EFTA00191587

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