*1 employee thereof acted or failed to remand, act On the district court is directed capacity legal an official or under color of to dismiss the action for of jurisdiction, lack authority shall not be dismissed nor relief unless the court determines that transfer to be ground therein denied on the that it is the Court of Claims would be appropriate against the United or States under 28 1406(c). U.S.C. We express § no indispensable is an party. opinion on propriety of such a transfer. may The United States be named as a REVERSED AND REMANDED. any action, judg- defendant such and a ment or decree be against entered Provided,
the United any States: That
mandatory injunctive or decree shall
specify Federal officer or (by officers title),
name or and their successors in
office, personally responsible compli- (1)
ance. Nothing herein affects other judicial on or
limitations review the pow- America, duty er or UNITED any STATES of dismiss Plaintiff-Appellee, deny action or relief any appro- legal.or priate equitable ground; (2) v. authority grant confers relief if BACK, Robert Thomas AIMS grants other statute that consent to suit Defendant-Appellant. expressly or impliedly forbids the relief sought. which is No. 77-2662. court has language This held that con- sovereign immunity. stitutes a waiver of United States Court of Appeals, States, 1098, Hill United 571 F.2d Ninth Circuit. 1978). However, (9th Cir. by its own § Jan. 1979. terms, existing does not affect limitations jurisdiction, on district court such as the 14; Watson,
Tucker Act. n. H.R.Rep. See 94-1656, Sess., 2d Cong.
No. 94th 1976 U.S. Admin.News, Cong. & pp.
Code 6133.
Even if these difficulties be could
overcome, we would still reluctant
accept as pleaded. this action A court will grant specific performance money when
damages See, adequate remedy. are an e. 1136; Contracts,
g. Corbin on Restate §
ment of Contracts 358. What the plain § liability
tiff desires to have the estate tax
reduced the full face amount of the monetary
bonds. A award is equiv making Treasury
alent redeem
bonds in this situation. We note that feder are parties large
al officials numbers
contracts, all, most, and that of these granted
contracts are based on authority regulation.
the official statute or To dispute
construe a under such a contract as dispute arising regu under the statute or
lation would be to read the Tucker Act out
of existence. We decline to do so. *2 2031 and 1153. The issues
18 U.S.C. §§ (1) are: whether the by appellant raised Beverly permitting erred in trial court woman, Indian relating activities regard appellant’s in her, forcibly with and with- his intercourse consent, night on the same out her appel- the offense with which subsequent to (2) whether the trial charged; lant was admitting erred in into evidence a by appellant statement made to an investi- gating agent appellant custody while knowing- showing appellant without a waived his Miranda ly intelligently (3) whether the trial court rights; and failing to dismiss indictment erred prosecution to establish for failure an essential element of the the evidence e., charged, penetration. crime rec- carefully reviewing After the entire case, we that serious ord in this believe error was committed at trial and prejudicial appellant is entitled to a new trial. against appellant, Robert The indictment (Robert), charged Back that on or Aims March, 1977, day 27th within about the of the Blackfeet the exterior boundaries Reservation, Indian he had carnal knowl- edge of a female named Makes (Jenny Lynn) forcibly and Cold Weather will. against her indictment, Leroy In the same Aims Back (Leroy) charged in one count with hav- Missou- (argued), Harris George William the same offense on the ing committed Mont., defendant-appellant. la, for against a female known as Tere- same date Atty. (argued), O’Leary, U. S. T. Robert Back, and in another count Beverly sa Aims Butte, Mont., plaintiff-appellee. Leroy indictment with the same
an identical offense on date Lynn. charge was convicted on the one Robert Jenny Lynn. Leroy was forcibly raping TANG, Circuit MERRILL and forcibly raping Jenny Lynn, Before convicted of TAYLOR, Judge.* District Judges, charging not convicted on the count Back, Beverly Aims raping him with Teresa TAYLOR, Judge: District Beverly referred to as Jackson. hereinafter Beverly Jackson testified that Although of the Blackfeet a member Appellant, Jenny Lynn, it is raped her after Tribe, his convic- Robert appealed from has Indian significant that he was not rather Lynn Makes Cold raping Jenny tion of woman, with that offense. Weather, in violation of an Indian Idaho, by designation. sitting
* Forthe District
who, according
considering
Beverly Jackson
whether the testimony of
used the
Teresa
testimony, also
name
Bev-
Jackson
should
been admitted over the
Back, was
erly
Aims
the first witness for
appellant,
we must determine
prosecution.
She testified
detail in whether it
any probative
value in re-
Robert,
regard
Leroy,
activities of
gard to the
offense with which
*3
the
Jenny Lynn
night
and herself on
of
e.,
was charged, i.
motive,
did it
op-
show
27, 1977,
early morning
March
and the
of
intent,
portunity,
preparation, plan, knowl-
up
including
the
the
day
next
and
events
edge,
identity, or absence of mistake or
at the
the
that occurred
time of
offenses
regard
accident
in
prior
to the
offense
were
Leroy
with which Robert and
each
against Jenny Lynn.
is clear
her testimony
convicted.
It
from
404(b)
While Rule
of the Federal
drinking
that there was considerable
of al-
Rules of Evidence allows the admission of
beverages
the
by
young
coholic
at least
men
evidence,
such
Rule 403 requires the trial
herself,
quite
and that
became
they
court to weigh
probative
the
value of the
It does
that
appear
Jenny
intoxicated.
not
against
evidence
the danger
prej
of “unfair
doing
drinking,
Lynn
any,
was
much
but
Curtis,
See United States v.
udice”.
568
go along
in a pick-
that she did
with them
643,
F.2d
(9th
654
United States
1978);
Cir.
of
up truck into
remote area
the reserva-
Butcher,
v.
666,
557 F.2d
(9th
670
1977).
Cir.
tion.
prejudice”
“Unfair
is
in
defined
the Notes
(Jackson)
Beverly Jackson
testified first
of the Advisory Committee
the proposed
on
by Leroy
that she was forced
to have inter-
Federal Rules of Evidence as “an undue
against
course
her will. Thereaft-
with him
tendency
suggest
decision on an improp
er,
only permitted
she was
basis,
er
commonly, though
necessarily,
raped
but,
Jenny Lynn,
that Robert
over
an
Evidence,
emotional one”.
even though
Robert,
the
of counsel for
she was
it may
admissible,
be otherwise
should be
permitted to testify
also
that Robert forced
excluded
it
where
tends to prove only crimi
against
him
to have intercourse with
disposition.
nal
See United States v.
overruling
objection,
her will.
the
the
Brown,
(9th
about the
that Jackson’s testimony
rape
as to her
including what
taking place
she observed
appellant
properly
part
admitted as
Lynn
between
but to
sequence
during
events
which the
allow the witness to continue was complete-
charged offense was committed. The wit-
ly unnecessary
highly prejudicial
ap-
ness was asked to describe what had oc-
addition,
pellant.
here there is
*5
ques-
evening;
curred that
testimony respecting
In San-
tion of
trial court’s instruction.
rape
put
served to
offense
grey
requested
given.
no instruction
or
in its factual setting.
It was
proof
not
gave
In
case
an
this
the court
instruction
the accused had misbehaved on another oc-
the prejudicial
but the instruction enhanced
casion, from
which the
was invited to
objectionable testimony.
effect
infer that he had misbehaved on this occa-
summary,
agree
reasoning
with the
we
It
sion.
was proof
actually
of what he
did
Sangrey
our
and conclusion
believe
on this occasion. The evidence thus is
opinion.
decision is consistent with that
It
404(b),
admissible under Rule
Feder-
appears that no clear lines can be drawn
of.Evidence,
al Rules
being offered for a
and inadmissible evi-
between admissible
purpose
proof
other than
of character.
It
404(b)
view
dence under Rule
of Rule was relevant because it bore directly on the
admissibility of
403. The
evidence of other
charged offense.
acts,
crimes, wrongs,
charged,
than
or
With relevance thus
ques-
established the
must
the facts and
be decided on
circum-
tion is whether under Rule
Federal
in each
at-
particular
Any
stances
case.
Evidence,
Rules of
the prejudice to the ac-
tempt
precise
rules
to articulate
more
than
outweighed
cused
value at-
404(b)
would
presumptuous
Rule 403
be
on presenting
picture
tendant
a clear
remembered,
and inefficacious.
must be
circumstances under
which the
of-
however, that evidence of
other crimes
fense
committed.
On that
wrong
upon
acts is not looked
with favor
do not
distinguishable
find this case
from
carefully
scrutinized to
must
deter-
United States v. Sangrey,
further here America, STATES
UNITED
Plaintiff-Appellee, CLAYTON, Defendant-Appellant.
Sandra
No. 77-1990. Appeals, Court of
Ninth Circuit.
Jan. 1979.