author: PER CURIAM: CHOY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Don WADE, Appellant.
    No. 71-2316.
    United States Court of Appeals, Ninth Circuit.
    May 11, 1973.
    Rehearing Denied Oct. 4, 1973.
    Choy, Circuit Judge, dissented and filed opinion.
    Jonathan E. Johnson (argued), Los Angeles, Cal., for appellant.
    William John Rathje, Asst. U. S. Atty. (argued), Robert L. Meyer, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before CHAMBERS and CHOY, Circuit Judges, and POWELL, District Judge.
   PER CURIAM:

Here we revisit Wade v. United States, 426 F.2d 64 (9th Cir. 1970). Therein, we changed our definition of mental responsibility in criminal cases.

Now we are mainly concerned with the trial court’s compelling the defendant to submit to examination by court-appointed psychiatrists on the pain of losing the right to present a defense of insanity. The order appointing psychiatrists and ordering examination to determine both competence to stand trial and sanity at the time of the offense was made under authority of 18 U.S.C. § 4244. It is now the law of this circuit that § 4244 does not authorize such an order. United States v. Malcolm, 475 F.2d 420 (9th Cir. 1973). The court still has the authority, as part of the inherent power of the court, to order such an examination. On the facts of this case, we find that the order did not impermissibly infringe Wade’s constitutional rights, and the court did not abuse its discretion. See also, United States v. Handy, 454 F.2d 885 (9th Cir.), cert. den., 409 U.S. 846, 93 S.Ct. 49, 34 L.Ed. 2d 86 (1972).

Appellant cannot challenge the validity of the district court’s stated sanction for not submitting to an examination by court-appointed psychiatrists, since he complied with the order compelling examination. Williams v. Florida, 399 U.S. 78, 83, n. 14, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1969). We cannot, at this time, decide whether an order prohibiting all evidence on insanity at the time that the offense was committed, not just expert testimony, is impermissibly broad.

The judgment of conviction is affirmed.

CHOY, Circuit Judge

(dissenting).

I respectfully dissent.

The district court’s order required Wade to submit to examination by the court-appointed psychiatrist or be precluded from presenting any evidence on his defense of insanity. It goes imper-missibly far.

I have no quarrel with the majority’s proposition that the court has inherent power in general to order psychiatric examinations. But where the only issue was Wade’s sanity, he having admitted the deed and relied upon the defense of insanity, such an order compelled him to be a witness against himself by giving testimony through the psychiatrist — unless he was willing to forego his defense.

In Wade I (United States v. Wade, 426 F.2d 64, 74 (9th Cir. en banc 1970)), a majority of this court indicated that an order of this nature might violate the Fifth Amendment privilege. I believe it does.

United States v. Handy, 454 F.2d 885 (9th Cir. 1971), cited by the majority as supporting the order hardly does that. In Handy, the order was that he submit to psychiatric examination or be precluded from presenting any expert testimony on the issue of insanity. Handy could refuse to cooperate and still present non-expert testimony on his mental state. His refusal would have deprived the government of any expert testimony on the issue; hence, it was only fair that he be barred from the benefit of such evidence too. United States v. Albright, 388 F.2d 719, 723 (4th Cir. 1973); Pope v. United States, 372 F.2d 710, 721 (8th Cir. en banc 1967, vacated and remanded on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968); United States v. Albright, 388 F.2d 719, 723 (4th Cir. 1973).

Nor are the other theories which provide some support for a Handy-type order apposite here, e. g. estoppel (United States v. Baird, 414 F.2d 700, 707-708 (2nd Cir. 1969), cert. denied, 396 U.S. 1005, 90 S.Ct. 559, 24 L.Ed.2d 497 (1972); waiver (Pope v. United States, supra). See United States v. Malcolm, 475 F.2d 420 (9th Cir. 1973).

At the time the order in question was made, the only choices Wade was afforded were to submit to examination by the court-appointed psychiatrist (and thereby help incriminate' himself) or forego any defense of insanity. That was impermissible.

Moreover, I feel that we cannot avoid reaching the Fifth Amendment issue. The majority’s reliance on the footnote in Williams is misplaced. In Williams the defendant sought a state court order exempting him from Florida’s notice of alibi rule. The rule required the defendant to notify the prosecution of his intention to rely on an alibi defense and to disclose the names of his alibi witnesses. Failure to comply with the rule could have resulted in the exclusion of alibi evidence (except for the defendant’s own testimony) at the trial. Williams contended that this rule violated the Fifth and Fourteenth Amendments. The Supreme Court rejected his arguments and decided that the rule was not unconstitutional. In the footnote relied on by the majority, the Court noted that had the defendant refused to comply with the order and had his witnesses not been allowed to testify this would have raised Sixth Amendment issues. However, since the penalty was not exacted the Court chose not to discuss the issue.

Similarly, in the case at bar we need not discuss any Sixth Amendment problems because Wade complied with the court order, but we must face his Fifth Amendment claim. His compliance un-def protest cannot be considered a waiver of his right to appeal the validity of the district court’s order.

I would reverse.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Judge M. MULLINS et al., Appellants, v. BEATRICE POCAHONTAS COMPANY, Appellee.
    No. 14298.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 5, 1973.
    Decided Jan. 4, 1974.
    Robert T. Winston, Norton, Va., and Carl W. Newman, Applachia, Va., for appellants.
    R. Kenneth Wheeler, Richmond, Va. (Hunton, Williams, Gay & Gibson, Richmond, Va., on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and WINTER and RUSSELL, Circuit Judges.
   PER CURIAM:

Plaintiffs, landowners in the area surrounding Keen Mountain, Virginia, sought in this litigation to obtain compensatory damages and an injunction to abate an alleged nuisance caused by a coal operating plant of Beatrice Pocahontas Company in conjunction with its mine at Keen Mountain. The plant cleans coal of impurities so that it can be used in metallurgical processes, and a by-product of the cleaning process is coal dust which, it is alleged, is discharged into the atmosphere and falls out onto plaintiffs’ property. Initially, the district court granted summary judgment against all property owners who derived title to their land from deeds that conferred mineral rights on defendant. On appeal, we reversed and remanded the case for trial on the merits. Mullins v. Beatrice Pocahontas Co., 432 F.2d 314 (4 Cir. 1970). The case was tried and resulted in a judgment for defendant. In this appeal, plaintiffs contend that the findings of the district court that plaintiffs did not show an illegal invasion of their rights, under the standards of proof applicable to the classes into which they fall, were clearly erroneous, and that certain evidence was improperly admitted in violation of the hearsay rule. We note, for the first time, the possibility that the district court may have lacked jurisdiction to hear the case; and, hence, before passing upon the merits, we remand the case for further proceedings with regard to this question.

Plaintiffs alleged in their complaint that they were all residents and citizens of the State of Virginia, residing in Buchanan County, Virginia, in the Western District of Virginia. They alleged that defendant was a foreign corporation, incorporated under the laws of Delaware and a citizen of that state. Alleging also that the amount in controversy exceeded the sum of $10,000 as to each plaintiff, plaintiffs asserted that diversity of citizenship was the basis of the court’s jurisdiction.

When one of the parties to an action in which jurisdiction is founded upon diversity of citizenship is a corporation, 28 U.S.C. § 1332(c) provides that the corporation “shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business . . . ” (Emphasis added). While plaintiffs alleged that defendant was a Delaware corporation — a fact admitted by defendant in its answer — plaintiffs made no allegation as to the state of defendant’s principal place of business. The record is far from clear as to the state of defendant’s principal place of business. The record does show that defendant is jointly owned by Island Creek Coal Company and Republic Steel Corporation, and that these two companies also jointly own Virginia Pocahontas Co. which carries on business in the Virginia-West Virginia coal region. Defendant’s brief suggests that the mining and processing operations located in Keen Mountain, Virginia, are the only industrial activities carried on by defendant. There is some indication that nearly all of defendant’s employees for the years 1967 through 1971 were engaged in activities at the Keen Mountain operations.

At argument of the appeal, we were unable to obtain any definitive information, on which counsel agree, as to defendant’s principal place of business. Following argument, one of counsel for plaintiffs candidly advised us that the matter of jurisdiction was not gone into nor litigated in any of the preceding stages of the case, but that he was advised that defendant’s principal office was at Huntington, West Virginia, and that defendant also carried on some mining operations in West Virginia.

Plaintiffs’ complaint was filed on February 14, 1968, and that, of course, is the crucial date for the determination of defendant’s citizenship. Defendant unquestionably is a citizen of Delaware, but it most certainly is also a citizen of Virginia or West Virginia, depending upon which state contains its principal place of business. If a citizen of West Virginia, diversity jurisdiction lay in the district court; but if a citizen of Virginia, the district court lacked jurisdiction and the complaint should be dismissed without reaching the merits and, hence, without prejudice.

We have therefore concluded to hold the appeal on the merits in abeyance and request the district court to determine whether there was diversity of citizenship between the parties within the meaning of § 1332(c) on February 14, 1968, and to report its determination to us. In order to facilitate the determination of this question, the attention of the parties and the district court is directed to two divergent approaches to ascertaining the “principal place of business” of a corporation under § 1332(c) that may be found in the authorities. One approach makes the “home office,” or place where the corporation’s officers direct, control, and coordinate its activities, determinative. The other looks to the place where the bulk of corporate activity takes place. Compare Scot Typewriter Co. v. Underwood Corp., 170 F. Supp. 862, 865 (S.D.N.Y.1959) and Hughes v. United Engineers and Constructors, Inc., 178 F.Supp. 895 (S.D.N. Y.1959) with Anniston Soil Pipe Co. v. Central Foundry Co., 216 F.Supp. 473 (N.D.Ala.1963), aff’d 329 F.2d 313 (5 Cir. 1964) and Bruner v. Marjec, Inc., 250 F.Supp. 426 (W.D.Va.1966). See also C. Wright, Federal Courts § 27 at 90-91 (2d Ed. 1970). While intimating no view as to which of these positions this court will ultimately adopt, we suggest that, whichever line of authority the district court finds more convincing, it could advance the ultimate disposition of this question considerably by making findings of fact which are material to both theories.

When the district court has decided that diversity of citizenship does or does not exist, we request that it transmit its findings and conclusions to us together with any additional record that may have been made. Thereafter, within fifteen days, the parties may file supplemental memoranda on the jurisdictional question, and we will then proceed to final disposition of the appeal. Imposition of costs shall abide the final result.

Further proceedings requested.

       There is testimony that the average number of employees at defendant’s Keen Mountain plant for such years was as follows: 1967 — 403; 1968 — 425; 1969 — 461; 1970— 460; 1971 — 454.
      We note that Dun & Bradstreet’s Million Dollar Directory (1973) lists the total number of defendant’s employees at 450.


text:
    Harold E. KOHN, Trustee, et al., Plaintiffs, Intervene Parties Plaintiffs, etc., Appellees, v. AMERICAN METAL CLIMAX, INC., and Roan Selection Trust, Ltd. N. M. Rothschild & Sons et al. Appeal of Philip S. HOROWITZ.
    No. 73-1780.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 27, 1973.
    Decided Dec. 12, 1973.

      I. Walton Bader, Bader & Bader, New York City, for appellants; Levin & Lev-in, of counsel.
    Harold E. Kohn, Aaron M. Fine, Stuart H. Savett, Arthur M. Kaplan, Harold E. Kohn, P. A., Philadelphia, Pa., for plaintiffs-appellees; Morris R. Brooke, Drinker Biddle & Reath, Philadelphia, Pa., Lewis H. Van Dusen, of counsel.
    Marvin Schwartz, James H. Carter, Sullivan & Cromwell, New York City, for defendants-appellees American Metal Climax, Inc. and Roan Selection Trust Ltd.; Arthur H. Dean, of counsel.
    Before KALODNER, ADAMS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

Appellants challenge the settlement agreement reached by American Metal Climax, Inc. (Amax), Roan Selection Trust Limited (Roan), a Zambian corporation, and Harold E. Kohn, representative plaintiff who originally brought this action against Amax on behalf of all shareholders of Roan except Amax. The settlement received the approval of the district court. Amax and Roan were the original defendants in this action. Appellants are certain members of the class represented by Kohn who are not named plaintiffs.

This case has a lengthy and complicated factual and procedural history, but for the purposes of this appeal the relevant aspects of the background may be briefly summarized. The district court held that Amax and Roan had violated both Zambian law and section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 783'(b), and Rule 10b-5 promulgated thereunder, during the course of a 1970 reorganization of Roan. 322 F. Supp. 1331 (1970). The district court ordered, among other things, Amax to make a tender offer to the class members of shares in a new corporation holding certain of the former Roan assets. The class members, if they intended to take advantage of the tender offer, were to return the cash and other assets issued to them during the reorganization in exchange for the stock in the new • corporation. This Court, in part, affirmed that portion of the district court’s judgment granting the injunctive relief. 458 F.2d 255 (3d Cir.), cert denied, 409 U.S. 874, 93 S.Ct. 120, 34 L.Ed.2d 126 (1972).

Kohn subsequently entered into a stipulation of settlement with the other parties that substituted a $6,500,000 cash payment and the reduction of the warrant price of Amax stock, originally issued to class members during the reorganization, for the already-ordered in-junctive relief. After individually mailed and published notice to class members, and the submission of written objections by some of the appellants here, the district court conducted a hearing to determine whether the proposed settlement was fair, reasonable, and adequate. Some of the appellants took advantage of the opportunity offered them to present their objections orally at the hearing. After the hearing, the district court issued its order approving the settlement and adjusting the counsel fees. It is the order approving the settlement and counsel fees as adjusted that prompted this appeal.

The appellants challenge the district court’s order primarily on three grounds. First, they contend that the district court does not have power to approve a post-judgment settlement of a suit initiated as a class action. None of the parties to the appeal presented to this Court his views as to the effect of the post-judgment settlement on the rights of class members in future litigation. Indeed, the entire question of the effect of a post-judgment settlement on the rights of class members received little attention in the briefs or at argument. In addition, at the oral argument counsel for the appellants conceded that there might possibly be a basis for approving a settlement in a class action after a judgment, and that he had no case to offer suggesting to the contrary. We are not prepared, therefore, to hold, at this time, and in- the context of this case, that the procedure adopted by the district court was beyond its authority.

Second, the appellants contend that ‘ the procedural incidents of the hearing, especially those relating to discovery and cross-examination, were inadequate. Yet it is uncontradicted that appellants did not seek discovery prior to the hearing, or seasonably request additional time to prepare for examination of witnesses. Instead, appellants made a general request for discovery at the hearing, and declined to examine the parties that were present at the hearing. Moreover, the appellants did not utilize the opportunity prior to the hearing to marshal any evidence indicating that the settlement should not receive court approval or to analyze in any way the vast amount of evidence already in the record relating to the question of value. Thus, we reject this contention.

Third, the appellants contend that the settlement, including the award of counsel fees, was not fair and reasonable. Under the circumstances of this case, we cannot hold that the appellants have made “a clear showing that the trial court was guilty of an abuse of discretion” in this regard. West Virginia v. Chas. Pfizer Co., 440 F.2d 1079, 1085 (2d Cir.), cert. denied, 404 U.S. 871, 92 S.Ct. 81, 30 L.Ed.2d 115 (1971).

Accordingly, the judgment of the district court will be affirmed, and the mandate will issue forthwith.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. Ronald Lee ILLINGWORTH, Appellant.
    No. 73-1207.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Aug. 15, 1973.
    Decided Dec. 14, 1973.
    Philip M. Jones, Lewis, Jones & Ell-wood, Denver, Colo., for appellant.

      Stephen M. Duncan, Sp. Asst. U. S. Atty. (James L. Treeee, U. S. Atty., with him on the brief), for appellee.
    Before HILL, BARNES  and SETH, Circuit Judges.

       Senior Circuit Judge, of the Ninth Circuit, sitting by designation.

   PER CURIAM.

Ronald Lee Illingworth appeals from a jury verdict finding him guilty of having violated the provisions of 18 U.S.C. § 842(a)(3), by unlawfully transporting explosives across state lines without a permit required by law. Illingworth appears to have taken an airplane flight from Pocatello, Idaho, to Salt Lake City, Utah, and then taken another flight from Salt Lake City to Denver, Colorado, while carrying a handbag containing dynamite. His expressed reason for this enterprise was to help his father blow up some tree stumps at the latter’s farm in Iowa. He disclosed the contents of the bag to ticket agents at the Denver airport.

18 U.S.C. § 842 under which the prosecution was commenced is part of Chapter 40 of that title of the United States Code; so, too, is section 845 of Title 18, which provides that:

“(a) Except in the case of subsections ... of section 844 of this title, this chapter shall not apply to:
“(1) any aspect of the transportation of explosive materials via . air which are regulated by the United States Department of Transportation and agencies thereof; .. . .”

Thus the question arises whether appellant could be prosecuted under section 842 in the face of the above exception to its application. The exception refers to materials which are regulated by the Department, and not necessarily prohibited.

The Federal Aviation Administration is an agency of the Department of Transportation [49 U.S.C. §_ 1652(e) (1)], and under 49 Ú.S.C. § 1421(a)(6), the Administrator of the Federal Aviation Administration is empowered and required to prescribe “[s]uch reasonable rules and regulations governing other practices, methods and procedure, as [he] may find necessary to provide adequately for national security and safety in air commerce.” This he has done. These regulations pertain to the carrying or transporting of explosives by civil aircraft in the United States. See 14 C.F.R. § 103.7 (1973); Underwriters at Lloyd’s of London v. Cordova Airlines, Inc., 283 F. 2d 659 (9th Cir.). These regulations relate to persons carrying certain dangerous articles on board passenger-carrying aircraft; these dangerous articles, in turn, are defined to include explosives of the type carried by Illingworth. While the applicable regulations are “not a paragon of logical organization of graphic lucidity,” 283 F.2d at 661, it is clear that the dynamite which Illingworth carried with him on the planes was not only regulated, but also excluded from the range of “acceptable” explosives that, in certain circumstances, could be carried on board passenger-carrying aircraft, by 14 C.F.R. § 103.7 (1973). See 49 C.F.R. §§ 173.50, 173.51, 173.52, 173.53 (1973).

Additionally, Congress has specifically provided a penalty for violations of such regulations by enacting 49 U.S.C. § 1472, subsection (h)(1) of which, in relevant part, provides:

“Any person who knowingly . causes the transportation in air commerce of, any shipment, baggage, or property, the transportation of which would be prohibited by any rule, regulation, or requirement prescribed by the Administrator under subchapter VI of this chapter, relat- . ing to the transportation ... of explosives or other dangerous articles shall, upon conviction thereof for each such offense, be subject to a fine of not more than $1,000, or to imprisonment not exceeding one year, or to both such fine and imprisonment; if

Again the reference is to,, “explosives.” Thus, the appellant could not be prosecuted under 18 U.S.C. § 842(a)(3) by reason of the clearly provided exception to its application. Explosives are regulated by the Administrator of the Federal Aviation Administration, an agency of the Department of Transportation, in regard to their transportation by air. There is no ambiguity in the statutory exception; nor is there any question of the existence of alternative statutes open to the prosecution in this case by reason of the explicit exception in 18 U.S.C. § 845(a)(1) to section 842’s application. Congress has provided this exception to permit regulation by appropriate authorities and they have done so. Congress has also provided for penalties for violation of these regulations.

The judgment is vacated, and the case is remanded with directions to dismiss the indictment. This action constitutes no bar to a proper indictment.


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    UNITED STATES of America ex rel. Preston PEBWORTH, Petitioner-Appellant, v. William R. CONTE, Director of Department of Institutions; Washington State Board of Prison Terms and Paroles, Respondents-Appellees.
    No. 73-2207.
    United States Court of Appeals, Ninth Circuit.
    Jan. 2, 1974.
    Preston Pebworth, in pro. per.
    Slade Gorton, Atty. Gen., State of Washington, and Thomas A. Prediletto, Asst. Atty. Gen., Olympia, Wash., for respondents-appellees.
    Before KOELSCH, WRIGHT and GOODWIN, Circuit Judges.
   OPINION

EUGENE A. WRIGHT, Circuit Judge:

This is an appeal from a denial without hearing of a petition for habeas corpus. The Petitioner, an inmate of Louisiana State Penitentiary, has attacked the validity of an earlier conviction in 1960 in the Washington State Superior Court for Yakima County. He there pleaded guilty to the crime of forgery in the first degree, was sentenced to a prison term of not more than 20 years, served a portion of that sentence, and was released on parole in 1962. For some failure to comply with parole conditions, his parole was revoked in January 1966 but, because he was not within the State of Washington at the time or since, the Washington authorities have not apprehended him.

In January 1967 he was charged, tried, and convicted in Louisiana of the crime of armed robbery and sentenced to a maximum term of not more than 30 years in the Louisiana institution. Washington has filed a detainer there because of the earlier parole violation.

Because of the prior Washington State conviction, Pebworth has two felony convictions and alleges that this status causes him to be denied vocational training, certain rehabilitation programs, and the status of trusty.

In question here is the sufficiency of the inquiry made in Yakima County Superior Court in 1960 at the time of Peb-worth’s plea of guilty. Specifically, we are concerned with whether Pebworth was adequately advised of his constitutional rights, knowingly waived his right to counsel, and was advised of the consequences of his plea before entering it.

The state attorney general, counsel for the appellees, has helpfully supplied us with transcripts of proceedings in two departments of the Superior Court for Yakima County in June and July 1960. Before one judge, Pebworth was arraigned, interrogated thoroughly about representation by counsel, was informed that the court would appoint counsel at public expense, and then knowingly and intelligently waived his right to an attorney. Having stated that he understood the charge made against him, he elected to enter a plea of guilty. He was not told, however, that the punishment for first degree forgery might be confinement for the maximum term of 20 years. The crime charged involved the forgery of a check for $14.66.

A presentence investigation was requested, but Pebworth was brought on

for sentence before another judge prior to the completion of the investigation. On this latter occasion, no further admonitions were given to Pebworth, and he was not told the consequence of his plea of guilty. He was then sentenced to the maximum term.

In its first disposition of the petition for habeas corpus, the district court took notice of the Yakima County Superior Court proceedings and concluded that the petitioner had knowingly waived the right to counsel and that his plea was properly entered. Upon appeal, we remanded for reconsideration in light of Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973). The district court reaffirmed its previous ruling but did not consider whether Pebworth was aware of the consequences of his plea.

The state concedes that the state judges did not advise Pebworth of the consequences of his plea but argues that the subsequent events in Louisiana were unforeseeable in 1960 and that there are many consequences of a felony conviction that need not be enumerated upon taking a guilty plea. While there is merit in that argument, since there are indeed numerous collateral consequences of a felony conviction, it does not deal with the responsibility of the state court judge to advise a defendant of the direct consequence of his guilty plea, that is, the punishment that may be imposed. Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364 (4th Cir. 1973) ; Pedicord v. Swenson, 431 F.2d 92, 93-94 (8th Cir. 1970).

The petitioner is entitled to an eviden-tiary hearing to determine whether he knew the direct consequences of his plea; that is, the range of allowable punishment thereunder. We remand for a hearing on that question. If the district court finds the answer to be in the negative, the state should have 60 days thereafter within which to re-try the appellant. or to dismiss the information.

      . We held in Johnson v. United States, 460 F.2d 1203 (9th Cir. 1972), that a sentencing judge is not required to advise a defendant that prison terms could be made to run consecutively. The opinion noted that:
      “The consequences of a plea are so numerous that a trial judge would have difficulty in enumerating all of them.” 460 F.2d at 1204.

      . The court, in Cuthrell, had this to say of the distinction between direct and collateral consequences of a plea :
      “The law is clear that a valid plea of guilty requires that the defendant be made aware of all ‘the direct consequences of his plea.’ Wade v. Coiner (4th Cir. 1972) 468 F.2d 1059, 1060. By the same token, it is equally well settled that, before pleading, the defendant need not be advised of all collateral consequences of his plea, or, as one Court has phrased it, of all ‘possible ancillary or consequential results which are peculiar to the individual and which may flow from a conviction of a plea of guilty, . . . .’
      “The distinction between ‘direct’ and ‘collateral’ consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.”


text:
    Gerald Edwin HEFT, Petitioner-Appellant, v. Norman CARLSON, Director, etc., et al., Respondents-Appellees.
    No. 73-2498
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 19, 1973.
    Gerald Edwin Heft, pro se.
    Anthony M. Arnold, Asst. U. S. Atty., John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., for respondents-appellees.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

       Rule 18, 5 Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, 5 Cir., 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Heft, an inmate of the federal penitentiary of Leavenworth, Kansas, appeals an order of the district court denying a mandamus petition against prison authorities for alleged illegal interference with his mail. We affirm.

Appellant claimed that prison authorities at the federal penitentiary in Atlanta, Georgia, had (1) interfered with his letters to inmates of the Atlanta penitentiary, (2) prevented him from determining whether members of his Church of the New Song were given the right to assemble for worship in the Atlanta penitentiary, and (3) denied him the opportunity to communicate and share religious news, experiences, and ideas.

The district court held that there had been no violation of appellant’s constitutional rights, since prison mail was a matter of internal prison administration and that the guidelines adopted by the Atlanta prison authorities were clearly authorized by Policy Statement No. 7300.1A of the Federal Bureau of Prisons. Policy Statement No. 7300.1A authorized the privilege of open correspondence for prisoners and recommended that the various prison authorities set guidelines in connection with inter-institutional correspondence. The Atlanta prison authorities had adopted guidelines under the authority of No. 7300.-1A, permitting such correspondence in certain limited circumstances.

The District Court impliedly found that appellant’s attempted correspondence did not fall within the limited circumstances contemplated by the Atlanta guidelines. Appellant’s letters, rather than dealing with religious ideology, can be characterized as hostile in nature and largely concerned with seeking legal advice as to how to sue prison officials. Thus one letter included the remark “I’m trying my best to make them sorry they ever transferred me.”

It is firmly established that prison authorities have the right and responsibility to regulate correspondence of inmates. O’Brien v. Blackwell, 5 Cir., 1970, 421 F.2d 844; Brown v. Wainwright, 5 Cir., 1969, 419 F.2d 1308; Schaek v. Wainwright, 5 Cir., 1968, 391 F.2d 608. We are not, of course, dealing with communications with courts and attorneys as to which much greater freedom must be assured. Barlow v. Amiss, 5 Cir., 1973, 477 F.2d 896; Frye v. Henderson, 5 Cir., 1973, 474 F.2d 1263. The actions of the Atlanta authorities in restricting appellant’s correspondence from outside the Atlanta penitentiary with inmates in the Atlanta penitentiary have not in any way resulted in a denial of access to the courts or assistance of counsel. We conclude that there is no indication of abuse of discretion in the control exercised over Heft’s mail as a function of prison administration.

Affirmed.

      . Policy Statement A-7300.53 CH 1 issued by the Atlanta Penitentiary included the following stipulation regarding inmate correspondence :
      4. LIMITATIONS : An inmate is not permitted to correspond with or send greeting cards to prisoners in another institution. Exceptions to this general rule is members of the immediate family. Other special exceptions may be made by the Caseworker, but the justifaction [sic] should be well documented in the Central File.


author: JOHN R. BROWN, Chief Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Horace Sheppard ZANE, a/k/a John Logan and Francis Rossetti, Defendant-Appellant.
    No. 73-2895
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 19, 1973.
    Certiorari Denied April 22, 1974.
    See 94 S.Ct. 1975.

      Percy J. Blount, Augusta, Ga., for defendant-appellant.
    R. Jackson B. Smith, Jr., U. S. Atty., Edmund A. Booth, Jr., Asst. U. S. Atty., Augusta, Ga., for plaintiff-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   JOHN R. BROWN, Chief Judge:

In this appeal from a conviction on a two count indictment for selling and disposing of a stolen motor vehicle in interstate commerce, 18 U.S.C.A. § 2313, the Sixth Amendment’s speedy trial imperative is the sole issue. We affirm. In December 1971, the FBI commenced an investigation of appellant concerning the sale of stolen automobiles. In March 1972, appellant was arrested on a warrant pertaining to the sale of the two stolen vehicles. Following the arrest, the investigation continued and appellant was not indicted until March 19, 1973. He was arraigned on April 2, 1973, went to trial on May 7, 1973 and was convicted the following day. Appellant asserts that the one year post-arrest pre-indictment delay constituted a denial of the right to a speedy trial.

While post-arrest pre-indictment delay is within the scope of the speedy trial guarantee, a substantial showing of actual prejudice is required to establish a Sixth Amendment violation in this situation. United States v. Marion, 1971, 404 U.S. 307, 320-325, 92 S.Ct. 455, 463-466, 30 L.Ed.2d 468, 478-481; United States v. Smith, 5 Cir., 1973, 487 F.2d 175; United States v. Broadway, 5 Cir., 1973, 477 F.2d 991; United States v. Schools, 5 Cir., 1973, 486 F.2d 557. Appellant has not made such a showing of actual prejudice.

Although appellant asserts that a Georgia state district attorney with whom he had previously discussed his case died prior to the trial, he has made no indication on the record of how the testimony of the deceased former prosecutor might have aided his defense. A general allegation of loss of witnesses and failure of memories is insufficient to establish prejudice. United States v. Smith, 5 Cir., 1973, 487 F.2d 175; United States v. Broadway, 5 Cir., 1973, 477 F.2d 991.

In Marion, it was recognized that prosecutorial delay intentionally employed as a device for disadvantaging the defense would constitute a denial of due process. 404 U.S. at 324, 92 S.Ct. at 465, 30 L.Ed.2d at 481. Such was not the case here.

After the initial arrest of appellant, the FBI continued to pursue its multi-state investigation with some reason to believe that appellant was involved in other illegal sales of automobiles as well. In fact, the continued investigation was partially prompted by evidence discovered when appellant was arrested in March 1972. Difficulty in tracing stolen vehicles and locating witnesses extended the length of the investigation. The failure to augment the charges in the arrest warrant with further charges in the subsequent indictment does not negative the FBI’s good faith in continuing to pursue the investigation before seeking an indictment. On the record before us, the District Court was entitled to conclude that the delay arising out of the pre-indictment investigatory stage of this prosecution did not deprive appellant of his rights to a speedy trial or due process of law.

Affirmed.

      . The statute of limitations is the primary form of protection against pre-indictment delay. See Marion, supra, 1971, 404 U.S. at 322, 92 S.Ct. at 464, 30 L.Ed.2d at 479.

      . Since appellant made bond immediately, he did not suffer oppressive pre-trial incarceration.
      Since there is, and could be, no arguable claim of excessive delay between indictment, arraignment and trial, appellant’s failure to request a speedy trial until the trial was scheduled to commence is not of any relevance, whatever the case might be as to post-indictment pre-trial delay. See Barker v. Wingo, 1972, 407 U.S. 514, 527-529, 92 S.Ct. 2182, 33 L.Ed.2d 101, 117-118; United States v. Dyson, 5 Cir., 1972, 469 F.2d 735, 740-741.


text:
    Joanne CHESIMARD and Freddie Hilton, Petitioners, v. Hon. Lee P. GAGLIARDI, United States District Judge, and the United States of America, Respondents. UNITED STATES of America, Plaintiff, v. Joanne CHESIMARD et al., Defendants.
    No. 660, Docket 73-2744.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 3, 1973.
    Decided Dec. 3, 1973.
    Evelyn A. Williams, New York City, for petitioner Chesimard.
    Robert Bloom, New York City, for petitioner Hilton.
    Peter L. Truebner, Asst. U. S. Atty., for the United States.
    Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge.

       Of the United States District Court for the Southern District of New York, sitting by designation.

   PER CURIAM:

By petition filed on November 30, 1973, Joanne Chesimard sought a writ of mandamus directing a stay of her trial on charges of armed bank robbery and conspiracy to rob, scheduled to begin on December 3, 1973 in the United States District Court for the Southern District of New York before Lee P. Gagliardi, J. The petition was argued before us on the next court day, the morning of December 3, 1973. At that time, counsel for Freddie Hilton orally-moved to join in the petition for a writ. Petitioners argued that they were being deprived of their constitutional rights by being forced to trial on short notice. Because the trial was about to start and because on the record before us we believed that the holding of Stans v. Gagli-ardi, 485 F.2d 290 (2d Cir. 1973), forbade the use of mandamus, we denied the petition by simple order, deferring to a later date issuance of this opinion.

Although we denied the requested relief in Stans, two members of that panel stated their views as to the wisdom of a short postponement so that the trial judge could “again consider the matter.” Id. at 1292. In this case, however, we did not make any suggestion as to how the district court should exercise its discretion. A comparison of the two cases is instructive. The indictment in Stans was 46 pages, containing 16 counts, and was supplemented by a 60-page bill of particulars. Id. at 1291. The indictment in this case is three pages, containing three counts. Our dissenting colleague in Stans properly described that case as “without precedent in the history of the country,” and the charges as “somewhat novel.” Id. at 1293. The charges here, while serious, are not unusual.

Moreover, in Stans, defense counsel had obviously been doing their best to prepare for the trial in the Southern District of New York. In this case, counsel for Chesimard in late September requested a postponement of proceedings in the Southern District to allow for preparation of a defense to state murder charges brought against her client in New Jersey and then scheduled to come to trial on October 9. At the same time, counsel for Hilton renewed a prior motion for a severance and an immediate trial. The Government, fearing unnecessary duplication of effort, opposed severance, and the court denied it. Late in October, a mistrial was declared in the New Jersey murder trial and the retrial was postponed until January 2, 1974. However, Judge Gagliardi was not advised of that fact and he apparently did not find out about it until on or about November 27, 1973, just prior to a conference, which Chesimard’s attorney did not attend although she had been directed to do so. Furthermore, Chesimard’s attorney at oral argument took the position that she cannot be expected to try any case involving her client while the murder charges are pending in New Jersey, and that she needs six months to prepare for the instant case. We found this stance unreasonable. Counsel for Hilton, moreover, offered no substantial justification for delaying the trial. Presumably, he was prepared to proceed with the case at the time he moved for an immediate trial, more than two months ago; he cannot be any less ready now. In addition, Hilton’s counsel made no written motion to us for a stay, and joined in Chesimard’s motion only orally and at the last minute.

Under these circumstances, we have seen no reason to offer any suggestions to the district court, certainly an unusual practice, as to the exercise of its discretion in ruling on petitioners’ requests for postponement of trial.

Petitions denied.

      . There had already been a trial in June 1973 before Judge Gagliardi in which Louis Chesimard, Joanne Chesimard’s former husband, and Paul Stewart were acquitted of participating in the same bank robbery charged in the instant indictment. The transcript of that trial was apparently furnished some time ago to counsel for Hilton at his request.

      . The Southern District’s “Plan for Achieving Prompt Disposition of Criminal Cases” imposes on counsel the duty of promptly informing the court of matters bearing on the scheduling of cases for trial. United States v. Cacciatore, 487 F.2d 240, 244 (2d Cir. 1973).


text:
    Charles CHERRY and Chester Reddrick, Appellants, v. COUNTY OF NEW HANOVER et al., Appellees.
    No. 73-1633.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 8, 1973.
    Decided Dec. 19, 1973.
    Frank Cherry, Greensboro, N. C., for appellants.
    David A. Nash, Charlotte, N. C. (William L. Hill, II, and Hogue, Hill & Jones, Wilmington, N. C., on Brief) for appellee New Hanover County Bd. of Ed.
    Lionel L. Yow, Wilmington, N. C. (Cicero P. Yow and Yow & Yow, Wilmington, N. C., on Brief) for appellee City of Wilmington.
    James C. Fox, Wilmington, N. C. (Murchison, Fox & Newton, Wilmington, N. C., on Brief) for appellee New Hanover County.
    Before CLARK, Associate Justice, Supreme Court, Retired, and CRAVEN and WIDENER, Circuit Judges.

       Sitting by Designation.

   PER CURIAM.

Plaintiffs brought this action in district court challenging the staggered-term voting system used to elect members of the City Council, County Board of Commissioners, and the Board of Education. In their complaint below appellants urged that such a system violated their “constitutional right to elect members of their race to public office” under the fourteenth and fifteenth amendments because it was one method by which appellees “dilute the voting power of the plaintiffs and other Negro citizens . . . . ” To support this allegation plaintiffs stated that 25 percent of the population of the city of Wilmington and 20 percent of the population of New Hanover County is black yet no black has ever been elected to office. The district judge found (1) that the staggered voting system does not violate the Constitution of the United States or the civil rights of plaintiffs and (2) that the complaint failed to state a claim upon which -relief could be granted. We affirm.

Construing the allegations, of the pleadings in their most favorable ■light, no valid claim for relief is stated under the fourteenth or fifteenth amendments. Appellants do not have a constitutional right to elect members of their race to public office, see Whitcomb v. Chavis, 403 U.S. 124, 156-160, 91 S. Ct. 1858, 29 L.Ed.2d 363 (1971), and, absent other allegations infringing their right to vote, they have presented no cognizable claim. We find nothing in the complaint indicating interference with Negroes’ rights to register to vote, to choose a political party, or otherwise to participate in local elections. Nor do plaintiffs challenge the system of at-large voting within the single multimember district as designed “to minimize or cancel out the voting strength of racial or political elements of the voting population.” Fortson v. Dorsey, 379 U. S. 433, 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 (1965); Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966). See Zimmer v. McKeithan, 485 F.2d 1297 (5th Cir., 1973) (en bane), rev’g 467' F.2d 1381. Rather their complaint is aimed solely at the staggered-term voting system. There is no allegation that this system was adopted purposefully as a device to further historically engrained racial discrimination. See White v. Register, 412 U.S. 755, 766-770, 93 S.Ct. 2332, 37 L. Ed.2d 314 (1973). With the district judge, we are unable to perceive invidious discrimination in a staggered-term voting system.

Affirmed.

      . Tlie staggered-term voting system adopted by New Hanover County with respect to the election of the Board of County Commissioners and by the city of Wilmington in the election of its City Council is one of several options made available to local governmental units under the terms of N.C.G.S. § 153-16 and N.C.G.S. § 160A-101, respectively. The staggered system for election of County Boards of Education is obligatory under N. C.G.S. § 115-19.
      The system works as follows: the Board of Commissioners and City Council each have five seats; the Board of Education, six. All offices are for a term of four years. At one election three seats on each body are filled; at the next election two years later two seáts on the City Council and Board of Commissioners and three seats on the Board of Education are filled. The voting is at-large rather than according to districts, i. ■ e. there is a single multi-member district composed of either the county (Board of Commissioners and Board of Education) or the city (City Council).


text:
    UNITED STATES of America, Appellee, v. Louis Salvatore BACCARI and Ralph Clifford Zanfagna, Appellants.
    Nos. 73-1457, 73-1458.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Nov. 12, 1973.
    Decided Dec. 26, 1973.
    Rehearing Denied Jan. 18, 1974.

      Carroll Samara, Oklahoma City, Okl. (Raymond J. Daniels, Providence, R. I., with him on the brief), for appellants.
    Jeff R. Laird, First Asst. U. S. Atty. (William R. Burkett, U. S. Atty., with him on the brief), for appellee.
    Before SETH, ALDISERT and McWILLIAMS, Circuit Judges.

       Of the Third Circuit, sitting by designation.

   PER CURIAM.

Appellants challenge their convictions for perjury in violation of 18 U.S.C. § 1623. Three issues were initially raised on this appeal. The first questions the propriety of permitting a previously discharged alternate juror to replace a regular juror who became incapacitated during deliberations, when all parties agreed to the substitution. The second is whether the trial court should have imposed a “gag” order on the press with respect to mention of the results of a prior related trial. The final issue relates to the second, and questions whether a new trial should have been granted if the jury in the jury room read newspaper accounts of a prior related trial.

During the course of the oral argument herein, we were advised that the second and third issues are no longer in contention.

The facts material to the first issue can be briefly summarized: At the close of argument and before the jury retired to begin its deliberations, the alternate juror was discharged as required by Fed.R.Crim.Proc. 24(c). During and near the outset of the deliberations one of the regular jurors became incapacitated and had to be hospitalized. At the request of the trial judge a conference was held which included both defendants, their counsel, and the prosecutor. After discussing various alternatives, it was agreed by all parties that the alternate juror should be recalled and the deliberations continued. Although this conference was not included in the record, the trial judge has submitted an affidavit recounting its substance. Furthermore, following the conference the reporter was summoned, and each defendant as well as counsel stated his approval of the agreed upon plan for the record. Thereafter the juror was recalled, and deliberations continued until the guilty verdicts were reached.

Defendants do not disavow their previous knowledgeable assent to the above procedure. Their contention is simply that the procedure was improper and unauthorized, and that their assent to it could not cure the defect. Their authority for this position is the case of United States v. Virginia Erection Corp., 335 F.2d 868 (4th Cir.). In that case a new trial was ordered because the district court had allowed the alternate juror to be present during deliberations when it appeared that one of the regular jurors was becoming ill. That case is distinguishable for two reasons: First, the decision turned on the fact that there were thirteen jurors present during deliberations even though the alternate may not have participated, and the court was concerned that the presence of the extra juror violated the privacy and secrecy of the deliberations. Second, although the record indicated that counsel had consented to the added juror, there was no showing that the defendants had personally been consulted or their consent obtained. See also United States v. Beasley, 464 F.2d 468 (10th Cir.), where a thirteenth juror participated without the knowledge of the judge or parties.

Recall of the alternate ' juror without the defendants’ consent would have been improper and grounds for a new trial. Nevertheless, we conclude that in consenting to the substitution, the defendants knowingly waived any objections that could have been interposed. The criteria for effective waiver of constitutional jury rights set forth in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930), are well satisfied under the circumstances.

The convictions are affirmed.


text:
    James Douglas McArthur YEAGER, #226841, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-2656
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 21, 1973.
    Certiorari Denied April 1, 1974.
    See 94 S.Ct. 1616.
    James Douglas McArthur Yeager, pro se.
    Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.'

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

   PER CURIAM:

This is an appeal from the denial of a habeas corpus petition, raising the sole question of whether the district court erred in concluding that a 500 year sentence assessed by a jury finding him guilty of murder with malice constituted cruel and unusual punishment in violation of the eighth amendment. We affirm.

In reviewing appellant’s claim we are governed by the principle that a sentence within the statutory limits will not be upset unless it is so disproportionate to the crime committed that it shocks human sensibilities. Hart v. Coiner, 483 F.2d 136, 139-140 (4th Cir. 1973); United States v. Drotar, 416 F.2d 914, 916 (5th Cir. 1969). Article 1257, Vernon’s Annotated Penal Code (1961) prescribes as a penalty for murder with malice “ . . . confinement in the penitentiary for life or for any term of years not less than two.” The Texas Court of Criminal Appeals has determined that a 500 year sentence is within the statutory prescription. See Yeager v. State, 482 S.W.2d 637 (Tex.Cr.App.1972); see also Sills v. State, 472 S.W.2d 119, 120 (Tex.Cr.App.1971) (1,000 year sentence is within statute).

While we concede, as did the Texas Court of Criminal Appeals, see Yeager v.- State, supra, that a 500 year sentence is patently absurd, we subscribe to its view and that of the district court, that the imposition of this sentence does not rise to a constitutional violation in the circumstances of this case. Under Article 42.12, § 15, Vernon’s Annotated Code of Criminal Procedure (Supp.1972), appellant will be eligible for parole upon receiving credit for service of twenty years of his sentence or after serving one-third of the sentence, whichever is less. Thus, the practical effect of his sentence is no more onerous than that where a life term is assessed. Unwilling to exalt form over substance, we conclude that appellant’s sentence is not so disproportionate to the crime committed that it shocks human sensibilities.

Affirmed.

      . There was no evidentiary hearing in this case and it appears that none was necessary in view of appellant’s contention. The United States Magistrate reviewed the case and made recommendations to the district court. According to the district court’s order the court not only reviewed the findings of the Magistrate but it also reviewed the “pleadings, files and records in this case.”


author: STALEY, Circuit Judge.

text:
    Robert SOFFES, for himself and as Attorney for Julian Soffes, et al. v. MAIDMORE REALTY CORPORATION, Appellant.
    No. 72-2038.
    United States Court of Appeals, Third Circuit.
    Argued Oct. 10,1973.
    Decided Nov. 30, 1973.
    John P. Burke, Jr., Bryant, Costello & Burke, Christiansted, St. Croix, V. I., for appellant.
    J. Michael Spencer, Frederiksted, St. Croix, V. I., for appellees.
    Before STALEY, VAN DUSEN and ADAMS, Circuit Judges.
   OPINION OF THE COURT

STALEY, Circuit Judge.

This is an appeal from a judgment of the district court which granted the ap-pellee a decree of specific performance and damages. The facts of this case are as follows. On January 2, 1971, the appellant, Maidmore Realty Co. and-Robert Soffes signed a purchase agreement for the sale of two plots of land on the Island of St. Croix, United States Virgin Islands. One plot, the smaller of the two non-contiguous parcels, fronted on a beach. An alleged government interest in acquiring the smaller parcel gave rise to this controversy. The vendee, Maid-more Realty Co., after paying a $10,000 deposit, refused to perform on the ground that the vendor had failed to disclose his knowledge of a strong interest on the part of the Virgin Islands government in acquiring the beach front lot.

The court found that the appellee, Robert Soffes, who represented the vendors, “did not know of any government plans or intentions to acquire the land in question at the time the contract of sale was executed.” There were, however, some plans in existence that were prepared for the Virgin Islands government regarding the acquisition of the beach front lot before the agreement of sale was executed. In fact, the Virgin Islands Planning Board had approved a development plan for the area including this parcel. We have examined the .record and conclude that the findings are not clearly erroneous as appellant maintains. Rule 52(a), F.R.Civ.P.; see Bloch v. Bloch, 473 F.2d 1067 (C.A.3, 1973).

On appeal the appellant argues that the existence of the plans disentitles the appellee to the equitable relief of specific performance. Its argument is based principally on two cases. In one, a New York court refused to enforce specifically a contract for the sale of land where, unknown to the parties, the municipal authority had authorized, the taking of portions of the land in question in order to widen the streets. Golden v. Aldell Realty Corp., Sup., 70 N.Y.S.2d 341 (1947). In the other, the laying out of streets by a municipal authority constituted a cloud on the title such as to preclude the granting of specific performance. Ritter v. Hill, 282 Pa. 115, 127 A. 455 (1924). We believe that these decisions are distinguishable from the instant ease. Both in Ritter and Golden the appropriate legislative authority had adopted ordinances permanently laying out and adopting as a part of the city plan the street which cut across the property. Here, there was no legislative action. The function of the Planning Board of the Virgin Islands is purely advisory. See 29 V.I.C. § 237 (1973). We do not believe that the existence of the Planning Board advisory opinion should preclude the equitable relief sought by the appellant.

Lastly, we note that the court’s inclusion of monetary damages was proper.

The judgment of the district court will be affirmed.


text:
    Kermit SNOW, Petitioner-Appellant, v. STATE OF OKLAHOMA, and/or Park J. Anderson, Warden, Oklahoma State Penitentiary, Defendants-Appellees.
    No. 73-1365.
    United States Court of Appeals, Tenth Circuit.
    Submitted Dec. 5, 1973.
    Decided Dec. 28, 1973.

      Appellant filed a memorandum in opposition to summary affirmance pro se.
    Before LEWIS, Chief Judge, and SETH and McWILLIAMS, Circuit Judges.
   PER CURIAM.

Appellant was convicted in the District Court of Lincoln County, Oklahoma of shooting with intent to kill after former conviction of a felony. His conviction was affirmed on appeal to the Oklahoma Court of Criminal Appeals, Snow v. Oklahoma, 453 P.2d 274 (Cr. App.1969), and having exhausted his state remedies, appellant sought and was denied habeas corpus relief in the United States District Court for the District of Oklahoma. We affirm.

As grounds for relief, appellant alleges that: 1) he was denied compulsory process at the preliminary hearing; 2) he was not afforded a preliminary hearing on the amended charge of after former conviction of a felony; 3) the state took his fingerprints in violation of his fifth amendment privilege against self-incrimination; 4) the former conviction upon which the after former conviction of a felony charge was based was obtained in violation of his constitutional rights; and 5) he was denied a fair trial because a deputy sheriff with his badge displayed was present in the courtroom during trial.

It is well settled that habeas corpus relief is available only to one whose conviction was obtained in violation of his constitutional rights. Mathis v. Colorado, 425 F.2d 1165 (10th Cir. 1970); Hickock v. Crouse, 334 F.2d 95 (10th Cir. 1964). It is against this fundamental rule that we must review appellant’s alleged grounds for relief.

There is no federal constitutional right to a preliminary hearing. Ramirez v. Arizona, 437 F.2d 119 (9th Cir. 1971); Collins v. Swenson, 443 F.2d 329 (8th Cir. 1971); Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965), cert. denied 384 U.S. 976, 86 S.Ct. 1869, 16 L.Ed.2d 685 (1966). Appellant was afforded a preliminary hearing as required by Article II, § 17 of the Oklahoma Constitution, and there is nothing in the record to indicate that anything transpired at the preliminary hearing which denied appellant a fair and impartial trial, and further, as admitted by appellant in his petition for habeas corpus relief, the amended charge of shooting with intent to kill after former conviction of a felony was filed prior to the preliminary hearing. Appellant is not entitled to relief on the first two grounds.

Similarly, appellant’s third ground for relief is without merit since there is no constitutional right not to be fingerprinted. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Hackworth v. Beto, 434 F.2d 852 (5th Cir. 1970).

Appellant’s fourth claim is based upon a plea of guilty entered in 1932 in the District Court of Okfuskee County, Oklahoma to a charge of robbery with firearms. He was not represented by counsel at such proceedings. While we question whether a notation in the court record that appellant waived counsel is sufficient to establish that he intelligently and voluntarily relinquished a known right, Tucker v. Anderson, 483 F.2d 423 (10th Cir. 1973), nevertheless, appellant is not entitled to relief on this ground: The record clearly shows that, in addition to the 1932 robbery conviction, appellant was also convicted in 1945 of second degree manslaughter, and that such conviction formed a part of the after former conviction of a felony charge. He was represented by counsel during such proceedings and there is nothing to indicate that the 1945 conviction was obtained in violation of his constitutional rights.

Finally, it was incumbent upon appellant to show prejudice by the mere presence in the courtroom of a deputy sheriff. In denying appellant’s motion for a mistrial, the state court held a hearing on this issue. It found that there was no indication during the trial that appellant was in custody of the deputy sheriff, who sat behind the rail some twelve to fifteen feet back of appellant, or that he had been in shackles or that anything had transpired which would have indicated to the jury that appellant was in custody. The type and necessity of precautionary measures taken during the course of trial is within the sound discretion of the trial court. United States v. Smith, 436 F.2d 787 (5th Cir. 1971); Woodards v. Cardwell, 430 F.2d 978 (6th Cir. 1970), cert. denied 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971); Guffey v. United States, 310 F.2d 753 (10th Cir. 1962); DeWolf v. Waters, 205 F.2d 234 (10th Cir. 1953), cert. denied 346 U.S. 837, 74 S.Ct. 56, 98 L.Ed. 358 (1953). This issue was fully litigated in the state proceedings, and our review of the record leads us to the conclusion that there was no abuse of discretion here.

Upon docketing appellant was notified that we were considering summary af-firmance and of his right to file a memorandum in opposition to such action. We now have appellant’s response before us. Nevertheless, after a careful and thorough review of the records and files in this case, we are convinced that the judgment of the district court was correct.

Affirmed.


author: PER CURIAM. ADAMS, Circuit Judge

text:
    Herman RUSSELL, Appellant, v. Joseph BODNER, Security Officer of the State Correctional Facility at Pittsburgh, Pennsylvania et al., Appellees.
    No. 72-1788.
    United States Court of Appeals, Third Circuit.
    Submitted April 9, 1973.
    Decided May 29, 1973.

      Adams, Circuit Judge, concurred in result and filed opinion.
    Herman Russell, pro se.
    J. Shane Creamer, Atty. Gen., Donetta W. Ambrose, Asst. Atty. Gen., Frederick N. Frank, Dept, of Justice, Harrisburg, Pa., for appellees.
    Before ADAMS and GIBBONS, Circuit Judges, and LORD, District Judge.
   PER CURIAM.

This is an appeal from an order dismissing as frivolous a pro se in forma pauperis prisoner Civil Rights Act complaint, after filing, but before the service of process or of any responsive pleading or motion. The complaint alleges that the defendant, a guard at the State Correctional Institution at Pittsburgh, Pennsylvania, entered the plaintiff’s cell and took some food. When plaintiff questioned the defendant’s authority to do so defendant responded that plaintiff “. . . was an inmate and himself an officer of justice (sic) that his authority lay in the social positions.” Plaintiff informed the defendant that if he ever entered plaintiff’s cell for any other purpose than a general shakedown, or by permission and authority of his superiors, administrative action would be initiated. Defendant responded that an inmate had no remedy available to prevent a security officer from taking whatever he wanted out of inmates’ cells, and went on to say “I’ll prove it to you.” Thereafter defendant entered plaintiff’s cell and took seven packages of plaintiff’s cigarettes.' Plaintiff forwarded several requests to the warden for relief, but the warden refused to respond. The complaint seeks injunctive relief and damages.

Judged according to the standard of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per cur-iam), and of Gittlemacker v. Prasse, 428 F.2d 1, 6 (3d Cir. 1970), the complaint sufficiently alleges that the guard, relying on his position and authority as such, entered the plaintiff’s cell and confiscated his cigarettes without justification. Accepting these allegations as true, as in the present posture of the case we must, the guard’s action was under color of state law within the meaning of 42 U.S.C. § 1983.

“Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.” United States v. Classie, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941).

The value of the cigarettes is not determinative of the federal court’s jurisdiction in a Civil Rights Act case. Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972).

The order appealed from will be reversed and the case remanded for further proceedings in compliance with the Federal Rules of Civil Procedure.

ADAMS, Circuit Judge

(concurring):

I am constrained to concur in the result reached by the Court in this case, and do so solely on the ground that the complaint sufficiently states a section 1983 cause of action to survive a motion to dismiss. Having been reluctantly persuaded that the ancient maxim “de min-imis non curat lex” does not apply to civil rights actions such as the one presented here, it is my view that this Court has no choice but to conclude that the district court erred in dismissing the complaint as frivolous.

This result may well be expected to come as a surprise to the district judge who dismissed the complaint. It will also no doubt generate a certain amount of disbelief in those taxpayers and citizens generally, not to mention judges and lawyers, who will ask how federal courts have come to be concerned with a case in which a state prisoner alleges simply that his constitutional rights were violated when a prison guard took seven packages of cigarettes from him. I have yet to answer this question satisfactorily for myself.


text:
    MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Plaintiff-Appellant, v. AMBASSADOR CONCESSIONS, INC., Defendant-Appellee.
    No. 73-1821.
    United States Court of Appeals, Fifth Circuit.
    Dec. 27, 1973.
    Carl K. Hoffmann, J. Kirk Wood, Miami, Fla., for plaintiff-appellant.
    Starr W. Horton, Jordan Bittel, Miami, Fla., for defendant-appellee.
    Before WISDOM, AINSWORTH and GEE, Circuit Judges.
   PER CURIAM:

In this diversity suit growing out of a written lease to operate a parking business and an automobile rental business on plaintiff’s property in Miami, Florida, the defendant’s motion to dismiss on the ground that the complaint failed to state “a claim against the defendant upon which relief can be granted,” and that “the Court lacks jurisdiction because the amount actually in controversy is less than ten thousand dollars,” was sustained by the district court.

Plaintiff then moved to file an amended complaint under Rule 15, Federal Rules of Civil Procedure, and attached a proposed amended complaint thereto. The court summarily denied the motion sua sponte. The action of the trial court was erroneous, however, since plaintiff had a right to amend its complaint once, no responsive pleading having been filed. Case v. State Farm Mutual Automobile Ins. Co., 5 Cir., 1961, 294 F.2d 676, 678; Breier v. Northern California Bowling Proprietor’ Ass’n, 9 Cir., 1963, 316 F.2d 787, 789. Leave to amend should be freely given by the district court, and under the circumstances here, plaintiff should be afforded an opportunity to amend its complaint as requested, and test its claim on the merits. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).

Reversed and remanded.


text:
    Carl McFADDEN, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1656.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 14, 1973.
    Decided Dec. 18, 1973.
    Carl McFadden, No. 83551, filed typewritten brief pro se.
    Donald J. Stohr, U. S. Atty., and Richard E. Couglin, Asst. U. S. Atty., St. Louis, Mo., filed printed appellee’s brief.
    Before GIBSON and ROSS, Circuit Judges, and TALBOT SMITH , District Judge.

      Hon. Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

Petitioner appeals from a denial of his motion under 28 U.S.C. § 2255, praying that the court set aside and vacate his conviction and order a new trial.

The prior history of this case will be found in McFadden v. United States, 372 F.2d 598 (8th Cir. 1967), cert. denied 387 U.S. 931, 87 S.Ct. 2055, 18 L.Ed.2d 993 (1967); McFadden v. United States, 317 F.Supp. 926 (E.D.Mo.1970); McFadden v. United States, 436 F.2d 1384 (8th Cir. 1971); United States v. Stewart, 445 F.2d 897 (8th Cir. 1971); McFadden v. United States, 343 F.Supp. 402 (E.D.Mo.1972), and McFadden v. United States, 463 F.2d 730 (8th Cir. 1972), rehearing denied July 26, 1972.

We are now considering the fourth § 2255 motion. It asserts, in substance, that there was suppression by the government of evidence relating to the interest of a government witness in testifying for the government, asserting that the government had made a plea-bargaining “deal” with the witness. With a slight change in verbiage this is the same charge as made in the third § 2255 motion, which was denied after plenary-hearing with respect thereto, the denial thereof being affirmed by this court. The fourth, now before us, is likewise denied, and for the same reasons.

As we held in a somewhat similar situation in Patrick v. United States, 466 F.2d 502 (8th Cir. 1972), an appeal from a dismissal of a fourth § 2255 motion,

A review of the record convinces us that Patrick’s allegations have already been fully considered in the federal courts and that this case is appropriate for summary affirmance.

Accordingly, the order, D.C., 362 F.Supp. 1106, dismissing petitioner’s motion to vacate and set aside sentence is

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Oliver Kent TAYLOR, Defendant-Appellant.
    No. 73-2071
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 20, 1973.
    Firnist J. Alexander, Jr., Jackson, Miss., court appointed for defendant-appellant.
    Robert Hauberg, U. S. Atty., Daniel E. Lynn, Asst. U. S. Atty., Jackson, Miss., for plaintiff-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   PER CURIAM:

This is an appeal from a conviction on an indictment charging appellant with having given a false name and address in purchasing a firearm. 18 U.S. C.A. §§ 922(a)6 and 924(a). The evidence was sufficient to warrant the conviction. There was no variance between the indictment and the proof. There was no error in admitting the identification testimony of the seller of the firearm. There was no error in the charge to the jury as claimed nor in the procedure followed in reviewing the proposed charge.

Affirmed.


text:
    Joseph Henry MOORE and Mary Ophelia Dunn Moore, Petitioners-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
    No. 73-2121.
    United States Court of Appeals, Fifth Circuit.
    Dec. 19, 1973.
    Scott P. Crampton, Asst. Atty. Gen., Ernest J. Brown, Lawrence B. Gibbs, Acting Chief Counsel, David English Carmack, Atty., Tax Div., Dept, of Justice, Washington, D. C., John B. Harper, Nashville, Tenn., for respondent-appellant.
    Flavous L. Hutchinson, Tupelo, Miss., for petitioners-appellees.
    Before COLEMAN, AINSWORTH and GEE, Circuit Judges.
   PER CURIAM:

This appeal from the Tax Court pinpoint the single issue: Did the mobile homes owned by the taxpayers constitute “tangible personal property” within the meaning of 26 U.S.C., § 179? The Tax Court decided in the affirmative. We affirm. See Minot Federal Savings & Loan Association v. United States, 8 Cir., 1970, 435 F.2d 1368, and King Radio Corporation, Inc. v. United States, 10 Cir., 1973, 486 F.2d 1091.

Affirmed.


text:
    Hayward ALEXANDER, Plaintiff-Appellant, v. Cecil EMERSON, Supervisor, Federal Dale Officers, et al., Defendants-Appellees.
    No. 73-2924
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 18, 1973.

      Hayward Alexander, pro se.
    Frank D. McCown, U. S. Atty., Kenneth Mighell, Asst. U. S. Atty., Dallas, Tex., for defendants-appellees.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Hayward Alexander appeals the district court’s dismissal of his styled Civil Rights action entitled “Complaint for Damages for False Imprisonment.” We affirm the dismissal.

The appellant is a prisoner of the State of Texas by virtue of his conviction for the possession of narcotics, and subsequently imposed life sentence. In his pleadings filed below, he sought damages of $50,000.00 in connection with alleged constitutional infirmities of his arrest and the search of his apartment leading to the introduction at his trial of property seized therefrom. He also complained of being tried on the charges by the State of Texas rather than by the United States government since his arrest was effected by federal officials.

The district court correctly dismissed this § 1983 action in a summary manner. As the United States District Court for the Western District of Virginia held in Smith v. Logan, W.D.Va.1970, 311 F. Supp. 898, 899:

“* * * [I] t would be improvident for a federal court to entertain a suit for damages inquiring into possible constitutional violations committed during the trial, while the petitioner is imprisoned on that conviction. * * * State prisoners may have the constitutional violations of their trial remedied by habeas corpus proceedings. In those proceedings the courts can afford the best relief— namely release from custody. In order to adjudicate petitioner’s claim for damages this court would be required to hold the same hearings and make the same determinations as necessary on habeas corpus. To allow this suit is to say that every state prisoner may attack the alleged constitutional violations of his trial by two different methods — first, by habeas corpus for release from custody and secondly, by § 1983 for damages. I can find no justification for vastly expanding the burdens on the federal courts by permitting this duplicity of actions. The method for adjudicating these claims is habeas corpus and it is in those proceedings that prisoners may obtain the most adequate remedy.”

See Still v. Nichols (1 Cir. 1969), 412 F.2d 778; Smartt v. Avery (6 Cir. 1969), 411 F.2d 408.

We therefore affirm the judgment appealed from.

Affirmed.

      . We also deny the appellant’s motion seeking the production of certain documents pertaining to his arrest.


author: KILKENNY, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Milford E. COOK, Appellant.
    No. 73-2504.
    United States Court of Appeals, Ninth Circuit.
    Dec. 4, 1973.

      Thomas P. Keefe, of Walthew, Warner & Keefe and Emmet T. Walsh, Seattle, Wash., for appellant.
    Laurence B. Finegold, Asst. U. S. Atty., Seattle, Wash., for appellee.
   OPINION

Before ELY, WRIGHT and KILKEN-NY, Circuit Judges.

KILKENNY, Circuit Judge:

Appellant’s perjury conviction under 18 U.S.C. § 1621 was initially affirmed by a majority of the panel on August 23, 1972. Judge Ely, with his customary sagacity, dissented. Then along came Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), a decision which, in substantial part, considered the precise problems with which we are here concerned and, essentially, tracked the reasoning previously set forth by Judge Ely in this case. We recalled our judgment and remanded to the district judge for reconsideration in the light of the Supreme Court’s opinion in Bronston. After due consideration, the district judge denied appellant’s motion for a judgment of acquittal and for dismissal of the indictment. Hence, this second appeal.

After a careful analysis, we are unable to draw a meaningful distinction between the response to the ill phrased question before us, and the unresponsive answer to the question in Bronston. Fairly interpreted, Bronston stands for the precept that a perjury conviction cannot be based on answers which are literally true, even though false information is conveyed by implication. A precise grammatical reading of the challenged question and answer demonstrates that Cook’s answer was literally true. Consequently, Bronston controls on this issue.

Giving a reasonable interpretation to the entire record, we find no evidence to support a conviction under the second question and answer set forth in the indictment.

The judgment of the lower court must be reversed and the indictment dismissed.

It is so ordered.

      . “Q. Do you have any knowledge of law enforcement officers being paid by operators of gambling establishments?
      A. No. I do not.”

      . “Q. You don’t have any knowledge of anybody currently on the force who participated in shakedowns?
      A. I do not.”


author: WINTER, Circuit Judge:

text:
    L. E. THOMPSON, and Ruby Thompson, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 72-2498.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 3, 1973.
    Decided Jan. 9, 1974.
    Robert A. Cox, Jr., Richmond, Va. (Hirschler & Fleischer and John W. Lee, III, Richmond, Va., on brief), for appellants.
    William M. Brown, Jr., Atty., Tax Div., U. S. Dept, of Justice (Scott P. Crampton, Asst. Atty. Gen., Meyer Roth-wacks and Jonathan S. Cohen, Attys., Tax Div., U. S. Dept, of Justice, on brief), for appellee.
    Before WINTER, BUTZNER and FIELD, Circuit Judges.
   WINTER, Circuit Judge:

The Tax Court decided that the amounts of $67,774.13 and $181,735.63, paid to L. E. Thompson in 1956 in settlement of his claims under his subcontract with Curtis Builders, Inc. (Curtis), which in turn had contracted to build two rocket launchers for the Department of the Navy, accrued and should have been included in the income reported jointly by him and Mrs. Thompson for the years 1953 and 1954. L. E. Thompson, 30 T.C.M. 1383, ¶ 71,321 P-H Memo TC (1971). We disagree, reverse, and remand for further proceedings.

I.

The facts are fully stated in the Tax Court’s memorandum decision and need be only summarized here:

On June 30, 1952, Curtis entered into a contract with the Department of the Navy to construct two rocket launchers for use at the Naval Proving Ground, Dahlgren, Virginia. The work was to be completed by March 29, 1954. Under the contract, Curtis was entitled to receive partial payments as the work progressed. These progress payments could cover delivered materials, work done at the Contractor’s assembly plant, and preparatory work.

Under Article 25 of the prime contract, the government had the right to terminate the agreement, in whole or in part, for default. In the event of such a “default termination,” Curtis was entitled to the reasonable value of “work performed which [was] in place at the site on the effective date of termination.” While the government had the right to require Curtis to deliver work in progress to another contractor and to require that steps be taken to preserve and protect other property, all at the expense of the government, there was no provision for compensation for non-delivered or preparatory work.

The prime contract also made provi-' sion for termination at the' option of the government. In the event of such an “option termination,” Curtis was entitled to whatever amount it and the government contracting officer agreed upon or, failing agreement, to an amount determined under a complex “cost plus” formula. Under an “option termination” therefore, undelivered products and preparatory work were compensable.

On December 30, 1952, Curtis subcontracted with taxpayer L. E. Thompson, d/b/a Parkersburg Die and Tool Company, to fabricate and furnish three rocket launcher track assemblies, each 3,000 feet in length. The subcontract provided that the prime contractor was “bound to the Subcontractor by all the obligations that the Owner assume [d] to the Contractor under the Agreement, General Conditions, Drawings and Specifications, and by all the provisions thereof affording remedies and redress to the Contractor from the Owner.” However, with respect to payment, Curtis and taxpayer did not rely on incorporation of the payment provisions of the original contract. Instead, they agreed that taxpayer would be paid the sum of $249,509.75 for the entire job, with progress payments to be made under the following terms:

90% of value of material on job site by 25th day of each month to be paid by the 15th day of each month following delivery provided that the Subcontractor submits requisition in duplicate to Contractor’s office no later than 25th day of the month. Balance will be paid within thirty days after completion and acceptance by the owner. (emphasis added).

Thus, unlike the prime contractor who was entitled to progress payments for preparatory work and undelivered items, taxpayer’s right to payment under the subcontract was limited to work delivered to the job site.

From June, 1953 to December, 1953, Curtis made loans to the taxpayer and beginning in January, 1954 and continuing until October, 1954, it made a series of weekly advances. The characterization of these payments is not in question here.

The value of certain cast steel yokes shipped to the job site at Dahlgren, Virginia, by directive of the government, and invoiced by taxpayer to Curtis, were shown on taxpayer’s books as reductions in the amount taxpayer owed Curtis on the loans and advances. In this appeal, it is not disputed that the amounts invoiced in 1953 and 1954 were includible in taxpayer’s income for those years. Other than these certain east steel yokes, taxpayer made no other deliveries to the job site.

By letter dated November 30, 1954, Curtis (but not taxpayer) was advised that its contract with the government was terminated “effective immediately due to your default in performance.” While the Curtis contract was thus terminated, the government instructed taxpayer to continue to perform his subcontract, although it does not appear that the government elected to have Curtis formally assign its rights under the subcontract to the government as was the government’s right. Taxpayer protested this directive but was not permitted to discontinue his performance until approximately 70 days after November 30, 1954. It does not appear that Curtis ever took any formal or explicit action to terminate taxpayer’s subcontract.

During the next two years, negotiations were carried on by and between Curtis, taxpayer, and the government. The government finally agreed to rescind the termination of Curtis’ contract for “default in performance” and “termination at the option of the government” was substituted. Under the latter, Curtis was entitled to substantial payment and on November 30, 1956, payment by the government was made to Curtis. Of the total payment, $256,135.-85 was paid to Curtis on account of taxpayer’s work. From this sum Curtis deducted $117,000.00 due it for loans and advances to taxpayer and paid $65,744.-94 to the Small Business Administration for the principal and interest on a loan made to the taxpayer. Curtis then paid the taxpayer the remainder of $73,390.-91. Taxpayer and his wife reported as income in their joint income tax return for 1956, the $256,135.85 paid in settlement in that year.

Prior to February, 1954, taxpayer and Curtis’ president discussed what action they would take in the event the government terminated the contract. They agreed that if the contract was terminated, Curtis’ president would request its bonding company to pay taxpayer in full and then either the bonding company or Curtis would employ taxpayer to redesign and construct the rocket launchers. There is no evidence, however, that the bonding company acceded to this agreement, or that the agreement was subsequently carried out.

II.

The Commissioner’s determination that taxpayer followed an accrual method of accounting is unchallenged in this appeal. For accrual method taxpayers, the tax year in which income is includible is determined under Treasury Regulation § 1.451-1 (a), 26 C.F.R. § 1.451-1(a), which sets forth the principles of tax accounting applicable here. That Regulation provides in pertinent part that

[u]nder an accrual method of accounting, income is includible in gross income when all the events have occurred which fix the right to receive such income and the amount thereof can be determined with reasonable accuracy.

Thus, accrual of income for tax purposes depends on satisfaction of both the “all events” test and the “reasonable accuracy” standard.

Under the facts of this case, we do not think that any part of the payment made to the taxpayer in 1956 accrued in 1953 or 1954. Under the payment terms of the subcontract, taxpayer was entitled to compensation only for work delivered to the job site. Under the subcontract payment provision, taxpayer had no right to payment for preparatory work such as the tooling of machines — a major part of his effort in 1953 — nor did he have a right to payment for partially completed but undelivered work in his Parkersburg, West Virginia, plant. Taxpayer did not accrue a right to payment until 1956 when, after two years of strenuous personal effort by the taxpayer and fifty-four meetings, the government was finally persuaded to substitute an “option termination” for the “default termination.”

We are unpersuaded by the government’s argument that Curtis’ statement of its willingness to persuade its bonding company to pay taxpayer if the government terminated the contract requires a different result. There is no evidence that the bonding company received the request, or that if received, it agreed to honor it. It, therefore, cannot be said that taxpayer gained a right to receive payment from the bonding company at any time.

Furthermore, we find unconvincing the government’s argument that delivery was not a condition precedent to payment because taxpayer was in fact paid without delivery. Taxpayer received payment in 1956 by virtue of the government’s substitution of a “termination at the option of the government” for “termination for default.” Prior to that time, taxpayer had no right to payment, except for the yokes which were delivered — and for which payment was made.

Finally, we do not accept the alternative position argued by the government that even if delivery was a precondition to payment, it was a mere ministerial act akin to the presentation of a bill and thus no obstacle to the accrual of a right to payment. Under the facts of this contract, it is doubtful that delivery of three rocket launcher track assemblies, each 3,000 feet in length, from Parkers-burg, West Virginia, to Dahlgren, Virginia, could be construed as an insignificant part of the consideration bargained for and a mere ministerial duty.

III.

We have not been asked to review certain other aspects of the tax liability of taxpayers for 1953 and 1954 which were decided by the Tax Court. Some recom-putation of that overall liability is in order. We reverse the Tax Court insofar as it included the sums of $67,774.13 and $181,735.63 in taxpayers’ taxable income for 1953 and 1954, respectively, and remand the ease for recomputation of overall liability for those years. Reversed and remanded.

      . Article 25. — Termination for Default
      (a) The performance of work under this contract may, subject to the provisions of paragraph (a) of Article 26, be terminated by the Government in accordance with this article in whole, or from time to time, in part, whenever the Contractor shall default in performance, or shall so fail to make progress in the prosecution of the work hereunder as, in the opinion of the Contracting Officer, to endanger performance of this contract in accordance with its terms . . . . Termination of work hereunder shall be effected by delivery to the Contractor of a Default Notice of Termination specifying that termination is for default or failure, the extent to which performance of work under this contract shall be terminated, and the date upon which such termination shall become effective.

      . Article 25. — Termination for Default
      (d) Upon termination of work pursuant to this article, the Government, but without duplication of any amounts, shall pay the Contractor the following amounts:
      (1) For work performed which is in place at the site on the effective date of termination and for work not terminated by the Default Notice of Termination: The reasonable value thereof (including in the discretion of the Contracting Officer, a fair profit) as determined by agreement of the parties ....

      . Article 26. — Termination at the Option of the Government
      (a) The performance of work under this contract may be terminated by the Government in accordance with this article in whole, or from time to time, in part, whenever the Contracting Officer shall determine any such termination is for the best interests of the Government . . ..

      . Article 26. — Termination at the Option of the Government
      (c) The Contractor and the Contracting Officer may agree upon the whole or any part of the amount or amounts to be paid to the Contractor by reason of the total or partial termination of work pursuant to this Article, which amount or amounts may include a reasonable allowance for profit, and the Contractor and the Contracting Officer may further agree upon the amount or amounts to be paid to the Contractor for the completion of such part of the work as shall not have been terminated by the Notice of Termination, and the Government shall pay the agreed amount or amounts

      . Article 26. — Termination at the Option of the Government
      (d) In the event of the failure of the Contractor and the Contracting Officer to agree as provided in paragraph (c) upon the whole amount to be paid to the Contractor by reason of the termination of work pursuant to this Article or the amount to be paid the Contractor for completing the part of the work not terminated, the Government, but without duplication of any amounts agreed upon in accordance with paragraph (c), shall pay to the Contractor the following amounts:
      (1) In respect of all contract work performed prior to the effective date of the Notice of Termination, the total (without duplication of any items) of (i) the cost of such work; (ii) the cost of settling and paying claims arising out of the termination of work under subcontracts or orders . . . ; and (iii) a sum equal to 2 percent of the part of the amount determined under subdivision (i) which represents the cost of articles or materials delivered to the site but not incorporated in the work in place on the effective date of the Notice of Termination, plus a sum equal to 8 percent of the remainder of such amount, but the aggregate of such sums shall not exceed 6 percent of the ■whole of the amount determined under subdivision (i), which for the purpose of this subdivision (iii) shall exclude any charges for interest on borrowings.

      . Article 25. — Termination for Default
      (b) After receipt of a Default Notice of Termination and except as otherwise directed by the Contracting Officer, the Contractor shall . . . assign to the Government ... in the manner and to the extent directed ... all of the right, title and interest of the Contractor under . . . subcontracts to the extent that they relate to the performance of any work terminated by the Default Notice of Termination ; * * *

      . Article 25. — Termination for Default
      (f) This contract shall not be terminated and the Contractor shall not be charged with any liability to the Government under the provisions of this article where the default or failure of the Contractor is due to causes beyond the control and without the fault or negligence of the Contractor, . . .. In the event that a Default Notice of Termination has been delivered to the Contractor and it is thereafter determined that the default or failure is due to causes beyond the control and without the fault or negligence of the Contractor, performance of work under this contract shall be deemed to have been terminated, . . . pursuant to
      Article 26. [option termination]
      [T]he rights and obligations of the parties shall in such event be governed by Article 26.

      . If, as we hold, taxpayer did not accrue income in 1953 or 1954 under the payment provisions of the subcontract, we perceive no other theory under which it might be said that income accrued in those years:
      Termination of the subcontract occurred, either in November, 1954, when the government notified Curtis of the complete termination of the prime contract, or in February, 1955, when the government stated that taxpayer could discontinue performance. If on termination of the Curtis contract an assignment of taxpayer’s subcontract to the government occurred by operation of law, the obstacles which required two years and fifty-four meetings to surmount were in themselves sufficient to prevent the taxpayer’s accrual of a right against the government to the settlement eventually made. If no assignment occurred, then taxpayer’s only rights were against Ourtis. In that case, it is possible that the subcontract’s borrowing provision operated to put taxpayer in Curtis’ shoes and Curtis in the government’s such that taxpayer could request that Curtis grant an “option termination” of the subcontract because taxpayer was not in default, even though the prime contract was in “default termination.” However, it is uncertain (a) whether the borrowing provision would have this effect, (b) whether the Curtis contract grants a court-enforceable right to substitution of “option termination” for “default termination”, (c) whether taxpayer’s costs under “option termination” could be calculated with reasonable accuracy, (d) whether Curtis had the capacity to pay, and (e) whether Curtis would have paid without litigation. The cumulative effect of these uncertainties is that we could not say that all the events necessary to fix the right to an amount calculable with reasonable accuracy had occurred.
      If the subcontract’s borrowing provision “passed through” to the taxpayer the benefit of any obligation which the government owed to Curtis, then the taxpayer’s derivative right could have accrued no earlier than 1956 when “option termination” was substituted for “default termination” in the Curtis contract. Significantly, this is the construction of the subcontract’s borrowing provision which the parties adopted by their conduct.
      Of course, it is possible that the borrowing clause did not incorporate the Curtis contract’s termination provisions into the subcontract. In that case, taxpayer might have had an action for breach of contract in which he could have sought reliance damages, although these would have been of uncertain magnitude. For tax purposes, taxpayer would not have accrued a right to a reasonably precise amount. See 2 Mertens, Law of Federal Income Taxation, § 1265 (1967) (“Anticipated damages are not ac-cruable in the year of breach or in the year of commencement of litigation, except in the comparatively unusual case where the taxpayer’s rights are reasonably certain, the amount is ascertainable and, ordinarily, has been accrued on the taxpayer’s books.”)