author: LAY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. John Sherman MILES, Appellant.
    No. 72-1730.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 11, 1973.
    Decided Sept. 10, 1973.
    Rehearing Denied Oct. 10, 1973.

      James R. Wyrsch, Kansas City, Mo., for appellant.
    Gary Cornwell, Sp. Atty., Kansas City, Mo., for appellee.
    Before GIBSON, LAY and ROSS, Circuit Judges.
   LAY, Circuit Judge.

Defendant, John Sherman Miles, was convicted of violating 18 U.S.C. § 1341. The government charged in the indictment that the defendant, along with Robert Totten and Gary Morris, participated in a fraudulent scheme to obtain cattle from a cattle sales barn in Fair Play, Missouri, with a no-account check and then to dispose of them “before the check . . . could clear through normal banking channels, and before the Fair-play Sales and Auction Company could thereby become aware of their loss and locate said cattle in the possession of John Sherman Miles.”

Defendant raises several issues on appeal. We have considered each claim and find all but one lacking in substantiality. We find substance only in the claim that the defendant was entitled to an acquittal at the close of the government’s case since there was no evidence that use of the mails played any part in the execution of the scheme. Upon analysis, however, we affirm the conviction.

Robert Totten testified that the defendant, John Miles, Gary Morris and himself devised a plan whereby Morris and Totten, Morris’ roommate, would buy some cattle at Fair Play, Missouri, with a no-account check drawn on a bank at Leeton, Missouri, using a false driver’s license in the name of “John W. Rogers” as identification. The details of the plan were worked out on three separate occasions. Miles supplied Totten with the false driver’s license and a blank counter check from the Leeton, Missouri, bank. After the cattle were bought in the name of Rogers, Morris and Totten returned for them that night in Miles’ truck and took them back to Miles’ farm. They purchased 71 head of cattle, but because of the size of Miles’ truck they had to leave 15 head behind at the auction yards in Fair Play. This fact along with the identification of Miles’ truck helped lead to the discovery of the fraud. When Miles received the cattle the plan called for him immediately to dispose of them by selling the cattle at various auction barns in Missouri. The three were to divide up the proceeds equally, but were apprehended before completing the scheme.

The evidence showed that Miles had been in the cattle business for years, buying and selling cattle at various auction companies. According to Totten, Miles picked the particular day, February 21, 1972, to try out the scheme since it was a holiday and the bank at Leeton, upon which the no-account check was drawn, would be closed. According to Totten the three of them discussed the fact that the cattle should be disposed of as soon as possible, within a week at the most, because that is how long it would take for the check “to come back to the place where you wrote the check before they found out it wasn’t any good.” They did not specifically discuss how the check would go through banking channels.

Defendant urges that the record is void of any evidence that the defendant contemplated use of the mails for furtherance of the fraudulent scheme. In support of this argument defendant relies on Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944); Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960); and Dyhre v. Hudspeth, 106 F.2d 286 (10th Cir. 1939). The thrust of these cases is that where the fraudulent scheme comes to fruition prior to the use of the mails, the mails are merely incidental to and not an integral part of the scheme. Under such circumstances, section 1341 has been held not to apply since one of the essential elements for violation of the statute is use of the United States mails for the purpose of executing such scheme or artifice. As held in Dyhre, where a fraudulent check was written to obtain merchandise, the fact that the banks had to send the cheek through the mails for collection was merely incidental to the fraud, since the defendant had “accomplished all he set out to do in falsely representing that he had money on deposit in the banks.” Dyhre, supra at 288. The Tenth Circuit recently reaffirmed Dyhre, finding the fraudulent use of a BankAmericard not covered by section 1341 since “the scheme [had] been fully consummated.” United States v. Lynn, 461 F.2d 759, 762 (10th Cir. 1972). See also United States v. Maze, 468 F.2d 529 (6th Cir. 1972), cert. granted, 411 U.S. 963, 93 S.Ct. 2145, 36 L.Ed.2d 683 (1973).

However, it is clear that the principle of Kann and Parr does not establish a rigid rule. As observed by the Seventh Circuit in United States v. Strauss, 452 F.2d 375, 380 (1970), cert. denied, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455 (1972):

“However, the Supreme Court has also said that neither Kann nor Parr announced an inflexible rule that the use of the mails after the victims’ money had been obtained can never be for the purpose of executing the fraud. United States v. Sampson, 371 U.S. 75, 80, 83 S.Ct. 173, 9 L.Ed.2d 136 (1965). Here the use of the mails ‘caused’ by the defendant provided or contributed to a time lag which was intended to aid in avoiding detection. See United States v. Decker, 411 F.2d 306 (4th Cir. 1969); United States v. Hendrickson, 394 F.2d 807 (6th Cir. 1968). The mailing, established by the evidence, we find to have been an integral part of the scheme to defraud.”

The Kann and Parr cases were further explicated by the Supreme Court in United States v. Sampson, 371 U.S. 75, 79-80, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962):

“In Kann, the defendants defrauded their corporate employer in matters confined to their local region. As a part of their scheme, the defendants had fraudulently obtained checks payable to them which were cashed or deposited at a bank. The use of the mails charged as a violation of the federal statute was the mailing of the checks for collection by the banks which cashed them to the banks upon which they were drawn. Prior to that mailing, the Court found, the defendants had obtained the money they sought, and as far as they were concerned their plan had reached its fruition and come to a complete rest. The scheme, as the Court viewed it, had contemplated no more. The mailing was done by outsiders, the banks, which had no connection whatsoever with the fraud. The checks were mailed for the banks’ own purposes and not in any way for the furthering of the fraudulent scheme. In the Court’s view it was immaterial to the consummation of the defendants’ scheme how or whether the banks which had cashed the checks sought to collect them.
“In Parr, the second case upon which the District Court relied, the defendants had obtained gasoline and other products and services for themselves by the use of the credit card of a School District which had authorized the defendants to use the card for the District’s purposes only. The mailings complained of in the Parr case were two invoices sent by the oil company to the District and the District’s check mailed back in payment. Again the Court was able to find that the mailings by the outsiders were not an integral part of the scheme as planned and executed by the defendants and that, as a matter of fact, it was completely immaterial to them what the oil company did about collecting its bill.
“We are unable to find anything in either the Kann or the Parr case which suggests that the Court was laying down on automatic rule that a deliberate, planned use of the mails after the victims’ money had been obtained can never be 'for the purpose of executing’ the defendants’ scheme. Rather the Court found only that under the facts in those cases the schemes had been fully executed before the mails were used. And Court of Appeals decisions rendered both before and after Kann have followed the view that subsequent mailings can in some circumstances provide the basis for an indictment under the mail fraud statutes.” (Our emphasis).

See also Friedman v. United States, 347 F.2d 697, 710 (8th Cir.), cert. denied, 382 U.S. 946, 86 S.Ct. 407, 15 L.Ed.2d 354 (1965).

We conclude that there is sufficient evidence to demonstrate that the use of the mails was an essential part of the fraudulent scheme. The facts at bar are distinguishable from those cases where a party merely seeks to obtain merchandise by use of fraudulent checks. Here the scheme had not come to rest. In fact, Miles did not assume an active role in the overall conspiracy until after the cattle had been fraudulently obtained. The scheme was still continuing — possession of the cattle was only a step toward consummation of it. The real goal was to obtain money and the end of the rainbow was not to be reached until Miles sold the cattle and the money was divided up. The one-week delay before the phony check would be processed by the bank was necessary for Miles to resell the cattle. We find the facts and reasoning of the Fourth and Fifth Circuit cases appropriate here.

As the court said in United States v. Decker, 411 F.2d 306, 308 (4th Cir. 1969):

“The United States takes the position that the passage of these checks through the mails were crucial to the success of Decker’s scheme, as he thereby gained the delay necessary to avoid detection before moving on to another city. The only question for decision on Decker’s claim that the district court erred in refusing to dismiss the indictment is whether such a scheme, adequately charged in the indictment, constitutes a violation of the mail fraud statute. We conclude that it does.”

Similarly the Fifth Circuit reasoned in Bauman v. United States, 156 F.2d 534, 537 (5th Cir. 1946):

“Since the transmittal of the checks through the mails to Amarillo, with the necessity of getting a return thereon before their fraudulent nature was discovered if, indeed, it were ever discovered, was a part of the scheme, and since such delay would enable defendant to give the scheme a wider scope of operations and require less haste in getting away than if the checks had been forged against an account in a local bank where the discovery of the forgery would, perhaps, have been more prompt, we think that the contention that the scheme did not embrace the mailing is contrary to the wording of the indictment and in disregard of the realities.”

See also United States v. Hendrickson, 394 F.2d 807 (6th Cir. 1968), cert. denied, 393 U.S. 1031, 89 S.Ct. 642, 21 L.Ed.2d 574 (1969).

This court has held:

“[T]he use of the mails in the execution of a scheme to defraud may be established by circumstantial evidence.” Corbett v. United States, 89 F.2d 124, 127 (8th Cir. 1937).

Various bankers testified at the trial that the only way they handle a check such as was given at Fair Play is by mailing it to the various other banking institutions involved.

The Supreme Court has said that a defendant causes the mails to be used:

“Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended, then he ‘causes’ the mails to be used.” Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 363, 98 L.Ed. 435 (1954).

Similarly, it has been observed:

“To establish that the several uses of the mail were caused by defendant, it was sufficient to show that he set forces in motion which foreseeably would involve mail uses.” Marvin v. United States, 279 F.2d 451, 454 (10th Cir. 1960).

The use of the mails by banks to process collection on “out-of-town” checks is a reasonably foreseeable event. Cf. United States v. Strauss, 452 F.2d 375, 380 (7th Cir. 1971), cert. denied, 405 U.S. 989, 92 S.Ct. 1252, 31 L.Ed.2d 455 (1972).

Judgment affirmed.

      . “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or . both.” 18 U.S.C. § 1341 (1949).

      . Defendant also asserts as error on appeal that:
      (1) The trial judge failed on one occasion to properly admonish the jury before a recess not to discuss the case or read about it. This claim is frivolous; the record shows the trial judge meticulously admonished the jury throughout the trial. See Kleven v. United States, 240 F.2d 270, 274 (8th Cir. 1957) ; Janko v. United States, 281 F.2d 156, 170 (8th Cir. 1960).
      (2) There was no corroboration of the testimony of Robert Totten, the accomplice. The record disputes this: For example, the defendant’s truck was identified by an independent witness; the defendant was identified as selling the cattle in question; and, as the government notes, the defendant made a false exculpatory statement. In any event such corroboration is not necessary. See United States v. Smith, 464 F.2d 221, 222 (8th Cir. 1972).
      (3) The court erred in refusing to give certain instructions relating to the testimony of an informant and the proper construction of § 1341. The defendant was sufficiently protected by the court’s instruction on the credibility of an accomplice’s testimony. There is no prejudice demonstrated in the court’s instruction on § 1341.
      (4) The court erred in not requiring the government to comply with 18 U.S.O. § 3500 by disclosing the grand jury testimony of the witness Totten. The record clearly discloses that the court made available to defense counsel the complete transcript of Totten’s grand jury testimony.
      (5) Exculpatory information possessed by a prospective government witness, Morris, not called by either side, was not disclosed to the defendant. Again, the record discloses that Morris was present to be interviewed ; that defendant’s counsel declined to interview him, notwithstanding the government’s pretrial disclosure to counsel that he should perhaps talk to Morris since “we believe that he may be willing to give testimony at trial which would he favorable to the defense.”


source: Caselaw Access Project

author: HUFSTEDLER, Circuit Judge: TURRENTINE, District Judge

license: Public Domain

text:
    In re TAMASHA TOWN AND COUNTRY CLUB, Bankrupt. Don ROTHMAN, Trustee, Appellant, v. UNITED STATES of America, Appellee.
    No. 71-1634.
    United States Court of Appeals, Ninth Circuit.
    Aug. 30, 1973.

      Ralph E. Schub (argued), Sulmeyer, Kupetz & Alberts, Los Angeles, Cal., for appellant.
    Karl Schmeidler (argued), Johnnie M. Walters, Asst. Atty. Gen., Tax Div., Dept, of Justice, Washington, D. C., Robert L. Meyer, U. S. Atty., Alan H. Friedman, Asst. U. S. Atty., Los Ange-les, Cal., Meyer T. Rothwacks, Crombie J. D. Garrett, William S. Estabrook, III, Tax Div., Dept, of Justice, Washington, D. C., for appellee.
    Before ELY and HUFSTEDLER, Circuit Judges, and TURRENTINE, District Judge.

       Southern District of California sitting by designation.

   OPINION

HUFSTEDLER, Circuit Judge:

On July 31, 1962, Tamasha Town and Country Club (“Tamasha”) filed a petition for an arrangement under section 322, Chapter XI of the Bankruptcy Act (“Act”). (11 U.S.C. § 722.) Operations were continued under “debtor in possession” status. Tamasha’s First Amended Plan of Arrangement was confirmed on January 21, 1965. In accordance with the plan of arrangement, $14,000 was deposited by Tamasha to pay the priority creditors, pursuant to section 337(2) of the Act. (11 U.S.C. § 737(2).) However, before any significant payments were made from this fund, the ailing company succumbed altogether and was adjudicated bankrupt on November 4, 1965. The trustee then transferred the unpaid deposits to the trustee’s account.

On January 27, 1970, the United States filed a priority claim of $6,774.09 and a claim of $7,603 as an expense of administration. Both claims represent accrued and unpaid taxes. With respect to the priority claim, $5,328.95 is pre-Chapter XI debt, tax obligations which arose before the filing of the petition for an arrangement. The remaining $9,048.14 is post-Chapter XI debt, tax obligations which accrued after the filing of the petition and during the now aborted plan of arrangement period. The referee required the trustee to satisfy the priority tax claim ($6,774.09) prior to any other distribution and allowed the expense of administration claim ($7,603) to share pro rata with other such claims.

The trustee does not dispute the ruling on the expense of administration claim. He argues, however, that $1,445.-14 of the priority claim (the post-Chapter XI filing portion) should also be treated as an expense of administration and that the remaining $5,328.95 (pre-Chapter XI debt) should not be given a superpriority, but should be treated in accordance with section 64(a) of the Act. (11 U.S.C. § 104(a).) Claims for taxes accrued before the Chapter XI filing are given a fourth priority under' section 64(a), well behind costs and expenses of administration. We hold that segregation of funds under a plan of arrangement, absent actual transfer, does not establish priorities that survive an adjudication of bankruptcy.

The trust fund theory advanced by the Government here is similar to that rejected in United States v. Randall (1971) 401 U.S. 513, 91 S.Ct. 991, 28 L.Ed.2d 273. In Randall, the Government’s general trust fund theory was bolstered by reference to the explicit trust created by the Internal Revenue Code (26 U.S.C. § 7501(a)). The Court held that the Bankruptcy Act is “an overriding statement of federal policy on this question of priorities” and made reference to “the strong policy of § 64(a)(1) of the Bankruptcy Act.” (401 U.S. at 515, 517, 91 S.Ct. at 992, 994; see also Nicholas v. United States (1966) 384 U.S. 678, 691, 86 S.Ct. 1674, 1683, 16 L.Ed.2d 853.) The opinion traced the history of legislative change which has continuously subordinated tax claims and elevated the priority of administrative costs and expenses, concluding “We think the statutory policy of subordinating taxes to costs and expenses of administration would not be served by creating or enforcing trusts which eat up an estate, leaving little or nothing for creditors and court officers whose goods and services created the assets.” (401 U.S. at 517, 91 S.Ct. at 994.) The rationale and holding in Randall compel reversal here.

The Government would distinguish Randall on three bases: (1) Randall involved the interplay of two federal acts, while the instant ease involves only the Bankruptcy Act; (2) in Randall no fund for taxes was actually segregated; and (3) the plan of arrangement in the instant case aborted after judicial confirmation, and therefore after the parties’ rights had vested. None of these factors is determinative.

The trust asserted in Randall was that specifically created by 26 U.S.C. § 7501(a). Here the Government asks us to enforce an implied trust, said to be found in the nexus of sections 337(2) and 367(2) of the Bankruptcy Act. However, the Randall rule depends on the effect of the trust claimed, and not on its alleged source. We will not create or enforce an implied trust which would accomplish a reversal of the congressional policy favoring administration expenses over tax claims as fully as would the express trust in Randall. Nor does the Randall rule depend upon isolation of particular funds. In Randall, the trustee argued that since the debtor in possession had failed to segregate the taxes withheld, no trust in favor of the United States resulted. (401 U.S. at 515, 91 S.Ct. 991.) Instead of adopting this argument, the Court chose to place its ruling on the survey of legislative developments favoring administrative expenses over tax claims and on the overriding policy of section 64(a), as discussed above.

Finally, nothing is added to the Government’s ease by its assertion that the parties’ rights “vest” upon confirmation of the plan of arrangement. Such a characterization merely restates the issue presented here. Normally, confirmation of a plan does not freeze the rights of the parties. Indeed, section 377(2) of the Act (11 U.S.C. § 777(2)) provides that even after confirmation the court may adjudge the debtor in default and subject to bankruptcy proceedings. The parties cannot bind the ensuing bankruptcy court and avoid the statutory provisions of section 64(a) by their agreements under a plan of arrangement made at the very moment it becomes apparent that the future of the debtor is, at best, uncertain. The rule of this circuit is that where a debtor operating under a plan of arrangement is adjudicated bankrupt, the adjudication relates back to the filing of the original Chapter XI arrangement petition. (E. g., Miller v. Woolley (9th Cir. 1940) 141 F.2d 837, 841.) Any other rule would penalize the debtor attempting to redeem itself under a supervised plan of arrangement vis-a-vis the debtor proceeding directly to bankruptcy. No such result is contemplated by the Act or permitted by Randall.

Thus, none of the distinctions pressed by the Government persuade us to resurrect the sort of trust fund theories interred by Randall. This holding promotes the policy objective of preserving section 64(a) as an integrated system allocating priorities in bankruptcy. Refusing to create superpriorities also furthers the goal of sound administration in bankruptcy by continuing to insure the primacy of the costs and expenses necessary to liquidate, administer, and close the estate in bankruptcy. When the Chapter XI arrangement collapsed, accrued but unpaid taxes became subject to the priorities specified in section 64(a). The referee erred in permitting a priority tax claim of $6,774.09. Of this amount, $1,445.14 constitutes an expense of administration for the superseded arrangement period. The remaining $5,328.95 is pre-Chapter XI tax debt, and, as such, is to be accorded a fourth priority under section 64(a).

Reversed.

TURRENTINE, District Judge

(dissenting) :

I respectfully dissent.

The majority, in reversing the Court below, relies upon United States v. Randall, 401 U.S. 513, 91 S.Ct. 991, 28 L.Ed.2d 273 (1971), which involved conflicting sections of the Internal Revenue Code and the Bankruptcy Act competing for the same fund.

The Court held that because Congress did not so intend, § 7501(a) does not create a trust for taxes withheld during an arrangement proceeding. The Court did not hold that a fund deposited pursuant to § 337 of the Act (11 U.S.C. § 737) was to be disbursed, after confirmation, in accordance with § 64(a) rather than § 367(2) of the Act (11 U.S.C. § 767(2).) Moreover, it was not held that no trusts in bankruptcy were to be created or enforced.

Of course, we are guided by the reasoning of the Supreme Court as well as its holding. Underlying the Randall Court’s application of the statutory policy of subordinating taxes to the costs and expenses of administration was the premise that to enforce the statutory trust under the facts of Randall would “eat up” the estate created by creditors and court officers. The fund here, though, is a § 337 deposit for the payment of all priority creditors as distinguished from the accounts created in Randall. In the ordinary case, the fund deposited pursuant to § 337 of the Act is not derived from the bankrupt’s estate and is not created by the creditors entitled to priority under § 64(a)(1), (2), (3) .

Under the facts of this case, neither the holding of Randall, nor the Court’s reason for invoking the statutory policy is applicable.

In the absence of contrary authority to be found in the statutes or cases, I would give effect to the mandatory language of § 367(2) of the Bankruptcy Act, and the orders of the Referee in Bankruptcy by imposing a constructive trust upon the fund to the extent that it should have been disbursed prior to the termination of the arrangement. This result avoids a strained construction of Randall and comports with the equitable nature of a Court of Bankruptcy.

      . $263.20 was expended for court reporter fees, bond payment, and bookkeeping costs.

      . Suggestions of negligence were not pressed, and no evidence was presented to support a claim of wrongdoing or culpability of the disbursing agent for not having expended the total fund.

      . For reasons not relevant here, the first order adjudicating Tamasha a bankrupt was vacated and an identical order was entered September 28, 1966.

      . $1,445.14 from the priority claim, plus the $7,603 expense of administration.

      . All administrative expenses of the superseded arrangement period are subordinated to the administrative expenses of the ensuing bankruptcy proceeding. (See United States v. Randall (1971) 401 U.S. 513, 516, 91 S.Ct. 991; 9 Collier, Bankruptcy 519; 3A Collier, Bankruptcy 2109 (14th ed. 1972).

      . Section 7501(a) provides:
      “Whenever any person is required to collect or withhold any internal revenue tax from any other person and to pay over such tax to the United States, the amount of tax so collected or withheld shall be held to be a special fund in trust for the United States. The amount of such fund shall be assessed, collected, and paid in the same manner and subject to the same provisions and limitations (including penalties) as are applicable with respect to the taxes from which such fund arose.”

      . The Randall Court referred not only to the overriding policy of the Bankruptcy Act, but also to the “strong policy” of § 64(a) (401 U.S. at 517, 91 S.Ct. 991), which is generally thought to possess the attraction of being the repository for all ordering of priorities in bankruptcy. (3A Collier, Bankruptcy 2074, 2153 (14th ed. 1972).)

      . Cf. 9 Collier, Bankruptcy 531 (14th ed. 1972) :
      “Where a debtor defaults in carrying out the terms of his arrangement (after confirmation) but before the deposit made pursuant to § 337(2) has been disbursed, the money is forfeited ana automatically becomes an asset of the bankrupt estate, at least where it was deposited by the debtor himself, rather than by a third party in his behalf [footnote omitted].”

      . This is identical to the options open to the court prior to confirmation. 11 U.S.C. § 776(2).

      . This does not mean that the arrangement is void ab initio, but simply that it is superseded. While it lasts, it is certainly binding. Gerson v. Booth Lumber Co. (9th Cir. 1955) 230 F.2d 631.

      . Cf. In re Setzler (S.D.Cal.1947) 73 F. Supp. 314, 316-317:
      “It is my opinion, however, that the obligation of a debtor to make payments according to a plan continues only during the life of the arrangement, and ipso facto terminates upon dismissal of the arrangement proceedings pursuant to § 3FF(1) .... To hold otherwise would defeat the plain intendment of Chapter XI ... The bankruptcy law would advance a strange policy indeed if a debtor, who attempts to rehabilitate himself financially and benefit his creditors through an arrangement but fails, may be left saddled with debts upon discharge in bankruptcy, while a petitioner who seeks an immediate adjudication without undertaking a plan of arrangement goes debt free upon discharge. See Local Loan Co. v. Hunt, supra, 292 U.S. 234 at 244-245, 54 S.Ct. 695, 78 L.Ed. 1230, 93 A.L.R. 195.”

        See also Wood v. Scott (6th Cir. 1950) 180 F.2d 252, 253:
      “[T]he obligation of the debtor to make payments under the arrangement continued only during its existence and terminated upon discontinuance of the arrangement proceedings under § 377 of the Bankruptcy Act [citations omitted].”

      . The majority’s refusal to “freeze” the rights of the creditors according to the terminated plan is simply gratuitous. No one argues that the plan remains in effect upon adjudication. In re Setzler, 73 E.Supp. 314 (S.D.Cal.1947), is a correct statement of the law. A debtor is entitled to be discharged from payments in default under a plan where the failure was unintentional and resulted from inability to comply.

      . See Securities Comm’n v. U. S. Realty Co., 310 U.S. 434, 60 S.Ct. 1044, 84 L.Ed. 1293 (1940).

      . 26 U.S.C. § 7501(a).

      . Bankruptcy Act § 64(a), 11 U.S.C. § 104(a).

      . Pursuant to liis powers, the referee ordered the debtor to establish three accounts and to make payments from them. I infer that a plan of arrangement was not confirmed since this order was entered two days after the petition was filed. Had a plan been confirmed, such procedure would have been contained in the plan.

      . The sole authority on this point is 9 Collier On Bankruptcy ¶ 10.13 at 531 (14th ed. 1972), cited by the majority at note 8 for another proposition. Gollier, however, cites to In re Portage Wholesale Co., 187 F.2d 387 (7th Cir. 1951), aff’g, 88 F.Supp.. 3 (W.D.Wis.1950), wherein the district court’s opinion recites that the deposit was to indemnify the bankrupt estate rather than to be disbursed to creditors upon confirmation.

      . The fund in Randall was generated from the operation of the business by the debtor in possession.

      . It may be said in the ordinary case that the problem here does not arise because the deposit will have been disbursed by the time of termination. 9 Collier On Bankruptcy ¶ 10.12 [4.2] (14th ed. 1972).

      . [T]he assets of the estate cannot be used to make the deposit, unless so authorized by the court. Payments made to the distribu-tees of the deposit are not payments of a share of the debtor’s estate to which the distributees are entitled, but are payments of their share of the deposit fund which the debtor must provide in accordance with the provisions of the Act and his arrangement. 8 Collier On Bankruptcy § 5.36 at 742 (14th ed. 1972).
      In the ease before the Court the referee found that the source of the deposit was unknown. Apparently no order was issued authorizing funds of the estate for the deposit. See 10 Collier On Bankruptcy, Form Nos. 3108, 3109 (14th ed. 1972) for form of such order.


author: ADAMS, Circuit Judge:

text:
    E. R. SQUIBB & SONS, INC., Petitioner, v. Casper W. WEINBERGER, Secretary of Health, Education and Welfare, and Charles C. Edwards, Commissioner of Food and Drugs, Respondents.
    No. 71-2138.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 18,, 1973.
    Decided Aug. 24, 1973.

      Robert H. Becker, Kleenfeld, Kaplan & Becker, Washington, D. C., Richard M. Rosenbleeth, Blank, Rome, Klaus & Comisky, Philadelphia, Pa., for petitioner; Vincent A. Kleinfeld, Alan EL Kap-lan, Robert H. Becker, Thomas O. Hen-teleff, Kleinfeld & Kaplan, Washington, D. C., of counsel.
    Walker B. Comegys, Acting Asst. Atty. Gen., Anti-Trust Div., Gregory B. Hovendon, Dept, of Justice, Washington, D. C., for respondents; Peter Barton Hutt, Asst. Gen. Counsel, Food, Drugs, and Product Safety Div., Joanne S. Sisk, Eugene M. Pfeifer, Charles J. Raubi-check, Attys., U. S. Dept, of Health, Education and Welfare, Rockville, Md., of counsel.
    Before VAN DUSEN and ADAMS, Circuit Judges, and BARLOW, District Judge.
   OPINION OF THE COURT

ADAMS, Circuit Judge:

This is an appeal from an order of the Food and Drug Administration (FDA) revoking the marketing approval previously granted for several drugs produced by E. R. Squibb & Sons, Inc. (Squibb), a major manufacturer of pharmaceuticals. The order also denied Squibb an evidentiary hearing before the FDA at which Squibb alleges it would produce substantial evidence of the safety and effectiveness of those drugs.

Consideration of the appeal was deferred with the concurrence of the parties, pending resolution by the U.S. Supreme Court of Weinberger v. Hynson, Wescott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (June 18, 1973). An understanding of the bearing of Hynson on this case requires a brief explication of the procedures adopted for evaluating drugs offered for sale to the public.

Prior to 1962, a company desiring to market a “new drug” was required by statute to submit to the FDA evidence demonstrating that the drug was safe for its intended use. In 1962 the law was amended to insure that drugs sold would not only be safe but effective as well. Manufacturers of drugs that had been marketed before 1962 were given a period of time, after which they were required to prove the effectiveness of the drugs or have their certifications withdrawn. The 1962 amendment directed that the NDA be revoked “if ‘substantial evidence’ that the drug is effective for its intended use is lacking.” Section 355(d) of the statute defined “substantial evidence” as:

“. . . evidence consisting of adequate and well-controlled investigations, including clinical investigations, by experts qualified by scientific training and experience to evaluate the effectiveness of the drug involved. ”

Faced with the necessity of reviewing the effectiveness of several thousand drugs that were on the market, the FDA promulgated regulations providing for summary procedures for evaluating the drugs. The companies that manufacture the drugs in question were required to submit “substantial evidence” of effectiveness. To carry out the statute’s instruction that the investigations were to be “adequate and well-controlled,” the FDA’s regulations prescribed, with some specificity, the format and procedures to be followed in the studies submitted. A submission in conformity with the FDA’s regulations was considered to establish a prima fa-cie showing of “substantial evidence” entitling a manufacturer to a hearing before the agency on the drug’s asserted efficacy. Failure to conform to the standards was deemed to preclude a finding that there was substantial evidence, of effectiveness. Such a determination would result in the conclusion that there existed no disputed issue requiring a hearing, and the drug’s approval would be withdrawn summarily by the FDA.

Operating pursuant to these regulations, the FDA ordered manufacturers to furnish the studies required by § 355(d) and the FDA’s regulations. In response, Hynson submitted evidence of effectiveness and moved for a hearing. The FDA held that Hynson’s submission was inadequate and denied the requested hearing and sought to withdraw approval. Hynson challenged this denial, alleging that its submission met the standards entitling it to a hearing, and that in any event the regulations promulgated by the FDA were improper. The Supreme Court approved the FDA regulations, but held that Hynson’s submission was sufficient to warrant a hearing.

As to the assault on the FDA’s regulations, the Supreme Court pointed out that the administrative summary judgment procedure created by the regulations, and the standards established to determine the propriety of such a judgment, constituted an appropriate administrative interpretation of the “substantial evidence” requirement of the Act.

The Supreme Court went on to state the role of a court of appeals in reviewing orders of the FDA refusing hearings:

“In reviewing an order of the Commissioner [of the FDA] denying a hearing, a court of appeals must determine whether the Commissioner’s findings accurately reflect the study in question and if they do, whether the deficiencies he finds conclusively render the study inadequate or uncontrolled in light of the pertinent regulations.”

Squibb, like Hynson, made a submission to the FDA in support of a request for a hearing. Its request was rejected. The FDA’s order denying the hearing cited shortcomings in the literature provided by Squibb to prove efficacy. To apply the standard of review articulated by the Supreme Court, we must determine the correctness of the FDA’s findings that the deficiencies conclusively establish that the studies submitted by Squibb did not conform to the standards enunciated in the FDA regulations.

The material found adequate in Hynson is not fully described in the opinion of the Supreme Court. The Court of Appeals for the Fourth Circuit, however, provides a somewhat more detailed description. A comparison of the description of the evidence provided by Hynson with Squibb’s submission indicates that, in some respects, the materials proffered may be similar.

To fulfill the directive of the Supreme Court, this Court would have to determine “whether the deficiencies [found] conclusively render the [Squibb] study inadequate.” The submission in Hynson appears to be a matrix, or a bench-mark, against which other submissions may be assayed. However, the Hynson study, and its alleged shortcomings, have not been presented to this Court. Moreover, both the Hynson study and its critique and the Squibb study and its critique appear to be couched in terms more familiar to a scientific organization than to a court.

These factors suggest that satisfactory adjudication of this appeal mandates that a meaningful comparison be made between the Hynson study and the Squibb study. Only on the basis of such an analysis, or a comparable evaluation, can the order of the FDA be reviewed in a thoughtful and proper fashion.

In ordering the withdrawal of Squibb’s products without a hearing, the FDA bottomed its action not only on an absence of substantial evidence of efficacy but also on a lack of “adequate data demonstrating safety.” In this respect the case differs from Hynson where the question of safety did not arise.

To review the FDA’s summary action based on considerations of safety, this Court must navigate in a relatively uncharted channel. The section of the regulations outlining the summary judgment procedure, 21 CFR § 130.14(b), by its language is not limited to dispositions based on efficacy. Indeed, the regulation dealing with withdrawal of NDAs, 21 C.F.R. § 130.27, states clearly that the summary judgment procedure is available — implying that summary judgment is applicable for lack of effectiveness or lack of safety.

However, the statute and the FDA’s interpretive regulation appear to indicate that the “substantial evidence” standard, as defined in the statute, elaborated upon in the regulations, and discussed in Hynson, is directed only to questions of efficacy.

A different standard seems to apply when questions of safety arise. The standard adopted both by the statute, and the regulation is not the “substantial evidence” measure.

The safety standard was not directly involved in Hynson. However, the FDA order here appealed from, dealt with both efficacy and safety and did not appear to shift standards when the inquiry moved from efficacy to safety. Because Hynson does indicate the necessity for a remand on the issue of efficacy, and because the standard applied to determine the propriety of summary judgment on the issue of safety has not been made clear by the FDA, remand for reconsideration of that question as well appears warranted.

Before this Court may affirm an action taken by summary judgment, it must be certain that no genuine issues as to any material facts are in dispute, that no questions remain unanswered. This principle, applicable in all summary judgment procedures, would appear to gain content when applied to the present case. If a judicial tribunal harbors a doubt about any factual issue, it may not approve a disposition by summary judgment. The information before the Court, because of the highly esoteric and scientific terms employed, does not afford us a satisfactory basis on which to affirm or reverse the FDA’s summary order. Rather, the record would appear to demand amplification and clarification.

Accordingly, this case is remanded to the FDA to measure the Squibb submission against the Hynson submission, to apply an articulated standard on issues of safety, and to take whatever further action, if any, such proceedings dictate.

      . Both parties agree that Weinberger v. Hynson, Wescott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469 (June 18, 1973) has direct application to this appeal.

      . See Weinberger v. Hynson, 412 U.S. at 612, 93 S.Ct. at 2474.

      . 21 U.S.C. § 321 (p)(1).

      . Certification is achieved by the FDA’s approval of a “New Drug Application” (NDA).

      . 21 U.S.C. § 355(d) and (e) ; Weinberger v. Hynson, 412 U.S. 609, 93 S.Ct. at 2473.

      . 21 U.S.C. § 355(d).

      . Justice Douglas estimated that there were “some 4000” drugs covered by NDAs on the market, and thousands more that “manufacturers had marketed without applying to the FDA for clearance.” This latter group are known as “me-toos.” They are similar to or identical with drugs with effective NDAs.

      . 35 Fed.Reg. 7251, amending 21 C.F.R. §§ 130.12(a) (5) and 130.14.

      . 21 CFR § 130.12(a) (5) (ii).

      . Id. 412 U.S. at 623, 93 S.Ct. at 2480. Although the concurring opinion of Justice Powell suggests that the discussion of the validity of the rules may have been “unnecessary to the Court’s decision,” 412 U.S. at 638, 93 S.Ct. at 2487, both parties agree that the question has been conclusively settled for this appeal.

      . Id.

      . Hynson, Westcott & Dunning, Inc. v. Richardson, 461 F.2d 215, 221 (4th Cir. 1972), aff’d. 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (June 18, 1973).

      . The regulation does appear to track a portion of the statutory definition of the “substantial evidence” concept applied by the FDA to efficacy. However, the regulation states that such language is only an example of the type of data, the absence of which justifies summary judgment.

      . 21 U.S.C. § 355(e).

      . 21 CFR § 130.12(a).

      . 21 U.S.C. § 355(d).

      . CFR § 130.12(a)(5).

      . 21 U.S.C. § 355(e) (1) and (2).
      “(e) The Secretary shall, after due notice and opportunity for hearing to the applicant, withdraw approval of an application with respect to any drug under this section if the Secretary finds (1) that clinical or other experience, tests, or other scientific data show that such Arug is unsafe for use under the conditions of use upon the basis of which the application was approved; (2) that new evidence of clinical experience, not contained in such application or not available to the Secretary until after such application was approved, or tests by new methods, or tests by methods not deemed reasonably applicable when such application was approved, evaluated together with the evidence available to the Secretary when the application was approved, shows that such drug is not shown to be safe for use under the conditions of use upon the basis of which the application was approved.”

      . 21 CFR § 130.27(b)(1) and (2) state: “§ 130.27 Withdrawal of approval of an application.
      “The Commissioner shall, in writing, notify the person holding an approved new-drug application and afford an opportunity for a hearing on a proposal to withdraw approval of the application as provided in section 505(e) of the act and in accordance with the procedure in §§ 130.14 to 130.26, inclusive, if:
      “ (b) The Commissioner finds :
      “(1) That clinical or other experience, tests, or other scientific data show that the drug is unsafe for use under the conditions of use upon the basis of which the application was approved; or
      “(2) That new evidence of clinical experience, not contained in the application or not available to the Food and Drug Administration until after the application was approved, or tests by new methods, or tests by methods not deemed reasonably applicable when the application was approved, evaluated together with the evidence available when the application was approved, reveal that the drug is not shown to be safe for use under the conditions of use upon the basis of which the application was approved.”

      . This Court recognizes that a finding that the drug is either unsafe or ineffective will result in the drug’s removal from the market. Thus, a remand for a determination of the propriety of summary judgment on efficacy, and a finding of ineffectiveness, may well moot questions of safety. The reverse is, of course, also the case. Nonetheless, a reconsideration of the summary disposition of this matter would appear to be a sounder course.


author: ELY, Circuit Judge:

text:
    George Edward HENKEL, Appellee, v. The Honorable Winston L. BRADSHAW, Circuit Court Judge of the Fifth Judicial District of the State of Oregon, Appellant.
    No. 71-2361.
    United States Court of Appeals, Ninth Circuit.
    Aug. 27, 1973.

      Lee Johnson, Atty. Gen., John W. Os-burn, Sol. Gen., Thomas H. Denney, Asst. Atty. Gen., Salem, Or., for appellant.
    Charles J. Merten, of Marmaduke, As-chenbrenner, Merten & Saltveit, H. Jay Folberg, Portland, Or., for appellee.
    Before CHAMBERS, ELY and WRIGHT, Circuit Judges.
   ELY, Circuit Judge:

This action for injunctive and declaratory relief was initiated by Henkel pursuant to the Civil Rights Act, 42 U.S.C. § 1983. The District Court denied in-junctive relief but granted a declaratory judgment in Henkel’s favor. We reverse.

In July, 1968 Henkel had been ordered by a state trial court to pay $150 per month as child support for his two minor children. On September 16, 1969, after a request by Oregon’s district attorney, the state court issued an order directing Henkel to appear and show cause why he should not be held in contempt for failing to comply with that court’s order. Appellant Bradshaw was the judge before whom Henkel was cited to appear. Henkel appeared before the court and moved for appointment of counsel by the court because of his indi-gency. Although under Oregon law fathers who are held in contempt for failure to support their minor children may be imprisoned for as long as six months and also fined, the judge refused to appoint an attorney. He did not consider the matter to be a criminal case.

The show cause proceeding was continued while Henkel exhausted his pretrial state remedies. The Oregon Supreme Court, however, denied Henkel’s petition for writ of mandamus. The court reasoned that the issue of the right to court appointed counsel in the trial court should be raised on appeal of the case and not by the extraordinary writ of mandamus. State ex rel. Henkel v. Bradshaw, 257 Or. 55, 475 P.2d 75 (1970) .

Henkel then brought this action in the District Court. The parties stipulated that Henkel was in fact indigent and unable to afford counsel. The District Court issued the requested declaratory judgment, holding that since Henkel was indigent and could be imprisoned if found in contempt, he was entitled to counsel as a matter of law.

Here, the appellant argues that a federal court, under the principles of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and its companion case, Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) , should abstain and allow the courts of the state of Oregon the first opportunity to decide the controversy. We agree with appellant’s argument, although, at the same time, we share the District Court’s view that Henkel, absent the representation of counsel, could not be sentenced to jail in the contempt proceedings.

The Supreme Court in Younger reaffirmed the principle that federal courts should not interfere with state criminal proceedings unless absolutely necessary to protect constitutional rights. The Court, citing Fenner v. Boykin, 271 U.S. 240, 243, 46 S.Ct. 492, 70 L.Ed. 927 (1926), stressed that intervention is proper only in the extraordinary circumstance where there is threat of irreparable harm, “both great and immediate.” 401 U.S. at 45, 91 S.Ct. 764. There is no such irreparable injury, however, if the threat can be eliminated in the defense of a single criminal prosecution. Additionally, before a federal court will intervene the plaintiff must make a showing of “bad faith, harassment, or any other unusual circumstance that would call for equitable relief.” 401 U.S. at 54, 91 S.Ct. at 755. This Circuit has applied these principles to actions based on the Civil Rights Act. Kinney v. Lenon, 447 F.2d 596 (9th Cir. 1971); Rivera v. Freeman, 469 F.2d 1159 (9th Cir. 1972).

While Younger dealt with the propriety of an injunction, Samuels held that the same principles of comity and equity apply to a declaratory judgment. Since the practical effect of both is usually identical, the same policies that would preclude an injunction would ordinarily argue against declaratory relief.

Although Younger and Samuels were specifically concerned with intervention into state criminal prosecutions, the same basic notions of comity and federalism apply to actions such as this. See C. Wright, Law of Federal Courts § 52 (Supp.1972). Mr. Justice Stewart, in his concurring opinion in Younger, did suggest that different considerations might govern state civil proceedings. 401 U.S. at 55, 91 S.Ct. 746. While the state does not define the contempt proceeding here in question as “criminal”, the label is not determinative. The state is a party to the contempt action, and the district attorney initiated the proceeding in attempting to enforce a prior court order. Additionally, we are concerned with the possible penal outcome of the hearing. In this situation “the interests of the state involved are at least of equal gravity,” Kinney, supra, 447 F.2d at 601, as in the usual state criminal proceeding. Cf. Palaio v. McAuliffe, 466 F.2d 1230 (5th Cir. 1972). Any federal interference at this stage of the state’s show cause proceeding would be particularly intrusive to Oregon court procedure and “would clearly be at odds with the principles of comity and federalism which underlie Younger.” Kinney, supra, 447 F.2d at 601.

Since Henkel has not shown the necessary prerequisite of irreparable harm, federal court intervention cannot now be justified. There are no allegations of bad faith or harassment; nor is there reason to believe that Oregon’s courts will not correctly decide the issue when it is properly presented to them. Henkel asserts, however, that he will have the burden of going forward with the evidence in the contempt proceeding and that this procedure without benefit of counsel especially subjects him to later felony prosecution and to possible termination of his parental rights. He claims that the possible effect that the contempt proceeding may have upon any subsequent felony prosecution or termination hearing constitutes irreparable harm. We do not agree.

First, the record does not indicate that either a felony prosecution or a termination hearing has been threatened or is pending; thus, his asserted fear is mere speculation at this time. Sweeten v. Sneddon, 463 F.2d 713, 715 (10th Cir. 1972); see Boyle v. Landry, 401 U.S. 77, 81, 91 S.Ct. 758, 27 L.Ed.2d 696 (1971). Secondly, a declaratory judgment cannot eliminate the dangers in the further proceedings, since Henkel is not necessarily entitled to counsel in the show cause proceeding. See Younger, supra, 401 U.S. at 50, 91 S.Ct. 746. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) only prohibits the imprisonment of Henkel if he is not represented by counsel in the contempt hearing. See United States v. Sun Kung Kang, 468 F.2d 1368 (9th Cir. 1972). The state trial judge, now cognizant of Argersinger, will most assuredly know that if a lawyer is not appointed for Henkel’s representation, Henkel cannot be confined even if found to have been contemptuous. And even if the judge should announce, in advance, that no confinement could attend the show cause proceeding, Henkel would yet be required to go forward pro se with his justification for nonpayment, risking, if he testifies, the same exposure to the risks of later felony prosecution and termination of parental rights. Finally, even if Henkel is found in contempt, he will be entitled to counsel both in any subsequent felony prosecution, Argersinger, and in any possible hearing to terminate his parental rights, State v. Jamison, 251 Or. 114, 444 P.2d 15 (1968). He may then specify any flaws in the contempt proceeding wherein he was unrepresented by counsel. Sweeten v. Sneddon, 463 F.2d 713 (10th Cir. 1972).

We conclude that Henkel’s claim for right to counsel can be fully vindicated in one state proceeding, with the right of appeal through the state courts and with the right to petition the United States Supreme Court for review of any federal question. We do not agree with Henkel that' the situation is so identical to a flagrantly and patently unconstitutional statute as to warrant immediate federal intervention. See Younger, supra, 401 U.S. at 53-54, 91 S.Ct. 746. Although the trial judge did state that he would not appoint an attorney for an indigent in this type of proceeding, the Supreme Court has since decided Arger-singer. That decision makes it clear that a jail sentence may not be imposed upon an indigent unrepresented by counsel, absent the indigent’s knowing and intelligent waiver. The concurring opinion of the Chief Justice emphasizes that the state trial court, not the federal judiciary, has the initial responsibility of making these types of predictions :

“Because no individual can be imprisoned unless he is represented by counsel, the trial judge and the prosecutor will have to engage in a predictive evaluation of each case to determine whether there is a significant likelihood that, if the defendant is convicted, the trial judge will sentence him to a jail term.”

407 U.S. at 42, 92 S.Ct. at 2014.

While sharing the District Court’s concern with an indigent’s right to counsel, we have concluded that its intervention in the Oregon contempt proceeding was premature.

The judgment is vacated, and, upon remand, the District Court will dismiss the action.

Reversed and remanded, with directions.

      . Jurisdiction in the District Court was appropriately grounded on 28 U.S.C. § 1343.

      . Under Or.Rev.Stat. § 23.785 (1971), the district attorney is authorized to institute such contempt proceedings.

      . Or.Rev.Stat. § 33.020 (1971) provides as follows:

        “Limitation of punisiiment. (1) Every court of justice and every judicial officer has power to punish contempt by fine or imprisonment, or both; but such fine shall not exceed $300 nor the imprisonment six months, except in the eases mentioned in subsection (2) of this section ; and when the contempt is not one of those mentioned in paragraphs (a) and (b) of subsection (1) of ORS 33.010, or in subsection (1) of ORS 1.240, it must appear that the right or remedy of a party to an action, suit or proceeding was defeated or prejudiced thereby before the contempt can be punished otherwise than by a fine not exceeding $100.
      “(2) In addition to the punishment provided for in subsection (1) of this section, the court or judge shall have power to constrain performance of any lawful order, judgment or decree of such court or judge, by imprisonment of the person failing or refusing to comply, until the order, judgment or decree has been complied with.”

      . The judge stated:
      “I don’t consider it a criminal case. I’m not going to appoint him an attorney. I realize he might end up in jail, but the Supreme Court is going to have to reverse me before I start appointing attorneys for these kind of cases.”

      . The contempt proceeding is still pending and will not be set for a hearing on the merits until the resolution of this action.

      . As the Court noted in Samuels, there may be exceptional circumstances in which a declaratory judgment would be proper, even though injunctive relief would be inappropriate.
      “There may be unusual circumstances in which an injunction might be withheld because, despite a plaintiff’s strong claim for relief under the established standards, the injunctive remedy seemed particularly intrusive or offensive; in such a situation, a declaratory judgment might be appropriate and might not be contrary to the basic equitable doctrines governing the availability of relief.”
      401 U.S. at 73, 91 S.Ct. at 768.
      We do not find such “unusual circumstances” in this ease.

      . Or.Rev.Stat. § 33.060 (1971) provides:

        “Parties plaintiff; prosecution by district attorney. In the proceeding for a contempt, the state is the plaintiff. In all cases of public interest, the proceeding may be prosecuted by the district attorney, on behalf of the state, and in all cases where the proceeding is commenced upon the relation of a private party, such party shall be deemed a coplaintiff with the state.”

      . In cases where the state court does not contemplate incarceration, a possible and practical solution would be for the show cause order served upon the alleged con-temnor to recite that imprisonment is not contemplated.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Danton LONG, Defendant-Appellant.
    No. 73-1954
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 13, 1973.

      Tom A. Edenfield, Savannah, Ga., Court-appointed for defendant-appellant.
    R. Jackson B. Smith, Jr., U. S. Atty., Augusta, Ga., Lamar C. Walter, Asst. U. S. Atty., Savannah, Ga., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, 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.

   PER CURIAM:

Appellant Long was convicted by a jury of knowingly making a false and fictitious statement in connection with the acquisition of a shotgun from a licensed firearms dealer in violation of 18 U.S.C. §§ 922(a)(6), 924(a). Appellant stated in connection with the acquisition that he had not been convicted of a crime punishable by imprisonment for a term exceeding one year. At the time of the acquisition, however, appellant was on parole under a twenty-year sentence for a prior conviction. Appellant claims several errors in his conviction in the district court. After a careful review of the record, we are convinced that the district court committed no reversible error and we affirm the judgment of conviction.

The record affirmatively shows that the shotgun was purchased from a licensed firearms dealer holding federal firearms license No. 58-3536 and that the false statement made by appellant was on an approved firearms transaction record, Form 4473. See 26 C.F. R. § 178.124 (1972). Admission of testimony concerning appellant’s subsequent purchase of a revolver was proper because it was used for impeachment purposes. There was no reversible error when, on cross-examination of appellant, the district court ruled out a question concerning an alleged threat by appellant against his mother and sister. Evidence concerning appellant’s prior conviction and parole status was properly introduced and was admissible to show that one of the conditions of appellant’s parole was that he not own firearms. Finally, there was no merit to appellant’s motion for a new trial.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jesus Buiz SILVAS, Defendant-Appellant.
    No. 73-1496
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit
    Sept. 17, 1963.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., 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:

Jesus Ruiz Silvas appeals from his conviction on a jury verdict of four counts of encouraging and inducing the entry of illegal aliens into the United States. 8 U.S.C.A. § 1324(a)(4). He seeks reversal on two grounds: (1) the receipt in evidence of a letter written by him from jail to an acquaintance, the father of the driver of the automobile in which the aliens were riding when apprehended; and (2) the overruling by the Court of his objection to questions by the prosecution about the details of a prior, similar offense for which he had been imprisoned. We affirm.

(1) The letter in question implored Vicente Oliveros, a former prison acquaintance of defendant, to deny knowledge of arrangements assertedly made by defendant with Oliveros and others for the illegal entry of the aliens. At the time of the letter’s admission in evidence, four of the illegal aliens, as well as Oliveros, had identified the defendant and had testified at length about these same arrangements. When admitted, the letter’s predicate as emanating from defendant was somewhat dubious. Subsequently, however, defendant, in response to questions by his counsel, removed these doubts by admitting its authorship.

We are unable to agree with the contention of the Government that the letter was sufficiently authenticated at the time of its admission. Any error in this respect was, however, both waived and harmless in view of defendant’s later, voluntary admission of authorship and of the existence in the record of other, entirely proper evidence of such strength as to convince us that any error in the initial admission of the letter did not prejudice Silvas. United States v. Lipscomb, 435 F.2d 795, 803 (5th Cir. 1970).

(2) Silvas also contends he was prejudiced when the prosecutor elicited the details of Silvas’ prior conviction for the same offense. During direct examination of Silvas, his counsel had opened the subject and explored it rather fully, and he did not object until the prosecutor’s line of questioning was well advanced. The additional information secured by the prosecutor’s questions showed a similarity of method between the two incidents and, thus, was relevant to show appellant’s modus oper-andi as it related to the credibility of his claimed alibi. In addition, we conclude that the prejudicial effect of any additional details elicited by the prosecutor did not outweigh the probative value of the testimony, and that the District Court did not abuse its discretion in overruling the objection to the prosecutor’s questions. McCormick, Evidence (2d 1972), § 191; United States v. Goldsmith, 5 Cir., 1973, 483 F.2d 441.

Defendant received a fair trial, free of harmful error.

Affirmed.

      . Though handwritten, no identification of the writing as defendant’s was made. Admission rested on litüe more than the conclusion of the addressee’s wife that the letter was “from the gentleman, Jesus Silvas.” The special knowledge upon which she based her conclusion, that defendant had written letters from prison to her for her illiterate husband, did not appear until defendant’s testimony later in the trial.


author: COLEMAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Floyd DUPART, Defendant-Appellant.
    No. 73-1606
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 17, 1973.
    Rehearing Denied Oct. 15, 1973.

      Dean A. Andrews, Jr., New Orleans, La., for defendant-appellant.
    Gerald Gallinghouse, U. S. Atty., New Orleans, La., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, 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.

   COLEMAN, Circuit Judge:

A jury has convicted Floyd Dupart of distributing heroin (8 counts) and of possession with intent to distribute, all in violation of 21 U.S.C. § 841(a).

In response to the appellate contentions, we note that the statute is Constitutional, United States v. Lopez, 5 Cir., 1972, 459 F.2d 949; that there was no abuse of discretion in the denial of a requested continuance, United States v. Gower, 5 Cir., 1971, 447 F.2d 187; and that there was no error in admitting evidence of the declarations of Alvin Curtis, United States v. Johnson, 5 Cir., 1972, 466 F.2d 508. Nor do we perceive any error in the denial of the motion to sever the possession count from the distribution count, United States v. Ab-shire, 5 Cir., 1972, 471 F.2d 116.

We discuss more extensively the contention that reversal is necessitated by the closing argument of the prosecutor, as follows:

“But if you believe, as I do, that they (government witnesses) are conscientious federal agents, that Mrs. Smith is a conscientious policewoman, that she took great risks to do what she did, and she did not lie on that stand, then I ask you, ladies and gentlemen, don’t let this heroin fellow out of this courtroom. Thank you. (Emphasis added).
MR. ANDREWS: May I approach the Bench, Your Honor?
THE COURT: All right.
[Whereupon, the following proceedings were had at the Bench, outside the hearing of the jury]
MR. ANDREWS: Unfortunately that last remark may result in a mistrial. I have the public law, after the jury is gone, may we approach the Bench again and discuss it ?
The way in which he approached the matter, I may be in error, but I’d rather show it to you now than months later, this particular section here on the four counts, Your Honor.
It’s just that last phrase, everything up to there I have no objection to.
THE COURT: I don’t think that relates to the comments made.
Show for the record that defense counsel called the Court’s attention to Public Law 91-513, § 409(a) which provides in part: 'In no case shall the fact that the defendant is alleged to be a dangerous special drug offender, be an issue on the trial of such felonious violations, be disclosed to the jury, or be disclosed before any plea of guilty or nolo contendré, or verdict or finding of guilt without the consent of the judge or the parties’.
I don’t interpret counsel’s remark to be an indication that this is a special drug offender under the law, but I will charge the jury that at any rate the penalties are up to the Court.
MR. ANDREWS: Right. It sets up the procedure. I just wanted to be sure in an abundance of caution.
THE COURT: All right. Thank you.
MR. ANDREWS: Thank you.
THE COURT: Thank you, Mr. Andrews.”

The Court’s instruction concerning this point of law:

“Now, regardless of anything that counsel may have said or intimated with respect to what might happen to the defendant if he should be convicted, you are to disregard any such comment, because the punishment provided by law for the offense charged in this indictment is a matter that will be exclusively my responsibility. It’s not to be considered by you in any way in arriving at an impartial verdict as to whether Mr. Dupart is innocent or guilty of any one or all four of these charges.”

The phrase “don’t let this heroin fellow out of this courtroom” does not assert the defendant to be a dangerous special drug offender as proscribed by 21 U.S.C. § 849(a); it was simply a plea for conviction. Any possible prejudice to the appellant was amply extirpated by the charge of the Court, given in the clearest of terms.

The judgment of the District Court is

Affirmed.


text:
    Joseph P. GIORDANO et al., Plaintiffs-Appellants, v. Hiram F. STUBBS et al., Defendants-Appellees.
    No. 72-1388.
    United States Court of Appeals, Fifth Circuit.
    Sept. 5, 1973.

      Hugh W. Gibert, Atlanta, Ga., for plaintiffs-appellants.
    Homer M. Stark, Lawrenceville, Ga., for Millard Peevy.
    Harry L. Cashin, Jr., Simuel F. Dos-ter, Jr., Joe G. Davis, Jr., Atlanta, Ga., for Hiram F. Stubbs.
    Before RIVES, THORNBERRY and GOLDBERG, Circuit Judges.
   PER CURIAM:

The plaintiffs claim that they have been deprived of their property without due process of law by means of Ga.Code § 67-1506:

“No sale of real estate under powers contained in mortgages, debt, deeds, or other lien contracts shall be valid unless the sale shall be advertised and conducted at the time and place and in the usual manner of sheriff’s sales in the county in which real estate, or a part thereof, is located.”

Without reaching the merits of the plaintiffs’ claim, Judge Edenfield has twice held that the plaintiffs’ complaint must be dismissed under the doctrines of res judicata and full faith and credit. Giordano v. Stubbs, N.D.Ga. 1971, 335 F.Supp. 110; Giordano v. Stubbs, N.D.Ga.1973, 356 F.Supp. 1041. Judge Edenfield’s rulings were supported by able and thorough opinions in which he meticulously traced the circuitous procedural progress of the case and the difficult questions of state procedure. Any further discussion by this Court was rendered superfluous.

Confining our holding strictly to the doctrines of res judicata and full faith and credit, we hold that the decision of the Georgia Supreme Court in Giordano v. Stubbs, 1971, 228 Ga. 75, 184 S.E.2d 165 (appeal dismissed for want of jurisdiction; treating the appeal as petition for certiorari, certiorari denied 1972, 405 U.S. 908, 92 S.Ct. 960, 30 L.Ed.2d 779), and the entry by the DeKalb County Superior Court of an order making the judgment of the Georgia Supreme Court the judgment of the Superior Court, prevent the federal courts from deciding the merits of plaintiffs’ claim. On those issues we agree with and adopt Judge Edenfield’s reasoning. The judgment is

Affirmed.


text:
    Mrs. Millie HUESCHEN, wife of/and James W. Lawrence, Plaintiffs-Appellees-Cross Appellants, v. FLUOR OCEAN SERVICES, INC., Defendant-Appellant-Cross Appellee.
    No. 73-1917
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 6, 1973.
    Rehearing and Rehearing En Banc Denied Dec. 17, 1973.

      Robert M. Contois, Jr., New Orleans, La., for defendant-appellant.
    Thomas L. Giraud, New Orleans, La., for plaintiffs-appellees.
    Before THORNBERRY, GOLDBERG and RONEY, 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.

   PER CURIAM:

Standing- on a barge in the Gulf of Mexico, William Lawrence was killed instantly when a wildly whipping cable severed his head from his shoulders. The barge was owned by defendant Fluor Ocean Services, Inc. His parents brought this action seeking damages under the Jones Act, 46 U.S.C. § 688, the Death on the High Seas Act, 46 U.S.C. §§ 761-68, and the general maritime law. The trial court found that the barge’s unseaworthiness proximately caused Lawrence’s death. It awarded $60,000 for loss of love and affection and $7,331.13 for loss of future support.

On appeal appellant Fluor Ocean Services contends that the trial court’s award of damages for loss of love and affection was erroneous. We agree. In the recent case of Canal Barge Co. v. Griffith, 5th Cir. 1973, 480 F.2d 11, the court decided that damages for survivors’ grief were not available under the general maritime law wrongful death action created by Moragne v. States Marine Lines, 1970, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339. Such damages are also unavailable under the Jones Act and the Death on the High Seas Act. Canal Barge Co. v. Griffith, supra, 480 F.2d at 31. Appellees therefore may not receive an award for loss of Lawrence’s love and affection.

On cross appeal Lawrence’s parents contend the trial court erred in refusing to award pain and suffering damages and in underestimating the contribution Lawrence would have made to his parents during their lifetimes. In regard to the first contention the trial court found specifically that Lawrence was killed instantaneously and that he had no conscious pain and suffering. Hence it awarded no damages for pain and suffering. The trial court’s conclusion that Lawrence had no conscious pain and suffering is a finding of fact, and we cannot say it was clearly erroneous. Fed.Rules Civ.Proc., rule 52(a), 28 U.S.C.A.

We reach the same result in reviewing the trial court’s award for loss of financial support. Although Lawrence had contributed a large portion of each paycheck to his parents before he died, the trial court found that his contributions would have diminished when his father became gainfully employed. We cannot say the trial court’s finding in this regard is clearly erroneous.

For the reasons stated above we affirm the trial court award for loss of support and reduce the total judgment by $60,000 to reflect the legal unavailability of damages for loss of love and affection. We find no merit in plaintiffs’ cross appeal.

The judgment for plaintiffs as modified is affirmed.


text:
    TOLEDO TV CABLE CO., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. NEWPORT TV CABLE CO., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
    No. 71-2336.
    United States Court of Appeals, Ninth Circuit.
    Aug. 1, 1973.
    James H. Clarke (argued), John H. Doran, George L. Kirklin, of McColloeh, Dezendorf & Lubersky, Portland, Or., for petitioner.
    Stephen Schwartz (argued), Scott P. Crampton, Asst. Atty. Gen., K. Martin Worthy, IRS Chief Counsel, Meyer T. Rothwacks, Bennet N. Hollander, William K. Hogan, Tax Div., Dept, of Justice, Washington, D. C., for respondent.
    Before HASTIE MERRILL, and ELY, Circuit Judges.

       The Honorable William H. Hastie, Senior United States Circuit Judge of the Third Circuit, sitting by designation.

   OPINION

PER CURIAM:

In these consolidated appeals, the petitioning taxpayers challenge the Tax Court’s conclusion that two municipal franchises for community antenna television could not qualify for depreciation deductions under Section 167(a) of the Internal Revenue Code of 1954. We need not review the facts inasmuch as they are carefully set forth in the Tax Court’s Opinion, reported at 55 T.C. 1107.

The rule is that assets such as those here involved must be shown to have a determinable useful life in order to qualify as depreciable property. Since the franchises originally acquired by the taxpayers were renewed, prior to their expiration on terms not grossly disparate to those embodied in the original franchise contracts, the Tax Court held that the taxpayers had not, and could not, establish that the original franchises had a determinable useful life.

The critical issue in a case such as this is factual. The Tax Court based its critical findings upon a stipulation of the parties and extensive evidence, both documentary and testimonial. While we recognize that the issue was not capable of easy resolútion, we are not persuaded that the Tax Court’s dispositive factual findings were without substantial evidentiary support and, thus, clearly erroneous. Accordingly, the Tax Court’s decisions in' these eases should be, and they hereby are,

Affirmed.

      . Two of the Tax Court’s judges noted, without explanation, their dissent from the majority decisions issued by their colleagues.


author: BOREMAN, Senior Circuit Judge:

text:
    Herman Russell McLAWHORN, III, Appellant, v. STATE OF NORTH CAROLINA, Appellee.
    No. 73-1231.
    United States Court of Appeals, Fourth Circuit.
    Argued April 2, 1973.
    Decided Sept. 10, 1973.

      Jack W. Floyd, Greensboro, N. C. (Benjamin F. Davis, Jr., and Smith, Moore, Smith, Schell & Hunter, Greensboro, N. C., on brief), for appellant.
    Richard N. League, Asst. Atty. Gen., of North Carolina (Robert Morgan, Atty. Gen., of North Carolina, on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and CRAVEN and BUTZNER, Circuit Judges.
   BOREMAN, Senior Circuit Judge:

Herman Russell McLawhorn, III (hereafter petitioner or McLawhorn) appeals the district court’s denial of his petition for a writ of habeas corpus. He complains that the State’s refusal to reveal the identity of an informant who participated in illegal activities with respect to narcotic drugs of which petitioner was convicted in state court is a denial of due process. Since we conclude that this refusal to reveal the identity of a participant in the offenses charged constitutes a denial of fundamental fairness required by the Fourteenth Amendment, we reverse and remand.

I

During the summer and fall of 1971, Detective Sylvester Daughtry, an officer in the Greensboro, North Carolina, Police Department, was conducting an extensive" undercover investigation of illegal drug sales in the area with the assistance of an unidentified informant. The informant told Daughtry that Mc-Lawhorn was involved in the drug traffic and offered to arrange a sale of cocaine. On August 7, 1971, after making several telephone calls to McLawhorn in an effort to arrange a “buy,” the informant met Daughtry and began looking for McLawhorn on the streets. The informant saw McLawhorn driving a car and signaled him to stop. After a brief conversation the informant called to Daughtry and introduced him as a potential customer. They entered Mc-Lawhorn’s car who then drove them a short distance while the informant negotiated a sale of one gram of cocaine. According to Daughtry’s testimony, McLawhorn then removed one gram of cocaine from under the dashboard of his car and sold it to Daughtry and the informant for forty-five dollars.

On December . 11, 1971, approximately four months after the sale, McLawhorn was arrested and later indicted. He was charged in separate counts with illegal transportation, possession and sale of a narcotic drug. He first moved to dismiss the indictments for failure to provide a speedy trial. McLawhorn alleged at the hearing on the motion and again at trial that the delay in charging him resulted in his inability to secure the attendance of the informant as a witness to the defense of entrapment. The trial court denied the motion to dismiss and held that the State was entitled to invoke the privilege of nondisclosure to support its refusal to reveal the informant’s identity.

From his conviction and sentence on the three counts McLawhorn unsuccessfully appealed to the North Carolina Court of Appeals. An attempted appeal to the Supreme Court of North Carolina was denied for failure to raise a substantial constitutional question. An application for a. writ of habeas corpus was denied by the district court in a memorandum opinion. We grant a certificate of probable cause for appeal and consider the petition on its merits.

II

Petitioner contends that the State may not conceal facts concerning the true identity, present whereabouts, and status of an “informant” to whom delivery of the drug was made and who alone made all arrangements for the sale.

Although this circuit has not had previous occasion to examine fully the limits of the nondisclosure privilege, decisions of other circuits and the Supreme Court are persuasive. After reviewing those cases and taking into account underlying policy considerations, we conclude that the State could not properly claim the nondisclosure privilege under the facts of this case.

The leading case involving the right of an accused to require disclosure of the identity of an informant is Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L.Ed.2d 639 (1957). There the Court characterized the problem as one calling for the balancing of the public interest in protecting the flow of information respecting criminal activities against the individual’s right to prepare his defense. No fixed rule with respect to disclosure was established by the Court. Whether nondisclosure is warranted must depend upon the particular circumstances of each case, taking into consideration the crime charged and the possible defenses, the possible relevance and significance of the informant’s testimony, and other related factors. Roviaro v. United States, supra, 353 U.S. at 62, 77 S.Ct. 623; Miller v. United States, 273 F.2d 279, 281 (5 Cir. 1959) ; Gilmore v. United States, 256 F.2d 565, 566 (5 Cir. 1958).

The public interest referred to by the Supreme Court in Roviaro, supra, concerns the prevention, detection, and prosecution of criminal acts. We are keenly aware that law enforcement officers dealing with a large number of crimes, especially in the area of the narcotics traffic, must depend upon informants to furnish information concerning criminal activities; privileged communications of this nature must be encouraged if law enforcement officers are to be held to the task of solving and prosecuting crime; if the identity of the informant must be routinely disclosed undoubtedly such sources of information would disappear almost immediately. Still, this valid public interest must be balanced against the individual’s right to prepare a defense. The privilege of nondisclosure must give way where disclosure is essential or relevant and helpful to the defense of the accused, lessens the risk of false testimony, is necessary to secure useful testimony, or is essential to a fair determination of the case. Roviaro v. United States, supra; Miller v. United States, supra; Gilmore v. United States, supra; Portomene v. United States, 221 F.2d 582 (5 Cir. 1955); Sorrentino v. United States, 163 F.2d 627 (9 Cir. 1947). Limitations on the privilege of nondisclosure arise from the Fourteenth Amendment’s requirement of fundamental fairness to the accused. Roviaro v. United States, supra; Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969).

In undertaking to balance the interests here involved we look to the decisions of the Supreme Court and of other circuits as they appear properly applicable to the particular circumstances and relevant factors of this case. It is important to determine those who have been treated by the courts as tipsters as distinguished from those labeled as “participants.” In determining whether invocation of the privilege of nondisclosure is to be sustained a distinction has frequently been made based on the nature of the informant’s activities, that is, whether the informant is an active participant in the offense or is a mere tipster who supplies a lead to law enforcement officers to be pursued in their investigation of crime. Applying this distinction, disclosure of the informant’s identity is required where the informant is an actual participant, particularly where he helps set up the criminal occurrence. Roviaro v. United States, supra; Gilmore v. United States, supra; Porto-mene v. United States, supra; United States v. Conforti, 200 F.2d 365 (7 Cir. 1952); Sorrentino v. United States, supra. Therefore, one of the factors tending to show that the prosecution is not entitled to withhold from the accused information as to the identity of an informant is the qualification of the informant to testify directly concerning the very transaction constituting the crime.

On the other hand, the privilege of nondisclosure ordinarily applies where the informant is neither a participant in the offense, nor helps set up its commission, but is a mere tipster who only supplies a lead to law investigating and enforcement officers. Miller v. United States, supra; Williams v. United States, 273 F.2d 781 (9 Cir. 1959); Anderson v. United States, 106 U.S. App.D.C. 340, 273 F.2d 75 (1959); Pegram v. United States, 267 F.2d 781 (6 Cir. 1959); United States v. Conforti, supra; Sorrentino v. United States, supra. This appears to be the generally accepted rule where the informant merely provides a lead or tip that furnishes probable cause for a search and seizure. Ordinarily, knowledge of the identity of a tipster would not be essential in preparing the defense of the accused and the public interest in protecting such informants should weigh heavily in favor of nondisclosure. However, where the informant is an actual participant, and thus a witness to material and relevant events, fundamental fairness dictates that the accused have access to him as a potential witness. In such instances disclosure of identity should be required.

The facts in the case at bar clearly indicate that the informant was a participant in the incident which resulted in the arrest and conviction of petitioner. The unidentified informant initially suggested that petitioner dealt in drugs. There is evidence that he made confidential telephone calls to petitioner in an attempt to arrange a sale. He made the initial face-to-face contact with the petitioner, conversed with him several moments in private and then introduced him to Daughtry. The informant, riding in the front seat with petitioner while Daughtry rode in the back seat, observed and engaged in the negotiations for the sale. He actually took delivery of the drug, passed the package back to Daughtry, and paid at least a part of the purchase price with money he had on his person. It is apparent that the informant engineered the events leading up to the criminal occurrence and was a material witness who could testify directly from personal knowledge concerning the transportation, possession, and sale of cocaine. Indeed his testimony was mandated in order to accomplish the purpose of a criminal trial — finding the truth. It is our view that participation by the informant is the essential distinction and we conclude that the prosecution’s claim of the nondisclosure privilege should have been denied by the trial court. Quoting from Roviaro, supra, which seemingly cannot be materially distinguished from the case at bar, we note that:

“His [the informant’s] testimony might have disclosed an entrapment. He might have thrown doubt upon petitioner’s identity or on the identity of the package. He was the only witness who might have testified to petitioner’s possible lack of knowledge of the contents of the package that he ‘transported’ .... The desirability of calling . . . [informant] as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.” Roviaro v. United States, 353 U.S. at 64, 77 S.Ct. at 629.

This rule with respect to an informant’s participation protects the interests to be balanced. It does not tend to curtail the necessary flow of information of criminal activities since the privilege of nondisclosure may be invoked where the informant is a mere tipster. The rule also operates to protect the accused in the proper preparation of his defense. Where participation, per se, qualifies the informant as a material witness, to require the accused to present proof of a need for the informant’s testimony, as would the district court in this case, places an unjustifiable burden on the defense. Evidence of entrapment, misidentifieation, intent, or knowledge often is available only to those who actively participate in the transaction; unless the accused waives his Fifth Amendment right to remain silent, and testifies, he is forced to rely upon prosecution witnesses to provide proof of need. A more compelling instance is where the participating informant alone contrived and perpetrated an entrapment, as contended by petitioner in the case at bar. In such circumstances the accused could show a need for disclosure of the identity of the informant, a material witness, only by testifying to the facts of entrapment.

Ill

We find no merit in the contention here that any error inherent in the prosecution’s failure to reveal the identity of the informant was waived. Petitioner first sought to learn the identity of the informant by questioning Detective Daughtry at the hearing on the motion to dismiss the indictment; an objection to the question was made by the prosecution and was sustained by the court. At trial petitioner again asked the name of the confidential informant and whether he was still acting as an informant; again the court promptly sustained objections to these questions.

The State argues that even if the refusal to reveal the informant’s identity was error it was not prejudicial. While it is true that petitioner made no effort to subpoena the informant as a witness his every effort to obtain sufficient information to secure a subpoena was thwarted. Admittedly he did not tell the court in so many words that he needed the informant’s name so that he could be called as a witness but, at the hearing on the pretrial motion to dismiss, McLawhorn’s attorney stated that “witnesses are not available to this defendant to show entrapment.” This statement clearly alerted the court to the purpose of the questions. McLawhorn cited the refusal of the State to identify the informant as prejudicial error in all subsequent appeals and in this petition for habeas relief. This question was clearly and fully presented to the state courts, to the district court, and is properly before this court.

The judgment of the district court is reversed and the case is remanded with directions that petitioner be releásed and discharged from custody unless the State of North Carolina shall elect to retry him within a reasonable period of time to be fixed by the court.

Reversed and remanded.

      . Daughtry testified at the pretrial hearing on a motion to dismiss and again at trial that he paid twenty dollars and the informant paid an additional twenty-five dollars to McLawhorn for a single bag of cocaine. McLawhorn was charged with a single sale of cocaine to Daughtry. It was contended that this constituted a fatal variance between the indictment and the evidence since the sale was made to the two jointly. This contention appears to have been abandoned on appeal to the Supreme Court of North Carolina.

      . During that four-month period Daughtry continued his undercover investigation. His desire to conceal his own identity while operating as an undercover officer was assigned as his reason for delaying the filing of charges.

      . N.C.Gen.Stat. § 90-111.2 (1965 Repl.Vol.).

      . N.C.Gen.Stat. § 90-88 (1965 Repl.Vol.).

      . Id.

      . Actually, two indictments were returned against the petitioner. One charged him with illegal transportation of a narcotic drug and in the other he was charged in one count with illegal possession and in the second count with sale of that drug. All of these charges arose from the incidents described. Convictions on all the three counts contained in the two indictments were consolidated in the final judgment and the petitioner was sentenced to imprisonment for one term of five years.

      . McLawhorn claims the foui'-month delay between the alleged illegal activities and the arrest denied him due process of law and his rights under the Sixth Amendment. The Sixth Amendment is applicable only after a person has been accused of a crime; the relevant statute of limitations protects against preaccusation delay. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L. Ed.2d 468 (1972). Where an unreasonable preaccusation delay is shown to have impaired the defendant’s ability to defend himself, there may be a denial of due process which precludes prosecution. Ross v. United States, 121 U.S.App.D.C. 233, 349 E.2d 210 (1965). In light of our ultimate decision we find it unnecessary to consider this issue.

      . It is clear that McLawhorn was acquainted with the informant; however, the extent of that acquaintanceship is not disclosed and the informant may have been known only by an alias. There is some evidence in the record that the person McLawhorn suspected was the informant had left the jurisdiction and could not be located by the defense. The State refused to reveal the informant’s true name or current address or divulge whether the informant was still actively assisting the police despite defense requests for that information.

      . The petitioner did not specifically argue that the informant was a participant in the transportation and possession or that the State could not properly withhold his identity on those counts. Counsel for the petitioner and the State have treated this error on appeal in the state courts and in this petition for habeas relief as a single question: whether the convictions and sentence should be set aside on the ground that the refusal to reveal the informant’s identity denied fundamental fairness. We have examined this issue as to each distinct charge and conclude that since the informant played a part with the petitioner in the very transaction upon which the State relies to prove illegal transportation, possession and sale of cocaine, he was entitled to require the State to reveal the identity of the informant with respect to all of the charges arising from that transaction. See notes 14, 15, and 16 infra.

      . We have previously recognized the privilege to withhold the identity of an informant. United States v. Fisher, 440 F.2d 654 (4 Cir. 1971) ; United States v. Pitt, 382 F.2d 322 (4 Cir. 1967) ; United States v. Whiting, 311 F.2d 191 (4 Cir. 1962). In each of these cases the informant was a mere tipster who supplied information sufficient to show probable cause for the issuance of a search warrant.

      . In Roviaro it was held error for the trial court to deny, prior to trial, an accused’s demand for a bill of particulars as to a participating informant’s identity and address where the accused was charged with illegal transportation and sale of heroin. The Court noted that the informant “helped to set up the criminal occurrence and had played a prominent part in it.” 353 U.S. at 64, 77 S.Ct. at 629. The Court concluded that when the informant’s name and address were thus requested, the prosecution should have been required to supply the information or suffer dismissal of that count.

      . Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) ; Miller v. United States, 273 F.2d 279 (5 Cir. 1959) ; Gilmore v. United States, 256 F.2d 565 (5 Cir. 1958). This is not to say that the informant’s mere physical presence at the scene of the alleged crime would be sufficient to hold him a participant and thus affect the nondisclosure privilege. Miller v. United States, supra.

      . The seemingly impossible task of balancing these interests without being aware of the relevancy of the information possessed by the informant, be he merely a tipster or a participant, can be obviated by utilizing an in camera hearing. The Third Circuit has approved such hearings in informant cases and has described the procedure in the following language:
      “[T]he trial judge conducted an in camera confrontation with the informer, who was made to take the oath and testify as to any relevant knowledge he had pertaining to the crime. A record of that in camera session was transcribed and sealed so that only an appellate court would have access to its contents. The advantage of the procedure is that it enables the court to view with a keener perspective the factual circumstances upon which it must rule and attaches to the court’s ruling a more abiding sense of fairness than could otherwise have been realized.”
      United States v. Jackson, 384 F.2d 825, 827 (3 Cir. 1967). Under this procedure the defendant is not compelled to show need and the trial court is not left to mere speculation as to the materiality of the informant’s testimony.

      . In Roviaro the defendant was convicted of illegal sale and transportation of heroin. On appeal to the Supreme Court of the United States the Government did not defend its failure to disclose the informant’s identity with respect to the conviction on the sale count but argued that the informant did not sufficiently participate in the transportation to compel disclosure for a conviction on that count. The Court reversed the conviction, specifically responding to the Government’s argument by noting that the informant was so closely involved in the criminal occurrence and the evidence introduced at trial was so closely related to the informant that disclosure was essential to a fair trial on all counts.
      We reach the conclusion that the informant’s participation in the transportation aspect of Roviaro cannot be materially distinguished from the informant’s participation in the case at bar.

      . United States v. Conforti, 200 F.2d 365 (7 Cir. 1952).

        Roviaro indicates that if the participation of the informant in the transaction was such as to make him a relevant and material witness to the sale then his testimony should be available to the accused on all charges arising from that criminal occurrence. 353 U.S. at 63, 77 S.Ct. 623.

      . Roviaro v. United States, supra; Portomene v. United States, 221 F.2d 582 (5 Cir. 1955). In both of these cases the informant was the unidentified party who was charged in the indictment as the buyer of 'drugs. Hence, “it was evident from the face of the indictment that . . . [the informant] was a participant in and a material witness to that sale.” Roviaro v. United States, 353 U.S. at 65 n. 15, 77 S.Ct. at 630. The Court in Roviaro, however, noted that the disclosure of the informant’s identity is appropriate even when he “is not expressly mentioned ... [in the indictment, if the] charge, when viewed in connection with the evidence introduced at the trial is so closely related to [the informant] as to make his identity and testimony highly material.” 353 U.S. at 63, 77 S.Ct. at 629.

      . The majority in Roviaro clearly did not require the petitioner to present evidence of entrapment or other need to overcome the claim of privilege of nondisclosure where the informant was an actual participant in the offense charged.
      Justice Clark, dissenting in Roviaro, argued that the accused must demonstrate need before disclosure is proper. He noted:
      “The petitioner has not mentioned a single substantial ground essential to his defense which would make it necessary for the Government to name the informer. The Court mentions that there might have been entrapment. Petitioner not only failed to claim entrapment but his counsel appears to have rejected any suggestion of it in open court. ... It should ■ be noted that petitioner’s counsel stated in open court that petitioner knew the informant and believed he was dead.” 353 U.S. at 69, 77 S.Ct. at 632. (footnote omitted).
      Justice Clark’s view was clearly rejected by the Court.

      . The occasional instance of entrapment is most likely to occur when the purchase of drugs is made outside of police supervision. The payment of contingent fees to informants, the use of informants who are drug addicts, promises of immunity and pay-offs in drugs create a self-interest on the part of the informant. This self-interest in “making a buy” may lead to excessive appeals to the seller’s sympathies or other unconscionable tactics. See Note, 31 U.Chi.L. Rev. 137 (1963).

      . The record indicates the defense was unable to locate the informant. The use of an alias or a change of occupation and residence by a participating informant may well render useless information obtained through a very casual acquaintanceship. See Porto-mene v. United States, 221 F.2d 582 (5 Cir. 1955). Only by disclosing all material information, especially informant’s true name and address (see Roviaro, supra) does the prosecution discharge its duty under the due process clause. Giglio v. United States, 405 U.S. 150, 92 S.Ct. 765, 31 L.Ed.2d 104 (1971) ; Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).