed the discretion in good faith to do all that is reasonably necessary to their func- tion of enforcing valid laws, and that the first amendment contemplates no other re- sult [4] We hold that McAuliffe was well within his discretion in threatening to pros• ecute persons associated with the showing of "Caligula." Having viewed "Caligula," it is clear to us that a reasonable prosecutor could have believed there was probable cause that those who would be involved in the exhibition of "Caligula" in Fulton Coun- ty, Georgia, would be violating the Georgia obscenity statute as constitutionally ap- plied. Regardless of the obscenity vel non of the movie, it cannot be contended that the movie is so dearly not obscene that McAuliffe was acting in "bad faith" in threatening to prosecute. Without such a showing, we hold a claim for an injunction under the first amendment is not stated. Therefore, we affirm the district court's denial of Penthouse's prayer for injunctive relief. [5] Penthouse's second claim seeks a de- claratory judgment that "Caligula" is not obscene under the Georgia obscenity statute as constitutionally applied. We hold that Penthouse is entitled to this relief only if it can prove that "Caligula" is not obscene as a matter of federal constitutional law. If factual issues are present, Penthouse's claim must be denied because the claim would be nothing more than a request that a federal court determine whether prospec- tive, possibly illegal conduct is in fact illegal under a valid state criminal statute. To allow such a claim would be to countenance the bypass of the entire state criminal jus- tice system so a federal court could deter- mine the "guilt or innocence," under a valid state criminal statute, of one who proposes to exhibit "Caligula" Notions of comity and federalism preclude us from recogniz- ing such a cause of action, especially in an mricr area in which local co nity standards are so crucial. See Miller California, 413 U.S. 15, 30-34, 96 S.Ct. , 2618-20, 37 LEd2d 419 (1978). In contrast, if Pent- house can prove that "Caligula" is not ob- scene as a matter of federal constitutional law, notions of comity and federalism would not interfere with a federal court's grant of declaratory relief. in granting relief, the federal court would not be invading the province of the state factfinder; rather, it would be determining a question of federal constitutional law as a matter of law. Furthermore, if Penthouse cannot prove that "Caligula" is not obscene as a matter of law, its claim must fail because it would not prove a present case or controversy. The allegedly protected conduct would be the prospective exhibition of a movie under hypothetical conditions. However, byil dressing the claim only as a matter of no problem of the requisite case or contro- versy would exist because the complaint would be that the facts involving the exhi- bition of the film, e.g., where and when the movie is shown, are irrelevant. The com- EFTA00191861

PENTHOUSE INTERN., LTD.1 McAULIPPE 929 ate as Mead (1 plaint would be that regardless of the fac- tual context in which the movie is shown, the movie is not obscene as a matter of law. Thus, there is nothing to prevent a federal court from recognizing such a cause of ac- tion. We believe the above analysis is consist- ent with and supported by a 'somewhat analogous to this one, Stahl Thompson, 415 U.S. 452, 94 S.Ct 1209, Ed.2d 505 (1974). In Steffel the Supreme Court held that a valid claim for declaratory relief was stated when the complaint alleged threats of prosecution under a facially valid crimi- nal trespass statute against conduct argu- ably protected under the first amendment A cognisable claim was stated because a federal court could determine as a matter of law whether such threats violated the plaintiff's constitutional rights. No factual issues needed resolution; a pure question of law was presented. Because such a ques- tion was presented, no prohibitive problems of federalism or case or controversy arose. Steffel would have been a much different case had it been disputed whether the plain- tiffs would make a "knowing° entry upon the defendant's land within the meaning of the state trespass statute. Problems of fed- eralism and case or controversy would have then arisen. The same problems arose in this case when the district court determined the obscenity vet non of "Caligula." The court had to determine the following hypo- thetical factual issues under the Georgia obscenity statute: whether the future showing of "Caligula" would predominantly appeal to the prurient interest of the local community; whether the showing would be patently offensive to that community; and 7. Because these questions must be resolved as a matter of law, a Jury has no role In these determinations. & We bold only that the district court cannot decide the question of the obscenity of "Caligu- la" as a matter of state law. We remand the case for the court to decide the question as a matter of federal constitutional law, Just as a federal appellate court would If It was rev' intestate Jury determination. See fenkiti.1 Georgia, 418 U.S. 153. 161, 94 S.Ct. 2750, 27 41 LEd.2d 642 (1974) ("We hold that the film could not, as a matter of constitutional law, be found to depict sexual conduct in a patently offensive way, and that It is therefore not out- side the protection of the First and Fourteenth Amendments because it La obscene."). Thus. the dissent rnlacharacterizes our holding as one whether the showing would have serious literary, artistic, political, or scientific val- ue. See Git.Cods e 16-12-80(b) (1980). Only if these questions can be resolved as a matter of federal constitutional law 7 does this case parallel Steffet If not, the dis- trict court must not attempt to resolve these questions because they are more ap- propriately ft to state factfinders and be- cause the involve hypothetical circum- stances.. AFFIRMED in part; REVERSED in part and REMANDED. LYNNE, District Judge, dissenting: In my opinion the discussion and affirm- ance of the district court's denial of an injunction are inappropriate. Penthouse did not contest that ruling by a cross-ap- peal. The superficial parallelism of the remedies of injunctive and declaratory re- lief would not seem to justify consideration of standards applicable to the former to illuminate the only issue before us, the grant of the latter. I believe the court's opinion is contrary to the precise holding of Staffed: We therefore hold that, regardless of whether injunctive relief may be appro- priate, federal declaratory relief is not precluded when no state prosecution is pending and a federal plaintiff demon- strates a genuine threat of enforcement of a disputed state criminal statute, whether an attack is made on the consti- tutionality of the statute on its face or as applied. 415 U.S. 452, 475, 94 S.Ct. 1299, 1223-24, 39 LEd.24 506 (1973). of abstention. We are not refusing to intervene to protect federal rights; we are refusing only to decide state law questions. We see no pro- hibition on deciding whether "Caligula" is pro- tected as a matter of federal constitutional law without deciding any state law questions. The dissent also fails to recognize the separate na• tore of the state and federal questions. For example, the Georgia obscenity statute must give at least as much protection to "Caligula" as does the first amendment, but the statute may extend greater protection consistent with federal law. Flirthermore, state law may vary depending on who applies it I.e., a federal Judge or a state Jury. The state should be free to Interpret Its own law so long as that inter- pretation is consistent with federal constitu- tional law. EFTA00191862

930 702 FEDERAL REPORTER, 2d SERIFS It is conceded that Penthouse demon- strated a genuine threat of enforcement of the Georgia statute. Clearly there is a dis- pute as to whether this statute may be applied to "Caligula." McAuliffe believes "Caligula" is obscene; Penthouse does not. Thus there is • case or controversy within the meaning of Article III of the Constitu- tion and the Federal Declaratory Judgmet Act, 23 U.S.C. Sec. 2201. Septum, Inc. Keller, 614 F2d 456 (5th Cir.1980). Synthesising the averments of the com- plaint, the consolidated pre-trial order, the trial transcript, and the May 16, 1981 order of the court, it is at once apparent that the gravamen of the claim asserted by Pent- house is that "Caligula" is protected by the First Amendment as applied to the States through the Fourteenth Amendment. Con- cededly obscene material is not protected Miller established a three-prong contermi- nous test to determine obscenity vet non which Georgia incorporated in its statute. If "the average person, applying contem- porary community standards would (not] find that ("Cards"), taken as a whole, appeals to the prurient interest," the First Amendment insulates it from the applica- tion of the Georgia statute. Appeal to the prurienp interest is a question of fact. Smith United States, 431 U.S 291, 301, 97 S.CC 1766, 1766-61, 52 L.Ed.2d 824 (1977). It would be anomalous to suggest that it is possible to adjudicate the question of whether material is obscene under the Georgia statute without resolving at the mine time whether such material is protect- ed by the First Amendment within the Mil- ler definition of obscenity since out of the facts the law arises. Both the advisory jury and the court found seated that, applying contemporary community standards,Cali- gula does not appeal to the prurient inter- est A careful review of the Court's instruc- tions to the jury reveals that its definition tel t, of the prurient in was in accord with the teaching of Roth United Stator, 864 U.S. 476, 77 SQ. 1 L.Eild 1498 (196Th The Court properly charged the jury that the burden of proof with respect to obscenity was j ot beyond a reasonable doubt McKinney Alabama, 424 U.S. 609, 684, 98 S.Ct. 11 , 1197, 47 L.Ed.241 887 (1976) (Brennan, J., concurring in the judg- ment). It is reasonable to assume that the trial judge applied these standards in his own fact findings. Finally, I cannot agree with the implica- tion of the Court's opinion that the district court was powerless to resolve the question of whether Caligula is obscene under the Georgia statute in order to reach the ques- tion as to whether it is protected by the First Amendment; that it is "more appro- priately left to state factfinders." Septum, Inc squarely holds that under the circumstances of this case abstention is inappropriate. Presumably state factfind- ers would be confined to a criminal proceed- ing. The fallacy of this approach is demon- strated by the reasoning of Staffed: [W]hile a pending state prosecution pro- vides the federal plaintiff with a concrete opportunity to vindicate his constitutional netts, a refusal on the part of the federal courts to intervene when no state prose- cution is pending may place the hapless plaintiff between the Scylla of intention- ally flouting state law and the Charybdis of foregoing what he believes to be con- stitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding. 415 U.S. at 462, 94 S.Ct. at 1217. I respectfully dissent. ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC Before GODBOLD, Chief Judge, and RO- NEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HENDERSON, HATCHETT, ANDERSON and CLARK, Circuit Judges. BY THE COURT: A member of this Court in active service having requested a poll on the application for rehearing en bane and a majority of the judges in active service having voted in favor of granting a rehearing en bane, IT IS ORDERED that the case shall be reheard by this Court en banc with oral argument on eclat* hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of en bane briefs. EFTA00191863

MAJtTRI v. UNITED STATES 469 Cite as 431 F.25 Oa (1970) / these s from a case of smuggling in Walden United States, 5th Cir. 1969, 417 F.2 698. We repeat that distinc- tion here. Leary, Marchetti and Grosso held invalid under the fifth amendment statutes which required an individual to pay federal taxes on activities that the State had declared illegal, and which therefore would subject the individuals to prosecution under state laws. In the present case, however, if the appellants had declared and invoiced the heroin and marihuana at the International border, they would not, at that point, have been vulnerable to prosecution, either Fed- eral or State, because they would have complied with the Federal law and would never have reached the United States withre drugs in their possession. See Rule United States, 6th Cir. 1966, 862 F.2d 15. [3] Secondly, appellants urge that they could not have unlawfully trans- ported and concealed the marihuana and heroin beyond the primary border check- point because they only proceeded be- yond that point, where they had failed to declare the contraband, to the sec- ondary checkpoint at the direction of the customs authorities. This point, too. controlled by our decision in Walden United States, supra, where we held when a defendant enters custom's pri- mary inspection station and fails to de- clare and invoice marihuana at the first opportunity, he is in violation of the law. [4] Finally, it is argued that the dis- trict court should have permitted the jury to pass on appellants' assertions that they are sincere followers of the Moslem or Islamic religion, which sanc- tions the use of heroin and marihuana. Appellants claim that failure to admit this evidence violates their first amend- ment right to freedom of religion. disposed of this question in Leary . United States, 6th Cir. 1967, 383 F. 861, 859-862, reversed on other grounds, 896 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.24 67 (1969), where we cited numerous au- thorities in support of the proposition that the use of drugs as part of religious practice is not constitutionally privileged. We find no reversible error and the judgment is affirmed. Charles MAPIRI and Joseph Carmine UNITED STATES of America, John N. Mitchell, Attorney General of the V. S., Frederick II. InceY, United States AtFy for the District of New Jersey, and John Doe, any Federal Law Enforce- ment Officer Joseph Caruano, Appellant In No. 18903 Charles Majurf, Appellant in No. 15904. Nos. 18003, 18904. United States Court of Appeals, Third Circuit. Argued June 23, 1970. Decided Aug. 17, 1970. Certiorari Denied Dec. 7, 1970. See 91 S.Ct. 245. Action for preliminary and perma- nent injunction restraining the United States, the Attorney General and other federal law enforcement officers from proceeding with prosecutions against plaintiffs based on federal statutes pro- hibiting use of extortionate means to collect or to attempt to collect extensions of credit. The United States District Court for the District of New Jersey, Leonard I. Garth, J., dismissed motions for convening of three-judge district court and for preliminary injunction and dismissed the complaint. The plaintiffs appealed. The Court of Appeals, Gib- bons, Circuit Judge, held that where only allegation advanced by plaintiffs in support of injunction against pending federal criminal prosecution for using extortionate means to collect or attempt- ing to collect extensions of credit was inconvenience of the trial and preference for civil remedy before three-judge tits- EFTA00191864

470 431 FEDERAL REPORTER, 24 SERIES trict court Ins- teed of single-judge court, complaint failed to state claim for in- junctive relief and did not warrant con- vening of three-judge court. Affirmed. 1. Courts 4:w$85(1) Where district court enters appeala- ble order, review of its refusal to con- vene a three-judge district court lies in the Court of Appeals. 28 U.S.C.A. § 2284. 2. Courts 4=0101 In determining substantiality of claimed constitutional question upon which request for three-judge district court is based, the district court makes a judicial decision and district court must look beyond prayer for relief to the sub- stantive allegations of the complaint. 28 U.S.C.A. § 2284. 3. Injunction 4m105(1) While activities protected by First Amendment are common bases for in- junctive relief against actual or threat- ened criminal prosecution, they are not the only activities worthy of such pro- tection in appropriate circumstances and are not the sine qua non for injunctions against criminal prosecutions: U.S.C.A. Const. Amend. 1; 28 U.S.C.A. §§ 2281, 2282, 2284. 4. Courts em101 Where only allegation advanced by plaintiffs in support of injunction against pending federal criminal prose- cution for using extortionate means to collect or attempting to collect exten- sions of credit was inconvenience of the trial and preference for civil remedy be- fore three-judge district court instead of single-judge court, complaint failed to state claim for injunctive relief and did not warrant convening of three-judge court. 18 U.S.CA. O 891, 892, 894; 28 U.S.C-A. §§ 2282, 2284. 5. Courts Sn101 District court should judiciously and cautiously screen applications for three- judge panels. U.S.C.A.Const. Amend. 1; 28 U.S.C-A. §§ 2281, 2282, 2284. 8. Courts 1=0101 Single-judge district court may ad- judicate claim for declaratory relief if the court has subject matter jurisdic- tion. 28 U.S.C.A. §§ 2201, 2202. 7. Courts Where single-judge district court's jurisdiction of remaining claim for de- claratory relief after denial of applica- tion for convening of three-judge dis- trict court was based on statute pant- ing district court original Jurisdiction of all civil actions wherein matter in con- troversy exceeds the sum of $10,000 and arises under Constitution, laws, or trea- ties of the United States, but complaint did not allege the requisite jurisdiction- al amount, single-judge court properly dismissed plaintiffs claim for declara- tion that Congress was without power to prohibit intrastate loan sharking. 18 U.S.C.A. §§ 891, 892, 894; 28 U.S.C.A. 1881, 2201, 2202. Filindo B. Masino, Berk, Masino & Moonblatt. Philadelphia, Pa., for appel- lants. Frederick P. Hafets, Justice Dept., Newark, N. J., for appellees. Before WINTER,* ALDISERT and GIBBONS, Circuit Judges. OPINION OF THE COURT GIBBONS, Circuit Judge. On December 16, 1969 a Federal Grand Jury sitting at Newark, New Jer- sey, handed up a seven count indictment (Crim. No. 545-69) against appellants, Majuri and Caruano, along with others not parties to this action. Three counts of that indictment charged appellants with conspiracy to make, the making of. and the collection of extortionate exten- sion 1 of credit, in violation of U.S.C. O 891, 892, and 894 (Supp. 1970). That criminal case was rout nely as- signed to the Honorable Leonard I. • Circuit Judge of the Court of Appeals for the Fourth Circuit, sitting by desigastioo. EFTA00191865

MAJURI v. UNITED STATES 471 Pun 431 Fin 40 (1970) Garth for pretrial motions, and he di- rected a time schedule for the orderly filing, briefing and argument of such motions. In the criminal case the de- fendants have filed a motion to dismiss so much of the indictment as charges them with violations of 18 U.S.C. §§ 891, 892. and 894, on the ground that those sections of Title 18 were enacted by Congress without constitutional authori- ty and in violation of the Ninth and Tenth Amendments to the United States Constitution. Their contention is that Congress is without power to prohibit Intrastate loansharking. Appellants' motion to dismiss the loansharking counts of the indictment is still pending and undecided in the dis- trict court, solely because of the pen- dency of the civil action in which this appeal arises. On March 80, 1970, ap- pellants filed a complaint alleging the fact of indictment Grim. No. 545-69, and: 4. Plaintiffs alleged that Sections 891, 892, and 894 of Title 18, United States Code, are repugnant to the 9th and 10th Amendments to the United States Constitution, in that they are vague, speculative, and do not charge an offense cognizable under the Unit- ed States Constitution. 5. Plaintiffs allege that unless the defendants are restrained from en- forcement of these provisions, the plaintiffs will suffer severe and irrep- arable harm, as more fully set forth in the affidavits attached hereto. Appendix at 19. In the affidavits referred to, Majuri and Caruano allege their indictment, that they have been arrested, and that they are free on substantial bail awaiting trial. They also allege: 8. As a consequence of the same, they have already expended, and will be in the future obliged to expend, great sums of money, as well as to un- I. United Stater v. Ports. 428 F.24 1078 (2 Cir., May 1. 1970) : United States v. Blancoriod, 4 F2d 384 (7 Cir. 1970); United States Curcio. 810 F.Supp. 881 dergo grave personal inconvenience and anxiety in the preparation of a defense to these charges. 4. Unless the Defendants are en- joined and restricted from committing the threatened acts, the Plaintiffs will suffer great and irreparable damage in that they believe, upon the advice of counsel, that Sections 891, 892 and 894 of Title 18. U.S.C. are unconstitu- tional and repugnant to the 9th and 10th Amendments to the United States Constitution • • ". Appendix at 24-26. Defendants in this civil action are de- scribed in the complaint as "the sover- eign, and Law Enforcement Officials charged with the Prosecution of these matters." The prayer for relief seeks a preliminary and a permanent injunction restraining the defendants from pro- ceeding with "any prosecution based on the provisions of Sections 891, 892, and 894 With the complaint and affidavits, ap- pellants filed a motion pursuant to 28 U.S.C. § 2284 (1964) for the convening of a three-judge district court and a mo- tion for a preliminary injunction. The civil action was also assigned to Judge Garth. Both motions were heard by him on April 18, 1970. No answering plead- ings were filed but the United States At- torney appeared and filed an extensive memorandum raising legal issues as to the sufficiency of the complaint in sev- eral particulars. The government contended (1) that the claim of unconstitutionality is so in- substantial as to be frivolous, and (2) that the complaint and affidavits show no basis for equitable relief. On May 7. 1970 the district court filed a memoran- dum and order disposing of these con- tentions. Recognizing that those courts which had considered the constitution- ality of the subject statutes had uni- formly upheld them? it found, neverthe- (D.Conn.1970): United States to3eleteo De Lutro. 309 ("Stipp. 482 .N.Y. 1970). EFTA00191866

472 431 FEDERAL REPORTER, 2d SERIES less, that the constitutional issue was at least sufficiently substantial to be be- yond the province of a single judge. On the second issue, however, it held that the complaint failed to allege facts suffi- cient to invoke traditional equitable ju- risdiction. Therefore, it denied injunc- tive relief, denied appellants' motion to convene a three-judge court, and dis- missed the complaint. Appellants filed notices of appeal and on May 19, 1970, applied to a panel of this court for injunctive relief pending appeal and for a stay of the judgment of the district court. The panel ordered an accelerated briefing schedule and re- ferred those motions to the panel which would hear argument on the merits. [1] Although it was not always so= it is now clear that, at least in cases where, as here, the district court enters an appealable order, review of a refusal rii to convene a th -judge court lies in this court. Gunn University Commit- tee, 899 U.S. 383, 0 S.Ct. 2013, 26 i Ed2d 684 (1970); Mengelkoch Industrial Welfare Commission, 3 1 U.S. 88, 89 S.Ct 60, 21 L.Ed.2d 215 (1968); Wilson City of Port La- vaca, 391 U.S. 35 , 88 S.Ct. 151 20 L. Ed.2d 636 (1968); SchaeAmen Arne- bergb, 887 U.S. 427, 87 S.Ct. 1 , 18 L. Ed.2d 865 (1967); Buchanan Rhodes. 885 U.S. 3, 87 S.Ct. 83, 17 .Ed.2d 9 (1966); Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed2d 794 (1962). Since in this case we affirm that refusal, we need not now decide whether or not there is jurisdiction in the court of ap- peals to grant preliminary injunctive re- lief pending appeal, or equivalent prelimi- nary relief within the federal judicial system by way of mandamus pending ap- peal, or mandamus relief in the absence of an appealable orders 2. Stratton! St. Lads 8. W. Ry., 282 U.S. DI 51 S. . 8. 75 L.Ed. 135 (1930), Ex parte Metropolitan Water Co.. 220 U.B. 599, 9 .Ct. 600, 55 L.Ed. 575 (1911); Miner Eimkh. 236 F.Supp. 927 (E.D. Pa. Appellants contend that having found the federal constitutional question to be at least not frivolous, the district court should have made no further inquiry, but should thereupon have entertained the request for a three judge court as a matter of form. Principal language Idle- reliance for AIdle- Bon Is upon the Bon Voyage Liquor Corp. Ep- , supra 370 U.S. at 715, 82 . t. at 1296: When an application for a statutory three-judge court is addressed to a district court, the court's inquiry is appropriately limited to determining whether the constitutional question raised is substantial, whether the com- plaint at least formally alleges a basis for equitable relief, and whether the case presented otherwise comes within the requirements of the three-judge statute. (Italics added) Appellants emphasize that their prayer for relief asks for an injunction, that the complaint contains the words "irrep- arable injury" and that this is all the Supreme Court intended to require by the language "at least formally alleges a basis for equitable relief." (2] We do not agree. It is clear that in determining the substantiality of the claimed constitutional question the district court makes a judicial decision. Schneider v. Rusk, 372 U.S. 224, 83 S.Ct. 621, 9 L.Ed.2d 695 (1963) ; Ex parte Porosity, 290 U.S. 30. 64 S. 3, 78 L. Ed. 152 (1933); Fiumara Texaco. Inc., 24 p. 325, 326 (E.D.Pa. 1965); ill p. note 2. Its funs on is analagous to that of a court reviewing a complaint for legal sufficiency under Rules 12(b)(1) or 1 12(b) ) of the Fed.R.Civ.P. Har- grave McKinney, 413 F.2d 320, 324 (6 Cir. 1 9). We cannot attribute to the 3. Set Gunn I ralveralty Committee, supra; Jackson Cboo9t61404 F24 910, 012 (5 eft. 1908): Lyons ■ Davoren, 402 P.24 890, 892 (1 Cir. 1 , cert. denied, 393 U.B. 1081, 89 8.1 . 861, 21 LFAI24 u 774 m); Sinatra New Jersey State Commission, 811 E upp. 678 (D.N.J. 1970). EFTA00191867

MAJUB1 I. UNITED STATES 473 Cla 44 481 rid KO (1070) Supreme Court the intention, in the lege that they should be free to continue same sentence of Idlewild Bon Voyage Liquor Corp. v. Epstein, supra 870 U.S. at 716, 82 S.Ct. at 1294, to distinguish be- tween the district court's role in deter- mining substantiality of a constitutional question and its role in determining the existence of a ground for equitable re- lief. Both decisions are judicial rather than ministerial. Both require that the district court look beyond the prayer for relief to the substantive allegations of the complaint. Appellants suggest, however, that the decision as to substantiality of the fed- eral constitutional question is "jurisdic- tional", at least in non-diversity cases, whereas a decision that the complaint faith to state a claim for equitable relief is a decision "on the merits" and hence one which by virtue of 28 U.S.C. § 2284 a single judge may not make. But it seems to us that a decision that a claimed question of constitutional law is insubstantial is even more clearly on the merits, and such decision is now a firm- ly established duty of a single district court judge. A finding of insubstantial- ity of the constitutional question is, moreover, one involving a more sophisti- cated judgment than that required to de- termine whether or not a complaint states a cause of action for injunctive relief. Over recent history far greater growth and change has taken place, and undoubtedly will continue to take place, in federal constitutional law than in the law of equitable remedies. We agree, therefore, that it was the district court judge's duty to examine the complaint for substantive allegations which would support a claim for injunc- tive relief, and not to look merely at the prayer for relief and the conclusive alle- gation of irreparable injury. Appellants are not faced with the choice of committing a violation of the criminal statute in order to teat their constitutional contentions. There is no allegation that the pendency of the crim- inal charge inhibits them from engaging in protected activities. They do not al- 481 F.24-401/4 intrastate loansharking. They say, only, that it is inconvenient and expensive to raise their constitutional contentions by appropriate pretrial and trial motions in the criminal case, though they have in fact done so. They do not even explain how it will be any less expensive to try the constitutional issues in this civil case than in the criminal ease. 11 [3] The strict court, referring to Dombrowski Pfister, 380 U.S. 479, 85 Corcoran, 122 U.S. s S.Ct. 1116, 1 LI.24:1 22 (1965), and Reed Enterprise App.D.C. 387, P.24 519 (1966), stressed in its memorandum the absence of any alleged infringement of first amendment rights. While activities pro- tected by the first amendment are a common basis for injunctive relief against actual or threatened criminal prosecution, they are not the only activi- ties worthy of such protection in appro- priate circumstances. See, e.g., Hynes v. Grimes Packing Co., 337 U.S. 86, 98, Co,274 U.S. 445, 69 S. 968, 98 L.Ed. 1281 (1949); Cline Prink Dairy 451, 4 Ct. 681, 71 L.Ed. 1146 (1927); I Pierce Society of Sisters, 268 U.S. 510, 5 , 45 S.Ct. 671, 69 L.Ed. 1070 (1925); Hygrade Provision Co. k Sher- man. 266 U.S. 497, 600, 46 .Ct. 41, 69 L.Ed 402 (1926); Terrace Thompson, I 263 U.S. 197, 214, 4eXCL 5, 68 L.Ed. 255 (1923); Truax Reich, 239 U.S. 33, 87, 36 S.Ct. 7, Ed. 131 (1915). We do not, by affirming, therefore, sug- gest agreement with a possible interpre- tation of the district court opinion, that first amendment rights are a sins qua non for injunctions against criminal prosecutions. [4] But, when, as here, the only al- legation advanced in support of an in- junction against a pending federal crim- inal prosecution is the inconvenience of that trial and the preference for a civil remedy before three judges instead of one, the complaint fails to state a claim for injunctive relief, and does not fall within the province of 28 U.S.C. §§ 2282 and 2284. EFTA00191868

474 431 FEDERAL REPORTER, 24 SERIES [5] What is here approved is a judi- cious screening by the district courts of applications for three-judge panels. That screening should be done cautious- IY, of course, because of the procedural and jurisdictional morass into which liti- gants may be led by these troublesome three-judge court statutes. 28 U.S.C. Of 2281, 2282, and 2284. But the role of the single district judge should be more than a conditioned reflex to such an ap- plication, especially now that the Su- preme Court has provided for judicial re- view in the circuit courts of appeals at least when an appealable order has been entered' In most if not all cases, refusal to convene a three-judge court will be accompanied by the denial of a prelimi- nary injunction and hence will be ap- pealable. 28 U.S.C. § 1292 (1964). [8, 7] One other problem remains. The district court not only denied appel- lants' motions to convene a three-judge court and to grant a preliminary injunc- tion, but also dismissed the complaint. On another record the latter step might well be questionable, since it would dis- pose, without hearing, of a possible claim for declaratory relief. See Note, The Federal Anti-Injunction Statute and Declaratory Judgments in Constitutional Litigation, 83 Harv.L.Rev. 1870 (1970). Such relief, assuming subject matter ju- risdiction, would be available from a sin- gle judge. But the Declaratory Judg- ment Act, 28 U.S.C. §§ 2201-02 (1964), is limited in operation to those cases which would be otherwise within the ju- risdiction of the federal courts. Juris- diction in this case depends upon 28 U. S.C. § 1331 (1964), and there is no alle- gation in the complaint or affidavits of the requisite jurisdictional amount. The situation might be different if the suit challenged a state statute and jurisdic- tion were asserted er 28 U.S.C. 1343 (1964). Hague C. I. 0., 807 U. S. 496, 518, 69 S.Ct. , 83 L.Ed. 1423 4. See cases cited at 472 supra. (1939). The complaint here was proper- ly dismissed. The order of the district court will be in all respects affirmed. All motions made in this court and not heretofore disposed of will be denied. UNITED STATES of America, Plsbitlft•Appellee, U Griffin Thomas WILLIAMS, Jr Defendantappellant. No. 29219 Summary Calendar" United States Court of Appeals, Fifth Circuit. Oct. 2, 1970. Courts Srnos Criminal Law 8=01133 On factors delinear in National Labor Relations Board Amalgamated Clothing Workers of America, AFL- CIO, Local 990, 6th Cir., 1970, 430 F.2d 966, under U.S.Ct. of App. 6th Cir., Rules 18 and 21, 28 U.S.C.A., cue was placed on summary calendar and decided without opinion. Appeal from the United States Dis- trict Court for the Northern District of Georgia at Atlanta; Newell Edenfield, District Judge. William W. Barham, court-appointed, Atlanta, Ga., for appellant. John W. Stokes, Jr., U. S. Atty., Allen I. Hirsch, Asst. U. S. Atty., Atlanta, Ca.. for appellee. • Rule 18, 6th Cir.; Su LAsu EuterprIns, Inc. v. Citizens Casualty Co. of New York it al., 6th Clr., 1970, 481 T.2d 409, Pan EFTA00191869

WALLACH I CITY OF PAGEDALE 671 ate as 976 V.24671 (1967) allowance during the four year protec- tive period. Southern did not offer or advise Shep- pard of other railroad employment upon his release following the change in A&EC ownership. Soon after his dis- charge, Sheppard learned from an inde- pendent source of an open job as spike puller with an A&EC labor gang out of Morehead City. lie had worked out of New Bern while a diesel mechanic's help- er. Southern admits that Sheppard sought and obtained the open position on his own initiative. Sheppard's new em- ployment required different skills ti an his old job and paid him a lower age rate. Sheppard was discharged from the new position as spike puller after only a week because of his intemperate pro- test tt when asked to assist in lifting a half-ton motor car from the tracks. [4) We believe the district court was correct in treating Sheppard's employ- ment as a spike puller "in a manner as if [he] • • • had found work with an employer totally unrelated to rail- roading." " It was, therefore. unneces- sary to determine whether Sheppard's second dismissal was for good cause. (5) We interpret the "Oklahoma conditions" to mean that an employee is not "retained" in a position—and thus displaced as opposed to dismissed—un- less retained at the instance of the rail- road. We think that displacement con- ditions should not be substituted for dismissal conditions except where an employee receives an offer from the rail- road to continue in or return to a new position for which he is qualified. Shep- pard's second discharge may or may not have resulted from his inability to per- form the new work he attempted. Such inability could well account for insub- ordination and intemperance of lan- guage. We need not decide—because he was not notified by the carrier of a posi- tion "the duties of which he [was] • • II. He said: "Walt a God damn minute." 12. Sheppard 1 28outhern Ry. Co, 258 F. Rupp. 217. (1966). qualified to perform." is Thus, Shep- pard's obtaining a job as spike puller on his own initiative, as the district court thought, is analogous to a dismissed rail- road worker unsuccessfully attempting work other than railroad employment. Such a situation is within the scope and purpose of the dismissal benefits ac- corded under the Act. Whether the second dismissal was for cause in the sense that Sheppard could not do the work or for cause in the sense of insubordination, we think the district court rightly adjudged that he lost his job as a diesel mechanic's helper as a re- sult of the acquisition of the A&EC by Southern. Southern is, of course, en- titled to reduce the compensation owing to Sheppard by the amount of his tempo- rary earnings—whether as a spike puller with the A&EC or In other employment 10,869, Reversed. 10,870, Affirmed. 10,873, Affirmed. Richard WALLACH, Appellant, I CITY OF PAGEDALE et aL, Appellees. No. 18680. United States Court of Appeals Eighth Circuit. May 9, 1967. Civil rights action seeking redress for the deprivation of rights and con- spiracy to interfere with civil rights. The United States District Court for the Eastern District of Missouri, Roy W. Harper, C. J., dismissed the action, 41 F.R.D. 647, and appeal was taken. The Court of Appeals, Van Oosterhout, Cir- cuit Judge, held that civil rights action 13. Oklahoma Conditions I 6. supra. EFTA00191870

672 376 FEDERAL REPORTER, 2d BERMS was properly dismissed for lack of ju- risdiction where plaintiff did not, by his pleadings or in any other manner, meet the burden resting upon him to establish federal jurisdiction. Affirmed. See also 264 F.Supp. 271. 1. Injunction 4=1106(1) Courts of equity do not ordinarily restrain criminal prosecutions. 2. Injunction 4=106(1) No person is immune from prosecu- tion in good faith for his alleged crim- inal acts, and imminence of prosecution even though alleged to be in violation of constitutional guarantees is not ground for equity relief since lawfulness or con- stitutionality of statute or ordinance on which prosecution is based may be deter- mined as readily in criminal case as in suit for injunction. 3. Courts e=t08(7) Where threatened criminal prosecu- tion is by state officers for alleged vio- lations of state law, the state courts are final arbiters of meaning and application of state law, subject only to review by United States Supreme Court on federal grounds appropriately asserted. 4. Constitutional Law 45 236(3) Conferring of discretionary power upon administrative board to grant or withhold permission to carry on trade or business properly subject to regulation under police power does not violate Fourteenth Amendment. U.S.C.A.Const. Amend. 14. t Courts 4=280.2 Federal courts have only that ju- risdiction which Congress, acting within the limits of the Constitution, confers upon them. 6. Federal Civil Procedure 4=4742 Civil rights action was properly dis- missed for lack of jurisdiction where plaintiff did not, by his pleadings or in any other manner, meet the burden rest- ing upon him to establish federal juris- diction. 28 U.S.C.A. §§ 1331, 1343. Richard Wallach, Wellston, Mo., made argument pro se and filed brief pro se. Paul J. Boll, St. Louis, bfo., for ap- pellee and filed typewritten brief. Before VAN OOSTERHOUT, MAT- THES and LAY, Circuit Judges. VAN OOSTERHOUT, Circuit Judge. The trial court dismissed this action commenced by plaintiff Wallach which asserted jurisdiction in the federal court under 28 U.S.C.A. § 1931 (federal ques- tion) and 28 U.S.C.A. § 1343 (violation of civil rights.) Diversity jurisdiction is not asserted and does not exist. The basic grievances asserted here the same as those urged in Wallach iie City of Pagedale, 8 Cir., 369 F.2d 57, and are asserted damages flowing from alleged violation by defendants of plaintiff's con- stitutional rights. Defendants moved for dismissal of the action on the following grounds: "(a) That the claim asserted againt the defendants is not a claim upon hich relief can be granted; and "(b) That this Court has no juris- diction over the subject matter of the claim presented between the plaintiffs and the defendants. "(c) That the petition of plaintiff fails to comply with Rule 8, Federal Rules of Civil Procedure in that the averments therein are not simple, con- cise or direct, in respect to jurisdic- tion, facts or relief and is so vague, ambiguous, rambling and full of ir- relevant averments that these defend- ants cannot be reasonably required to frame a responsive pleading thereto." The motion to dismiss was sustained. The case was dismissed without preju- dice for want of jurisdiction. Plaintiff has appealed from such dismissal. The trial co cited our former opin- ion i t in Wallach City of Pagedale, supra. We there state : "There is no doubt that the com- plaint does not comply with Rule 8 (a) as it does not contain 'a short and plain statement of the claim showing that the pleader is entitled to relief.' EFTA00191871

WALLACH v. OITT OP PAGEDALE 673 cit. as 3143 F 2d VI MCI The complaint is confusing, ambigu- ous, redundant, vague, and, in some respects, unintelligible. It is also highly argumentative." 369 F.2d 57, 58. We went on to state that the pleadings, even if given a liberal interpretation, do not state a cause of action against the defendants within the jurisdiction of the federal court, setting forth the basis for such conclusion and supporting author- ities. The complaint now before us is much more extensive than the former complaint but in our view It is in great- er violation of Rule 8 than the complaint previously considered. Plaintiff in his present voluminous, repetitious, confusing and argumentative complaint asserts that he acquired real estate in an unincorporated area in St. Louis County which was zoned as heavy industrial property upon which he was permitted to and did establish a junk yard and automobile wrecking yard in conformity with the St. Louis County zoning ordinance adopted in 1946. It is then asserted that plaintiff's property was maliciously and illegally annexed to the city of Pagedale but no substantial legal grounds are asserted to support the claim of invalid annexation. Plaintiff next asserts in a highly inflammatory manner that numerous zoning and licens- ing ordinances were passed by the city of Pagedale both before and after the annexation in violation of numerous rights guaranteed plaintiff by the Con- stitution. Some of such ordinances are cited by number and excerpts of part of the ordinances are set out. As shown by the complaint, Ordinance No. 88 passed by the city before the an- nexation provides for the zoning of the city but specifically carries a provision reading: "The lawful use of land, buildings and structures existing at the time of the adoption of this ordinance may be continued, although such use does not conform to the provisions thereof, but if such non-conforming use is discon- tinued, any use in the future of such premises shall be in conformity with the provisions of this ordinance." It would appear from the complaint that Ordinance No. 88 was amended in 1954 to zone the annexed property, including plaintiff's property, with the provisions of Ordinance No. 88 made applicable to the annexed property. Thus, on their face the ordinances pleaded with respect to zoning appear to protect the rights of nonconforming users and the basis of the asserted in- validity of such ordinances does not rea- sonably appear in the complaint. It would seem from the complaint and statements in oral argument that there is a question whether the prior junk yard operation was the plaintiff's own or by a corporation in which he was interested and there is also some intimation that the prior use of the property may have been abandoned. Plaintiff's principal claims of wrongs committed by the defendants appear to be: (1) His arrest and conviction in the Pagedale police court for operating a junk yard without a license; (2) the city's refusal to permit plaintiff to use his premises for its highest and best use —a junk yard—thereby depriving plain- tiff of income needed to pay mortgage in- debtedness and the refusal of the city to grant a license to a prospective purchaser which resulted in plaintiff's inability to make an advantageous sale of such prop- erty, and his loss of the property through mortgage foreclosure for a sum consider- ably under its fair value. Plaintiff prays for declaratory judgment and for such further relief as may be just. It would appear that the claimed griev- ances arise primarily out of the licensing requirements of the city ordinances. (1-3) With respect to the propriety of federal courts interfering with state criminal prosecutions, the rule is stated in Douglas v. City of Jeannette, 819 U.S. 167, 163-164, 63 S.Ct. 877, 881, 87 L.Ed. 1324, as follows: "Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leav- EFTA00191872

674 376 FEDERAL REPORTER, 2/1 SERIES ing generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions in- volved. • • • "It is a familiar rule that courts of equity do not ordinarily restrain aim- inal prosecutions. No person is im- mune from prosecution in good faith for his alleged criminal acts. Its im- minence, even though alleged to be in violation of constitutional guarantees, is not a ground for equity relief since the lawfulness or constitutionality of the statute or ordinance on which the prosecution is based may be deter- mined as readily in the crimin as in a suit for an i nction. & Farnum Mfg. Co. [City of Angeles, 189 U.S. [23 S.Ct 498, 47 L.Ed. 778) ; Fenner v. Boykin, 271 U.S. 240 [46 S.Ct. 492, 70 L.Ed. 927]. Where the threatened prosecution is by state officers for alleged violations of a state law, the state courts are the final arbiters of its meaning and ap- plication, subject only to review by this Court on federal grounds appropriate- ly asserted. Hence the arrest by the federal courts of the processes of the criminal law within the states, and the determination of questions of criminal liability under state law by a federal court of equity, are to be supported only on a showing of danger of ir- reparable injury 'both great and im- mediate.'" See Outdoor American Corp.) City of Philadelphia, 3 Cir., 333 F.2d 3, 965. No extraordinary circumstances are alleged in our present case which would warrant a departure from the rule just stated. On oral argument, it developed that plaintiff appealed from his convic- tion and that such appeal is still pending. We cannot ascertain from the com- plaint the precise basis or the legal grounds upon which plaintiff claims that a license was denied to him to operate his junk yard in violation of his con- stitutional rights. Plaintiff quotes part of Ordinance No. 23 relating to licensing of junk dealers and license fees and then asserts that his business does not fall within any of the categories listed in the ordinance. Later plaintiff refers to Ordinance No. 227 relating to regulating, licensing and license fees for automobile lots, and No. 228 with respect to licensing and license fees for salvage yards, both enacted in 1959. Neither of such ordi- nances are set out in whole or pertinent part. No ascertainable attack is made on the validity of such ordinances but rather the claim is made that the plain- tiff's business does not fit the classifica- tions covered by the ordinances. It would appear that the questions raised primarily relate to the interpretation of the ordinances and that such questions are questions of state law. Plaintiff does not state what attempt, if any, he made to comply with the li- censing ordinances nor make any clear- cut allegation that he made any proper application for a license, and if so. that any basis exists for a determination that the city abused its discretion in with- holding a license. [4] In Mosher I Beirne, 8 Cir., 857 F.2d 638, 640-841, e sustained the dis- missal of plaintiff's action based on 28 U.S.C.A. § 1343, wherein plaintiff claim- ed a city improperly refused him a li- cense to operate a public dance. We stated: "The rights and necessity for re- strictions in municipal zoning ordi- nances have long been sustained. Vil- lage of Euclid, Ohio I Ambler Realty Co., 272 U.S. 366, 47 S.Ct. 114, 71 L.Ed. 303 [54 A.L.R. 1016] (1926). It has also been recognized that the conferring of discretionary power up- on administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the state is not violative of rights secured by the Fourteenth Amendment, People of State of New EFTA00191873

UNITED STATES I OUSTER CHANNEL WINO CORPORATION cut so 370 F.34 475 (1$47) I York ex rel. Lieberman Van De Carr, 199 U.S. 662, 26 S. 1 144, 60 UNITED STATES of America, L.Ed. 305 (1905); and that ordi- Appellee, nances validly prohibiting the opera- tion of certain businesses without first obtaining municipal permission do not deprive one of his property without due process of law nor den equal protection of the law, City of St. Louis, 194 U. S.Ct. 673, 48 j.Ed. 1018 (1904)." In Garfinkle Superior Court of New Jersey, 3 Cir.. 78 F.2d 674, the court in affirming the dismissal of an action based on violation of federal constitu- tional rights concluded, "His stated fun- damental facts, irrespective of their fantastic nature, certainly do not show clearly and distinctly that this suit is based on a federal question." What was said there is fully applicable here. [5] Federal courts have only that ju- risdiction which Congress, acting with- in the limits of the Constitution, confers upon them. "The party invoking the district court's original jurisdiction has the duty of affirmatively alleging juris- diction; and, if his allegations are properly controverted, the burden of establishing jurisdiction. Lack of fed- eral jurisdiction may be raised by mo- tion or in the responsive pleading. And 'whenever it appears by sugges- tion of the parties or otherwise that the court lacks jurisdiction of the sub- ject matter, the court shall dismiss the action.' " 1 Moore's Federal Prac- tice I 2d Ed. 110.60 [4]. See McNutt General Motors Accept- ance Corp., 2 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1136. Federal Rules of Civil Procedure No. 8(a) (1). [6] Defendants have by motion at- tacked the jurisdiction of the federal court to hear this case. Plaintiff has not by his pleadings or in any other manner met the burden resting upon him to es- tablish federal jurisdiction. The judgment dismissing the petition without prejudice for the lack of juris- diction is affirmed. I 675 CUSTER CHANNEL WINO CORPORA- TION and Willard R. Custer, Appellants. No. 10399. United States Court of Appeals Fourth Circuit. Argued Feb. 8, 1967. Decided April 3, 1967. Criminal contempt proceeding ini- tiated by government for violation of in- junction prohibiting use of interstate commerce and mails to promote sales of unregistered securities. The United States District Court for th ' of Maryland, at Baltimore, L. Winter, J., 247 F.Supp. 481, en r judg- ment of conviction, and appeals were taken. The Court of Appeals, Sobeloff, Circuit Judge, held, inter alia, that where defendants had already breached securi- ties law proscribing sale of unregistered securities to purchasers without access to pertinent financial information and had been enjoined not to do so again, but knowingly repeated selfsame forbidden acts, to be adjudged in criminal contempt, it was enough to show that they inten- tionally committed acts constituting vio- lation with full knowledge of all relevant circumstances, and proof of evil pur- pose or bad motive, that is, proof of a specific intent to violate the injunction, was not required. Affirmed. 1. Licenses 4=181(47) Sale of securities was public offer- ing, and not exempt from registration as a private offering, where none of pur- chasers had access to kind of informa- tion that would have become available to them through a registration statement, although purchasers may have been sophisticated investors. Securities Act of 1933, Schedule A, 16 U.S.C.A. § naa, Schedule A; Securities Act of 1988, EFTA00191874

APPEAL Cite as 300 inal judgment, it is not unlikely that ap- pellees would have attempted to prepare themselves with evidence relating to the disputed amount. That the appellant's representation in its pre-trial memoran- dum evidenced its understanding of its burden is confirmed by the fact that it did indeed undertake to offer proof in the presentation of its case in chief. It is essential to the orderly disposition of litigation that parties, as well as courts, be able to rely on procedural courses which have been clearly defined and es- tablished in properly conducted pre-trial proceedings. (9) The entire record supports the District Court's conclusion that the bur- den of proof in this case rested upon appellant. It had agreed to meet it, and it did not do so. The judgment is Affirmed. MmHg PITCH In the Matter of the Testimony of PhWip Kilter, Sr., Before the United States Grand Jury-65 GJ 2013. Appeal of Phillip KITZER, Sr. No. 15650. United States Court of Appeals Seventh Circuit. Nov. 18, 1966. Petition seeking relief for allegedly wrongful transmission of testimony, given to Grand Jury In Illinois, to Grand Jury in Minnesota. The United States District Court for the Northern District of Illinois, Eastern Division, William J. Campbell, Chief Judge, entered judg- ment dismissing the petition without a hearing, and petitioner appealed. The Court of Appeals held, inter alia, that OF EITZER 677 F.2d ar7 MN) denial of request for order suppressing evidence consisting of testimony al- legedly "tainted" on theory that such testimony to Grand Jury in Illinois was wrongfully transmitted to Grand Jury in Minnesota was properly denied without hearing, absent allegations which had not been concluded by Minnesota court's de- nial of petitioner's motion to dismiss Minnesota indictment. Affirmed. 1. Injunction 4=105(1) Mandamus t=01 District court was without jurisdic- tion to control discretionary actions of Attorney General and could not, on theory that testimony before Grand Jury in Illinois was wrongfully transmitted to Grand Jury in Minnesota, grant relief by way of an order directing Attorney General to move Minnesota District Court to dismiss indictment or an order restraining further proceedings in prose- cution of Minnesota indictment. U.S. C.A.Const. Amend. 5; Fed.Rules Crim. Proc. rule 6(e), 18 U.S.C.A. 2. Criminal Law 6=394.6(5) Denial of request for order suppress- ing evidence consisting of testimony al- legedly "tainted" on theory that such testimony to Grand Jury in Illinois was wrongfully transmitted to Grand Jury in Minnesota, was properly denied with- out hearing, absent allegations which had not been concluded by Minnesota court's denial of petitioner's motion to dismiss Minnesota indictment. U.S.C.A.Const. Amend. 5; Fed.Rules Crim.Proc. rules 6(e), 41(e). 18 U.S.C.A. Doris A. Coonrod, Chicago, III., for appellant. I Edward lianrahan, U. S. Atty., Nicholas M. arzen, Chicago, II pellee, John Peter Lulinski, Jay Weiner, Asst. U. S. Attys., o counse . Before KNOCH, KILEY and SWYGERT, Circuit Judges. EFTA00191875

678 369 FEDERAL REPORTER, 2d SERIES PER CURIAM. Petitioner Phillip Kitzer, Sr., contends that he was denied due process in viola- tion of the Fifth Amendment of the Con- stitution because the district court denied him a hearing before entering judgment dismissing his sworn petition. We have considered the briefs and the record in the light of the oral arguments made in this court, and we affirm the judgment. The substance of the petition is that Kitzer gave certain testimony to the Grand Jury in the Northern District of Illinois, Eastern Division, on the promise of the Assistant United States Attorney that he would not be named in any indict- ment based upon that testimony; that notwithstanding the promise, the testi- mony given was transmitted without au- thority of a court order to a Grand Jury in Minnesota in violation of Fed.R. Crim.P. 6(e); that the subsequent or- der of the District Court for the North- ern District of Illinois authorizing trans- mission of that testimony to the Minne- sota Grand Jury was entered without knowledge of the broken promise to Kitzer and without knowledge that the testimony had already been sent to Min- nesota; and that by virtue of the "tainted testimony" petitioner was indicted by the Minnesota Grand Jury following the breach of the promise of the Assistant United States Attorney. The relief prayed was an order direct- ing the Attorney General of the United States to move the Minnesota District Court to dismiss the indictment or, al- ternatively, for an order restraining fur- ther proceedings in the prosecution of the Minnesota indictment or an order suppressing as evidence in that prosecu- tion the disclosures made by petitioner to the Grand Jury in the Northern District of Illinois. (1] We think it is clear that the dis- trict court was without jurisdiction to control discretionary actions of the At- torney General or to grant the relief ri quested with respect to him. Goldberg _Hoffman, 225 F.2d 463 (7th Cir. 1955). (2] The request for an order sup- pressing the "tainted" evidence pursuant to Fed.R.Crim.P. 41(e) contained no alle- gations which had not been concluded by the Minnesota court's denial of petition- er's motion to dismiss the Minnesota indictment. No authority has been cited to support Kitzer's claim to a hearing on his 41(e) motion when a previous mo- tion on the same grounds was denied. We see no merit in this contention and hold that the district court did not err in denying the 41(e) motion without a hear- ing. Affirmed. Roy MUNDRY and Charlotte Mondry, Appellees, GREAT AMERICAN INSURANCE COM- PANY, Appellant. No. 105, Docket 30364. United States Court of Appeals Second Circuit. Argued Oct. 27, 1966. Decided Dec. 14, 1966. Appeal from judgment of United States District Court for the District of Connecticut, 248 F.Supp. 817, Robert C. Zampano, J., holding that the appellant had waived, and was estopped from as- serting, its contractual right to disclaim its liability under automobile insurance policy. The Court of Appeals, Irving R. Kaufman, Circuit Judge, held that where, Kaufman, Circuit Judge, held that where insurer's disclaimer of liability on auto- mobile liability policy because of non- cooperation of insureds was conceded to be timely, plaintiff injured parties were free to discontinue their suit if they thought defendant insureds were judg- EFTA00191876

32 951 FEDERAL REPORTER, Ed SERIES prosecution and trial on the earlier charge of "uttering a forged instru- ment." He was subsequently found guil- ty by a jury in the Circuit Court of the City of St. Louis. On December 20, 1963, under a writ of habeas corpus, appellant was again brought before the United States Dis- trict Court and, pursuant to the verdict of guilty returned against him on No- vember 6. 1063, the court sentenced him to two and one-half years imprisonment. He was then returned to the custody of the State of Missouri and, on Feb- ruary 3, 1964, pursuant to the guilty ver- dict in the Circuit Court of the City of St. Louis on the charge of "uttering a forged instrument", appellant was sen- tenced to eight years imprisonment to the Missouri State Department of Correc- tions. lie was also sentenced to a con- current term of eight years imprison- ment on his plea of guilty to the earlier charge of "first degree robbery". Appel- lant is now in the process of serving these terms at the Missouri State Pen- itentiary. [1] A § 2255 motion is not available to attack a sentence which a prison has not commenced to serve. Ellison r. United State 263 F.2d 395 (10 Cir. 1969); Cain United States, 49 870 (8 Cir. 1 ). In Heflin United States, 868 U.S. 416, 79 S.Ct. 461, 3 L.Ed.2d 407 (1959), the Supreme Court stated that: "Section 2255 is available only to attack a sentence under which a prisoner is in custody." Id. at 418, 79 S.Ct. at 463. [2] Appellant's § 2255 motion is pre- mature. He is presently serving, in the Missouri State Penitentiary, the concur- rent eight year sentences imposed by the Circuit Court of the City of St. Louis. He will not begin to serve the two and one-half year sentence imposed by the Federal District Court, which he attacks in this § 2265 proceeding, until he has finished service of the State terms. The order appealed from is affirmed. Dr. Andrew C. IVY, PlaIntiffappellant, I Nicholas KATZENBACH, Attorney Gen. r of the United States, and Edward R enrahan, United States Attorney the Northern District of Illinois, De- tendantsappollees. No. 15094. United States Court of Appeals Seventh Circuit Sept. 22, 1965. Certiorari Denied Dec. 13, 1965. See 86 S.Ct. 437. Physician, who had promoted drug used in treatment of cancer, and who had been charged with certain offenses by in- dictment because of his promotion of drug, brought suit against the Attorney General and the United States Attorney for the Northern District of Illinois to enjoin them from proceeding against him in the criminal case and for appointment of impartial medical commission to make a court supervised clinical test of the efficacy of the drug in the treatment of cancer. The United States District Court for the Northern District of Illinois, Eastern Division, Bernard hf. Decker, J., entered judgment adverse to the physi- cian, and the physician appealed. The United States Court of Appeals, Castle, Circuit Judge, held that trial of the crim- inal case prior to an impartial clinical test of the efficacy of the drug in the treatment of cancer would not violate the 6th and 6th Amendment rights to a fair trial and due process of law on ground that resolution of the efficacy issue in- volved matter beyond the intelligence and comprehension of the Jury. Judgment affirmed. 1. Constitutional Law 43=268 Federal avil Procedure 0=1961 InJuneCon a=105(1) Prosecution of physician, who had promoted drug used in treatment of can- cer, prior to impartial clinical test of effi- cacy of drug would not violate physician's 5th and 6th Amendment rights to fair trial and due process of law, and physi- cian was not entitled to injunction to en- EFTA00191877

join Attorney General and United States Attorney from proceeding against him in criminal case and appointment of impar- tial medical commission to make court supervised clinical teat of efficacy of drug. 18 U.S.C.A. §§ 371, 1001, 1341; Federal Food, Drug, and Cosmetic Act, § 1 et seq., 21 U.S.C.A. § 301 et seq. 2. Injunction 4=405(1) Mere complexity of factual issues to be determined by jury in criminal case is not constitutional basis for precluding trial of criminal case by injunction. Melvin L. Klafter, Leonard R. Harten- feld, Chicago, Ill., for appellant. Edward,. Hanrahan, U. S. Atty., John Peter Lulinski, Thomas W. James, Asst. U. S. Attys., Chicago, Ill., William W. Goodrich, Asst. Gen. Counsel, Joanne S. Sisk. Atty., Dept. of Health, Education, and Welfare, Washington, D. C., for ap- pellees. Before CASTLE, KILEY, and SWY- GERT, Circuit Judges. CASTLE. Circuit Judge. The plaintiff-appellant, Dr. Andrew C. Ivy, brought suit in the District Court against Nicholas Katzenbach, Attorney le neral of the United States, and Edward . Hanrahan, United States Attorney for e Northern District of Illinois, the de- fendants-appellees, seeking to enjoin them from proceeding against him in a pending criminal cause and for the ap- pointment of an impartial medieal com- mission to make a court supervised clini- cal test of the efficacy of the drug Kre- biozon in the treatment of cancer. Plain- tiff's complaint was filed subsequent to the return of the indictment, but prior to the commencement of the criminal trial! Defendants' motion to dismiss on the ground that the complaint does not state a claim on which relief can be granted was allowed and the action was dismissed. Plaintiff appealed. IVY I EATZENBAOH du all ti PM 32 (2165) The prosecution sought to be restrained involves an indictment charging Dr. Ivy, together with three individual and one corporate co-defendants, with conspiracy in violation of 18 U.S.C.A. § 371. Dr. Ivy is named in additional substantive counts, alleged to be overt acts in furtherance of the conspiracy, which charge violations of 18 U.S.C.A. § 1001 (filing false informa- tion with agencies of the government), violations of 18 U.S.C.A. § 1341 (use of the mails in furtherance of a scheme to defraud), and violations of the Federal Food, Drug, and Cosmetic Act (21 U.S. C.A. § 301 et seq.). Plaintiff's complaint alleges in sub- stance that plaintiff is a medical scientist of outstanding reputation who has been engaged, since approximately 1980, in ex- perimental studies on the drug Krebio- zen; his study and the reports of physi- cians submitted to him have demonstrated to his satisfaction that Krebiozen has produced favorable results as an anti- cancer agent and is useful in alleviating the pain usually present in terminal cases; plaintiff, as scientific adviser to the Krebiozen Research Foundation, has never received any remuneration for his advice, and has never submitted any ap- plications to the United States with the object of becoming a sponsor or manu- facturer of the drug; he has a mandate from the Illinois legislature to conduct research and investigation on Krebiozen; the gist of the indictment against him Is that Krebiozen is a fake cancer drug; the indictment is based upon reports of the National Cancer Institute and the Food and Drug Administration which are er- roneous; the only way to prove whether Krebiozen is an effective treatment for cancer is by clinical test which no Federal agency has undertaken; the Secretary of Health, Education, and Welfare by per- sisting in the view that Krebiozen is a fake, by refusing to acknowledge that there is a difference of opinion about the drug's merits, and by refusing to conduct a clinical test, has caused the dissemina- tion of adverse publicity and is acting 1. At the time of the preparation of this opinion the criminal trial was still in progress. 551 r.24—s 33 EFTA00191878

34 351 FEDERAL REPORTER, 2d SERIES arbitrarily and far beyond the exercise of administrative prerogative. and has, through his agents, discouraged physi- cians from prescribing Krebiozen by im- plied threats of reprisal by medical as- sociations or the government, and has attempted to discourage patients from using the drug; this conduct of the Secretary has caused Ivy to lose prestige as a professional man, and his rights to practice medicine, to conduct research, and to teach and advocate ideas have been infringed; plaintiff has a legal and moral right to use any drug he regards as safe in treating cancer patients and is com- pelled to continue to use Krebiozen, which can only result in a multiplicity of civil and criminal actions; only a court of equity, and not a jury, can intelligently determine whether Krebiozen is a fake cancer drug and this determination can only be made after a court supervised clinical test; and that to require plaintiff to defend himself in the criminal trial without a prior clinical test of the drug will deprive him of due process of law. The complaint asserts that the acts com- plained of violate rights guaranteed to the plaintiff by the 1st, 5th and 6th Amend- ments to the Constitution of the United States. The complaint does not challenge the constitutional validity of any of the stat- utes the indictment charges the plaintiff with violating nor Is any allegation made that either of the defendants sought to be restrained is acting other than within the discretionary scope of his duties concern- ing enforcement of the laws. Apart from the question of the sufficiency of any of the factual allegations made with respect to the actions and conduct of the Secre- tary of Health, Education, and Welfare to present an issue involving the infringe- ment of any constitutional right of the plaintiff, we perceive no basis either from the averments of the complaint or the ap- plicable law for imputing to the defend- ants the alleged conduct of the Secretary. And. pl ' tiff's reliance upon Philadel- phia Co.in U.S. Stimson, 223 U 605, 32 S.Ct. 340, 56 .Ed. 570 as a controlling prec- edent for the making of such imputation is wholly inapposite. [1] We are unpersuaded by the plain- tiff's contention that a trial prior to an impartial clinical test of the efficacy of Krebiozen in the treatment of cancer would violate his 5th and 6th Amendment rights to a "fair trial" and "due process of law" for the reason that resolution of the efficacy issue presented by some of the counts of the indictment involves mat- ter beyond the intelligence and compre- hension of a jury and the complaint thus presents a basis for the Injunctive relief sought. In this connection the memoran- dum opinion filed by the district judge discerningly and aptly points out: "Plaintiff's constitutional rights to a fair trial will be protected by the court in the criminal trial. Juries are called every day to determine problems which are not within the scope of their prior knowledge and experience; In these cases, the ex- pert witness is used to bridge the gap between the known and the un- known. Expert witnesses in crimi- nal trials are commonplace; the mere fact that the issues of a case may be complex or confusing to a jury does not mean that they must remain so—the prosecution must clarify the facts in order to pre- sent its charges properly. The complexity of the subject matter of a lawsuit cannot be raised to a consti- tutional issue in advance of its pres- entation in that lawsuit" [2] Mere complexity of factual issues to be determined by the jury In a criminal case is not a constitutional basis for pre- cluding the trial. We agree with the District Court that, contrary to the contentions of the plain- tiff, the allegations of the complaint do not present one of those rare Instances where considerations like lose found in cases such as Dombrowski Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, and Ex parte Young, 209 U.S. 123. 28 S. Ct. 441, 52 L.Ed. 714, require that equity EFTA00191879

N. L. R. B. I O. cite as 351 should intervene to restrain a pending criminal prosecution. conclude that the rationale of Douglas City of Jean- nette, 319 U.S. 157, 63 S. . 877, 87 L.Ed. 1324, is applicable here, and in the lan- guage of Dombrowski (880 U.S. p. 485, 86 S.Ct. D. 1120) there are "no special circumstances to warrant cutting short the normal adjudication of constitutional defenses in the course of a criminal prosecution." The judgment order appealed from is affirmed. Affirmed. NATIONAL LABOR RELATIONS BOARD, Petitioner, I C. L. FRANK, INC., Respondent. No. 15054. United States Court of Appeals Seventh Circuit Sept. 27, 1965. Proceedings on petition for enforce- ment of an order of the National Labor Relations Board. The Court of Appeals, Castle, Circuit Judge, held that employ- er's general manager's request that em- ployees caucus and inform him of result was reasonable method of verifying one employee's statement that employees had changed their minds about union repre- sentation; and, in context, manager's statement to assembled employees with regard to scheduled increase in wages and his designation of supervisor de- sired by employees were, if technical vio- lations, so do minimis in nature as to afford no reasonable basis for board's conclusion that they resulted in dissipa- tion of union's majority. Order accordingly. 1. Chauffeurs, Teamsters and Helpers Local Union 215. s/w International Brother. L. FRANK, INO. 35 KIM 35 (1965) Labor Relations 4=389 Employer's general manager's re- quest that employees caucus and inform him of result was reasonable method of verifying one employee's statement. that employees had changed their minds about union representation; and, in con- text, manager's statement to assembled employees with regard to scheduled in- crease in wages and his designation of supervisor desired by employees were, if technical violations, so de minimis in na- ture as to afford no reasonable basis for board's conclusion that they resulted in dissipation of union's majority. Na- tional Labor Relations Act, § 8(a) (1, 6) as amended 29 U.S.C.A. § 158(a) (1, 5). Marcel Mallet-Prevost, Asst. Gen. Counsel, Cary Green, Atty., N. L. R. B., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Leo N. McGuire, Atty., N. L. R. B., Wash- ington, D. C., for petitioner. D. Bailey Merrill, William E. Statham, Evansville, Ind., for respondent C. L. Frank, Inc., Merrill, Schroeder & John- son, McCray, Clark, Statham & MeCray, Evansville, Ind., of counsel. Before SCHNACKENBERG, CASTLE and KILEY, Circuit Judges. CASTLE, Circuit Judge. This case is before the Court upon the petition of the National Labor Relations Board for enforcement of the Board's order issued against C. L. Frank, Inc., respondent. The order is based on the Board's findings and conclusions that the Company violated Section 8(a) (6) and (1) of the National Labor Relations Act by refusal to bargain with the Union and that such refusal was not based on any good faith doubt that the Union. represented a majority of the employees: involved; and that the Company vio- lated Section 8(a) (1) of the Act by directing employees to conduct a poll with to the authorization of the Union. hood of Teamsters. Chauffeurs. Wore. housemen and Helpers of America. EFTA00191880

occasion it split up a team working on one job to send one member of the team to another job, a practice as to which there is no evidence whatever in the case at bar. Moreover, in the latter case it was found that in the event extra work turned up in the course of a job the ap- plicator was not allowed to contract to do it for the householder on his own ac• count, as in the case at bar, but was re- quired to ask the taxpayer-plaintiff for instructions as to how to proceed. These facts, and others we might mention, dif- ferentiate the Security Roofing case from the one now before us. The case at bar is consistent with the Metropolitan Roofing, Jagolinzer and American Homes cases cited above and not inconsistent with Security Roofing. A judgment will be entered affirming the judgment of the District Court. Luther F. GRANT and Sirrka I Grant, PetitionersAppellees. UNITED STATES of America, Defendant.Appellant. No. 344, Docket 26183. United States Court of Appeals Second Circuit. Argued May 12. 1960. Decided July 28, 1960. Appeal by United States from order of the District Court for the Northern District of New York, James T. Foley, J., 186 F.Supp. 418, refusing to dissolve order staying United States attorney and all other agents and representatives of the United States from submitting evidence relating to taxpayers to a grand jury pending determination of applica- GRANT I. UNITED STATES 165 Cite as 2n EU 165 (190) tion for return of books and records. The Court of Appeals, Friendly, Circuit Judge. held that where judge signed an ex parte order requiring United States attorney to show cause why taxpayer should not be entitled to return of rec- ords or papers voluntarily turned over to agents of Internal Revenue Service and staying United States attorney and all other agents and representatives from submitting any evidence or information to grand jury pending determination of application for order to suppress, and subsequently court signed order, second order was not final and was not appeal- able as an interlocutory order refusing to dissolve or modify injunction. Appeal dismissed for want of appel- late jurisdiction. Moore, Circuit Judge, dissented. 1. Courts Cr)403(3.11) In a civil action a restraining order qua restraining order is not appealable, whereas a preliminary injunction is. 26 U.S.C.A. (I.R.C.1939) ¢ 6531. 2. Courts C=403(3.11) label put on order by trial court is not decisive whether order constitutes a restraining order or preliminary injunc- tion within rule that restraining order qua restraining order is not appealable whereas a preliminary injunction is, but rather the courts look to such factors as duration of order, whether it was issued after notice and hearing, and type of showing made in obtaining order. 3. Courts C=405(12-1, 12.12) Where court signed ex parte order requiring United States attorney to show cause why records taxpayer had made available to agents of internal revenue service should not be suppressed and staying United States attorney and all other agents and representatives from submitting any evidence or information to grand jury pending determination of application, and subsequently court signed order refusing to dissolve stay and reserving decision as to vacation of original order to show cause until EFTA00191881

166 282 FEDERAL REPORTER. 2d SERIES hearing, second order was not final and was not appealable as an interlocutory order refusing to dissolve or modify in- junctions. 28 U.S.C.A. §§ 1291, 1292(a) (1): Fed.Rules Civ.Proc. rule 65(b). 28 U.S.C..'. 4. Injunction C=t105(1) District judges do not have un- limited discretion to stay government or its agents from presenting evidence to grand jury pending a hearing on motion to suppress evidence and evidentiary hearing should not be set as a matter of course but only when petition alleges facts which if proved would require grant of relief. Fed.Rules Crim.Proc. rule 41(e), 18 U.S.C.A. S. Searches and Seizures C•7(28) Taxpayers do not make a showing of violation of constitutional guarantees by alleging only that they turned over their books and records voluntarily to Treasury agents for examination and such books and records were found to contain evidence leading government to assert criminal liability. 6. Crintinal Law' <>394.6(si In those cases where an evidentiary hearing is required on application for order to suppress evidence. court should proceed in an expeilitous manner con- sonant with summary character of rem- edy. Fed.Rules Crim.Proc. rule 41(e). 18 U.S.C.A. 7. Injunction C=105(1) Possible expiration of a period of limitationiis highly relevant to the exer- cise of court's discretion in staying gov- ernment or its agents from presenting evidence to grand jury pending hearing on motion to supress such evidence. Fed.Rules Crim.Proc. rule 41(e), 18 U.S. C.A. S. Courts C/s404 Abuses of discretion by trial court in ordering a hearing on motion to sup- press evidence or in the scope or dura- tion of a stay pending such hearing can be corrected by Courts of Appeals through issuance of mandamus. Fed. Rules Crim.Proc. rule 41(e), 18 U.S.C.A. Kenneth P. Ray, Asst. U. S. Atty., Syracuse. N. Y. (Theodore F. Bowes. U. S. Atty., Northern Dist. of New York, Syracuse, New York, on the brief), for appellant. Joseph W. Burns, New York City (John P. Cuddahy and Austin, Burns. Appell & Smith, New York City. and George Bond, Jr., N. Earle Evans, Jr. and Bond. Sehoeneck & King, Syracuse. New York, on the brief), for appellees. Before CLARK. MOORE a n d FRIENDLY, Circuit Judges. FRIENDLY, Circuit Judge. ! Luther F. Grant and his wife Sinks Grant are physicians practicing in berty, New York. Luther applied on their joint behalf to the District Court for the Northern District of New York, pursuant to Fed.R.Crim.Proc. 41(e), 18 U.S.C., for an order suppressing as evi- dence records and papers that he had made available to agents of the internal Revenue Service. He alleged that the records had been obtained in violation of the Fourth and Fifth Amendments and that the United States attorney was about to present to a grand jury infor- mation relating to petitioners' tax lia- bility derived from them. Upon this application, Judge Foley, sitting in Albany, signed an ex parte order dated February 26. 1960, requiring the United States attorney to show cause on the judge's next scheduled motion day at Albany. March 21, 1960. why petition- ers should not be granted the relief sought. The order stayed the United States attorney and all other agents and representatives of the United States "from submitting any evidence or infor- mation to a Grand Jury or from taking any other or further proceedings in rela- tion to the above captioned petitioners pending the determination of this appli- cation • • • ". At the same time the judge signed an order, also ex parte, granting petitioners leave under Fed.R. Civ.Proc. 26(a), 28 U.S.C., to serve no- tice of the taking of depositions of four revenue agents prior to the expiration EFTA00191882

of 20 days after the commencement of the action on the ground "that their testimony is desired for use at the hear- ing of petitioners' motion to suppress ille- gal evidence ° * •, and that it is essential that their testimony be taken prior to such hearing." Pursuant to such leave petitioners served notice that the depositions would be taken on March 8, 1960 and a subpoena commanding a special agent to bring copies of the man- uals and instruction to revenue agents and special agents. "all documents, papers, books, records, memoranda, re- ports, diaries and objects maintained or obtained" by two agents, and "copies or extracts of books and papers made by them as a result of examinations or in- vestigations" relating to the tax affairs of the petitioners. When Judge Foley arrived in Syracuse on March 1, 1960, to commence a trial term, an assistant United States attor- ney asked him to vacate the order of Feb- ruary 2G. The judge declined to do this but signed an order, supported by affi- davits of the United States attorney and two revenue agents, requiring the peti- tioners to show cause on March 7 "why an order should not be made dissolving the injunction and vacating the order to show catve granted by this Court on the 26th day of February 1960." Petitioners submitted answering affidavits on the return day. After considering the affi- davits and hearing counsel. Judge Foley, on March 8, 1960, made a Memor•andum- Decision and Order, 186 F.Supp. 418. re- fusing to dissolve the stay (although modifying it to permit the institution of a complaint before a United States Commissioner under 6531 of the Inter- nal Revenue Code of 1954, 26 U.S.C. § 6531, to toll the statute of limitations) and reserving decision as to vacating the original order to show cause until the hearing. From this the United States appeals. We meet at the outset the question, not discussed by the parties, whether the or- der is appealable. Manifestly the order was not final; hence it is not appealable GRANT' UNITED STATES 167 Coe a rto o :dm (two) under 28 U.S.C. § 1291. However, the order of February 26 contained language of restraint, and we must consider whether the order of March 8 is an inter- locutory order "refusing to dissolve or modify injunctions" and therefore am pealable within 28 U.S.C. § 1292(a)(1). [1,21 If appealability were governed by 28 U.S.C. § 1292(a)(1), we would be required to determine whether the Feb- ruary 26 order was a temporary restrain- ing order or a preliminary injunction. For "In a civil action a restraining order qua restraining order is non-appealable," 7 Moore, Federal Practice, ¶ 65.07, 1649 (2d ed. 1955): Schainmann Brainard, 9 Cir., 1925, 8 F.2d 1!, whey as a preliminary injunction is. How- ever, "the label put on the order by the trial court is not decisive; instead the courts look to such factors as the dura- tion of the order, whether it was issued after notice and hearing, and the type of showing made in obtaining the order." 3 Barron & Holtzoff, Federal Practice and Procedure, § 1440, at 509 (Wright ed. 1958). The authors aptly add, "Ap- plication of these tests is not easy to fathom." Fed.R.Civ.Proc. 65(b) pro- vides that any temporary restraining order granted without notice "shall ex- pire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period • * • " Sims v. Greene, 3 Cir.. 1947, 160 F.2d 512, held that an order originally issued on De- cember 2, 1946. extended on December 20 without objection January H o 1947. and thereafter co ed from time to time until Febru. 3, during which time a long evidentiary hearing was held. had ceased to be a temporary restrain- ing order and had become a preliminary injunction subject to appeal under what is now 28 U.S.C. § 1292(a)(1). On the other hand, Connell I Dulien Steel Prod- ucts, Inc.. 5 Cir.. 1957, 240 F.2d 414, 415, certiorari denied, 1958, 356 U.S. 968, 78 S.Ct. 1008. 2 L.Ed.2d 1074, held that an order labelled a "temporary restraining EFTA00191883

168 282 FEDERAL REPORTER, 2d SERIES order" did not cease to be one because it restrained pending decision on a motion for a preliminary injunction which was scheduled to be heard 28 days thence, see 71 Harv.L.Rev. 550 (1955). And the Third Circuit has decided similarly with respect to a stay that was to remain in effect until the application for the tem- porary injunction was heard, when the appeal was taken prior to the expira- tion of 20 dal. Pennsylvania Motor Truck Asen Port of Philadelphia Marine Terminal Asen, 1960, 276 F.2d 931. Here the minimum period of re- straint was 24 days, only four more than the 20 permitted by Rule 65(b). a period that might have been accepted by consent under the express terms of the rule or would undoubtedly have been shortened had the court been requested to do so: the order was issued without notice and hearing; and the judge had not made the preliminary determination of the rights of the parties required for issuance of a temporary injunction. On the other hand, as demonstrated by the order per- mitting petitioners to take depositions, the hearing scheduled for March 21 was evidently intended to be the final hearing. so that the stay may be said to have performed the traditional office of an injunction pendente life, "to preserve the xtatus quo pending final determination of the action after a full hearing." 7 Moore, Federal Practice, I; 65.04, at 1625 (2d ed. 1955). The difficulty in resolving these con- flicting considerations suggests that we may not be asking the right question and that we ought examine a more basic one, namely, whether 28 U.S.C. § 1292(a) (1) applies at all to preliminary stays in summary proceedings to suppress illegally obtained evidence. This in turn requires analysis of the nature of a motion to that end made before any criminal proceeding is pending. Fed.R.Crim.Proc. 41(e) provides that "A person aggrieved by an unlawful search and seizure may move the district court for the district in which the prop- erty was seized for the return of the property and to suppress for use as evi- dence anything so obtained" on various grounds therein specified. It directs that "The judge shall receive evidence on any issue of fact necessary to the decision of the motion." The rule embodies a prac- tice which long antedated it but whose jurisdictional character, at least in those cases where the motion precedes the crim- inal proceeding to which the evidence relates, has been little discussed. We have said that such a motion "was in effect a complaint initiating a civil ac- tion," Lapides v. United States, 2 Cir.. 1954, 215 F.2d 253, 254: Russo v. United States, 2 Cir.. 241 F.2d 285, 287, certio- rari denied, 1957. 355 U.S. 816. 78 S.Ct. 18,2 L.Ed.2d 33, and so it is in the sense with which the Court was there mainly concerned. namely, its independence front the later criminal proceeding and the con- sequent appealability of a final order therein under 28 U.S.C. § 1291. How- ever, the jurisdictional grants in 28 U.S.C. §§ 1331-1358 will be searched in vain for any rubric under which such a motion falls, in the absence of any alle- gation of jurisdictional amount that would bring it under § 1331. see ten- tracchio v. Garrity, 1 Cir., 1952. 198 F.2d 382, 385, certiorari denied, 1952, 344 U.S. 866. 73 S.Ct. 108, 97 L.Ed. 672. The classical exposition of the nature of such a motion is Judi Hough's state- ment in United States Maresca, D.C. S.D.N.Y.1920, 266 F. 713. 717: "Whenever an officer of the court has in his possession or under his control books or papers, or (by parity of reasoning) any other articles in which the court has official interest, and of which any person (whether party to a pending litigation or not) has been unlawfully deprived, that person may petition the court for restitution. This I take to be an ele- mentary principle, depending upon the inherent disciplinary power of any court of record. "Attorneys are officers of the court, and the United States attorney does not by taking office escape from EFTA00191884

GRANT I UN cite as 941F this species of professional disci- pline. Thus power to entertain this motion depends on the fact that the party proceeded against is an attor- ney, not that he is an official known as the United States attorney. It is further true that the right to move does not at all depend on the exist- ence of this indictment; it might be made, were no prosecution pending." See also Co-Bart Importing Co. v. United States, 1931, 282 U.S. 344, 355. 61 S.Ct. 153.75 L Ed. 374 ; Foley v. United States, 5 Cir., 64 F.2d 1, 3, certiorari denied, 1933. 289 U.S. 762, 53 S.Ct. 796, 77 L.Ed. 1505. When motions under Rule 41(e) or the practice preceding it are independent of a criminal proceeding, the courts enter- tain appeals from final orde denying the return of papers, Perlman United States, 1918, 247 U.S. 7, 38 Ct. 417, 62 L.Ed. 950; Essgee Co. United States, 1923, 262 U.S. 151, 43 Ct. 514. 67 L.Ed. 917; Co-Bart Co. United States, s ra, or granting sue return, Burdeau McDowell, 1921, 256 U.S. 465, i 41 S.Ct, 4, 65 LEd. 1048. In contrast, when the motion is made aft indict- ment, States, 1929, 278 U.S. 221, 49 .Ct. 11 1 neither its denial, Cogen United 73 L.Ed. 275, nor its grant, Carroll United States, 1e".7, 354 U.S. 397, i S.Ct. 1332, 1 L.E'!.2d 1442, is appealable. We have found La case sustaining appel- late jurisdiction from any order in such a proceeding save a final one. We do not think an order, made in the exercise of "the inherent disciplinary power" of the court, directing one of its own officers to refrain from using books I. The came for opplienhilliy le Hint the action is "of a civil nature." Fol.R.Civ. Proc. 1, sines "Whether an action is civil or criminal by nature is determined by the sanctions nought to be imporied," 7 Moore, Federal Practice 1 81.02. at 44. (2.3 ed. MI); see United States Stangland, 7 Cir.. 1937, 242 Sid 84 , 8-81, and does not come within any the exclusion* of Rule 81. In Russo United States, supra, 241 F.2d at pages 287-288. we held Rule 26(a) applka. 281 F.20—Ilii ITED STATES 169 15 16.5 11060) and papers claimed to have been unlaw- fully taken until the court can determine his right to use them, is an order "grant- ing, continuing, modifying, refusing or dissolving injunctions, or refusing to dis- solve or modify injunctions" within 28 U.S.C. § 1292(a)(1), even if the stay runs beyond the 20-day period permitted for temporary restraining orders by Fed.R.Civ.Proc. 65(b) and we should as- sume that the Rule is fully applicable.' Section 1292(a)(1) stems from § 7 of the Evans Act, c. 517, 26 Stat. 828. providing, by way of exception to the re- quirement of finality, "That where, upon a hearing in equity in a district court. or in an existing circuit court, an injunc- tion shall be granted or continued by an interlocutory order or decree, in a cause in which an appeal from a final decree may be taken under the provisions of this act to the circuit court of appeals. an appeal may be taken from such inter- locutory order or decree granting or con- tinuing such injunction to the circuit court of appeals"; orders denying such injunctions were first added in 1895, c. 96, 28 Stat. 666. The section as it ap- peared in the Judicial Code of 1911, § 129, 36 Stat. 1134. continued to be pref- aced by the words "Where upon n hear- ing in equity in a district court." and the omission of the words "in equity" in the Act of February 13, 1925. 43 Stat. 937, "was not intended to rernie that limitation." Schoenatmsgrubcr 118M- burg American Line, 1935, 294 U.S. 454, 457, fn. 3, 55 S.Ct. 475, 477, 79 L. ' 1 989; see Baltimore Contractors, Inc. Bodinger, 1955, 348 U.S. 176, 180, fn. 75 S.Ct. 249, 99 L.Ed. 233. Whatever might be the case when a person seeking bie in a proceeding Mot the present. However, since the Federal Ruin of Civil Procedure were "primarily designed for plenary litigation," 7 Moore, Federal Pi-settee 1 61.06, at 4442 (2d ed. 1955). It don not nev-essarily follow that they must be literally applied to proceedings under Fed.R.Crim.Proc. 41(e) which are summary in character, even when these are pre.indletment. Cf. Goodyear Tire & Rubber Co. v. N.L.R.B., U Cir.. 1011, 122 F.2d 450. 451, 136 A.L.R. 8S3. EFTA00191885

170 282 FEDERAL REPORTER, 2d SERIES the return of property alleged to have been illegally seized proceeds by a ple- nary action under an appropria juris- dictional statute, see Goodman Lan, i 8 Cir., 1931, 48 F.2d 32; cf. Eastus Bradshaw, 5 Cir., 94 F.2d 788, certiorari denied, 1938, 304 U.S. 576, 58 S.Ct. 1045, 82 L.Ed. 1539, such language is hardly apt to describe a preliminary step in a special proceeding where, in the course of exercising its "disciplinary powers" "summarily to determine" what one its own officers should do, Go-Bart Co. i United States, supra, 282 U.S. at page 355, 51 S.Ct. at page 157 the court in- structs him, ex parte, not to take action pending the determination that might impair the court's ability to grant full relief. Such a proceeding normally would not have the three stages—tem- porary restraining order, preliminary injunction, and final decree—characteris- tic of "a hearing in equity": the first evidentiary hearing would usually be the last and the proceeding would generally be determined before an appeal from an interlocutory order could be heard. The Baltimore Contractors case itself teaches that not every request for an order containing words of restraint is one for an injunction iithin ¢ 1292(a) (1). So does Fleischer Phillips, 2 Cir., 264 F.2d 516, 516, certiorari denied. 1959, 359 U.S. 1002. 79 S.Ct. 1139, 3 L.Ed.2d 1030, where we said, also deal- ing with officers of the court, that "the prayers for injunctive relief add nothing to the orders denying the motions and render neither of them automatically ap- pealable under 28 Ulf. . § 1292(a)(1)." And United States Rosenwasser, 9 Cir., 1944, 145 F.2d 1015, 156 A.L.R. 1200, held that an order suppressing evi- dence and restraining the United States from using copies of the seized records or information derived therefrom in any proceeding of any kind, which was not appealable as final because it was sought only after the information had been filed. could not be appealed as an interlocutory order granting an injunction although literally it assuredly was. [3-81 Our holding that the order here sought to be reviewed is not appeal- able does not mean that district judges have unlimited discretion to stay the government or its agents from present- ing evidence to a grand jury pending a hearing on a motion to suppress. Fed.R. Crim.Proc. 41(e) requires that evidence be taken on "any issue of fact necessary to the decision of the motion." It follows that evidentiary hearings should not be set as a matter of course, but only when the petition alleges facts which if proved would require the grant of relief. We find it somewhat hard to see how the pe- tition here met this test, since the con- stitutional guarantees are not violated when taxpayers' books and records, vol- untarily turned over to Treasury agents for examination, are found to contain it evidence leading the governm t to as- sert criminal liability, Russo United States, supra; United States I detail'. 2 Cir.. 265 F.2d 408, certiorari denied l i 1959, 360 U.S. 918. 79 Ct. 1436.3 L.Ed. 2d 1534; Centracchio Garrity, supra; the fact that one of t e agents was a special agent (whose presence, petition- ers allege, shows an intent to develop i facts leading to criminal pros ution) has been held irrelevant, Turner Unit- ed States, 4 Cir., 222 F.2d 926, 9 0, cer- tiorari denied 1955, 350 U.S. 831, 76 S.Ct. 65, 100 L.Ed. 742; and the only affirmative misrepresentation alleged as to the nature of the investigation post- dated the voluntary delivery of the rec- ords. In those cases where an eviden- tiary hearing is required, the court should proceed in an expeditious manner consonant with the summary character of the remedy and with a recognition that "It is no less important to safeguard against undue interruption the inquiry instituted by a grand jury than to pro- tect from delay the progress of the trial after an i lament has been found." Cobbledick United States, 1940, 309 U.S. 323, 32 , 60 S.Ct. 540, 542, 84 L.Ed. 783. The possible expiration of a peri- od of limitations is, of course, highly relevant to the exercise of the court's discretion. Abuses of discretion in or- EFTA00191886