author: HUFSTEDLER, Circuit Judge: ALFRED T. GOODWIN, Circuit Judge

text:
    Bruce H. RICHMOND, United States Army, by Daniel Kallen, his next friend and attorney, Plaintiff-Appellant, v. General Stanley LARSON, Commanding Officer, United States Army, Presidio, San Francisco, California, et al., Defendants-Appellees.
    No. 71-2741.
    United States Court of Appeals, Ninth Circuit.
    March 5, 1973.
    Michael E. Somers, Daniel Kallen, Santa Monica, Cal., for plaintiff-appellant.

      James L. Browning, Jr., U. S. Atty. Robert E. Carey, Jr., F. Steele Langford, Asst. U. S. Attys., San Francisco, Cal., for defendants-appellees.
    Before ELY, HUFSTEDLER, and GOODWIN, Circuit Judges.
   HUFSTEDLER, Circuit Judge:

Richmond appeals from an order denying his habeas petition seeking release from the Army after it had rejected his application for discharge based on his claim of conscientious objection.

Richmond was a small-town Ohio boy from a family of modest means. His mother, a devout churchgoer, saw to it that he was a steady attendant at Sunday school and church services. He achieved honor status in the Boy Scouts. In his early teens, he became disaffected with organized religion because, in his view, the adherents were hypocritical. When he became 17 in 1967, he dropped out of high school and enlisted in the Army where he received- training as a field wire maintenance man. In 1968, his father fell ill and his family’s financial condition was precarious. He reenlisted in the Army at that time because he could thereby give greater support to his family. He was thereafter trained as a crewman for the Nike missile program. In late 1969 and early 1970, he began to think seriously about his beliefs. He read books, talked to people about war, and participated in some peaceful antiwar demonstrations. Sometime in June 1970, he received orders to report to Korea; he knew that there was a possibility of going to Viet Nam. Richmond testified that his conscientious objector beliefs began to crystallize when he knew that he would have to face war and killing. He received orders of reassignment to Viet Nam in July 1970. He refused his orders and was imprisoned for 51 days. A general court martial was authorized. During the investigation made as a part of the court martial preliminaries, he testified that he was not afraid for his own life, but he could not kill. He was told that a general court martial could result in his imprisonment for up to six years and that the court martial would be dropped if he agreed to go to Viet Nam. He refused the offer. (The general court martial was later dropped anyway.) His efforts to file conscientious objector application were briefly delayed while the court martial proceedings were commenced, but before the end of July 1970 he filed his application. He was interviewed by a chaplain, Captain Towne, on October 23, 1970. Captain Towne recommended that the application be granted, stating that he believed Richmond “is conscientiously opposed to participating in the Army in any way. He has convinced me that the basis for the application is religious . . . . He believes it is wrong to kill and, also, that it is just as wrong to be a contributor to the act of killing, irregardless of how small or far removed.”

On November 9, 1970, a hearing was held before Captain C. D. Waite, a full transcript of which is in the record. Captain Waite recommended disapproval of Richmond’s application. He gave these reasons: “Based upon my two-hour plus interview with him, it is my opinion that Pfc. Richmond should not be granted conscientious objector status. I do feel that he is essentially a moral person. However, it seems to me that his primary motive is to evade military service in the interest of his own personal safety and even more importantly, to stand up for his current political convictions. He repeatedly indicated that he wanted ‘to stand up and be counted’ as one who didn’t support war. Furthermore, his objections seemed geared almost entirely to a particular war (Viet Nam).”

The decision was reviewed by an Army board. The board rejected the application, stating:

The Board finds that the applicant’s request is based solely upon considerations of policy, pragmatism, or expediency and uses the following evidence from the record to support its findings. The timing of PFC Richmond’s application casts serious doubt on the sincerity of his professed beliefs. He applied only after receipt of orders of reassignment to the Republic of Vietnam. “Sudden excessions of belief may be utterly sincere, as the memorable one on the Damascus Road; but they seldom synchronize so perfectly as (Richmond’s) with external facts making them convenient . . .” United States v. Corliss [D.C.S.D.N.Y.1959) 173 F.Supp. 677]. The Board also noted from the report of the psychiatrist that the applicant is presently applying for a hardship discharge in addition to this application for discharge as a conscientious objector.
Additionally, the Board noted that PFC Richmond’s application lacks the depth of conviction required to qualify for discharge as a conscientious objector. There is no reason stated in the application for this change in the basic beliefs of the applicant which now make him feel that he can no longer continue in the military service. The Board is left to conclude that the orders for Vietnam play an important part in this decision to file for conscientious objection. In the letter of support from PFC Richey A. Clark it is stated “Bruce’s beliefs have matured since I’ve known him and even more so since he found out he was on orders for Vietnam.” CPT C. D. Waite, an officer knowledgeable in the policies and procedures relating to conscientious objection matters and before whom PFC Richmond personally appeared stated in his report of that interview “However, it seems to me that his primary motive is to evade military service in the interest of his own personal safety and even more important to stand up for his current political convictions. He repeatedly indicated that he wanted to stand up and be counted as one who didn’t support war. Furthermore, his objections seem here almost entirely to a particular war (Vietnam).” In answer to one of CPT Waite’s questions “If you had the opportunity, would you leave the United States than go to Fort Levinworth to prison for not going to Vietnam for refusing orders ?” The applicant answered “I’ve thought about this quite often and I don’t know it’s kind of another balance I have made yet, whether it would be worth it to go to Canada and be against it there or go to jail and show people who believe that the war is wrong, show them that somebody has stood up — just showing people that there’s other people against the war. It’s an example to follow if you want to say as such.” This leaves the Board to find that the applicant’s request is based on objection to a particular war rather than opposition to war in any form.

Richmond exhausted his Army remedies by applying for further review to the Secretary of the Army. The Secretary disapproved the application, stating “Applicant lacks the depth of conviction required to qualify for discharge as a conscientious objector, also, applicant’s request is based solely upon considerations of policy, pragmatism, or expediency.”

The sole objective facts in the record that can be cited to support these multiple conclusions are that Richmond did not file his application for conscientious objector status until he received orders to report to Viet Nam and that he had also filed for a hardship discharge after his father was disabled.

All of the letters filed with Richmond’s application attest to his sincerity and to the depth of his convictions. His mother expressed her opposition to his decision to seek discharge from the Army, but she affirmed that his conscientious beliefs were sincere. She observed that “punishment will not change his views, even if it were possible to force him into subjection.” The transcript of the hearing before Captain Waite is replete with testimony to the same effect.

The record is barren of any evidence to sustain Captain Waite’s conclusion that Richmond was motivated by his political views. It is full of evidence that Richmond’s aversion to war was not selective. The board quoted the only passage in the entire transcript which remotely suggests selectivity. Read in context, the statement does not support an inference that his objection to war was limited to Viet Nam.

The record also fails to sustain the board's statement that Richmond gave no reasons for a change in his beliefs which now make him feel that he could not continue in military service. He stated the growth and development of his ideas, the increasing struggle with his conflicts, and the crystallization of his beliefs that occurred when he received orders to Viet Nam.

The key to the board’s decision is its statement: “The Board is left to conclude that orders for Vietnam play an important part in this decision to file for conscientious objection.” The record fully supports that statement because, according to Richmond’s consistent testimony, it was his orders that compelled him to resolve his conflict and to make his choice between duty to the Army and duty to his conscience.

Each level of Army consideration was pinned to the timing of his application. Each officer inferred that a claim of crystallization based on receipt of orders could not be sincere. Yet, human experience repeatedly contradicts the inference: We again and again fail to decide what we think about a situation until we must confront it. Recognizing this reality, we have held that crystallization of conscientious objector views upon receipt of orders to Viet Nam is not an indicium of insincerity. (Tressan v. Laird (9th Cir. 1972) 454 F.2d 761; cf. Rastin v. Laird (9th Cir. 1971) 445 F.2d 645.) We also recognize how extremely difficult it is for career military personnel to accept as sincere convictions of persons such as Richmond when those views are directly opposed to their own. (Some of the literature on the subject is collected in Ehlert v. United States (1971) 402 U.S. 99, 108, 91 S.Ct. 1319, 28 L.Ed.2d 625 (Douglas, J., dissenting).)

For these and reasons further expressed in Tressan, we reverse the order and remand the cause with instructions that the Army be allowed a reasonable time within which to grant discharge to Richmond pursuant to Army regulations applicable to conscientious objectors, failing which the writ shall be granted by the district court.

ALFRED T. GOODWIN, Circuit Judge

(dissenting).

I dissent from the reversal in this case for the reason that I believe that the scope of judicial review of military personnel decisions is narrower than that implied in the majority opinion.

The personal tragedy of a mixed-up young man naturally places a reviewing court in a difficult position. But as I understand our duty on habeas corpus, we can intervene in the administration of military separation policy only when there is no evidence to support the administrative decision. I cannot say in this very close case that there is no evidence to support the Army’s decision.

      . Tangential references to politics were made by the interrogator, not by Richmond. Typical exchanges are these:
      “Q. What do you think about the present administration’s handling of the war in the last few months
      “A. That’s a strange thing — I don’t know really what to think of it. It’s confused and the reports on it, I can’t believe them all so I can’t really say because we get conflicting reports such as the Laos reports, so I can’t be sure exactly what they’re doing. I can’t know exactly what their policies are because they don’t always say.
      “Q. Do you know the difference between politicians and professional diplomats?
      “A. Not really.
      “Q. Do you happen to know Senator Muskie’s political beliefs as far as the war in Viet Nam?
      “A. No, I don’t.
      “Q. Do you know of any Senators or Congressmen who are opposed to the war in Viet Nam and have beliefs similar to you or many of these people that aren’t in government that have been discussed here today?
      “A. From what I understand McGovern and Hatfield are against it and the Massachusetts governor was trying to pass laws on it.”

      . For example: “Q. Is that the only reason that you refused those orders [to Viet NamJ ?
      “A. Because I could not kill and I could not go along with the war, any war.”
      Asked about whether he would have joined the war effort in World War II, he replied:
      “If I was placed in the situation where I was in World War II and I believed the same as I do now, how would I react? Is that what you’re asking? If I reacted at all towards the war, I would stay at home and I would work for the people at home — the ones that were suffering during the time of the war at home. I could not join the war.”
      “Q. Just give me a rundown of what you feel now about war, killing, people— tell me what your beliefs are that you based your application as conscientious objector on and how you felt you arrived at those beliefs. You can do this however you want.
      “A. As far as my beliefs go, I believe that killing is wrong and especially war. It seems unnecessary to waste these lives and I think that we have reached a stage where war can be avoided. It could have been avoided before but especially now. Through things that have happened towards mass media, towards getting things out to the people, I think that war can be avoided. I think that killing is just a waste of human life which could be put to some constructive use. Every individual life is worth so much more than just a piece of dirt to be sent out and killed. I think that human lives are not just numbers, they’re people and that they are important. It’s just unnecessary to kill especially en masse. I’ve reached these beliefs through books that I’ve read, people that I’ve known, things that I’ve done, seen, in everyday life these things have come through. Even in some simple books that don’t seem like they have anything in them, you can find where there’s beauty and there’s a necessity for people to live. It is possible for people to live and pass productive lives that are useful.”


source: Caselaw Access Project

author: GEWIN, Circuit Judge:

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NATCHEZ TRACE ELECTRIC POWER ASSOCIATION, Respondent.
    No. 72-2286.
    United States Court of Appeals, Fifth Circuit.
    April 19, 1973.

      Marcel Mallet-Prevost, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., John J. A. Reynolds, Jr., Director, Region 26, N. L. R. B., Memphis, Tenn., Kenneth B. Hipp, N. L. R. B., Washington, D. C., for petitioner.
    Laurence J. Cohen, Washington, D. C., for intervenor Broth, of Elec. Wkrs., AFL-CIO.
    Taylor B. Smith, Columbus, Miss., for respondent.
    Before GEWIN, SIMPSON and RONEY, Circuit Judges.
   GEWIN, Circuit Judge:

In this case the National Labor Relations Board has petitioned for enforcement of its order entered against respondent Natchez Trace Electric Power Association requiring the Association to bargain with the union certified by the Board. Natchez Trace is incorporated under the provisions of Mississippi’s Electric Power Association Act for the purpose of distributing electrical power to its members. It is a nonprofit organization, and its membership consists not only of farm and residential consumers within the predominantly rural territory it serves but also all federal, state, county, and city agencies and offices in its area. It purchases the power it distributes from the Tennessee Valley Authority.

Upon the petition of the International Brotherhood of Electrical Workers, AFL-CIO the Board ordered a representation election held among the Association’s employees. In the representation proceeding Natchez Trace had objected to the Board’s jurisdiction on the sole ground that as a “political subdivision” of Mississippi it was not an “employer” subject to Board jurisdiction under § 2(2) of the National Labor Relations Act, as amended by the Labor Management Relations Act of 1947. When the union won the election and was certified by the Board as the bargaining representative of the'Association’s employees, Natchez Trace steadfastly refused to recognize and bargain with the union. An unfair labor practice proceeding followed at the conclusion of which the Board reaffirmed its position that Natchez Trace was an “employer” and not a “political subdivision” as contended. Consequently the Board held that the Association’s refusal to bargain constituted an unfair labor practice violative of §§ 8(a)(1) and 8(a)(5) of the Act. The critical issue in this enforcement proceeding, then, is whether Natchez Trace is a “political subdivision” within the meaning of the National Labor Relations Act. We agree with the Board that it is not and accordingly grant enforcement of the Board’s order.

The term “political subdivision” is nowhere defined in the National Labor Relations Act, and the legislative history of the Act does little to remedy this deficiency other than to reveal that in enacting the § 2(2) exemption Congress meant to exclude the labor relations of federal, state, and municipal governments from Board cognizance because governmental employees did not usually enjoy the right to strike. With this purpose in mind the Board has long limited the exemption for political subdivisions to entities that are either (1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate. The Supreme Court recently had occasion to review the Board’s reading of the political subdivision exemption in NLRB v. Natural Gas Utility District of Hawkins County; like Natchez Trace, the Hawkins County Utility District had refused to bargain with the Board-certified union on the ground that under § 2(2) of the Act it was not an employer subject to Board jurisdiction. While the Court was quick to declare that the Board’s construction of the statutory term is entitled to great respect, it refused to hold that an entity must necessarily meet one or the other of the criteria deemed conclusive by the Board in order to qualify for the § 2(2) exemption. Instead it looked at a variety of factors, including the criteria emphasized by the Board, in deciding that the Hawkins County Utility District was a political subdivision and not an employer subject to Board cognizance.

In discussing the actual operations and characteristics of the Hawkins County Utility District thought to be indicative of its public character, the Court attached great significance to the fact that it was administered by a Board of Commissioners initially appointed by an elected county judge and subject to removal procedures applicable to all public officials. In this respect it was an entity administered by individuals responsible to public officials or to the general electorate, and as such it did meet one of the two criteria considered by the Board to be decisive. Other characteristics of the Hawkins County District considered of substantial importance by the Court were its power of eminent domain which could be exercised even against other governmental units, its obligation to maintain records open for public inspection and to publish an annual statement of its financial condition, and its exemption from all state, county, and municipal taxes. In addition the Hawkins County District was given an extremely broad grant of all the powers necessary for the aeeomplishment of its purpose capable of being delegated by the legislature and was declared by the statute under which it was established to be a “municipality.” And lastly, it was required to consider any protest of the rates it charged at a public hearing and afterwards publish written findings as to their reasonableness. Viewing these characteristics in the aggregate, the Supreme Court was satisfied that the Hawkins County Utility District was so closely related to the State of Tennessee as to be a political subdivision of it within the meaning of § 2(2) of the Act.

With Hawkins County as our guide, we must now examine the actual formation, operations, and characteristics of respondent to determine whether they place Natchez Trace in so intimate a relationship to the State of Mississippi as to make Natchez Trace a political subdivision of that state. Under the authority of Mississippi’s Electric Power Association Act private citizens can organize nonprofit corporations like respondent in order to facilitate the economical distribution of electric power. A certificate of incorporation must first be filed with the Secretary of State; the certificate is examined for illegalities by the Attorney General, and, if found satisfactory, is then submitted to the Governor for approval. The Governor’s approval is apparently a matter for his discretion; the statute provides no yardstick —such as requiring a showing that the “public convenience and necessity” will be served — to guide him in reaching this decision. Once the Governor’s approval is obtained, operations may begin immediately.

Natchez Trace was formed according to the procedure outlined. It was not created directly by the state and is not a governmental department in the sense contemplated by the Board when it established this attribute as one which qualifies an entity for the political subdivision exemption. Rather it was organized by private citizens acting pursuant to the appropriate enabling statute, and in this respect its formation was no different from that of any private corporation organized under Mississippi law. In fact entities created under the Electric Power Association Act are termed “corporations”, whereas the utility district in Hawkins County was declared by its enabling statute to be a “municipality”.

The directors of a corporation formed under Mississippi’s Electric Power Association Act are initially those named by the citizens filing the certificate of incorporation ; they serve a three-year term without compensation. Their successors are elected by the corporation’s members and also serve for three years. The directors are empowered to do all things necessary or convenient in conducting the business of a corporation. The Act makes no provision for their removal from office for misfeasance or nonfeasance, and, in spite of respondent’s assertion to the contrary, it is by no means settled that they are “public officers” subject to removal for misconduct under § 4053 of the Mississippi Code. Thus unlike the Hawkins County District, Natchez Trace is not administered by individuals who are responsible to public officials or to the general electorate; instead its directors are elected by its members and apparently are accountable only to them. The general public exercises no control over them. Not being created directly by the state and not being administered by individuals responsible to the public, Natchez Trace fails to meet either of the criteria one of which the Board requires of an entity before it can qualify for the political subdivision exemption.

Furthermore Natchez Trace possesses few of the other characteristics which the Supreme Court deemed indicative of the Hawkins County Utility District’s public nature. For instance, Mississippi’s Electric Power Association Act does not shield corporations formed under its provisions from state and local taxes but instead expressly provides that they are to be taxed “in the same manner and to the same extent as privately owned utilities.” It subjects Natchez Trace to none of the extensive public surveillance which was statutorily imposed upon the Hawkins County Utility District; it does not require Natchez Trace to maintain records open for public inspection, to publish annual statements, or to hear and respond to rate protests. All that it requires is that the Association’s rates be “reasonable”, apparently giving the corporation’s directors broad discretion in determining whether that standard is being met. In order to carry out its functions, Natchez Trace is granted, in addition to all the powers of a private corporation, all power necessary or requisite for the accomplishment of its corporate purpose. Specifically included in this grant is the power of eminent domain. It is true that to an extent the powers delegated to Natchez Trace by the Act are similar in scope to those granted the utility district in Hawkins County. But Natchez Trace’s eminent domain power is limited in that it cannot be exercised against other governmental bodies, and for the purposes of the political subdivision exemption the significance of this power and the others delegated to respondent by the Act is somewhat mitigated by the fact that in Mississippi all private utility companies are granted powers equal to those possessed by Natchez Trace, including a limited power of eminent domain.

The foregoing analysis compels us to conclude that Natchez Trace is not a political subdivision of the State of Mississippi. Neither created directly by the state nor administered by individuals who are responsible to public officials or to the general electorate, Natchez Trace possesses neither of the characteristics one of which the Board requires of an entity before it can qualify for the § 2(2) exemption. It is markedly different from the utility district found to be a political subdivision in Hawkins County insofar as it is not termed a “municipality”, its operations are not subject to any significant public scrutiny, and its property and revenue are not shielded from state and local taxes. In all these respects Natchez Trace resembles a private utility company far more than it does an arm of the state. Its possession of the eminent domain power does nothing to upset this resemblance because in Mississippi all private utility companies possess a similar power of eminent domain. In short we find that Natchez Trace is far less intimately related to the state than was the Hawkins County District and that instead it exists as an essentially private venture not much different from any private utility company, or other private corporation, in the State of Mississippi. Since the Board correctly determined that Natchez Trace lacks the essential attributes of a political subdivision within the meaning of § 2(2) of the Act, its order requiring respondent to bargain with the union must be enforced.

Enforcement granted.

      . 21 Miss.Code Ann. § 5463 et seq. (1942), as amended (Supp.1971).

      . 29 U.S.C. § 152(2) (1964 ed.) provides: “The term ‘employer’ . . . shall not include . . . any State or political subdivision thereof, . . . ”

      . 29 U.S.C. §§ 158(a) (1) and 158(a) (5) (1964 ed.).

      . N.L.R.B. v. Natural Gas Utility District, 402 U.S. 600, 604, 91 S.Ct. 1746, 29 L.Ed.2d 206 (1971).

      . 402 U.S. 600, 91 S.Ct. 1746, 29 L.Ed.2d 206 (1971). In addition to indicating what characteristics make an entity a political subdivision, the Supreme Court in Bawkins County held that federal, rather than state law, governs this determination. 400 U.S. at 602-603, 91 S.Ct. 1746.

      . 21 Miss.Code Ann. § 5468 (1942).

      . See 21 Miss.Code Ann. § 5309-01 et seq. (Supp.1971).

      . 21 Miss.Code Ann. § 5469 (Supp.1971).

      . 21 Miss.Code Ann. § 5470 (1942).

      . 21 Miss.Code Ann. § 4053 (1942). See McClure v. Whitney, 120 Miss. 350, 82 So. 259 (1919).

      . 21 Miss.Code Ann. § 5486 (1942).

      . 21 Miss.Code Ann. § 5681 (1942).

      . 21 Miss.Code Ann. § 5470 (1942).

      . 21 Miss.Code Ann. § 5473 (1942).

      . 21 Miss.Code Ann. § 5474 (1942).

      . See Mississippi Power & Light Co. v. Blake, 236 Miss. 297, 109 So.2d 657 (1959).


author: GRANT, Senior District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee BELL, Defendant-Appellant.
    No. 71-1606.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 18, 1972.
    Decided Feb. 27, 1973.
    Rehearing Denied May 7,1973.

      George C. Pontikes, Chicago, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., William T. Huyck, and Theodore T. Seudder, Asst. U. S. Attys., Chicago, Ill., for plaintiff-appellee.
    Before KILEY and SPRECHER, Circuit Judges, and GRANT, Senior District Judge.

       Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation.

   GRANT, Senior District Judge.

The defendant, Robert Lee Bell, appeals his conviction by the district court, sitting without a jury, for failure to submit to induction into the armed forces in violation of 50 U.S.C. App. § 462. We affirm.

On 24 April 1969 defendant was ordered to report for induction on 12 May 1969. Defendant requested a postponement of the induction in order to finish a school semester. A postponement was granted by the State Director of Illinois until the first induction call after 31 May 1969. On 20 May 1969 his local Board issued a rescheduling letter ordering defendant to report for induction on 2 June 1969. Defendant failed to report. No further postponements of the order were issued by either the local Board or the State Director.

On 5 June 1969 the local Board mailed a “Delinquent Registrant Report” to the United States Attorney, the report noting the defendant’s failure to report and explaining that the prior postponement had been given only until the first induction call in June which happened to fall on June 2nd. Defendant was later interviewed by an FBI agent who was told by defendant that he would contact his local Board and report for induction “if given another chance”. The agent reported defendant’s statement to the local Board. Two days later, on 29 September 1969, the local Board received a letter from the defendant which stated as follows:

“Having had a great deal of time to think this summer, I would like to declare myself to be a conscientious objector. I hereby request that forms SSS-150 and SSS-151 be sent to me. Thank you.”

The local Board requested instructions from the State Director and was advised to issue a second SSS Form 150, “Special Form for Conscientious Objectors,” and to consider it. The form was sent to the defendant who returned the completed form on 31 October 1969. On 7 November 1969 the local Board reviewed the form and defendant’s file but decided not to reopen his classification, there being no change in defendant’s status resulting from circumstances over which he had no control. See 32 C.F.R. § 1625.2 (1971). Both the defendant and the United States Attorney were notified of the Board’s action.

On 18 November 1969 the United States Attorney wrote the local Board stating as follows:

“It is ■ suggested that the above-captioned registrant be reordered for immediate induction. This is to keep the record in good prosecutive order, if he fails to so appear, since his previous order to report was in effect cancelled because of his subsequent C. O. claim.”

On 19 November 1969 the local Board mailed a new rescheduling letter which ordered the defendant to report for induction on 1 December 1969 at which time the defendant again failed to report.

Defendant first notes that Selective Service regulations provide that (1) a local Board may postpone an order to report for induction but only for a maximum of 120 days and (2) the local Board must mail a copy of the postponement to the registrant. Defendant then argues that the failure of his local Board to further postpone the order of induction beyond 2 June 1969 rendered the original order and a fortiori, the rescheduling letter of 18 November 1969 null and void, citing Liese v. Local Board No. 102, 440 F.2d 645 (8th Cir. 1971). In particular, defendant notes that the original reporting date was 12 May 1969 and that the postponement regulation would only authorize a maximum postponement to 9 September 1969. Thus, when defendant filed his SSS From 150 on 31 October 1969, the original order was no longer in effect. Defendant concludes that his request for conscientious objector status

“. . . should have been treated as a pre-induction claim, requiring reopening with the right to a personal appearance and an appeal. United States v. Freeman, 388 F.2d 246 (7th Cir. 1967), Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Ed. 2d 362 (1970). Instead, local board 214 treated the claim as a post-induction claim refusing to reopen the classification. (A. 12). Without the reopening and the right to a personal appearance or appeal, no valid induction order could be issued against the defendant, including the order issued on November 19, 1969.”

The government contends that once the defendant refused to comply with his induction order, he was no longer entitled to any postponement. It correctly notes that not every delayed induction order constitutes a “postponement” of the type regulated by 32 C.F.R. § 1632.2(a) (c). That regulation

“. . . refers to a postponement due to specified circumstances such as death or ‘other extreme emergency beyond registrant’s control.’ This type of ‘formal postponement’ ordinarily would result from a request initiated by the registrant himself.” United States ex rel. Luster v. McBee, 422 F. 2d 562, 570 (7th Cir. 1970), cert. denied 400 U.S. 854, 91 S.Ct. 74, 27 L.Ed.2d 92, reh. denied 400 U.S. 931, 91 S.Ct. 190, 27 L.Ed.2d 192 (1970).

The delay occurring in the instant case was not the result of the “circumstances” contemplated by 32 C.F.R. § 1632.2 nor was there a request by the defendant for a postponement pursuant to the regulation. To the contrary, any delay which occurred was occasioned by defendant’s failure to report as ordered and his subsequent conscientious objector claim. Thus the delay in induction was for defendant’s own benefit. See United States v. Foster, 439 F.2d 29, 31 (9th Cir. 1971). As such the delay could not possibly have prejudiced the defendant. Luster, supra, 422 F.2d at 570; United States v. Watson, 442 F.2d 1273, 1278 (8th Cir. 1971), cert. denied 404 U.S. 848, 92 S.Ct. 152, 30 L.Ed.2d 85.

Furthermore, and more importantly, it is well established that the one-hundred-twenty (120) day limitation on postponements under Section 1632.2 does not apply to a registrant who has failed to appear for and submit to induction. United States v. Brunner, 457 F.2d 1301, 1302 (9th Cir. 1972); United States v. White, 447 F.2d 1124, 1126 (9th Cir. 1971), cert. denied 404 U.S. 1049, 92 S.Ct. 714, 30 L.Ed.2d 740 (1972). We believe this rule to be particularly applicable where, as in the case at bar, the delay in the induction was caused by the registrant and for his own benefit.

It should also be noted that despite defendant’s self-created postponement or delay in his induction, he was under a continuing duty to report for induction. Luster, supra, 422 F.2d at 570. 32 C.F.R. § 1632.14(a) (1969) provides in pertinent part that

“[I]f the time when the registrant is ordered to report for induction is postponed, it shall be the continuing duty of the registrant to report for induction upon the termination of such postponement and he shall report for induction at such time and place as may be fixed by the local board. Regardless of the time when or the circumstances under which a registrant fails to report for induction when it is his duty to do so, it shall thereafter be his continuing duty from day to day to report for induction to his local board. . . . ” (our emphasis).

The Liese case relied upon by defendant is factually distinguishable. Liese involved a registrant whose order to report for induction was issued prior to the effective date of the Random Selection Sequence, i. e., the draft lottery. After receiving his notice of induction but prior to his reporting date, the registrant was arrested for a peace disturbance and released on bond. His trial was set for a date subsequent to the date he was to have reported for induction. Upon learning of the situation, the local Board attempted to orally postpone the registrant’s induction without sending the registrant a postponement notice as required by 32 C.F.R. § 1632.-2(b).

The Court held that the postponement irregularities

“. . . had the effect of cancelling his order to report and returned him to the overall pool, bringing him under the Random Selection Sequence. Accordingly, since his lottery number has not yet been reached, his induction was unlawful.” Liese, supra, 440 F.2d at 646.

However, the Court noted that “Liese was neither a delinquent nor under a validly postponed induction order. .” Id. at 647. (Our emphasis.) We find the non-delinquent status of the registrant in Liese to be a critical distinction from the instant case. To the extent that Liese might be interpreted as holding that all postponements or delays in induction are controlled by the requirements of 32 C.F.R. § 1632.2, we refuse to follow it. See Luster, supra, 422 F.2d at 570; see also Swift v. Director of Selective Service, 145 U.S. App.D.C. 224, 448 F.2d 1147, 1151, n. 16 (D.C.Cir.1971).

At oral argument defendant’s counsel contended that Luster is limited by United States ex rel. Iverson v. Rhodes, 465 F.2d 402 (7th Cir. 1972), and that the latter case controls the instant ease. We disagree. The registrant in Iverson had been classified as a conscientious objector and had reported for civilian work on March 15 at Goodwill Industries in Indianapolis as ordered by the local Board. Goodwill had no work available so both Iverson and a Goodwill officer wrote the local Board and informed it of this fact. The local Board took no action other than writing Iverson and informing him that his file had been forwarded to state headquarters and that he would be notified when the Board decided what step to take in his case. On 13 October 1971, almost eight months later, the local Board ordered Iverson to again report to Goodwill.

This Court held that the local Board should have complied with the requirements of Section 1632.2 and issued a formal postponement notice. In so doing, the Court noted that other courts had enforced the requirements of Section 1632.2 “even though the local board did not purport to act under that regulation or the delay was not occasioned by the kind of ‘extreme emergency’ mentioned in the regulation.” Id. at 404. The Court recognized that Luster was to the contrary but noted that it was distinguishable :

“Luster is distinguishable because there petitioner was informed that his induction was delayed under an army regulation to determine whether he • was medically acceptable. The delay of induction was less than 120 days; nothing occurred in the meantime to change petitioner’s status. Finally, petitioner did not even contend that the original order was cancelled or in any way invalidated.” Id. at 405, n. 2.

The case before us is even more readily distinguishable since the delay in the induction, as stated previously, was caused by defendant’s failure to report and his belated conscientious objector claim. No postponement was sought by the local Board nor was there any suggestion that it should have done so. The fault lies entirely with the defendant. To ignore his failure to report, would be to permit defendant to profit by his own wrongs. This we cannot allow.

Finally, we find little merit in defendant’s suggestion that the government should be bound by the opinion of the United States Attorney, expressed in his letter of November 18, 1969, to the local Board, that defendant’s belated conscientious objector claim may have cancelled his prior induction order. Suffice to say that the opinion was incorrect. Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971); White, supra, 447 F.2d at 1125.

The judgment of the district court is affirmed.

      . The pertinent sections of 32 C.F.R. § 1632.2 (1971) are as follows :
      (a) In case of death of a member of the registrant’s immediate family, extreme emergency involving a member of the registrant’s immediate family, serious illness of the registrant, or other extreme emergency beyond the registrant’s control, the local Board may, after the Order to Report for Induction (SSS Form No. 252) has been issued, postpone the time when such registrant shall so report for a period not to exceed 60 days from the date of such postponement, subject, however, in cases of imperative necessity, to one further postponement for a period not to exceed 60 days. .
      (b) The local Board shall issue to each registrant whose induction is postponed a Postponement of Induction (SSS Form No. 264), shall mail a copy of such form to the State Director of Selective Service, and shall file a copy in the registrant’s Cover Sheet (SSS Form No. 101). The local Board shall note the date of the granting of the postponement and the date of its expiration in the “Remarks” column of the Classification Record (SSS Form No. 102).


author: BARRETT, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alfred Marion SPOONHUNTER, Sr., Defendant-Appellant.
    No. 72-1600.
    United States Court of Appeals, Tenth Circuit.
    April 10, 1973.

      Richard A. Stacy, Asst. U.S. Atty., Cheyenne, Wyo. (Richard V. Thomas, U. S. Atty., and Tosh Suyematsu, Asst. U. S. Atty., Cheyenne, Wyo., on the brief), for plaintiff-appellee.
    Richard F. Pickett, Cheyenne, Wyo., for defendant-appellant.
    Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

Alfred Marion Spoonhunter, Sr., appeals from a jury conviction of guilty and subsequent sentence wherein he was charged with the commission of the crime of forcible rape on the person of Beatrice Mae Potter on July 13, 1971, within the Wind River Indian Reservation, Wyoming. His sentence was entered July 21, 1972, for a term of five years pursuant to 18 U.S.C. § 4208(a) (2).

The defense was that of alibi. Although the appellant did not testify at trial, his wife, his brother, and some five or six additional witnesses testified that on the evening of the alleged rape the appellant was in their presence until about 5:00 a. m. at a beer-drinking get-together at the Felter home. Beatrice Potter testified that she was forcibly raped in her home which is some distance from the Felter residence. She said that the rape occurred between 4:00 a. m. and 4:45 a. m. Spoonhunter’s wife testified that she, appellant and his brother, Adam, went directly home from the party, arriving shortly after 5:00 a. m. and that appellant and she went to bed in their home. She further testified that appellant slept until after 10:00 on July 13, 1971.

Beatrice Potter’s husband was away from the Potter home at the time of the rape. Beatrice and her five children were in their home located some five to ten minutes walking distance from the Spoonhunter home. The doors and window screens were locked or latched. Beatrice related that she was asleep in her bed with a couple of her children, including Donna, then six years of age, when she was yanked out of bed by a man and dragged into the living room, and then past the open bathroom door where the light was on. She testified that it was then that she definitely identified Spoonhunter as her attacker; that they struggled into the kitchen area, upsetting things during the struggle; that she scratched at Spoonhunter and knocked off his eyeglasses in the kitchen; and that he dragged her into the bathroom entry area again, and it was there that she believed she was “hit” in the stomach and then fainted. She further testified that when she recovered consciousness she was lying on the bed in the south bedroom, and that Spoon-hunter was engaged in sexual intercourse with her. Her daughter, Donna, who was age seven at time of trial, testified that it was Spoonhunter who was in their home that night and that she saw Spoonhunter hit her mother in the stomach, in the area of the south bedroom. Spoonhunter had been at the Potter home only once before, and was known by both Beatrice and Donna. There was evidence tending to corroborate the facts that a struggle had occurred, and that Beatrice bore abrasions, swellings, and for some time complained of stomach pains; that intercourse had occurred with Beatrice within a few days of the alleged rape (while admittedly it could have been attributed to voluntary intercourse between Beatrice and her husband); that the right side bow of a pair of eyeglasses was found in the Potter kitchen the morning following the rape; and that when Spoonhunter was arrested later that day he was seen wearing glasses with the right bow removed, and that they fell off when he departed from a police car.

On appeal, Spoonhunter raises five basic contentions of error. We shall consider each.

I.

Appellant alleges prejudicial error in that the trial court did not properly qualify seven-year old Donna Potter as a witness, and in overruling his continuing objection to her testimony on the ground that she was incompetent because of her age.

The first part of the allegation goes to the voir dire conducted by the trial court after Donna was called as a witness by the Government and objection was made by the appellant on the ground, of incompetency. The trial court’s voir dire was as follows:

THE COURT: I’ll ask her a few questions. Donna, how old are you?
DONNA: Seven.
THE COURT: You are seven?
DONNA: Uh-huh.
THE COURT: You were six years old then on July 13, 1971?
DONNA: Uh-huh.
THE COURT: What grade are you in school ?
DONNA: Second.
THE COURT: Do you think you remember what occurred on the night of July 13, 1971?
DONNA: Yes.
THE COURT: Do you know what it is to tell the truth when you raise your hand and are sworn ?
DONNA: Yes.
THE COURT: And if I administer the oath to you, you will swear to tell the truth and you know that you can be punished if you don’t tell the truth? You understand that?
DONNA: Yes.
THE COURT: I think she is qualified. You raise your right hand then (Sworn).
THE COURT: Do you so swear, do you?
DONNA: Yes.
THE COURT: Very well.
The continuing objection of the appellant to Donna’s testimony was based upon the fact that she was under the age of ten years and that § 1-138, Wyoming Statutes, 1957, provides that children under the age of ten years are incompetent to testify if they “ . appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.”

The above cited Wyoming statute does not apply in this case because the crime charged is a federal offense. In federal prosecutions the admissibility of evidence and the determination of competency of witnesses is dictated by federal law, as reason and experience may dictate, and not by state law. Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, 78 L.Ed. 369 (1933); Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928); Rogers v. United States, 369 F.2d 944 (10th Cir. 1966), cert. denied 388 U.S. 922, 87 S.Ct. 2125, 18 L.Ed.2d 1371 (1967); Rule 26, Fed.R.Crim.P., 18 U.S.C.A. In any event, we find no inconsistency in the cited statute and our rule: the capacity of a person offered as a witness is presumed, and in order to exclude a witness on the ground of mental incapacity, the existence of the incapacity must be made to appear. Sinclair v. Turner, 447 F.2d 1158 (10th Cir. 1971), cert. denied 405 U.S. 1048, 92 S.Ct. 1329, 31 L.Ed.2d 590 (1972). Whether an infant is competent is largely in the discretion of the trial judge. The test, even as applied to an infant five and one-half years of age, is whether it was shown on examination of the infant that he was intelligent, and whether he understood the difference between truth and falsehood, and the consequences of falsehood, and what was required by the oath. Wheeler v. United States, 159 U.S. 523, 16 S.Ct. 93, 40 L.Ed. 244 (1895).

In Antelope v. United States, 185 F.2d 174 (10th Cir. 1950) the appellant contended that in his prosecution for statutory rape, the thirteen-year old prosecutrix was without sufficient capacity to testify because of her age. The appellate court looked to the record in testing the contentions of incompetency. While noting that the prosecutrix was a “young, timid Indian girl” who was embarrassed and who testified in a halting manner, she was nevertheless held to be competent. There the Court allowed the District Attorney to ask her leading questions.

Wigmore sets forth some essential requirements to test the competency of infants: Capacity to observe, capacity to recollect, capacity to communicate, capacity to understand questions put and to frame and express intelligent answers and a sense of moral responsibility. II Wigmore on Evidence § 506 (3rd ed. 1940). The trial court did not err in admitting Donna Potter’s testimony, finding, as it did, that she met each of these tests, even though there was some discrepancy in her recollection of facts developed on cross-examination. Donna’s testimony corroborated her mother’s testimony. She positively identified Spoonhunter as the man who was in the Potter home at an early morning hour on July 13, 1971, and stated that she saw him dragging her mother and striking her in the stomach while in the home. Donna’s competency was tested on cross-examination. The record reflects that the cross-examination failed to establish her incompetency. Cross-examination is often used to test competency. 98 C.J.S. Witnesses § 378 (1957).

Finally, we note that the methods of ascertaining a child’s testimonial capacity are the same as those employed for the oath. II Wigmore on Evidence § 508 (3rd ed. 1940). The voir dire examination of a child is generally conducted by the judge under Rule 26, Fed.R.Crim. P. to determine competency. If counsel believes that the voir dire is inadequate he has an obligation to propose certain voir dire questions to the court, to request the right to conduct independent examination relating thereto, or to object to the adequacy of the Court’s examination, just as counsel is required to act in challenging the qualification and competency of jurors. VI Wigmore on Evidence § 1820 (3rd ed. 1940); Lowther v. United States, 455 F.2d 657 (10th Cir. 1972), cert. denied 409 U.S. 857, 93 S.Ct. 139, 34 L.Ed.2d 102 (1972); Kreuter v. United States, 376 F.2d 654 (10th Cir. 1967), cert. denied 390 U.S. 1015, 88 S. Ct. 1267, 20 L.Ed.2d 165 (1968). The record evidences no error in the admission in evidence of the testimony of Donna Potter.

II.

Appellant alleges error by the trial court in refusing to grant his motion for a continuance immediately prior to trial for the reason that all of his witnesses could not be located for the purpose of being subpoenaed.

The prosecution had been granted two prior continuances because the prosecutrix had become ill and was unable to appear for trial. Appellant alleges that the trial court’s refusal to grant his motion for a continuance was arbitrary primarily because of the two prior continuances. The allegation does not have merit when we consider that: (1) the prior continuances were predicated upon medical determinations that Beatrice Potter could not appear at trial; (2) the Government made good faith efforts to obtain the three additional “alibi” witnesses, Fridon, White-man and Bell, as requested by the appellant; and (3) there is nothing in this record which would indicate that had these three witnesses appeared that they would have lent any greater weight to the credibility of the “alibi” defense testified to at length by seven or eight other defense witnesses, nor that one or more of the three witnesses would have “shed some light upon the character of Beatrice Mae Potter, the complaining witness.” There was no offer of proof in relation to the “character” testimony. Certainly the testimony of the three witnesses in relation to the facts of the beer party at the Felter home, or the approximate time of Spoonhunter’s departure, would have been cumulative only. Seven or eight witnesses testified that the appellant attended the party.

The trial court is vested with discretion as to granting a continuance. Its exercise will not be disturbed on appeal in the absence of a clear showing of abuse resulting in manifest injustice. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); United States v. Eagleston, 417 F.2d 11 (10th Cir. 1969). No such prejudice has been demonstrated here. United States v. Harris, 441 F.2d 1333 (10th Cir. 1971).

III.

Appellant alleges error in the Court’s refusal to give his proposed Instruction No. 1 that:

“You are instructed that in this case the prosecution relies for conviction upon the testimony of Beatrice Potter, the prosecuting witness, and no other witness was called by the State to testify directly to the time and place or circumstances of the alleged offense; and you are instructed in cases where the State relies, upon the uncorroborated testimony■ of the prosecutrix unsupported by other evidence, that you must view such testimony with great caution.” (Emphasis ours).

Spoonhunter’s reliance upon the Wyoming eases of State v. Slane, 48 Wyo. 1, 41 P.2d 269 (1935) and Strand v. State, 36 Wyo. 78, 252 P. 1030 (1927), is misplaced, in view of the fact that the record adequately confirms that the testimony of Beatrice Potter was corroborated in material part by the testimony of Donna Potter, Dr. Manges, George Philip Moss, Leona St. Clair, P. Rene Bidez and Stanford St. Clair. The jurors weighed their testimony against the numerical superiority of Spoonhunter’s countervailing alibi witnesses in finding against him beyond a reasonable doubt.

The trial court’s instructions fairly and adequately guided the jurors in their deliberations. Seldom in cases of this sort is there direct corroboration; more often in eases of rape the corroboration, as here, is circumstantial in character. Jurors are charged with the duty of assessing the credibility of witnesses, and that is not a function for the appellate court. United States v. Miller, 460 F.2d 582 (10th Cir. 1972); United States v. Sierra, 452 F.2d 291 (10th Cir. 1971). It is for the jury to determine the weight to be given to any testimony. Their assessment in this regard takes into consideration the appearance and general demeanor of each and every witness. Such an evaluation of aspects of credibility is not available to the appellate court from a review of the “cold” record on appeal, and we cannot draw controlling inferences contrary to those reasonably drawn by the jury from the evidence, both direct and circumstantial. United States v. Miller, supra; United States v. Wheeler, 444 F.2d 385 (10th Cir. 1971); Bailey v. United States, 410 F.2d. 1209 (10th Cir. 1969), cert. denied 396 U.S. 933, 90 S.Ct. 276, 24 L.Ed. 232 (1969). We are not a forum for trial de novo. Dailey v. City of Lawton, Oklahoma, 425 F.2d 1037 (10th Cir. 1970). Our review, following conviction, dictates that we must view the evidence, direct and circumstantial, together with all reasonably drawn inferences in a light favorable to the prosecution. Lewis v. United States, 420 F.2d 1089 (10th Cir. 1970); Mares v. United States, 409 F.2d 1083 (10th Cir. 1968), Cert. denied 394 U.S. 963, 89 S.Ct. 1314, 22 L.Ed.2d 564 (1969). And when different inferences may be drawn, appellate courts will not substitute their judgment for that of the trial court or jury. Colby v. Cities Service Oil Company, 254 F.2d 665 (10th Cir. 1958). The Court did not err in refusing to give the proffered instruction.

IY.

Spoonhunter alleges that the trial court erred in sustaining the Government’s objection to the proffered testimony of one Ben Earl Brown who would have testified that about one week prior to the rape incident he had had sexual intercourse with Mrs. Potter at her home after she picked him up that evening.

Spoonhunter argues that this testimony was critical not only to place Beatrice Potter’s character in issue but to show a course of conduct on her part while her husband was away from home during the weekdays. Appellant cites no case authority in support of his argument. In his brief he acknowledges that in rape prosecutions the law does not allow the complaining witness’s character to be put in issue ordinarily when the defense is alibi and that generally it is only allowed when the defense is one of consent. Brown’s proffered testimony would not have established any conduct upon Beatrice Potter’s part beyond the single occurrence. The testimony was properly excluded.

In order to establish the defense of “alibi”, the evidence thereof when considered by the jury, along with the other evidence in the case pertinent to the issue, must be sufficient to engender in the minds of the jury a reasonable doubt that the accused, at the time the offense was committed was not present at the place of its commission. United States v. Carter, 433 F.2d 874 (10th Cir. 1970); United States v. Booz, 451 F.2d 719 (3rd Cir. 1971); United States v. Marcus, 166 F.2d 497 (3rd Cir. 1948); 67 A.L.R. 138 (1930). The very nature of the alibi defense raises no issue that the crime charged did not in fact occur. It simply raises the issue that it could not have involved the accused. It is therefore inconsistent to permit an accused who presents an alibi defense to present evidence of the prosecutrix’s character which goes beyond evidence of her general reputation in public opinion. A character witness’s knowledge of particular acts is not admissible to prove character in the sense of a general trait for honesty, temperance or carefulness; it is relevant only if it specifically designates or demonstrates a regular practice in the nature of habit of meeting a particular kind of situation with a certain type of conduct. Frase v. Henry, 444 F.2d 1228 (10th Cir. 1971); III Wigmore on Evidence, §§ 943, 944, 963 (3rd ed. 1940); 75 C.J.S. Rape § 63 (1952). We hold that testimony of unchastity on the part of the prosecutrix proffered by a witness to one claimed prior act of intercourse is not evidence of her reputation for unchastity. The trial court did not err in denying the Brown testimony.

V.

Appellant alleges that the trial court committed prejudicial error in not granting his Motion to Dismiss because he was not granted a speedy trial. Although the Government was granted two continuances in view of the’ prosecutrix’s illness, Spoonhunter did not object until the second continuance was granted. He did not demonstrate any prejudice. Barker v. Wingo, Warden, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) requires the trial judge to determine whether the defendant has been deprived of his right to a speedy trial considering: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant. The mere passage of time does not, per se, establish an unconstitutional denial of a right to a speedy trial. Hampton v. State of Oklahoma, 368 F.2d 9 (10th Cir. 1966). The appellant has not demonstrated that the continuances deprived him of a fair trial. McManaman v. United States, 327 F.2d 21 (10th Cir. 1964).

Affirmed.


author: MARIS, Circuit Judge.

text:
    GOVERNMENT OF the VIRGIN ISLANDS v. Raphael PARROTT, Appellant.
    No. 71-1934.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 29, 1973.
    Decided April 18, 1973.

      Joseph L. Costello, Bryant & Costello, Christiansted, St. Croix, V. I., for appellant.
    Gary P. Naftalis, Sp. Asst. U. S. Atty., S. D. New York, New York City, for appellee.
    Before MARIS, VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

MARIS, Circuit Judge.

This is an appeal by the defendant from a judgment of the District Court of the Virgin Islands convicting him of robbing one Howard Hambler of a sum of money. The offense was committed in the evening when Hambler was walking with two companions on the Long Bay Road in the vicinity of the Paul M. Pearson Gardens in St. Thomas. The defendant did not demand a jury trial and the case was tried to the judge alone. The defendant was identified in court by Hambler and by one Samuel Davis who lived in Pearson Gardens, knew the defendant and who came to Hambler’s assistance at the time of the robbery. The defendant testified that during the evening in question he was playing basket ball in Pearson Gardens, was later playing cards there and at the time of the robbery was in a nearby restaurant. He produced a number of witnesses who testified that they were with, or saw, or spoke to him at various times on the evening in question. Concluding that the government witnesses were credible, that there were conflicts in the testimony of the defendant and his witnesses, and that in any event the defendant under his own evidence could have committed the robbery, the trial judge found the defendant guilty beyond a reasonable doubt of the offense charged and entered the judgment of conviction here appealed from.

On this appeal the defendant contends that the trial judge’s finding of guilty was not supported by the evidence. It is argued that the defendant’s evidence that he was elsewhere when the crime was committed raised a reasonable doubt which required a finding of not guilty. Our consideration of the evidence which was before the trial judge satisfies us, however, that it amply supports the finding of guilty. The “elsewhere” where the defendant claims to have been and where his witnesses said they saw him, was in fact in the immediate vicinity of the scene of the robbery, which he could have committed without absenting himself for any substantial period of time from the places where he claimed to have been. We find no merit in the contention of the defendant that the evidence did not support his conviction.

The defendant further contends, a contention asserted for the first time on this appeal, that he was denied the right to a jury trial because he was not accorded such a trial although he did not expressly waive it in the manner prescribed by Rule 23(a) of the Federal Rules of Criminal Procedure. Admittedly he did not demand such a trial, as is required by section 26, as amended, of the Revised Organic Act of the Virgin Islands. The question is thus squarely raised as to whether the procedure for determining whether or not the defendant desires to exercise his right to a jury trial in a criminal case in the District Court of the Virgin Islands is governed by Rule 23(a), F.R.Cr.P., or by section 26 of the Revised Organic Act.

It is clear that whatever may have been the situation in the Virgin Islands prior to 1968, section 11 of the Act of August 23, 1968, 82 Stat. 837, 841, by extending the Sixth Amendment to the Constitution of the United States to the territory conferred upon persons accused of crimes triable in the District Court of the Virgin Islands the right to trial by jury. It is equally clear that this right is a privilege which need not be invoked if the accused does not desire to do so. Patton v. United States, 1930, 281 U.S. 276, 50 S.Ct. 253, 74 L. Ed. 854; Adams v. United States ex rel. McCann, 1942, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268.

The question before us, however, is not the existence of the right to trial by jury but rather the procedure by which an accused may exercise his option whether or not to invoke the right. One form of procedure would be to require the accused desiring to enjoy the right to a trial by jury to demand it of the court and to assume in the absence of such a demand that he does not desire a jury trial. This is the procedure provided by section 26 of the Revised Organic Act. Another approach would be to require the accused who does not desire to exercise the right to a jury trial so to state to the court and to assume in the absence of such a statement that the accused desires such a trial. This, of course, is the procedure provided by Rule 23(a) of the Federal Rules of Criminal Procedure.

The question accordingly comes down to whether Rule 23(a), F.R.Cr.P., or section 26 of the Revised Organic Act controls the procedure in this regard in the District Court of the Virgin Islands. Rule 23(a) was one of the original rules of criminal procedure which were adopted by the Supreme Court on December 26, 1944, pursuant to the Act of June 29, 1940, 54 Stat. 688, which was subsequently codified in Title 18, U.S.C., as § 3771. By Rule 54(a)(1) the rules were made applicable, inter alia, to the District Court of the Virgin Islands.

The Revised Organic Act of the Virgin Islands was enacted by the Act of July 22, 1954, 68 Stat. 497. Section 26 of the Act in its original form carried forward the provisions of section 31 of the Organic Act of 1936, 43 Stat. 1814, in substantially their original form. Section 26 was amended, however, by section 8 of the Act of August 28, 1958, 72 Stat. 1095. In its amended form, the section was drastically rephrased so as to make perfectly clear that a defendant would receive a jury trial if he demanded it. That it was the intention of Congress to clarify this appears from the legislative history. The procedural rule embodied in Rule 23(a) of the Federal Rules of Criminal Procedure, having been adopted by the Supreme Court pursuant to Congressional authority, was subject to being repealed, amended or superseded in whole or in part by Congress as well as by the Court. Hawkins v. United States, 1958, 358 U.S. 74, 78, 79 S.Ct. 136, 3 L.Ed.2d 125. We think that this is exactly what has happened here and that by the Congressional amendment in 1958 of section 26 of the Revised Organic Act the procedural provisions of that section have superseded, for the District Court of the Virgin Islands, the earlier provisions of Rule 23(a), F.R.Cr.P. The provisions of section 26 as amended thereby became the Congressionally established procedure under which an accused in the Virgin Islands invokes his right to a trial by jury.

The procedure thus established by Congress for the Virgin Islands, namely, that the duty is laid upon the accused to ask for a jury trial if he desires one, appears to be quite appropriate for the territory in view of the fact that the use of a jury in the trial of criminal eases is of comparatively recent origin in the Islands. There is no ancient or deep-seated tradition that jury trial is the usual and preferred method of trial, as is true in the continental United States. On the contrary, the use of a jury in criminal cases appears to have been first introduced in the Virgin Islands by the Municipal Codes of 1920 and 1921, and then only for felony cases if demanded by the accused. Prior to that time and in the time of Danish rule the use of juries was unknown and criminal trials were by the presiding judge alone or with associate lay judges. This would appear to have been a not impermissible procedure. And we may take judicial notice of the fact that even after jury trials became permissible their use was the rare exception until quite recently and even today a great many criminal cases continue to be tried to the judge alone in accordance with the older tradition.

We recognize that the right to a jury trial under the Sixth Amendment is not effectively waived unless there is a knowing and intelligent waiver of such right by the defendant himself, as required in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). See also Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Adams v. United States ex rel. McCann, 317 U.S. 269, 280-281, 63 S.Ct. 236, 87 L.Ed. 268 (1942) ; Patton v. United States, 281 U.S. 276, 312-313, 50 S.Ct. 253, 74 L.Ed. 854 (1930). We are in no way persuaded that the traditional Virgin Islands practice now codified in section 26 is inconsistent with the constitutional requirement that a waiver be knowing and intelligent. In Johnson v. Zerbst, the Court said, inter alia: “The determination of whether there has been an intelligent waiver of the right to Counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background experience and conduct of the accused.” 304 U.S. at p. 464, 58 S. Ct. at p. 1023.

We believe that the procedure now assured by the Criminal Justice Act of 1964, 18 U.S.C.A. § 3006A, under which every defendant in the District Court of the Virgin Islands who cannot afford to retain counsel is provided with counsel at the expense of the United States, will in most cases result in knowledge by the accused that he has the right to request a jury trial and must make such request. Thus, with the rarest exceptions, every person accused of crime who appears in the district court has the benefit of the advice of counsel who, of course, knows of his client’s basic right to a jury trial and should clearly and positively inform him of it, so that it may be decided whether or not, as a matter of trial strategy, the right should be demanded.

On the record in the present case, defendant does not allege that he did not know of his right to a jury trial and that he was not in a position to make an informed choice. He was advised by a lawyer of his choice, the late Francisco Corneiro, one of the ablest members of the Virgin Islands bar, who was a former United States Attorney and Attorney General of the territory. Under these circumstances, he has no grounds to complain that he did not receive the jury trial for which he did not ask.'

The defendant’s remaining contentions are so wholly without merit as to require no discussion.

The judgment of the district court will be affirmed.

      . “Rule 23. Trial by Jury or by the Court (a) Trial by Jury. Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government.”

      . “All criminal cases originating in the district court shall be tried by jury upon demand by the defendant or by the Government. If no jury is demanded the case shall be tried by the judge of the district court without a jury, except that the judge may, on his own motion, order a jury for the trial of any criminal action. The legislature may provide for trial in misdemeanor cases by a jury of six qualified persons.” 48 U.S.C.A. § 1616.

      . For a discussion of this see Government of the Virgin Islands v. Bodle, 3 Cir. 1970, 427 F.2d 532, footnote 1.

      . Senate Report No. 2267, 85th Congress, 2d session, on H.R. 12303, U.S.Code Cong. & Admin.News 1958, pp. 4334, 4336, which was enacted as the Act of August 28, 1958, states with respect to section 8:
      “Section 8 clarifies section 26 of the Revised Organic Act of the Virgin Islands which concerns the right to trial by jury in criminal cases.”

      . Code of Laws of the Municipality of St. Croix, approved June 15, 1920, effective August 1, 1920, Title V, Chap. 12, Sec. 1; Code of Laws of the Municipality of St. Thomas and St. John, approved March 17, 1921, effective July 1, 1921, Title V, Chap. 12, Sec. 1.

      . See Soto v. United States, 3 Cir. 1921, 273 F. 628.

      . Palko v. Connecticut, 1937, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288:
      ■ “ . . . The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not the very essence of a scheme of ordered liberty. To abolish them is not to violate a ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ . . New would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them.”

      . In the case of those rare defendants who choose to defend themselves without counsel, the district court should, of course, inform them of their right to demand a jury trial.


author: LIVELY, Circuit Judge. DON J. YOUNG, District Judge,

text:
    Siegfried WACHTEL and Wife, Roberta S. Wachtel, Plaintiffs-Appellants, v. Bryce WEST and Wife, Frances West, Defendants-Appellees.
    No. 72-1800.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 6, 1973.
    Decided April 11, 1973.
    Thomas E. Watts, Jr., Nashville, Tenn., for plaintiffs-appellants.
    J. Stanley Rogers, Garrett, Shields, Rogers & Parsons, Manchester, Tenn., for defendants-appellees.

      Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and YOUNG, District Judge.

       The Honorable Don J. Young, District Judge of the United States District Court for the Northern District of Ohio, sitting . by designation.

   LIVELY, Circuit Judge.

This case concerns the Truth in Lending Act of 1968, 82 Stat. 146, 15 U.S.C. § 1601 et seq. More specifically involved is a portion of the Act codified as 15 U.S.C. § 1640, which provides civil liability for failure to make any of the disclosures required by the Act. Subsection (e) of Section 1640 is as follows:

(e) Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurrence of the violation.

Appellants filed this action in the district court, asserting that jurisdiction was based on Title 15 U.S.C., Section 1640. The complaint alleged that the plaintiffs had borrowed money from the defendants on October 28, 1970, giving a second mortgage on their residence as security. It further alleged that the defendants failed to make the disclosures to them that are required by 15 U.S.C. § 1631. In a separate paragraph the plaintiffs stated that they had notified the defendants of their intention to rescind the mortgage transaction for failure to make the required disclosures but that the defendants had taken actions inconsistent with rescission. The prayer for relief was three-fold:

(1) . . . for the damages permitted and described in title 15 U.S. C. § 1640, together with their costs and a reasonable attorney’s fee in the cause;
(2) for a preliminary injunction to restrain the defendants from enforcing any remedy against the plaintiffs upon the second mortgage ; and
(3) that the court declare the mortgage void and the preliminary injunction be made permanent.

The complaint was filed on April 25, 1972, and the defendants filed a timely motion to dismiss for failure to bring the action within one year of the accrual of the claim stated. The district court granted the motion and entered a judgment dismissing the action on its merits. The opinion of Judge Neese appears at 344 F.Supp. 680 (E.D.Tenn.1972).

The narrow question presented on appeal is whether a violation of the duty to disclose information to a borrower occurs at the time such disclosure is first required to be made, or whether it is a continuing violation until such time as the disclosure is actually made. In order to decide this question we must examine the overall purpose of the Act as well as the particular sections referred to in the complaint.

The purpose of Congress in enacting the Truth in Lending Act is set forth in 15 U.S.C. § 1601 as follows:

§ 1601. Congressional findings and declaration of purpose
The Congress finds that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit. The informed use of credit results from an awareness of the cost thereof by consumers. It is the purpose of this subchapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.

Pursuant to § 1604 the Board of Governors of the Federal Reserve System issued its Regulation Z (12 CFR § 226 (1969)) which provides, in part, as follows :

REGULATION Z
PART 226 — TRUTH IN LENDING
§ 226.1 Authority, scope, purpose, etc.
(a) Authority, scope, and purpose. (1) This part comprises the regulations issued by the Board of Governors of- the Federal Reserve System pursuant to title I (Truth in Lending Act) and title V (General Provisions) of the Consumer Credit Protection Act, as amended (15 U.S.C. Section 1601 et seq.). Except as otherwise provided herein, this part applies to all persons who in the ordinary course of business regularly extend, or offer to extend, or arrange, or offer to arrange, for the extension of consumer credit as defined in paragraph (k) of § 226.2 and to all persons who issue credit cards.
(2) This part implements the Act, the purpose of which is to assure that every customer who has need for consumer credit is given meaningful information with respect to the cost of that credit which, in most cases, must be expressed in the dollar amount of finance charge, and as an annual percentage rate computed on the unpaid balance of the amount financed. Other relevant credit information must also be disclosed so that the customer may readily compare the various credit terms available to him from different sources and avoid the uniformed use of credit. This part also implements the provision of the Act under which a customer has a right in certain circumstances to cancel a credit transaction which involves a lien on his residence. Advertising of consumer credit terms must comply with specific requirements, and certain credit terms may not be advertised unless the creditor usually and customarily extends such terms. This part also contains prohibitions against the issuance of unsolicited credit cards and limits on the cardholder’s liability for unauthorized use of a credit card. Neither the Act nor this part is intended to control charges for consumer credit, or interfere with trade practices, except to the extent that such practices may be inconsistent with the purpose of the Act.

The purpose of disclosure is clearly to give the borrower an opportunity to do some comparative shopping for credit terms. In the words of Congressman Helstoski, the Act affords the consumer an opportunity to ascertain which offer (of credit terms) “ . is best in terms of dollars and to obtain a better ‘buy.’ ” 114 Congressional Record 1614 (Permanent Ed. Jan. 31, 1968). See Ratner v. Chemical Bank New York Trust Co., 329 F.Supp. 270, 276 (S.D.N.Y.1971); Bissette v. Colonial Mortgage Corporation, 340 F.Supp. 1191 (D.D.C.1972).

Though the Act is primarily concerned with sales of personal property involving consumer financing, credit card purchases and open-end credit, it also applies to real estate transactions, and special consideration is given to a very limited type - of real estate credit transaction. Under 15 U.S.C. § 1635 a right of rescission is given to a borrower to whom credit is extended in a transaction where a security interest (other than a first lien to finance acquisition) is created or retained on real estate used or expected to be used as the principal residence of the obligor. This right does not depend on any wrongdoing by the lender, but may be exercised by the borrower for any reason so long as he acts within the prescribed time and follows the prescribed procedure. He (the borrower) may rescind this type transaction at any time until midnight of the third business day following consummation of the transaction, or the delivery of the required disclosures, “whichever is later.” Section 226.9 of Regulation Z contains detailed rules which are designed to compel notification to the borrower of his right to rescind and which require a delay in closing the credit transaction until the rescission period has passed.

Taking the allegations of the complaint as true, it appears that the appellees have violated the provisions of the Act and of Regulation Z. Because the right of rescission exists until the end of the third business day, or until disclosure, whichever is later, and it is alleged that no disclosure has ever been made, it may be that this remedy is still available to the appellants. The Act does not contain a statute of limitations for enforcement of the right to rescind. However, since rescission is an equitable remedy, presumably the defenses of laches or estoppel could be interposed to prevent a borrower from enjoying the benefit of the credit for a long period of time and then succeeding in having the transaction avoided to the detriment of the lender. It should be noted that the Act does not specifically provide that federal courts have jurisdiction of actions for rescission.

The appellant has attempted to en-graft the “whichever is later” provision of § 1635 onto this action for damages under § 1640. However, this case is not concerned with the right of rescission, and at least one court has held that the two remedies are inconsistent, so that the election to proceed under one theory constitutes an abandonment of the other. Bostwick v. Cohen, 319 F.Supp. 875 (N.D.Ohio 1970). Here the complaint premised jurisdiction on § 1640, which provides for damages for failure to disclose the information set forth in the Act and specifically, on subsection (e), which confers jurisdiction upon United States district courts, together with other courts of competent jurisdiction. The same subsection requires an action under “this section” to be brought within one year from the date of the occurrence of the violation. We must determine when the violation occurs in a case where the required disclosures are not made.

The stated purpose of the Act is to enable the consumer “to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” 15 U.S.C. § 1601. In order to make the opportunity for comparison meaningful, the borrower must have the required information in his possession before he becomes committed to any particular lender. This is expressed in § 1639(b), which provides:

Form and timing of disclosure
(b) Except as otherwise provided in this part, the disclosures required by subsection (a) of this section shall be made before the credit is extended, and may be made by disclosing the information in the note or other evidence of indebtedness to be signed by the obligor, (emphasis added)

The Act does not define the term [when] “the credit is extended,” prior to which time it requires disclosures to be made. However, Regulation Z, § 226.-2(cc) is helpful in this respect. It reads as follows:

(cc) A transaction shall be considered consummated at the time a contractual relationship is created between a creditor and a customer irrespective of the time of performance of either party.

It thus appears that a credit transaction which requires disclosures under the Act is completed when the lender and borrower contract for the extension of credit. The disclosures must be made sometime before this event occurs. If the disclosures are not made, this violation of the Act occurs, at the latest, when the parties perform their contract. The provisions with respect to the right of rescission seem to contemplate a continuing violation when the disclosures are not made, but such is not the case when damages are sought. In the present case performance of the contract and violation of the disclosure requirement took place on October 28, 1970, and the one-year statute of limitations began to run on that date. This action, filed one year five months and 28 days later, was barred.

The judgment is affirmed.

DON J. YOUNG, District Judge,

(dissenting) .

I respectfully dissent. The statute states:

It is the purpose of this [title] . to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. 15 U.S.C. § 1601.

Congress, to effectuate this end, requires that a creditor make certain disclosures to the consumer. 15 U.S.C. §§ 1632-39. If the disclosures are not made, there are civil sanctions which may be imposed on the creditor, 15 U.S. C. § 1640, but the “action under this section may be brought . . . within one year from the date of the occurrence of the violation.” 15 U.S.C. § 1640(e). The statute also gives the consumer the right to rescission, 15 U.S.C. § 1635, as explained in the majority opinion.

The majority holds that the rescission remedy provides sufficient protection for the consumer so that the violation as mentioned in § 1640(e) occurs at the time the parties entered into the agreement and the statute of limitations begins to run at that time. If the statute is to be interpreted as the majority have construed it, its effectiveness is limited. It is not difficult to imagine a situation where a consumer has entered into an agreement with a creditor which requires repayment of a loan over a period of five years or more. The creditor does not make disclosures as required by the Act and the consumer is an uninformed one whom the Act was designed to protect. The terms of the agreement are such that the offensive part of the financing does not evidence itself in the loan repayment schedule until after the first year. Under the majority opinion, the consumer will not be able to sue for damages when he becomes aware of the offensive financing since the statute of limitations has run. The consumer at this point is left with the rescission remedy only. Assuming a successful suit by the consumer, it still provides little deterrent effect for the creditor who chose not to disclose since the parties are merely returned to their original positions. In other words, if no disclosures are made the creditor need only fear that the contract may be rescinded but he need not fear any civil liability.

To protect the creditor from civil liability in these situations is to take much of the effectiveness out of the statute, since a creditor who chose not to make disclosures to an uninformed consumer would only have to delay the operation of an offensive part of the agreement until one year after the parties entered into it.

As a general rule, statutes of limitations in actions for fraud commence to run at the time when the fraud is discovered, not when the fraudulent acts occurred. Basically, the statute involved here is designed to prevent frauds being perpetrated by sophisticated lenders upon uniformed borrowers. It would therefore appear that these general principles should be applied to the limitation period in the statute here involved. If the limitation of the statute is thus construed, the “violation” occurs when the consumer knows or should know of the undisclosed credit terms. This would make the knowledge of the violation a factual matter. For example, in the hypothetical situation posed above, the consumer knew or should have known of the violation the moment the offensive financing arrangement surfaced in the loan repayment schedule. Under my construction of the Act, the consumer then has one year from this point in time to initiate his action. Obviously, the creditor has it within his power to avoid any liability under the statute by making disclosures as required by law prior to entering into the agreement.

I would hold that the one year limitation did not commence to run until the plaintiffs discovered the defendants’ violation of the statute and made the demand for rescission which was refused by the defendants. If, as the majority suggests, there was at that time a requirement to elect between the legal and equitable remedies, the plaintiffs made that election by commencing this action, which was done well within the statutory one year limitation after plaintiffs discovered the violation of their rights under the Act. The judgment of the District Court should be reversed, and the case remanded.

      . § 1631. General requirement of disclosure

      (a) Each creditor shall disclose clearly and conspicuously, in accordance with the regulations of the Board, to each person to whom consumer credit is extended and upon whom a finance charge is or may be imposed, the information required under this part.
      (b) If there is more than one obligor, a creditor need not furnish a statement of information required under this part to more than one of them.