*1 cerning prej- Since the serial numbers was defendant cross-examined Mrs. concerning rights, Harris udicial to properly since other her state- defendant’s husband’s ment in admitted records suf- the contested form and since business ficiently police obviously report, Mrs. Harris about .corroborated the knew more removing “any unreliability.” family’s form, finances, and the taint of Ashley States, check, v. United at 251. stolen we think that admis- case, testimony In this Harris’ es- sion of the form did not violate defend- Mrs. right crime, tablished elements of and ant’s to con- Sixth Amendment’s the contested cumula- claim form was frontation. tive, prove circumstantial evidence to Judgment affirmed. that the check was from the stolen mail. defendant, also, no makes claim that
there was insufficient evidence for the
jury him convict of the possession forgery.
counts of Simi- larly rights defendant’s have not been
prejudiced. argues
The defendant also
the admission of
the contested form vio
Gary WELLNER, Appellee,
A.
right
lated his Sixth Amendment’s
“to
against
be confronted with the witnesses
STATE JUNIOR COLLEGE
MINNESOTA
him.”
admits
vio
defendant
that a
BOARD, Appellant.
hearsay
lation of the
rule does not neces
No. 73-1131
sarily mean that the Sixth Amendment’s
Appeals,
United States Court
right to confrontation has been violated.
Eighth Circuit.
149, 156,
Green,
California v.
399 U.S.
14,
Sept.
Submitted
1973.
1930,
90 S.Ct.
cross-examine witnesses him.2 course, Of we have held in this ample opportunity
the defendant had an Harris, Mrs. who knew cross-examine
more the form about than husband. her Evans, 74, 89,
In Dutton v.
400 U.S.
210, 220,
(1970),
S.Ct.
the Court held:
“The decisions of this Court make it
clear that the mission of the Confron- practical
tation Clause is advance accuracy
concern for of the truth-
determining process in criminal trials
by assuring that ‘the trier of fact satisfactory for evaluat- basis [has] prior the truth statement.’ Green,
California at
U.S.
at
1936.”
States,
L.Ed.
Texas,
391 U.S.
2. Green reviewed Pointer v.
light.
(1968),
(1965) ;
California
2d 476
85 S.Ct.
Theodore N. Asst. Minn., Paul, appellant. St. Minn., Paul, Hall, J. Clinton St. appellee. HEANEY, STEPHENSON Before Judges. WEBSTER,
and Circuit Judge. STEPHENSON, Circuit College Junior Board Minnesota State following (the Board) appeals an ad- 1983 verse final order in a 42 U.S.C. § against by brought the Board action faculty Wellner, Gary A. Metropolitan Junior member State College (Metro). alleged that proc- deprived procedural he was did not afford him ess since the Board hearing prior not to re- to its decision faculty appoint him as Metro member. unreported opinion, charges made held that certain “racist” against placed in Wellner, were stigma file, in- and the attendant reappoint volved in failure to the Board’s deprivation in- of his him constituted “a meaning liberty,” terest in within the Regents Colleges et al. Board of State Roth, Perry (1972), L.Ed.2d 548 Sinder- mann, (1972);
L.Ed.2d and that Wellner prior hear- entitled to a therefore was ing.1 at the time
The trial court determined “a it its order that rendered adequately reflect held now could surrounding the circumstances actual against making of the racist reap- plaintiff not to and the decision generally, holdings. agreed parties See those 1. The trial court noted that both eration Huson, 106- the Roth Chevron Oil Co. the case be controlled -would 349, 355, L.Ed.2d 296 do decisions. We Sindermann op- retrospective question not reach point year.” period It him for the 1971-1972 same the Committee recom- pay mended to therefore assessed Dr. Jensen that back Wellner be Board; appoint reappointed; ordered Board to that Dr. Lund in memo- beginning Jensen, of the next randum to recommended to Wellner at equal contrary; quarter position or semester to a and that Jensen decid- rank, salary responsibility ed not to that Wellner. *3 during Metro which he held at 1970- the The court concluded that the ac- year, 1971 academic at a Minnesota but cusations in contained the adverse mem- College other than Metro State Junior fact, oranda were without foundation in problems of because the “tensions and “[t]hey and that consist of conclusions working would result from him which impressions and mental which are read- there;” and further ordered the Board ily explainable when one considers »that expunge from its records all matter re- they were made at the direction of Dr. lating to “actions or attitudes- Wellner’s superior Lund” who the of the au- was people toward black that which indicate of thors the memoranda. Insofar as n prejudice holds a bias or charges concerned, racist were the trial them.” court found that there no was evidence any veracity of kind to or sustain lend part part We affirm in and in reverse charges. to such It determined that and remand cause with this directions. presence evidence shows that the “[t]he opinion In its order and the trial court of the written racist in [Well- found: that Minnesota Stat.Ann. 136.- § clearly file at Metro and ner’s] reduces (1967) appoint, 62 authorizes Metro to diminishes his to obtain another chances reappoint and not teaching position likely it is since that faculty giving members without reasons prospective employers will have ac- affording hearing; or a that Dr. Robert to such file.” cess Jensen, president, appointed W. Metro’s principal question presented by during faculty Wellner to the Metro appeal sup- this is whether the record year -physical 1969-1970 academic aas ports the trial court’s determination that wrestling education coach; instructor deprived had been of an interest Wellner pursuant that to the recommen- entitling liberty pur- in him to a Faculty dation of the Review Committee to the dictates of Roth and Sinder- suant reappointed (Committee), Dr. Jensen mann, supra. year; for Wellner although the next academic that 113, In Ulett, Harnett v. 466 F.2d applied position Wellner (8th 1972), interpreted Cir. Roth we permanent director, athletic Dean of determining “that absent some sort Students, Lund, appointed Dr. James P. statutory rights, or tenure contractual outsider, Garvin; Grover that Well- public cogniz- employee a no interest has heavily ner burdened with extra was necessitating process pro- able at law work, which he was forced to assume showing tection made that the unless a is keep job; problems in order to that government likely conduct will . during arose the 1970-1971 academic stigma impose upon employee a that year faculty between and other Wellner opportunities to will foreclose future members, triggered Lund to Accord, profession.” chosen practice his writing recommend to Dr. Jensen that Nelson, 1173, Wilderman v. 467 F.2d reappointed not “because (8th 1972). Cir. feelings cooperation ill ‘lack of and the developed that have in the De- Both Roth Athletic subscribe Sindermann partment although may person as a of Mr. result Wellner’s at- to the that view actions;’” govern- ‘right’ titude and that other anti- have “no to a valuable gathered by though gov- Wellner material was mental benefit and even placed may deny Lund file at him the Wellner’s ernment benefit reasons, Metro which with hav- number there are some blacks; during government may that hatred toward reasons which the requested Sindermann, ner’s supra, 408 review decision rely.” denied would and that the decision L.Ed.2d was 593, 597, 92 S.Ct. “ good hearing. person’s stand without a (1972). ‘[W]here integrity honor, or name, reputation, Our examination this record government of what at stake because us no mistake has been convinces opportu- doing and an notice him, See, made. United States v. United ” Roth, essential.’ nity are to be heard Gypsum Co., supra, States 564, 573, 92 542, 92 L.Ed. 746 (1972). L.Ed.2d ample There evidence finding support the trial court’s tried to the court was This charges against presence of racist scope jury. sitting without principal cause of his Wellner were to wheth limited is therefore our review deprived non-reappointment and this findings the trial made er the *4 ' liberty in of an which Wellner interest clearly Fed.R.Civ. 52 erroneous. are prior hearing, despite him a entitled to Scott, F.2d (a); see Brown his status. finding 1972). is “A (8th Cir. although there ‘clearly erroneous’ when to of We turn then nature the reviewing it, support remedy. agree the to trial court’s We is evidence the with left with portion is entire evidence in court on the of its order which effect that a that firm conviction that to the definite states Wellner entitled receive is salary United has been committed.” mistake he would have received had he the Co., Gypsum reappointed, States States v. United been unless and until he is discharged.2 agree lawfully U.S. also We (1948); Ed. Arkansas portion 92 L.Ed. with that of the trial court’s Ed., Sch. expunge Ark. of Portland Ass’n Dist., directs order which Board to Bd. the 1971). (8th Cir. 446 F.2d all from its written matter which records or indicates that Wellner holds a bias subsequent to that record discloses The However, prejudice the toward blacks.3 reappointment, its recommend to decision it trial erred when determined not Faculty received the Review Committee hearing to a order and instead ordered from memoranda written anti-Wellner the to to a sim board Wellner charges Lund, together written Dr. with teaching position. ilar As we noted ear Union. of from the Black Student racism lier, the trial court reasoned that “a to Wellner material adverse Additional hearing adequately held now could not by Lund from Dr. Gar- had collected been reflect rounding the actual sur circumstances Gardner, along letter ad- with a vin and making charg the racist to the Black Student Lund from dressed es.” Team, which contained Union Basketball placed charges. acknowledge Dr. Lund point more racist this that latter We activity file Nevertheless, material into Wellner’s is troublesome. we are ultimately governed into Dr. Jensen’s by came Roth and Sindermann which information, showing custody. Despite requisite new this dictate that original to liberty adhered its deprivation the Committee of an interest in neverthe- appropriate remedy recommendation. Jensen is a or- by is, the Committee’s less refused to follow suggested in such dered court. That party and informed Wellner process requires action that case writing reap- given he in would be notice of be pointed. that Well- testified Jensen heard. him and reasonable chance to be course, may Board, any subsequent its lia- terminate The be therefore irrelevant in hear- employment by bility salary by except required re- ing for without in clear- remedy jus- ing instatement. his The trial court’s name. by potential of such material tified pro- damage such ma- Board has made it clear that The and the Board’s lack of future appeal removing terial is not the basis for its would file. it from Wellner’s cedure prop- Roth, 408 er action and the decision is Supreme in Board Court The erly respect whether he at 2707 n. made with to at 573 n. reappointed. However, will observed: award shall be reduced interim earn- purpose and hear- of such notice “The ings may have derived from other oppor- person provide to employment. per- tunity Once clear name. to his hearing, name at a cleared son has course, may employer, remain employment deny him to future free reasons.” for other inappropriate it
deemWe requirement. follow the do than more to go further and to trial court chose PLAZOLA, Luis Sanchez Petitioner- doing. erred in so Appellant, the trial court final order part and reversed affirmed America, UNITED STATES portion of the part. affirm We Respondent-Appellee. compensate requiring the Board order No, 72-1855. expunge wages for lost Appeals, United States Court of adverse the material from its records Ninth Circuit. *5 the assessment affirm alsoWe Wellner. including Jan. Board, not of costs attorney’s portion reverse fees. We Hearing En Banc Denied Oct. to be directs Wellner order which of the reemployed. remanded cause is to order directions with trial court hearing before an administrative process re- in accordance with Board quirements opinion. noted part part; reversed
Affirmed directions. remanded with Rehearing. Petition For
On
PER CURIAM: rehearing
Petition denied. improperly dis was not accorded an he was because hearing. appropriate termination His nullity he remains
was proper payroll until a on the may
held, be retained time at which reappointed. our It is not within
or not proper
province speculate after
hearing clearing reputation the recommend that Wellner Board will appropriate reappointed, or that reappoint him to sim official will not event, teaching position. In ilar payroll en remains on the wages he will have to receive the
titled by prop- is cleared until name earned