author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Brian SMITH, Defendant-Appellant.
    No. 73-1137.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted July 13, 1973.
    Decided Sept. 14, 1973.
    Rehearing Denied Oct. 3, 1973.

      C. Nelson Day, U. S. Atty., and James M. Dunn, Asst. U. S. Atty., for plaintiff-appellee.
    Paul G. Goss, Denver, Colo., for defendant-appellant.
    Before LEWIS, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.
   PER CURIAM.

On May 26, 1971, James Brian Smith filed with his employer a withholding exemption certificate, Form W-4, which stated that he was entitled to ten exemptions. The following day he wrote a letter to the Internal Revenue Service in which he admitted that he was claiming these ten exemptions despite being entitled to only two. He explained that this action would enable him to receive his full wage and stated personal and religious convictions that the withholding provisions of the income tax law were unconstitutional.

An ensuing IRS investigation culminated in the filing of an information against Smith which charged him with supplying his employer with a false and fraudulent withholding exemption certificate in violation of 26 U.S.C. § 7205. Smith’s request for assistance of counsel who was not a member of the bar was denied. Although standby counsel was appointed and available to him, Smith elected to represent himself throughout the proceedings. This appeal is brought from the judgment on his conviction after jury trial. A brief of counsel and pro se brief have been filed. 'We affirm.

The information against Smith charged him with supplying false and fraudulent information on his W-4 form despite the fact that the statute under which the charge was brought is stated in the disjunctive. 26 U.S.C. § 7205 defines a violator as one who “willfully supplies false or fraudulent information.” Since the information was phrased in the conjunctive and the jury was so instructed, it is urged here that the government assumed the burden of proving beyond a reasonable doubt that the exemption statement was fraudulent. Appellant argues that the government did not meet this burden because it failed to prove the common law fraud elements of injury and reliance. We need not reach this narrower question, for we find that it was unnecessary for the government to establish that the information was both false and fraudulent.

The fact that an indictment or information charges in the conjunctive although the statute under which the charge is brought is worded in the disjunctive does not render the indictment or information invalid or the judgment erroneous. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610; United States v. Price, 10 Cir., 444 F.2d 248. Often, as in Price, the court will correct the indictment or information by reading the statute to the jury and thus make it clear that only one of the acts charged needs to be proven. But the fact that the trial court does not do so and, in fact, charges the jury in the conjunctive, offers no exception to the general rule. In Turner the indictment in question charged the defendant with possessing, purchasing, dispensing, and distributing heroin. The instructions to the jury were similarly phrased. The only evidence of a violation involving heroin was the defendant’s possession. The Court clearly stated the rule which we find applicable here:

The general rule is that when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, as Turner’s indictment did, the verdict stands if the evidence is sufficient with respect to any one of the acts charged. (Turner, supra, 396 U.S. at 420, 90 S.Ct. at 654.)

It was therefore incumbent upon the government to establish only that Smith had willfully supplied false information. This it clearly did. Smith knew when he filed his W-4 that he was not entitled to ten exemptions. His letter written to the IRS the day after the W-4 was filed clearly indicates this, and Smith’s church records support the fact that he was entitled to claim only two exemptions. A jury could thus reasonably have found in the filing of the W-4 form an intent to interfere with the withholding system and prevent the collection of taxes in the manner prescribed by law. Smith’s conduct thus clearly meets the standard of willfulness which applies specifically to actions brought under 26 U.S.C. § 7205, United States v. Malinowski, 3 Cir., 472 F.2d 850, and even satisfies the more stringent standard established for related offenses under the Internal Revenue Code. See McCarty v. United States, 10 Cir., 409 F.2d 793.

Smith next contends that the provision which requires employees to file W-4 statements with their employers, 26 U.S.C. § 3402, violates the fifth amendment right against self-incrimination. This contention finds no basis in the law. Not only are such statements offered in a nonaccusatorial setting, but it is also well settled that the government has the right through the IRS to gather information for the collection of revenue. Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580.

The related argument that the withholding process results in a taking of property without due process suffers from a similar lack of foundation, for the due process clause of the fifth amendment is not a limitation on the taxing power conferred upon Congress by the Constitution. Brushaber v. Union Pacific R. R., 240 U.S. 1, 36 S.Ct. 236, 60 L.Ed. 493; Swallow v. United States, 10 Cir., 325 F.2d 97. Brushaber stated that the due process clause could only conceivably come into play if the act complained of was so arbitrary as to compel the conclusion that it was not really taxation but the confiscation of property. As a legitimate exercise of Congress’ power to make all laws “necessary and proper” for the taxing of income, the withholding provisions present no constitutional infirmity.

Smith has raised a peripheral issue relating to the use of the IRS summons procedure. He argues that use in a criminal proceeding of information obtained by administrative summons amounts to-an abuse of process and is constitutionally improper under the fourth amendment. While it is true that deliberate usé of an administrative summons for the purpose of gathering evidence in a criminal case must meet strong resistance by the courts, Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668, the use of such information does not amount to a per se violation of the fourth amendment. The summons procedure in the instant case conforms with the standard enunciated in Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580, and followed by this court in United States v.. Richardson, 10 Cir., 469 F.2d 349. Donaldson held that an IRS summons could be issued in aid of an investigation which might eventually result in a criminal prosecution if it is issued in good faith and prior to a recommendation for criminal prosecution. Nothing in the record indicates that this standard has not been met here. There is no error.

This ease was submitted to the court upon the various briefs filed, including Smith’s pro se brief. Subsequent to such submission Smith has filed a motion to set aside the submission and claims a right to make a pro se argument. Such motion is denied. Oral argument serves only as an aid to the court and is not premised upon a statutory or constitutional right of the parties. The court, as it does in more than fifty percent of all cases considered, did not desire oral argument.

We have carefully considered appellant’s other contentions and find them to be without merit.

Affirmed.


source: Caselaw Access Project

author: GIBSON, Circuit Judge.

license: Public Domain

text:
    The INDIAN LOOKOUT ALLIANCE et al., Appellants, v. John A. VOLPE, as Secretary of Transportation, et al., Appellees.
    No. 72-1620.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 26, 1973.
    Decided Aug. 22, 1973.
    Rehearing Denied Oct. 4, 1973.

      Robert B. Seism, Des Moines, Iowa, and John F. Hellegers, Washington, D. C., for appellants.
    Asher E. Schroeder, Sp. Asst. Atty. Gen., and Allen L. Donrelson, U. S. Atty., Des Moines, Iowa, for appellees.
    Before GIBSON, LAY and STEPHENSON, Circuit Judges.
   GIBSON, Circuit Judge.

This case concerns the scope and extent of an Environmental Impact Statement relating to the construction of highways intended to be funded in part by federal funds. In other words, what is the minimum appropriate length of a highway project to be environmentally considered under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq.l

The Iowa State Highway Department (ISHD) in 1965 adopted a plan for the construction of 1,877.94 miles of road throughout the state. This earlier plan was revised in February 1968 as a Freeway-Expressway System to compliment the existing system of federal and state roads. The plan was submitted to the Federal Highway Administration (FHWA) that same year for informational purposes. The location of the Freeways and Expressways set forth in the plan are not precisely located but delineated within a three-mile corridor. No approval has been requested of the FHWA for the system, and it is contemplated that only piecemeal segments of specific projects will be submitted for federal approval as funds are available for its implementation.

Iowa has requested federal funding of the northern seven-mile segment^ of Project F-518-4, part of proposed Freeway 518. The plaintiffs are environmental groups and individuals interested in preserving the Indian Lookout area through which an extension of the seven-mile segment would extend. The plaintiffs maintain that an Environmental Impact Statement (EIS) pursuant to 42 U.S.C. §§ 4332(2) (C) and (D) is required on the whole 1,877-mile system or, at the very minimum, on the entire Freeway 518 project, which embraces a route from the Missouri line at Keokuk, Iowa, north and westerly to the Minnesota line. This project generally follows present U.S. 218 with some significant departures and would also be renumbered U.S. 218 when completed. The F-518 project was so designed by Iowa to qualify for federal assistance under 23 U.S. C. § 101 et seq.

Project F-518-4 is a 14-mile segment bypassing Iowa City from Interstate 80 on the.west to U.S. 218 and continuing south on 218 for seven miles. Iowa at this time has only sought federal funding on the northern seven-mile segment of this 14-mile project. The southern seven-mile segment cuts directly through the Indian Lookout area of thickly wooded hills and bluffs overlooking the Iowa River valley, an area of scenic, geological, historical and archaelogical significance. The District Court for the Southern District of Iowa, Judge William C. Stuart footnote. 3 at 13 required the Environmental Impact Statement to include the entire 14-mile project, but held that to require an Environmental Impact Statement over the entire system or even for Freeway 518 would be highly impractical.

The plaintiffs maintain that since the Freeway-Expressway System plainly contemplates the completion of F-518 as a whole and the completion of the 1,877-mile system with at least partial federal funding, the construction of F-518 and the entire 1877-mile system constitutes a “major federal action” pursuant to 42 U.S.C. §§ 4332(2) (C) & (D). Further, to allow environmental impact statements to be filed as construction proceeds in a piecemeal fashion, thus limiting the impact and scope of an environmental analysis to relatively small segments under construction, would result in ignoring the environmental impact of the entire system, in determining its ultimate effect on the environment, and in weakening the consideration of alternatives. An added factor is injected into the problem in that the construction of a small segment after a limited impact statement could set the course or pattern for a considerable portion of the system so that little flexibility would be left in the later stages of the system’s implementation, and, therefore, no consideration of the environmental impact of the entire plan would ever have .been made. As pointed out, the Environmental Impact Statement filed only embraced the northern seven-mile segment of F-518-4.

We are confronted with a preliminary question of when the building of F-518 or of the entire 1,877-mile system constitutes major federal action so as to make NEPA applicable. Undoubtedly, the federal financing of four-lane divided .highways, which are designed and built by state highway departments, constitutes “major federal action,” but there is a difference of opinion as to when and at what point in planning or construction, the project, either considered as a whole or in segments, becomes a federal action.

The defendants contend that a highway project is not “federal” until the FHWA grants location approval, whereas the plaintiffs contend that a project is “federal” prior to location approval, because location approval must be preceded by a public hearing pursuant to 23 U.S.C. § 128(a) and preparation of a draft Environmental Impact Statement, as required by FHWA pursuant to PPM 9 0-1.

Since a major highway system is an ongoing continuing octopus of concrete and asphalt ribbons covering continuously more and more of the available land area of a state, yet necessary in significant respects to meet the transportation needs of our country, the highway problem and how is it to be considered and implemented under NEPA requires special consideration. It is not akin to a single project such as a bridge, dam, arsenal, or even a federal complex. It has unique characteristics, being not only statewide in scope, but interstate and international since these highway routes run throughout the country and even into foreign countries.

In considering when the requirements of NEPA become applicable to highway projects, it is helpful to set forth generally how the Federal-Aid Highway Program is administered. The Federal-Aid Highway Act, 23 U.S.C. § 101 et seq. requires a state highway department to obtain two federal approvals in order to be reimbursed for project costs; program approval and plans, specification, and estimates (PS&E) approval.

In addition to the above statutory approvals, FHWA regulations and PPM 20-8 call for three additional approvals. 23 C.F.R. § 1.12 (1972) provides: “No work shall be undertaken on any Federal-aid project, nor shall any project be advertised for contract, prior to authorization thereof by the Administrator.” PPM 20-8, supra note 5, requires states to receive location approval, which must follow a corridor public hearing; and design approval, which must follow a design public hearing. Location and design approvals do not obligate the Federal Government to contribute to the project’s costs but are necessary steps for a state to remain eligible for federal reimbursement.

A state does not request approval of plans by the FHWA until a highway has been broken into projects by the state. In segmenting a proposal into projects the primary considerations are the length in miles, similarity of type of construction, dollar cost, and availability of funds.

Thus, the present technique of constructing highways in segments and the method of financing would inhibit the treatment of a statewide highway system as a single unit for the purpose of federal approval. It would be extremely uneconomical and timewasting to require the interested state and federal officials to compile an EIS on an entire system that may not be completed as then visualized.

There is no case yet decided that meets exactly the question of the earliest point in time at which a state highway plan becomes a major federal action. There are cases holding that a highway is federal when it receives location approval from the FHWA. City of Boston v. Volpe, 464 F.2d 254, 259 (1st Cir. 1972) (airport case); Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971); Sierra Club v. Volpe, 351 F.Supp. 1002, 1007 (N.D.Cal.1972); La Raza Unida v. Volpe, 337 F.Supp. 221, 227 (N.D.Cal. .1971).

It is not disputed that any project for which federal funds have been approved or committed constitutes a major federal action bringing into play the requirements of NEPA. However, as noted in La Raza Unida v. Volpe, supra, state highways constructed without federal funds or with no intention to seek federal funds are not covered by NEPA. The gray area arises in the third class of highways for which a state has not presently sought federal funds but has maintained its option of later securing federal funds at various stages. We are not at this point overly concerned with making more precise delineations among the different types of highway projects, as we are here concerned with a 14-mile segment on which federal funding is sought and an adjoining 20-mile segment, F-518-3, on which federal funding will be requested. So far as the record discloses no additional federal funds are sought at this time for the purpose of constructing other parts of the system. We may assume that the ISHD desires to keep open its options to secure federal funds for other sections and segments of its highway program as its implementation progresses.

While there are cases holding that projects at the planning stage constitute major federal action, these involve single projects. A Liquid Metal Fast Breeder Reactor Program in Scientists’ Institute was initially a federal action, and Schuler dealt with approach roads for a proposed bridge. The instant case is not a single project, however there is no doubt that location approval is a critical stage in determining when a project becomes a “major Federal action.” As reasoned in La Raza Unida v. Volpe, supra, 337 F.Supp. at 227:

“The state should not have the considerable benefits that accompany an option to obtain federal funds without also assuming the attendant obligations. Any project that seeks even the possible protection and assistance of the federal government must fall within the statute and the regulations.”

Since we have location approval, we need not explore the earliest time NEPA becomes applicable, except as to resolve whether the scope extends to the whole system or the entire F-518 project.

The Council on Environmental Quality (CEQ) Guidelines are not supportive of plaintiffs’ position. The Guidelines are directed to federal agencies and require an assessment of environmental impacts before federal decision-making. The first federal decision involved in approval of a state highway program is granting location approval. Before that time the FHWA has no control over subsequent state action that might affect the plan. It would be impractical to require the expenditure of considerable amounts of time and money by the federal government on indefinite or tentative proposals before it can be said that they have become a major federal action.

This conclusion is further supported by City of Boston v. Volpe, 464 F.2d 254, 259 (1st Cir. 1972). There the factual situation showed a request for a federal grant from the Federal Aviation Administration and a tentative allocation of federal funds, which was followed by a formal application for the funds by the Massachusetts Port Authority. The First Circuit found no federal action at that present time, since 49 U.S.C. § 1716 contemplates a single decision to fund or not to fund an airport program. Until a decision had been made to commit federal funds the project remained state in nature. Accord, Northeast Area Welfare Rights v. Volpe, 2 ERC 1704 (E.D.Wash.1971).

For the purposes of this suit, we hold that the requirements of NEPA and related acts applied when the State Highway Department sought location approval for the proposed highway, but still remaining for resolution is the issue of the scope and extent of the environmental impact study necessary under the pertinent acts.

Preliminarily we note that the District Court held that an EIS was required for the entire 14-mile length of Project F-518-4, even though the southern seven-mile segment had received federal design approval prior to January 1, 1970, the effective date of NEPA. This ruling is correct.

Plaintiffs contend that division of a highway into segments, such as the 14-mile segment approved by the District Court, precludes meaningful compliance with the statutory mandate to assess in detail environmental impacts, as each segment that is approved limits the alternatives for each succeeding segment. The issue of the proper length of highway segment to be included in an impact statement has been considered by several courts. In Thompson v. Fugate, 347 F.Supp. 120 (E.D.Va.1972), dealing with a circumferential highway arouncl Richmond, Virginia, the court found that the project could not be split up into separate 21-mile and eight-mile segments for the purpose of assessing environmental impact, but rather the entire beltway project must be considered as a whole. To fractionalize the project would be “to ignore the facts and reasonable inferences to be drawn therefrom.” Thompson v. Fugate, supra at 124. The court in Committee to Stop Route 7 v. Volpe, 346 F.Supp. 731 (D. Conn.1972), found a 3.1 mile segment inappropriate as the subject for an EIS and said:

“11. Application of Section 102(2) (C) procedures to existing projects and programs. To the maximum extent practicable the Section 102 (2) (C) procedure should be applied to further major federal actions having a significant effect on the environment even though they arise from projects or programs initiated prior to enactment of the Act on January 1, 1970. . . .”
“While no precise mileage for an appropriate length can be specified, the test is whether the length selected / assured adequate opportunity for the consideration of alternatives (both whether and where to build) required by the Act.” 346 F.Supp. at 740.

The nature of the proposal will bear on the determination of the appropriate length to be covered, as the length “ . . . obviously need not be so extended that consideration of alternatives overlooks a major objective of building the proposed highway.” Committee to Stop Route 7 v. Volpe, supra at 740. If the major objective of a proposal is to connect two cities by expressway, then these two termini should determine the proper scope of the EIS. The District Court in Citizens v. Brinegar, 357 F. Supp. 1269 (D.Ariz.1973), approved the division of approximately 60 miles of Interstate Highway 10 leading into Phoenix into three segments for purposes of preparing an EIS. The segments covered 29 miles through generally vacant desert land, 15 miles through agricultural land, and 16 miles through urbanized Phoenix. The court felt that, absent a showing of piecemealing to avoid statutory requirements like that condemned in Named Individual Members of San Antonio Conservation Society v. Texas State Highway Dept., 446 F.2d 1013 (5th Cir. 1971), there was nothing to justify a requirement that the segments be covered in one EIS.

The FHWA’s PPM 90-1, 37 Fed.Reg. 21809 (October 14, 1972), is helpful in setting forth basic guidelines. Section 6 of 90-1 provides that:

“The highway section included in an environmental statement should be as long as practicable to permit consideration of environmental matters on a broad scope. Piecemealing proposed highway improvements in separate environmental statements should be avoided. If possible, the highway section should be of substantial length that would normally be included in a multiyear highway improvement program.”

Section 3(a) defines highway sections as:

“A substantial length of highway between logical termini (major crossroads, population centers, major traffic generators, or similar major highway control elements) as normally included in a single location study.”

The requirement of PPM 90-1 is in line with the recommendations of the Council on Environmental Quality.

Because of the expensive nature and the unique characteristics of a network of highway routes comprising a statewide highway plan, coupled with the facts that such plans must of necessity be projected over a relatively long span of time and be flexible in order to allow modifications to meet unforeseen and untoward developments, we do not think the overall project is subject at the outset to the requirements of NEPA. Such plans usually are and should be visionary, subject to extensive modification and dependent to a large degree upon the availability of both state and federal funds. A state, therefore, should not be placed in a vise in which it can do nothing to take care of present traffic needs, to provide bypassing of congested areas, or to construct needed highways until an extensive time-consuming study has been made of the entire plan. A consideration of the whole system would engender many disputes on location and environmental effects. In fact it is conceivable that localized disputes over locations could develop over all the routes so that it would be impossible to settle all of the local disputes and resolve an integrated statewide system before the system itself became outmoded. The study, public hearings that should be held relative thereto, and attendant legal battles could engender objections that could well be insurmountable as a whole, cause years of controversy and debate, and in effect stymie the capital operation of the highway department. This could reduce a state highway department to a standby status unable effectively to conceptualize long-range plans and upgrade present facilities.

On the other hand, we do not want to minimize the benefits and the need for long-range planning and also the advisability of at some point considering the long-range environmental effects of a state highway system. In order to accommodate'and balance these two major considerations, we think that as a practical matter it is necessary to permit the division of a state highway plan into segments for the purpose of environmental considerations. This division to some extent could correlate with present technological and financial practices that dictate the present piecemeal type operation. However, in order to comply with the spirit and objectives of NEPA to safequard natural resources while effectively applying the arts and the sciences in utilizing our natural resources and to cause a meaningful consideration of environmental effects along with a consideration of alternatives, the minimum length of state highway projects that are supported in part by federal funds must be extended to embrace projects of a nature and length that are supportable by logical termini at each end. A single project, such as the San Antonio Freeway route from the airport to downtown in Named Individual Members of San Antonio Conservation Society, supra, could not have been broken into segments at all for the purposes of NEPA. Segments that fit into an overall highway plan should be as large as is feasible under present construction and financing practices and at least be independently supportable by meaningful terminal points. However, an impact statement can be more extensive than the proposed project.

The crucial question here is whether the 14-mile segment of F-518-4 is an appropriate segment for the present EIS. We do not think it is. It does not have an independent utility of i its own, which would require that it end in major termini, i. e. present major highways or cities.

Project F-518-4’s northern terminus is Interstate Highway 80, a major east-west route across the state of Iowa. This clearly qualifies as a major terminus. The southern terminus, as it appears on the record, is the Johnson County line, where it would connect to Project F-518-3 (a proposed extension of Freeway 518 through Washington County), which is already in project stage at the state level and has apparently received an approval from the FHWA. It does not appear that a county line would be a major terminus for an appropriate segment. Where, as here, there is a commitment to further extension appearing on the record, we do not believe it can be said that Project F-518-4 has the requisite independent utility to be the appropriate segment to be covered by the Environmental Impact Statement. The EIS should be enlarged to include Project F-518-3 and an extension thereof until it intersects with present U.S. 218, approximately 22 miles south of the southern terminus of Project F-518-4.

While this terminus at the intersection of proposed Freeway 518 with present U.S. 218 is not entirely satisfactory and more a product of practical necessity in breaking down the entire project into workable segments, it does have the advantage of allowing the improvement to be of continuing utility and use, even if the balance of the route to the Missouri line is never constructed. The record does not disclose when the southern part of proposed Freeway 518 to the Missouri line is projected, and, of course, it is not the function of federal courts to dictate to state highway departments how and when they should carry out their state imposed duties. It appears to us that the decision here is at least a reasonable balancing of objectives in meeting this admittedly difficult problem. We are confronted here with a new law that is now in the process of being implemented, considered, and interpreted under varying factual situations, so that decisional precedent is scarce. It will only be through a series of interpretations under varying and contrasting factual situations that a better and more precise standard can be conceptualized and articulated.

The case is remanded to the District Court for proceedings consistent with this opinion and for modification of its order on Project F-518-4 to include Project F-518-3 to its presently contemplated southern terminus and beyond to the project's intersection with present U.S. 218 to the south.

      . The plaintiffs-appellants are: The Indian Lookout Alliance, an association of persons residing in the area, including affected property owners; Iowa Citizens for Environmental Quality, Inc., a nonprofit corporation committed to the preservation of environmental values and natural resources; Citizens for Environmental Action, Inc., a similar nonprofit corporation; and individual members of the above groups.

      . 23 U.S.C. § 120(a) provides for 70 per cent federal funding of the construction cost of Federal-aid primary highways (50 per cent prior to July 1, 1973).

      . The District Court held :
      “Plaintiffs’ contentions that there should be an environmental impact statement prepared for Freeway 518 and the Freeway-Expressway System will be considered together. These are nothing more than tentative plans for future highway construction for at least 20 years. The map introduced as an exhibit shows only general corridoi-s, which are subject to change. Federal approval has not been requested and is not needed for such planning. No federal money has been involved. Neither has reached the stage of being a ‘major federal action.’ It would be impossible to prepare an E.I.S. on such indefinite proposals and it would be highly impractical to require it. In my opinion nothing in the law or regulations requires an E.I.S. on either the proposed Freeway-Expressway System or proposed F-518.”
      345 F.Supp. 1167, 1169-1170 (1972).

      . 42 U.S.C. §§ 4332(2) (C) & (D) read:
      “(C) [Ijnclude in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
      “(i) the environmental impact of the proposed action,
      “(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,-
      “(iii) alternatives to the proposed ae-
      “ (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
      “(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
      Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes;
      “(D) [Sjtudy, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources. . . .”

      . Policy and Procedure Memorandum (PPM) 20-S was adopted as an administrative guideline by the FIIAYA to assess the economic effects of a highway location under the old Federal-Aid Highway Act, 23 U.S.C. § 128, which act was amended on August 23, 1908, to require public hearings and consideration of not only the economic effects of a highway location but also its social effects and its “impact on the environment.” See PPM 20-8, 23 C.F.R.App.A., issued January 14, 1969.
      The National Environmental Policy Act of 1909, 42 U.S.C. § 4331(b), et seq., became effective January 1, 1970, which contained more detailed requirements concerning environmental impact than the older Federal-Aid Highway Act. PPM 90-1 was issued under date of August 24, 1971, setting forth guidelines for implementing § 102(2) (C) of NEPA, 49 U.S. C. § 1653(f) (§ 4(f) of Department of Transportation Act), 16 U.S.C. § 470f (§ 106 of National Historic Preservation Act), and § 309 of the Clean Air Act of 1970.

      . See R. Peterson and R. Kennan, Jr., The Federal-Aid Highway Program : Administrative Procedures and Judicial Interpretation, 2 Envir.L.Rep. 50001 (hereinafter Peterson and Kennan), for a more extended discussion of the administration of the program.

      . Section 105(a) requires the submission of “programs of proposed projects” for approval, “as soon as practicable after the apportionments for the Federal-aid systems have been made for any fiscal year.” Program approval does not, however, relate to any broad plans of the state as involved in this case, but means individual projects.

      . Section 106(a) requires approval of plans, specifications, and estimates for each proposed project included in an approved program. Upon PS&E ajjproval the federal government becomes contractually obligated to pay its proportionate share of the cost.

      . 23 C.F.R. § 1.2(b) (1972) defines project as:
      “An undertaking by a State highway department for highway construction, including preliminary engineering, acquisition of rights-of-way and actual construction, or for highway planning and research, or for any other work or activity to carry out the provisions of the Federal laws for the administration of Federal aid for highways.”

      . The way Federal-aid highway funds are disbursed may be seen as contributing heavily to this practice by the states. Peterson and Konnan, supra. Federal-Aid highway funds are apportioned among the states according to formulae contained in 23 U.S.C. § 104 and are not designated for use in relation to any particular project within the state. The state requests appz'oval of a particular project, and upon approval the FHWA considers the amount obligated as available only for that project. Therefore, if a state l'equests approval of a large construction project, o. g., Freeway 518, that could tie up the available federal funds only on that project although the funds might not actually be spent or needed for a number of years.

      . Scientists’ Institute for Public Information, Inc. v. Atomic Energy Commission, 481 F.2d 1079 (D.C.Cir.1973) ; City of Rye, New York v. Schuler, 355 F.Supp. 17 (S.D.N.Y.1973).

      . Guidelines for Federal Agencies Under the National Environmental Policy Act, 36 Fed.Reg. 7724-29, April 23, 1971. Section 2 reads in pertinent part: “As early as possible and in all cases prior to agency decision concerning major action that significantly affects the human environment, Federal agencies will . assess in detail the potential environmental impact.”

      . That the provisions of NEPA are applicable to projects initiated prior to the effective date finds full support among the cases. See, e. g., Environmental Defense Fund, Inc. v. Corps of Engineers, 470 F.2d 289 (8th Cir. 1972) ; Calvert Cliffs Coordinating Committee v. United States Atomic Energy Commission, 146 U.S.App. D.C. 33, 449 F.2d 1109 (1971) ; Arlington Coalition on Transportation v. Volpe, 458 F.2d 1323 (4th Cir.), cert, denied, sub nom. Fugate v. Arlington Coalition on Transportation, 409 U.S. 1000, 93 S.Ct. 312, 34 L.Ed.2d 261 (1972). This conclusion is further supported by the CEQ Guidelines, supra at 7727, which reads:

      . Memorandum from Council on Environmental Quality to Federal Agencies on Procedures for Improving Environmental Impact Statements, May 16, 1972, reprinted in 3 Envir.Rep. (BNA) Current Developments, May 19, 1972 at 82-87. Recommendation 9 provides:
      “In preparing statements, agencies should give careful attention to formulating an appropriate definition of tlie scope of the project that is the subject of the statement. In many cases broad program statements will be appropriate, assessing the environmental effects of a number of individual actions on a given geographical area, or the overall impact of a large scale program or chain of contemplated projects. . . .”

      . Our conclusion with regard to the mileage to be included in the EIS, it should be emphasized, is only approximate and is based upon defendant’s answers to interrogatories which detail the proposed route of Freeway 518 from Interstate 80 to Keokuk, Iowa. The record in the case did not include a map delineating the proposed route of Project F-518-3 or its extension to the intersection with present U.S. 218 which would have allowed a more precise ascertainment of the mileage involved.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. James L. McIE, Appellant.
    No. 73-1539.
    United States Court of Appeals, Fourth Circuit.
    Submitted Aug. 8, 1973.
    Decided Sept. 18, 1973.

      Richard W. Cardot, Elkins, W. Va., on brief for appellant.
    James F. Companion, U. S. Atty., on brief for appellee.
    Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WINTER, Circuit Judge.
   PER CURIAM:

On February 12, 1973, James Mcle was tried as a minor along with one Steven Schrader for interstate transportation of a stolen motor vehicle, a violation of 18 U.S.C. § 2312. Both defendants were found guilty by the district court, sitting without a jury. Mcle then brought this appeal, and the United States Attorney filed a motion for summary affirmance.

Mcle argues that his conviction must be reversed for three reasons: the evidence is insufficient to sustain the conviction; the government did not prove criminal intent; and the lower court erred in refusing to require the introduction of certain F.B.I. reports which are alleged to corroborate the defendant’s exculpatory trial testimony.

At trial, several witnesses testified that they saw both defendants in possession of and driving the stolen automobile at various times approximately between September 18-22, 1971, in the vicinity of Wallace, West Virginia. Two witnesses further testified that they were told by either Mcle or Schrader that they had stolen the car in Ohio. The defendants presented an alibi defense. They denied having been in Ohio at the time of the theft, and while they admitted having ridden in the stolen car, they claimed that they were merely passengers, having been picked up while hitchhiking.

In assessing the sufficiency of evidence, we look to see “only that the evidence would permit the triers of fact to find the defendant guilty beyond a reasonable doubt. United States v. Ragland, 306 F.2d 732 (4th Cir. 1962) cert, den. 371 U.S. 949, 83 S.Ct. 504, 9 L.Ed. 2d 498. The verdict of the jury must be sustained if there is substantial evidence, taking the view most favorable to the government, to support the findings of guilt. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942).” United States v. Sherman, 421 F.2d 198, 199 (4th Cir. 1970). In this case, it is clear that there was ample and sufficient eyewitness testimony that the defendants were in possession of the stolen vehicle to support the conviction: The trial judge resolved the direct conflict in testimony against the defendants. We cannot conclude, on the basis of the record before us, that his decision was clearly erroneous.

Appellant also argues, however, that even if the government witnesses are to be believed, there was not sufficient evidence introduced to prove the charge contained in the indictment that the automobile was transported from Ohio to West Virginia “on or about September 19, 1971.” Uncontroverted evidence proves that the vehicle was recovered on September 22, 1971. Testimony does not, however, clearly pinpoint either the date of the theft or the date the automobile was driven across a state border. The evidence merely shows that these events probably occurred within a week, and almost certainly within the two weeks preceding September 22. We conclude that in the absence of prejudice to the appellant resulting from the government’s inability to prove the date of the offense with greater precision, the conviction will stand. “Time is not of the essence in connection with the charge for this crime [violation of 18 U.S.C. § 2312], and the date in an indictment such as this was not a material allegation inasmuch as the time of the theft is not descriptive of the offense and need not be precisely proven other than to prove it occurred within the limitation period.” Stewart v. United States, 395 F.2d 484 (8th Cir. 1968).

Appellant’s argument that criminal intent was not proven is also without merit. The lower court found that Mcle participated in the theft of a vehicle in Ohio and its transportation into West Virginia. No facts are alleged that would negate the presumption that he intended the natural and probable consequences of his acts. The intent to deprive the owner of the rights of ownership coupled with knowledge that the vehicle was stolen when transported into West Virginia fulfills the statutory requirements. United States v. Turley, 352 U.S. 407, 77 S.Ct. 397, 1 L.Ed.2d 430 (1957).

Mcle’s final claim is that the lower court erred by not requiring the prosecution to introduce a statement made by the appellant to the F.B.I. The defense apparently had its own copy of Mcle’s statement to the F.B.I., and could have offered it. Failure of the prosecution to present the statement is thus no ground for reversal.

Accordingly, the appellee’s motion for summary affirmance is granted; Mcle’s appeal is dismissed.


author: BELL, Circuit Judge: SIMPSON, Circuit Judge

text:
    Roy F. STOUGH and Quality Merchandisers, Inc., d/b/a Quality Services, Plaintiffs-Appellants, v. MAY AND COMPANY OF GEORGIA, INC., et al., Defendants-Appellees.
    No. 72-3269.
    United States Court of Appeals, Fifth Circuit.
    Aug. 16, 1973.

      John Walton Henderson, Jr., John C. Grabbe, III, Atlanta, Ga., for plaintiffs-appellants.
    Griffin Patrick, Jr., Charles F. Reeves, East Point, Ga., for defendants-appellees.
    Before BELL, GOLDBERG and SIMPSON, Circuit Judges.
   BELL, Circuit Judge:

Plaintiffs are wholesalers who supply hosiery and toys to various retail outlets in the State of Georgia. They compete with defendants who sell a wide range of non-food items, including hosiery and toys, to some of the same retail outlets. Plaintiffs sought damages from defendants on a claim of violation of § 2(a) of the Clayton Act as amended by the Robinson-Patman Act. 15 U.S.C.A. § 13(a). The gist of the claim was that defendants obtained several of plaintiffs’ customers by promising these customers a special rebate on their purchases. Plaintiffs alleged that the rebate was discriminatory in that it was employed on a selective basis.

All parties moved for summary judgment. The district court gave judgment for the defendants. On the strength of depositions and affidavits, the court held that there was no geniune dispute over any material issue of fact and that the defendants were entitled to judgment as a matter of law because (1) the contested transactions were not “consummated sales” and were not, therefore, covered by § 2(a), and (2) none of the contested transactions occurred in interstate commerce, as required by the Act. On plaintiffs’ motion for reconsideration, the court evaluated the claim in light of the panel opinion of this court in Little-john v. Shell Oil Company, 5 Cir. 1972, 456 F.2d 225, and held that although the requisite interstate involvement may have been present under the “underwriting” theory of that case, defendants were still entitled to summary judgment because the contested transactions were not “consummated sales”.

On appeal, plaintiffs assert error in the “consummated sales” holding. Meanwhile, this court has considered Littlejohn en banc and has rejected the underwriting theory as a method of meeting the jurisdictional requirement of the Act that at least one of the discriminatory sales be in interstate commerce. Littlejohn v. Shell Oil Company, 5 Cir., 1973, 483 F.2d 1140 (En Banc).

With respect to the no “consummated sales” issue, it is undoubtedly true that there can be no violation of § 2(a) of the Act unless there is discrimination between purchasers and “[I]n order for there to be discrimination between purchasers, there must be actual sales at two different prices to two different actual buyers”. Jones v. Metzger Dairies, Inc., 5 Cir., 1964, 334 F.2d 919 at 924. Cf. Aluminum Company of America v. Tandet, D.Conn.1964, 235 F. Supp. 111. Here there were actual sales by defendants to customers, including customers of plaintiffs, with a resultant loss of specified customers to plaintiffs. However, the rebate was never paid to the selected promisees and there is a disputed issue of fact as to whether it was ever to be paid. There is testimony that the promised rebate was conditioned on defendants being assured that the rebate could be paid without violating any law. In any event, it may be that a disputed fact issue is presented over the content of the promise and whether a rebate was in fact a part of the defendants’ prices. In this posture of the case and because, as will be seen, there is another disposi-tive question in the case, we pretermit ruling on the “consummated sales” approach of the district court.

Both in brief and on oral argument, counsel for plaintiffs conceded that the claimed discriminatory sales were made only in Georgia. They relied entirely on the underwriting theory of Moore v. Mead’s Fine Bread, 1954, 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145, to establish subject matter jurisdiction. As stated, that theory will no longer suffice. There was thus no subject matter jurisdiction in the district court. See Littlejohn, supra, en banc decision. Summary judgment for defendants on this ground was a proper disposition. It was the basis of the first ruling of the district court which ruling was, as stated, withdrawn after the panel opinion in Littlejohn.

We therefore affirm the grant of summary judgment for defendants.

Affirmed.

SIMPSON, Circuit Judge

(concurring specially):

I concur in Judge Bell’s opinion for the Court in this case solely because I am institutionally bound by the views of the majority of the en banc Court in Littlejohn, 5 Cir. 1973, 483 F.2d 1140. If free to do so, I would adhere to the “underwriting” theory of liability under § 2(a) of the Clayton Act, 2of the majority opinion of the original panel in Littlejohn. See further my separate opinion, joined by Judges Brown, Wisdom, Godbold and Morgan, concurring in part and dissenting in part from Judge Bell’s opinion for the majority of the en banc Court, Littlejohn v. Shell Oil Co., 5 Cir. 1973, en banc, 483 F.2d 1140.

      . Based upon Moore v. Mead’s Fine Bread, 1964, 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145.

      . Littlejohn v. Shell Oil Co., 5 Cir. 1972, 456 F.2d 225.


text:
    Wayne Edward JACOBS, Plaintiff-Appellant, v. CITY OF NEW ORLEANS et al., Defendants-Appellees.
    No. 73-1164
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Aug. 29, 1973.

      J. Paul Demarest, New Orleans, La., for plaintiff-appellant.
    Blake G. Arata, City Atty., Charles C. Foti, Jr., Asst. City Atty., New Orleans, La., for defendant-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 431 F.2d 409, Part I, (5th Cir. 1970).

   PER CURIAM:

In this suit based upon 28 U.S.C.A.. § 1343(3) and 42 U.S.C.A. § 1983, plaintiff alleges that he suffered personal injuries at the hands of members of the New Orleans Police Department. After much contradictory testimony, the District Court found that defendant-officer Pellegrin’s initial actions in attempting to arrest plaintiff were reasonably performed, with good cause, but that the subsequent behavior of three of the defendant-officers was excessive. Plaintiff was awarded, consequently, five hundred dollars in damages. On appeal, plaintiff argues that (1) the damages were inadequate, (2) all of the defendants should have, been held liable; and (3) attorneys fees, costs, and punitive damages should have been awarded. We affirm.

Plaintiff’s depiction of his Bourbon Street encounter in the early morning hours of June 13, 1970, is generally irreconcilable with defendants’ testimony. The trial judge concluded that the fracas

arose out of officer Pellegrin’s belief that plaintiff was molesting a pedestrian, and that initially, under the circumstances extant in the French Quarter [a recent similar brawl had resulted in an attorney’s death], Pelle-grin acted reasonably. However, the attempted arrest soon erupted into an uneven brawl, caused by the officers’ anger with the plaintiff.

In light of the tension-ridden atmosphere, the officers’ reaction, in the District Court’s opinion, “might be quite understandable . . . [but] cannot excuse their use of excessive force

While there is no doubt that he resisted vigorously, the police could or should have been able to exercise control over plaintiff without inflicting upon him the amount of physical punishment that was in fact inflicted.

Of the eight policemen ■ involved, only three were found to have overreacted.

Plaintiff’s appeal stems basically from his disagreement with the trial court’s findings of fact. First, the adequacy of the damages can be determined only in the context of evidence presented, and findings of fact cannot be set aside unless “clearly erroneous.” Rule 52(a), F.R.Civ.P. Confronted with entirely contradictory testimony, the trial judge observed the witnesses, determined their credibility, and concluded that, since plaintiff incurred medical expenses of $173, lost no wages, and suffered no permanent injuries, damages in the amount of five hundred dollars were warranted. Plaintiff has failed to demonstrate either that the Distinct Court reconstructed the events inaccurately or that the injuries required a more substantial award.

Second, the District Court limited the recovery to the three defendants he found to have “actually used excessive physical force in making the arrest.” The other defendants, he concluded, merely acted in good faith on the assumption that Jacobs was under arrest and was attempting to escape. Plaintiff fails to carry his burden to show us that the trial judge’s findings were “clearly erroneous.” Rule 52(a), F.R.Civ.P.

Third, it was not error to fail to award attorneys fees, costs or punitive damages where, as the trial court here found, “[t]he actions of defendants in the context of the situation while not justified, were not done with . such malice as implies a spirit of mischief or criminal indifference to civil obligations.”

Affirmed.


text:
    UNITED STATES of America, Appellee, v. Richard WATTS, Appellant.
    No. 1050, Docket 73-1193.
    United States Court of Appeals, Second Circuit.
    Argued June 28, 1973.
    Decided Sept. 10, 1973.
    Michael A. Young, New York City (Robert Kasanof, Legal Aid Society, New York City, on brief), for appellant.
    James E. Nesland, Asst. U. S. Atty. (Jay S. Horowitz, Asst. U. S. Atty., Paul J. Curran, U. S. Atty., on brief), for appellee.
    Before LUMBARD, HAYS and TIMBERS, Circuit Judges.
   PER CURIAM:

This is an appeal from an order of the United States District Court for the Southern District of New York denying a motion to vacate sentence made pursuant to 28 U.S.C. § 2255. The appellant contends that the district court in imposing sentence improperly denied his request for a civil commitment made under Title II of the Narcotic Addict Rehabilitation Act (NARA), 18 U.S.C. §§ 4251 et seq. The appellant claims that the district court denied him NARA treatment on the basis of the statutory exclusion from such treatment of defendants previously convicted of two or more felonies. Appellant urges that the statute so providing is unconstitutional. The record of the sentencing proceeding clearly indicates that the district court considered a range of factors such as the defendant’s criminal record and marital history in reaching the decision to deny the defendant’s request for NARA treatment and that the denial of the NARA sentencing alternative was based on the court's exercise of discretion.

We affirm on this ground and do not, therefore, reach the issue of the constitutionality of 18 U.S.C. § 4251(f)(4).

Affirmed.


text:
    GARDNER ENGINEERING CORPORATION et al., Appellees, v. PAGE ENGINEERING COMPANY, Appellant.
    No. 72-1771.
    United States Court of Appeals, Eighth Circuit-
    Submitted May 14, 1973.
    Decided Aug. 1, 1973.

      Henry Woods, McMath, Leatherman & Woods, Little Rock, Ark., and Harry H. Ruskin, Ruskin & Rosenbaum, Chicago, 111., for appellant.
    Martin G. Gilbert, Coleman, Gantt, Ramsay & Cox, Pine Bluff, Ark., for ap-pellees.
    Before GIBSON, HEANEY and ROSS, Circuit Judges.
   GIBSON, Circuit Judge.

This diversity suit on an anticipatory repudiation of a contract, between a prime contractor and a subcontractor, was brought in the Eastern District of Arkansas. The District Court in a jury waived trial found for the plaintiffs in the amount of $91,423.46. We affirm the judgment of the District Court.

Because jurisdiction and venue are challenged a brief description of the parties is mandated. Plaintiffs are: (1) M. Clare Miller, C. Dale Miller, and Lloyd W. Miller, a Kansas partnership operating under the name of San Ore Construction Company; (2) Gardner Engineering Corporation, a Texas corporation; subsequently added as plaintiffs were (3) Miller Bros. Inc., a Kansas corporation; and (4) Geco, Inc., a Texas corporation. Original plaintiffs had formed a joint venture, S.O.G. — San Ore-Gardner, for the purpose of bidding on alterations on the Benzal railroad bridge spanning the White River near Benzal, Arkansas. Defendant Page Engineering Company, an Illinois corporation, had its principal place of business in Illinois. None of the original parties had qualified to do business in Arkansas, but Geco, Inc. was qualified to do business in Arkansas. The plaintiffs hereafter will be collectively referred to as S.O.G. Plaintiffs for the most part are engaged in the heavy construction business ; the defendant in manufacturing.

In July 1968, S.O.G. sent out invitations for bids from its Pine Bluff, Arkansas, office to various subcontractors including Page, while apparently at the same time Page had sent notices that it was preparing a bid to all general contractors interested in the project, including S.O.G. This notice was sent to the Pine Bluff, Arkansas, office of S.O.G. Page’s notice apparently was not in response to S.O.G.’s invitation but was offered at Page’s initiative. Thereafter, in August, 1968, Page delivered to a representative of S.O.G. in St. Louis, Missouri, Page’s proposal for furnishing all of the required cast steel, operating machinery, sheaves, trunnions, trunnion bearings, wire rope and attachments. Bids were opened in St. Louis in August, 1969. S.O.G. was awarded the primary contract. Subsequently, in December, 1968, S.O.G. from its office in Houston, Texas, sent to Page in McCook, Illinois, a purchase order for three of the items on Page’s proposal, omitting the cast steel, at the item bid cost of $205,964. All of these materials and equipment were to be delivered to the jobsite in Arkansas and Page was to furnish a field engineer to supervise construction and start up the machinery. All invoices were to be sent to S.O.G. in Houston, Texas. On December 17, 1968, Page at its office in Illinois signed the acceptance copy of the purchase order “Subject to Ltr. 12-17-68 Attached” and returned the acceptance copy and letter to S.O.G. in Houston, Texas.

Page’s attached letter objected to the delivery terms of the purchase order “to fit contractor’s schedule” and requested that S.O.G. “provide us by return mail a delivery schedule of each of the items required for this order. . . . ” On January 6, 1969, Page again requested of S.O.G. a definite shipping schedule of the equipment and materials to be furnished. S.O.G. replied on January 9, 1969, that “[w]e intend to give you a schedule for delivery of equipment. . However at this time a work order had not been issued by the railroad . . . it is anticipated that the need for the machinery will come in the winter of 1970. I will advise you from time to time as the schedule gets more definable.”

Page again wrote S.O.G. on March 23, 1969, stating in part that the purchase order could not be réleased for procurement and production until “a more specific shipment schedule can be established.” S.O.G. replied on April 2, 1969, that it was setting delivery of all machinery for July 15, 1970. Page being unable to relate the July 15, 1970, date to the original intention of “winter of 1970” and expressing concern about the absence of an exact shipment sequence wrote S.O.G. on April 10, 1969, stating in part “ . . .it presently appears that this required delivery date of July 15, 1970 may be critical for us and request that you keep us closely advised of actual required delivery date for each major element or component to be furnished by us.”

Page contends that their understanding of the phrase, “winter of 1970,” contained in the letter from S.O.G. dated January 9, 1969, was that delivery would begin about December, 1970, and that this earlier date would not be satisfactory. A series of letters between the parties concerning the delivery date ensued. The next significant letter was from Page to S.O.G. under date of June 10, 1969. It read in pertinent part:

“Unless we have advice from you with reasonable dispatch confirming delivery for the winter beginning December 1970, we shall be compelled to regard your April 2 letter, which sets up the July 15, 1970 date, as a material change in the understanding between us and as making it impossible to have a binding agreement between us.”

In the meantime, government fund shortages had caused the proposed substructure work on the bridge to be delayed. S.O.G. communicated this fact to Page and further told Page, by letter dated July 8,1969, that:

“Due to uncertainty of available funds from the government for the new fiscal year, the railroad company has suggested we delay substructure work. Delivery of the materials covered by reference purchase order in December, 1970 to January, 1971 is now considered" satisfactory. Due to jobsite handling conditions we will want all materials delivered at the same time. Please schedule your delivery accordingly.”

After further negotiations between the parties, and their attorneys, Page notified S.O.G. by letter of November 13, 1969, that it had canceled the contract. This lawsuit ensued.

Despite all of the controversy on the projected and actual delivery date desired, Page must have known that construction progress was dependent on a number of factors, including government financing, river stages, and the necessary coordination between suppliers of materials and equipment together with the work force needed in the step by step process of carrying out this project. Page requested and was entitled to a tentative schedule of the delivery date insofar as it affected its operation in order to effectively utilize its facilities and work force; and a tentative schedule was received. Finally, after all of the letters respecting possible or intended delivery dates were exchanged and after Page said it would not deliver prior to December, 1970, S.O.G. agreed in its letter of July 8, 1969, that delivery in December, 1970 to January, 1971 would be satisfactory. Meanwhile Page had taken no steps to fabricate and manufacture the items of its subcontract, and when Page’s revised calculations indicated an anticipatory loss of $110,000 if it performed the subcontract, Page canceled on November 13, 1969. Upon Page’s cancellation, S.O.G. re-submitted the item for bids. The accepted bid exceeded Page’s original bid by $91,423.46, the amount awarded in judgment by the trial court.

Page raises five issues on appeal: (1) lack of personal jurisdiction over Page, (2) improper venue, (3) no contract existed between the parties, (4) S.O.G. had given Page cause to be insecure regarding payment, and (5) S.O.G. failed to act in good faith toward Page. We examine each issue seriatim.

Jurisdiction: Jurisdiction in this case is based on Ark.Stat.Ann. § 27-2502 (1971 Supp.). This statute provides in pertinent part:

“27-2502. Bases of personal jurisdiction over persons outside this state. — ■
•X- X X X X- X
“C. Personal jurisdiction based on conduct.
“1. A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a (cause of action) (claim for relief) arising from the person’s
X X X X X X
“(b) contracting to supply services or things in this State . . . . ”

There is no real dispute that the activities of the defendant fall within the terms of the statute. The question raised by Page is whether or not, under the facts of this case, there is the minimum contact with the State of Arkansas necessary to satisfy Fourteenth Amendment due process requirements on personal jurisdiction. We think there is.

The operative facts are undisputed. Neither the original plaintiffs nor the defendant are residents of the State of Arkansas or qualified to do business there. Defendant agreed to supply custom fabricated items, intended solely for use in the State of Arkansas, by delivery FOB jobsite and also agreed to furnish a field engineer to oversee installation and start up of the machinery.

Likewise, the broad legal principles are not in dispute. Both parties cite the leading Supreme Court decisions on this issue. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). These decisions establish the broad framework within which the lower federal courts must operate. Ultimately each question of jurisdiction must be decided on a case-by-case basis. Velandra v. Regie Nationale des Usines Renault, 336 F.2d 292, 295 (6th Cir. 1964). International Shoe Co. v. State of Washington, supra at 316, at 158 of 66 S.Ct. holds that:

. . due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts, with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”

Narrowing this concept of minimum contacts, the Court held that it involves a lesser degree of activity than that referred to as “doing business” within a state. McGee v. International Life Ins. Co., supra at 222, 78 S.Ct. at 200. Also, the Court said: “It is sufficient for purposes of due process that the ■ suit was based on a contract which had substantial connection with [the forum] State.” McGee, supra at 223, 78 S.Ct. at 201.

The question here is whether the promise of performance of this customized contract obligation within the forum state provided a substantial connection with that state. We think it did.

Initially, it should be noted that it is immaterial that the contract in question may have had significant connections with states other than the forum state. Plaintiff is not required to choose the forum with the most significant contacts as a matter of jurisdiction (although that factor might be significant in choice of law questions).

In Aftanase v. Economy Baler Co., 343 F.2d 187 (8th Cir. 1965), Judge Blackmun (now Mr. Justice Blackmun), after an analysis of the leading Supreme Court decisions in this area, made this observation:

“We also think it is fair to say that these five Supreme Court cases establish only general and not precise guidelines. Perhaps they purposely do no more than this. We observe, however, that, at one time or another in the opinions, three primary factors, namely, the quantity of the contacts, the nature and quality of the contacts, and the source and connection of the cause of action with those contacts, are stressed, and that two others, interest of the forum state and convenience, receive mention.” 343 F.2d at 197.

These same factors have been cited in Thompson v. Ecological Science Corp., 421 F.2d 467 (8th Cir. 1970); and Electro-Craft Corp. v. Maxwell Electronics Corp., 417 F.2d 365 (8th Cir. 1969).

Unfortunately the weight to be given to each factor cannot be measured with mathematical precision and the ultimate determination is the result of considerable subjective balancing. However, not all five of these factors need be present to support personal jurisdiction. Altanase, supra at 197. In some situations one factor alone would suffice, i. e. a tort committed in driving an automobile in the forum state or as in McGee, the renewal of an insurance policy.

With regard to the first factor, the quantity of the contacts, we find there are three. The initial letter of S.O.G. came from Arkansas to the defendant. S.O.G. had established a base of operations in Arkansas for processing contracts in the state with a value in excess of eight million dollars. Defendant’s first letter stating interest in bidding on the project was sent to Arkansas. The contract was to be performed in Arkansas by delivery of specially designed machinery and equipment to the jobsite there and by furnishing a supervisor for the installation of those items.

We next look to the “nature and quality” of these contacts. These terms as used in prior cases, unlike the term “quantity”, have a rather nebulous meaning, and further refinement of their meanings seem appropriate. The term “nature” has apparently been used to refer to the directness of the contact with the forum state, an attempt to determine if the party, by his affirmative action, has “invoked the benefit and protection of [the forum’s] laws and could reasonably have anticipated that its act would have consequences in [the forum state].” Electro-Craft Corp. v. Maxwell Electronics Corp., supra. The term “quality” appears to have been used to refer to the relative importance of the contact to the whole transaction between the parties. See, Thompson v. Ecological Science Corp., supra (where it was considered significant that all negotiations leading to the formation of a contract had taken place within the forum state even though the execution had been outside the state). In this regard it is apparent that the place of performance of a customized contract of this type is a contact of such quality as to support jurisdiction. Likewise, where the negotiations leading to a contract are initiated by a letter from the forum state or by a letter directed to the forum state, the nature of the contacts cannot be deemed to be insignificant.

Finally, the third of the primary factors is present in this case. The cause of action is directly related to the contact of the place of performance and arises from that contact by the failure of performance (even though by repudiation).

As to the secondary factors, the interest of the forum state in the performance of contracts within its jurisdiction is obvious, and the defendant does not argue that it is onerously inconvenient for it to defend this suit within the Eastern District of Arkansas. It could not with good grace do so, having previously agreed to supply specially designed machinery and equipment to be installed in Arkansas under its supervision.

The District Court was correct in determining that it had jurisdiction.

Venue: Page contends that the District Court erred in finding venue proper in the Eastern District of Arkansas. Venue in this case is based on 28 U.S.C. § 1391(a) which provides:

“A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose.”

In this case the venue must be based on the clause which provides for venue in the judicial district in which the claim arose; the other parts of the subsection are clearly inapplicable. This portion of the statute was added in 1966.

Page would have us reject the concept of place of performance in this case because the action was founded on an anticipatory breach of repudiation. It is Page’s contention that since the repudiation was made in Illinois, the action arose in Illinois.

The Restatement of Contracts, § 321 (1932) states:

“§ 321. When Repudiation by Mail or Telegraph Becomes a Breach.
“Statements of repudiation in a letter mailed or a telegram sent to a promissee or other person having a right under a contract which if made orally would be a breach of contract constitute, a breach as of the time when and the place where the letter or telegram is despatched.”

See, Karson Industries, Inc. v. Superior Court of Contra Costa County, 273 Cal. App.2d 7, 77 Cal.Rptr. 714, 716 (1969). We feel, however, that this is too narrow a view to take for purposes of federal venue in the light of the great expansion in interstate commercial dealings in the period since the adoption of this section of the Restatement.

The House Report on the 1966 Amendment to § 1391 stated: “This enlargement of venue authority will facilitate the disposition of both contract and tort claims by providing, in appropriate eases, a more convenient forum to the litigants and the witnesses involved.” 1966 U.S.Code Cong. & Admin.News, p. 3694 (1966) (emphasis added).

While there is very little law on this precise issue, the pertinent cases found venue at the place of performance would be proper. Deering Milliken Research Corp. v. Textured Fibres, Inc., 310 F.Supp. 491, 500 (S.C.1970); Ryan v. Glenn, 52 F.R.D. 185 (N.D.Miss. 1971). Since venue is a procedural rule of convenience, the convenience of the aggrieved party should be first accommodated. The court is always open to a motion based on forum non conveniens to be raised by the other party. 28 U. S.C. § 1404.

This enlargement of the venue rules must necessarily recognize that whenever a large business entity thrusts itself into a business transaction far from its corporate home that it may well subject itself to the defense of suits in that new jurisdiction. This should work no great hardship on the corporate defendant for, as recognized by Professor Wright, modern means of transportation minimize the inconvenience in going to another district to litigate. Wright, Law of Federal Courts, 151 (1970). Further, as noted by Professor Wright, the American Law Institute would determine the district in which the claim arose by allowing suit in the district in which a substantial part of the omissions giving rise to the claim occurred. Wright, supra at 152, n. 23. This presumably would be in the district where defendant omitted to perform his contract. Thus, for the purposes of determining federal venue,' we must reject the restrictive provisions of the Restatement of Contracts in determining the place where the action arose in favor of a broader test more in tune with the modern business world.

It clearly appears to be the purpose of the 1966 amendment to § 1391(a) to further the convenience of the parties, the primary purpose of the venue statutes, and to allow a suit to be brought at the place where the claim arose, which could include the place where the performance was to have taken place. The place of performance here was at the jobsite in Arkansas, and it clearly meets both the spirit and intent of the amended venue statute to hold that venue was proper in Arkansas.

Venue at the place of repudiation, as argued by Page, would often result only in convenience to the repudiator and not the aggrieved party. Also, to limit the venue to the place of repudiation, in preference to the place of performance, would allow the repudiator by his own wrongful act to limit the forum available to the aggrieved party. Such unjust results should be rejected unless commanded by applicable statutes. It is our opinion that the federal statute, § 1391(a) as amended, does not command this result; but is intended to expand the venue statute by placing venue, in addition to the residency of the parties, at the place where the cause of action arose, which can be construed in this case as the place where performance was to have taken place.

The Existence of a Contract: Page contends that no contract came into existence because the delivery date question was not resolved. First, Page’s acceptance of the order appears to be unqualified; the letter is merely a request for the offeror’s best estimate of the date that delivery would be required. There was no indication that the date was material to the contract, only that for the understandable convenience of Page and for the benefit of both parties in programing production, this information was needed. Even if no contract was created at that time because there was no “meeting of minds” on the delivery date, the parties did finally agree on the delivery date demanded by Page, December, 1970, and a contract was obviously created at the time of that agreement. The argument that Page requested a delivery schedule and that S. O.G. responded with a delivery date and thus no contract was formed is too simplistic and ignores the realities of the construction industry and the ultimate agreement on a satisfactory delivery date.

Grounds for Insecurity: Page contends that the letter of July 8 from S.O.G. gave it grounds for insecurity. Under U.C.C. § 2-609, a party having reasonable grounds for insecurity may demand assurance of performance from the other party. First, we must point out, as did the District Court, that the contract obligated S.O.G. to pay for the materials whether it received government funds or not. Nevertheless, assuming that Page did have apprehensions (whether reasonable or not), concerning payment in the event that government funds were not available, the record discloses that Page’s attorney, in a conference with the attorney for S.O. G., was told that S.O.G. paid its suppliers whether the government funds had been received or not. No other assurances were demanded.

Cooperation and Good Faith: We have examined the record regarding the dealings between the parties and affirm Judge Harris’s finding that S.O.G. at all times fulfilled both the letter and the spirit of the U.C.C. requirements of cooperation and good faith. U.C.C. §§ 1-203, 2-311.

The judgment is affirmed.

      . The Honorable Oren Harris presiding.

      . Substantial changes were projected in altering the existing swing-span bridge into a lift-span bridge.

      . Appellant Page, relying on L. D. Reeder Contractors of Ariz. v. Higgins Industries, Inc., 265 F.2d 768 (9th Cir. 1959), would have us adopt a rule based on the defendant’s activities within the forum state. McGee clearly refutes this position for contract cases, focusing not on defendant’s total activities within the forum state but on the relation of the contract to the forum state. While Reeder contains language supporting Page’s argument, decisions have relevancy to factual situations of like kind and should not be strained to cover an inapposite situation of a contractual agreement to be performed in the forum state. Reeder recognizes the ultimate question as one of “reasonableness”.

      . International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ; Travelers Health Ass’n v. Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154 (1950) ; Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 72 S. Ct. 413, 96 L.Ed. 485 (1952) ; McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957) ; and Hanson v. Denckla, 357 U.S. 235, 780 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).


author: RONEY, Circuit Judge:

text:
    Steve S. WATSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-1094.
    United States Court of Appeals, Fifth Circuit.
    Aug. 14, 1973.

      Robert L. MeHaney, Atlanta, Ga. (Court-Appointed), for petitioner-appellant.
    John W. Stokes, Jr., U. S. Atty., Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.
    Before GOLDBERG, CLARK and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

We hold that Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), is not to be applied retroactively. The Supreme Court there held that a white person indicted and convicted by juries from which black persons were systematically excluded is entitled to have the conviction set aside without a showing of actual bias.

Steve S. Watson, a white male, was convicted of rape on a Government reservation (18 U.S.C.A. § 457 (1940 ed.) now 18 U.S.C.A. § 2031) in 1947 and sentenced to life imprisonment. In this 28 U.S.C.A. § 2255 motion to vacate his sentence and set aside the judgment of conviction, he alleges that Negroes were systematically excluded from the grand jury which indicted him and the petit jury which convicted him. Denying the motion, the District Court, 350 F.Supp. 57, held that the principle of Peters v. Kiff should not be given retroactive application and that it was therefore unnecessary to determine if, in fact, blacks were systematically excluded from Watson’s juries.

Peters v. Kiff is of precedential value only as a case involving standing. The beginning of the line of authority holding that the Constitution prohibits systematic exclusion of blacks from juries substantially predates Watson’s 1947 conviction. The right of a black to retroactive relief from the systematic exclusion of persons of his race has long since been firmly fixed. Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). Peters v. Kiff merely answered the separate question of whether a white petitioner is entitled to relief on the basis of that constitutional violation. There the Court held that “whatever his race, a criminal defendant has standing to challenge the system used to select his grand or petit jury, on the ground that it arbitrarily excludes from service the members of any race, and thereby denies him due process of law.” 407 U.S. at 504, 92 S.Ct. at 2169.

Our question is whether Watson, not having previously raised any objection to his juries, may assert the claim by collaterally attacking a conviction that took place prior to the decision of Peters v. Kiff.

The retroactive-prospective dichotomy in constitutional decisions has developed for the obvious purpose of permitting the judicial system to modernize its procedures in keeping with current standards of constitutional thought by judicial decision without undoing everything done in the past. Our Court has previously pondered the baffling problem of applying constitutional decisions retroactively. In Vaccaro v. United States, 461 F.2d 626 (5th Cir. 1972), Chief Judge Brown “reeognize[d] the impossibility of reconciling these apparent inconsistencies with any neatly constructed, logically appealing, symmetrically patterned theory or doctrine.”

The reason is that retroactivity is essentially a pragmatic, case-by-case, result-oriented process whereby the often competing interests of society, the accused (or by now, the convicted) and the efficient administration of justice are balanced and weighed. There are no hard and fast rules, no shorthand formulae, in the retroactivity area — only factors, equities and considerations.

461 F.2d at 629.

Illustrative of this point are holdings that the systematic exclusion of blacks requires retroactive vindication for black defendants, Whitus v. Georgia, supra, but that women are not entitled to retroactive relief from the unconstitutional systematic exclusion of women from grand and petit jury lists. ■ Pendergraft v. Cook, 446 F.2d 1222 (5th Cir. 1971), cert, denied, 409 U.S. 886, 93 S.Ct. 103, 34 L.Ed.2d 142 (1972). We have previously held that a man is not entitled to retroactive relief because of the exclusion of women. Juelich v. United States, 403 F.2d 523 (5th Cir. 1968), cert, denied, 394 U.S. 1002, 89 S.Ct. 1508, 22 L.Ed.2d 779 (1969) .

The Supreme Court in Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1964), and Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), spoke of the criteria which should be reviewed in determining the retroactivity of decisions :

[There is] a three-fold analysis directed at discovering :
“(a) the purpose to be served by the new standards,
(b) the extent of reliance by law enforcement authorities on the old standards, and
(c) the effect on the administration of justice of a retroactive application of the new standards.”

401 U.S. at 652-653, n. 5, 91 S.Ct. at 1152.

Following analysis under these guidelines and accepting the theory that constitutional decisions need not apply retroactively, we conclude that Peters v. Kiff is a prime example of a constitutional case that should receive prospective application only.

(1) The purpose of the Peters v. Kiff decision rests predominantly in its deterrent effect, rather than in its direct bearing upon the actual fairness of the trial or upon Peters’ guilt or innocence. The Court spoke in terms of protecting blacks against violations of equal protection and vindicating their right to serve on juries. Peters v. Kiff, supra, 407 U. S. at 499-500, 92 S.Ct. 2163. Justice White’s concurring opinion was based solely on the statutory command of 18 U.S.C.A. § 243 and Hill v. Texas, 316 U. S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942), which make it a criminal offense for jury commissioners to disqualify citizens for jury service on racial grounds.

(2) The judicial system’s absolute reliance on the old standard was undisput-,edly pervasive. All prior grand jury indictments and petit jury convictions were subject to the then current standard for jury selection. This case then is unlike Miranda v. United States, 384 U. S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), where only a portion of the po•lice interrogations resulted in a coerced confession, or Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), where only some of the trials in a given jurisdiction were of indigents without counsel.

(3) The effect of a retroactive application on the administration of justice would be substantial. Exposing to reversal every conviction in a jurisdiction prior to the time when the jury selection system met all constitutional requirements would undoubtedly be tantamount to directing a verdict of not guilty in a large number of cases. It is improbable, however, that in crimes without any racial implications whatsoever, any petitioner in Watson’s position could even hypothesize that he would not be in jail today, but for the discriminatory jury selection system. The reliability of the verdict in Watson’s case is not seriously questioned. Although “proof of actual harm, or lack of harm, is virtually impossible to adduce,” Peters v. Kiff, supra, 407 U.S. at 504, 92 S.Ct. at 2169, such problems of proof in themselves are not sufficient to require retroactive application. See Michigan v. Payne, 412 U.S. 47, 93 S. Ct. 1966, 36 L.Ed.2d 736 (1973) (holding North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), should be applied prospectively only). Limiting Peters v. Kiff to prospective application, however, does not preclude relief in those prior instances of actual jury prejudice because due process claims may always be made in those cases in which evidence of actual prejudice exists. Michigan v. Payne, supra.

(4) The decision in Peters v. Kiff further refines the system of jury selection. The Court made it clear that no dual system can ever again satisfy constitutional requirements and that every defendant has the same right to object to an unconstitutional jury selection system. But this purpose does not mandate the retroactive application of the decision. Thus, Justice White, writing for three Justices who concurred in the judgment as an appropriate implementation of the strong statutory policy of 18 U.S.C.A. § 243, spoke in terms of pros-pectivity :

This is the better view, and it is time we now recognized it in this case and as the standard governing criminal proceedings instituted hereafter.

407 U.S. at 507, 92 S.Ct. at 2170.

(5) This Circuit has decided not to apply retroactively as to either men or women the holdings that they may object to the systematic exclusion of females from juries. Juelich v. United States, supra; Pendergraft v. Cook, supra. It is consistent with these two cases to hold that retroactive application of Peters v. Kiff may not be afforded a white male for systematic exclusion of blacks from his juries.

It might be argued that we have previously decided the question of retroac-tivity in Mosley v. Smith, 470 F.2d 1320 (5th Cir. 1973). There we vacated and remanded for further consideration under Peters v. Kiff the denial of a white male defendant’s petition for release on the ground that blacks had been systematically excluded from his jury. Since Mosley’s conviction preceded the Peters v. Kiff decision, it might seem unnecessary to remand if Peters v. Kiff were not to receive retroactive application. Mosley was a state prisoner, however, and that case was remanded for exhaustion of state remedies, with instructions to the District Court to defer action on the habeas corpus petition pending an opportunity for the state court to consider Peters v. Kiff. This procedure followed the thrust of 28 U.S.C.A. § 2254(b) that the applicant for habeas corpus relief first exhaust the remedies available in the state courts.

Although our decision here might render the remand unnecessary insofar as it relates to federal court proceedings, the States are not bound by a federal determination that requires only prospective application of a constitutional principle. Hence, state courts might differ with federal authority in the retroactive application of a given constitutional principle] If a State chose to apply Peters v. Kiff retroactively, the petitioner would not need to seek relief in federal court. The purpose of the exhaustion provision in § 2254(b) would then be accomplished, and that opportunity would be provided by the remand. It is clear from Mosley v. Smith that the Court did not resolve the Peters v. Kiff retroactivity question. Other decisions relying on Mosley v. Smith also vacated the denial of relief and remanded for exhaustion of state remedies. See United States ex rel. Davis v. Henderson, 474 F.2d 1098 (5th Cir. 1973); Ferguson v. Dutton, 477 F.2d 121 (5th Cir. 1973).

Our holding here would not require a different result in Mosley v. Smith, Davis v. Henderson, or Ferguson v. Dutton. It would not be inappropriate for a federal court to refrain from considering the Peters v. Kiff ground of the state prisoner’s habeas corpus petition unless his State courts had previously decided the point.

We find the “factors, equities and considerations” referred to in Vacearo v. United States, supra, 461 F.2d at 629, weigh in favor of limiting the principle of Peters v. Kiff to prospective application only.

Affirmed.

      . See Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) ; Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967) ; Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967) ; Coleman v. Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964) ; Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955) ; Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953) ; Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950) ; Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942) ; Hale v. Kentucky, 303 U.S. 613, 58 S.Ct. 753, 82 L.Ed. 1050 (1938) ; Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935) ; Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338, 50 L.Ed. 497 (1906) ; Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567 (1881) ; Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed., 664 (1880).