*1 Hill, S., supra; v. Pierce v. U. Conclusion States denied, (5th Cir.) cert. Finding no merit to the contentions S.Ct. L.Ed.2d urged, conviction(s) we AFFIRM the and

sentences.

2. The Juror Issue

The defendant next contends that failing sponte

the trial court erred in sua upon being

declare a mistrial informed that

the defendant’s sister out of court asked jurors, presence

one of the another

juror: “Please take care of him because my juror,

he’s brother.” The who did not sister, put fingers lips, know the her on her Raymond DONOVAN, Secretary J. but she later commented about the incident Labor, Plaintiff-Appellant, jurors. to the other v. learning incident, the trial judge juror individually interviewed each COMPANY, HUFFINES STEEL juror and ascertained that each stated that Defendant-Appellee. he or she would not be influenced judge incident. The trial excused the two

jurors present at the out-of-court incident United Court of Appeals, States and, after interview of the two alternates effect, to the same allowed them to sit Unit A instead. The district court found that the May 1981. incident jurors, had not influenced the he also instructed them not to let the inci-

dent influence way. them either procedure was followed with the ex-

press counsel, acquiescence of who first con- R.II,

sulted with pp. his client.

The record does any prejudice not reflect

resulting to the defendant from the inci-

dent. procedure used the trial

investigating an out-of-court communica- grant

tion and his decision whether to

mistrial reason thereof rests in his sound Buchanan,

discretion. United States v.

F.2d steps investigate

here taken to the incident and effects,

minimize any, deleterious

well within that discretion. Cf. United Martinez,

States The extreme unlikelihood of

any prejudicial effect of the incident is cor-

roborated willing acqui- defendant’s express

escence in and acceptance of the

procedure followed. No abuse of discretion

is here shown.

Shortly promul- after the was gated, in 1972 an internal OSHA issued manual that instructed the area operations warrant” “inspection secure an director to objected inspection. employer if an to an Labor, OSHA, Compliance Department of Manual, (January 1972). at V-6 Operations instruction not to The manual contained an give warning that an employer advance place take to the inspection pursuant warrant, indicating “compulsory thus that process” parte proceeding. envisioned an ex the 1974 repeated were in provisions However, term of the manual. edition Mintz, Hadden, Benjamin W. I. Charles replaced warrant” in the “inspection was C., Labor, for Washington, D. Dept, of U. S. term, “compul- with a 1976 edition broader plaintiff-appellant. Labor, Department of sory process.” Wilson, Rader, Jr., McCarty & Robert E. Operations Change Field Manual Ennis, Tex., defendant-appellee. (January change, per- V-5 at merely eliminating a matter haps variation, previous elegant brought term used agreement into manual change regulation. in the The semantic GARZA, accompanied deletion of the was RUBIN and Circuit Before warning. prohibition against advance *, Judge: Judges, and District SUTTLE change meaning was no in wrought. GARZA, Judge: Circuit Nevertheless, agen- during period the the District We affirm decision of varied. In cases OSHA cy’s practice some opinion on its of November

Court based others, warrants, sought ex while in reported at refused, request it inspection was after notice sought compelling entry orders after Although adversary proceeding.1 and an RUBIN, Judge, B. con- ALVIN violation of advance warn- apparent curring in the result: explained, pro- is not neither ing prohibition is inconsistent the term com- cedure case is only question by this raised pulsory process. “compulsory process” the words in 1903.4, regulation, an OSHA 8 C.F.R. § is, course, propo- support for the parte. include warrants issued ex Conclud- regulation, sition that as do district court ing that OSHA, not authorize ex warrants. a warrant in 1979 without quashed issued Barlow’s, Marshall v. U.S. party to the were to notice whose 56 L.Ed.2d 305 98 S.Ct. inspected. I would acted different- be argued warrantless government that changed ly, necessary but circumstances have now so Act. to enforce the simply suggested I would dismiss the General to the Su- that The Solicitor practical theory. preme adversary process if not in moot in effect Court * Texas, Judge in Marshall v. District of Court’s decision District Western sitting by designation. Barlow’s, Inc., 98 S.Ct. judge also L.Ed.2d 305 The district that 30 1. The brief indicates sought ex search that OSHA pending OSHA warrant cases decided in Barlow’s. decision inspection war- the courts of involve parte proceedings in ex before rants obtained plaining

warrantless searches were the availa- the regulations permitted an ble alternatives. The warrant, 59,839 Solicitor General ar- Fed.Reg. (Dec. gued then, that the notice necessitated adver- 22, 1978), 1980, changed the regula sary proceedings incompatible was with ef- tions after complying with the Administra fective enforcement. government 65,916-24 tive Fed.Reg. Procedures Act. 45 presented the case in this all-or-nothing (Oct. *3 seemingly litigation

form as a strategy. already Two courts of con surprisingly, Supreme Not the Court real- sidered the issue we are asked to decide. ized that ex satisfy warrants could regulations The Third held that the OSHA’s enforcement concerns while also permit notice, did not warrants without protecting employer’s an fourth amendment Marshall, Cerro Metal Products v. rights. As a result of the (3d 1980), 964 Cir. while the Ninth Circuit however, strategy, the Supreme Court in- conclusion, opposite reached the Stoddard cluded statements in Barlow’s that conflict Co., Marshall, Lumber Inc. v. 627 F.2d 984 with interpretation regula- OSHA’s of its (9th Cir. Two district courts within tion. circuit, disagreeing with the district Like the Third Circuit in Cerro Metal here, court have held regulation Marshall, Products v. (3d 620 F.2d 964 allows ex warrants. Amoco Oil Co. v. 1980), aff’g F.Supp. (E.D.Pa.1979), 467 869 Marshall, 1234, F.Supp. Empl. Safety district relied heavily on the Su- (CCH) ¶24,789 (S.D.Tex. & Health Guide preme Court’s statements. While these obi- 9, Sept. 1980), docketed, appeal No. 80- strong, they ter dicta are conflict with ob- 2235) (5th 19, 1980); Cir. Nov. West Point servations opinion. made elsewhere in the Pepperell, Marshall, Inc. v. F.Supp. example, For the court that “the 1178, Empl. Safety (CCH) & Health Guide Secretary’s own 29 C.F.R. ¶24,738 (N.D.Ga. 28, Aug. 1980), appeal 1903.6 surprise § indicate that docketed, (5th 21, No. 80-7898 Cir. Oct. contemplated.” are indeed 436 1980). Appeals have been docketed in those U.S. at 98 S.Ct. at 56 L.Ed.2d at cases and are both in the briefing (emphasis supplied). stage. See also Marshall v. Seward Inter Sneed, paraphrase Judge national, To writing in Empl. Marshall, (9th Stoddard v. Safety ¶24,794 (CCH) & Health Guide 1980), a (W.D.Va. conclusion that Sept. 1980), docketed, appeal Court’s (5th statements in Barlow’s to No. 1980); amount a 80-1708 Cir. Oct. In Re regulation determination that Inspection Establishment of Metro-East fact, Co., authorize ex Mfg. (S.D.Ill. warrants accords No. 80-5125 Aug. 1980), docketed, statements the force of decision appeal when No. 80-2509 they were merely background. Therefore, 31, 1980); I Cir. Oct. In re Establishment recognize Inspection that OSHA has in fact of Centuty Casting Corp., No. authorizing (S.D.Ill. Aug. 1980), 80-5119 (in docketed, adversary addition to No. 80-2510 Cir. Oct. process), interpretation 1980); its is consistent re Establishment Inspection of plain meaning Ingersoll-Rand Co., of the (W.D.N.Y. words used in No. 80-130 and, that, therefore, the regulation 20, 1980). the war- June rant involved was properly issued. little, This is too much ado about if not

Nonetheless, I concur in the result. nothing. point OSHA does not any to other is controversy virtually now arising moot. We con cases adoption sider interpretation regulations regulations amended that would be affected adopted in 1971. regulations are now by the result here. The sole reason OSHA superseded. question After the concerning justify advances to issuance of a 1981 war- arose, interpretation first, their rant based on existing conditions in 1979 is 1978, adopted interpretive ruling might ex that it difficulty now have in estab- adequate basis for issuance lishing an however, If, the conditions warrant. plant of at the Huffines still

complained employee who

exist, the same doubtless again communicate alerted OSHA will

once agency, information will and this get is no it to a warrant.

enable may employees interview

reason OSHA situation it con- ascertain

to imperative. action such

siders altered,

hand, if conditions have been then remaining is whether OSHA

the sole issue enter in an effort

may now vi- whether eliminated conditions

determine *4 pursuit, a vain

olated its testimony had could establish what appears now no This case but is more.

been the characteristics of

to me now dispute genuine than about

a feud rather there is in fact a violation of a

safety condition. aggravate I would not ten- tax the parties courts

dentiousness proceedings. further In lawsuits as arms,

wars, lay is a down fold there time to

tents, turn to matters.

The MONTGOMERY IMPROVEMENT al.,

ASSOCIATION, INC., et

Plaintiffs-Appellants, DEPARTMENT

The UNITED STATES DEVEL-

OF HOUSING AND URBAN Defendants-Appellees. al., et

OPMENT Appeals,

United States Court of

May 18, 1981.