431 F2d 696 Spinar v. N Mitchell

431 F.2d 696

Lloyd SPINAR et al., Plaintiff-Appellants,
v.
John N. MITCHELL, etc., et al., Defendants-Appellees.

No. 23755.

United States Court of Appeals, Ninth Circuit.

September 8, 1970.

Stanley Fleishman, Hollywood, Cal., for appellants.

Wm. M. Byrne, Jr., U. S. Atty., Herbert M. Shoenberg, Asst. U. S. Atty., Los Angeles, Cal.; Wm. D. Ruckelshaus, Asst. Atty. Gen., Alan S. Rosenthal, Norman G. Knopp, Attys., Dept. of Justice, Washington, D. C., for appellees.

Before JERTBERG, DUNIWAY and KILKENNY, Circuit Judges.

PER CURIAM:

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1

Plaintiffs-Appellants brought this action in the Central District of California seeking to enjoin the Attorney General, the Assistant Attorney General in charge of the Criminal Division, the United States Attorney for the District of North Dakota, and others, from prosecuting them in North Dakota for violating 18 U.S.C. §§ 1461 and 1462. The complaint alleged that such a proceeding was then pending before a grand jury in the District of North Dakota. The District Court denied a preliminary injunction and dismissed the action.

2

Since then an indictment was found in the District of North Dakota, the plaintiffs were there tried before a jury and were convicted and sentenced on eight counts charging violations of section 1461. Their appeal is now pending before the Court of Appeals for the Eighth Circuit. That is the case in which appellants must mount their attack upon the validity of section 1461 and the alleged harassment of them by the defendants. The prosecution cannot now be enjoined (assuming, but by no means agreeing, that it ever should have been enjoined). The broader attack mounted in the complaint upon the validity of sections 1461 and 1462, and upon the conduct of the defendants are, in our opinion, insufficient to stand separately from the attack upon the North Dakota prosecution. The same claims were raised as defenses in that prosecution.

3

The appeal is dismissed as moot.