author: CHARLES R. RICHEY, District Judge:

text:
    UNITED STATES ex rel. Daniel JACOBS, Appellant, v. Honorable Robert F. FROEHLKE, Secretary of the Army, et al.
    No. 71-2065.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 31, 1973.
    Decided July 9, 1973.
    Stephen L. Fine, New York City, with whom Gary H. Simpson, Bethesda, Md., was on the brief, for appellant.
    James A. Fitzgerald, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, and David M. Bullock, Asst. U. S. Attys., were on the brief, for appellees.

      Before LEVENTHAL and ROBB, Circuit Judges, and CHARLES R RICHEY, United States District Judge of the United States District Court for the District of Columbia.

       Sitting by designation pursuant to 28 U.S.C. § 292(a).

   CHARLES R. RICHEY, District Judge:

Appellant was a member of the United States Army stationed at Fort Buckner in Okinawa. He was charged by the Army with five specifications (counts) of violation of Article 120 of the Uniform Code of Military Justice, 10 U.S.C. § 920, in that, at various times between August 5 and 9, 1971 he did “commit the offense of carnal knowledge” with three different girls, all of whom were under sixteen and were civilian dependents of military personnel stationed on Okinawa. He was additionally charged with three specifications of transfer of marijuana, in violation of Article 134 of the UCMJ, 10 U.S.C. § 934, occurring during the same period. All of the violations with which appellant was charged took place in his off-base apartment next door to the Bar Chicago, Futenma, Okinawa.

At the time these proceedings were initiated in the District Court, appellant had been placed on administrative restriction pending a general court-martial. He filed a petition in the District Court for a writ of habeas corpus, seeking release from restriction pending court-martial, a declaration that the court-martial was “unlawful”, and the enjoining of military authorities from proceeding with the court-martial, all upon the theory that he was being held for trial by a court-martial which lacked jurisdiction to try him for the offenses charged. The District Court entered an order requiring the Government to show cause why the writ of habeas corpus should not be issued, and a hearing was held on November 11, 1971. By judgment entered on November 16, 1971, the District Court dismissed appellant’s petition for a writ of habeas corpus and discharged the rule to show cause. United States ex rel. Jacobs v. Froehlke, 334 F.Supp. 1107 (D.D.C.1971). This appeal followed, but during the interim between the filing of the appeal and presentation of oral argument, appellant was convicted by court-martial on his pleas of guilty to four specifications of carnal knowledge and three specifications of transfer of marijuana, served his sentence, and was discharged from the Army with a bad conduct discharge. The action for writ of habeas corpus is thus moot. Accordingly, and for purposes of this appeal, we shall treat appellant’s action as one for a declaratory judgment seeking to have appellant’s court-martial declared unlawful because it was without jurisdiction to try him for the offenses charged.

The thrust of appellant’s argument is that under the rule of O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L. Ed.2d 291 (1969), he could only be tried by a civilian court subject to the Constitutional guarantees of indictment by grand jury and trial by jury. In O’Callahan, the Supreme Court held that a serviceman cannot constitutionally be tried by a court-martial unless his crime is service connected, lest trial by court-martial “be expanded to deprive every member of the armed services of the benefits on an indictment by a grand jury and a trial by a jury of his peers.” 395 U.S. at 273, 89 S.Ct. at 1691. Appellant contends that his offenses, having been committed outside a military reservation in Okinawa and involving civilian dependents of military personnel, were not “service connected” within the meaning of O’Callahan.

The factors to be considered in determining that an offense is not service connected within the meaning of the O’Callahan rule were developed by the Supreme Court in Relford v. Commandant, 401 U.S. 355, 365, 91 S.Ct. 649, 28 L.Ed.2d 102 (1971). There, a rape and kidnapping conviction by court-martial of a soldier was sustained because several factors were absent from the circumstances presented to the Court.

In denying appellant’s petition in the instant case, the District Court found that three key factors were absent from the circumstances under which the offenses were committed, so that the rule in O’Callahan was not applicable. First, it found that the offenses were not committed at “a place not under military control,” presumably because civilian administration of the Ryukyu Islands, of which Okinawa is a part, was under the jurisdiction of the Secretary of Defense and headed by a High Commissioner designated by the Secretary from among the active duty members of the armed forces. Second, it found that the offenses were not committed “within our territorial limits” but in an “occupied zone of a foreign country,” Japan. Finally, the District Court found that there was no civilian-type court on Okinawa in which the case could have been prosecuted.

Although there are strong arguments for the District Court’s conclusion as to each of these points, there are countervailing considerations that have to be taken into account as to the first two. As to whether the Ryukyus was a place “under military control,” the issue is easier when what is under discussion is whether the offense was on a military base, where there are palpable requirements for military discipline. But here the “capital” crime relates to a civilian population under the rule of a military or naval officer designated by the President or Secretary of Defense to be a Commissioner or Governor. That is, in effect, the status of the Canal Zone, and was the status of e. g. the Virgin Islands prior to 1931 when the supervision of the appointed Governor was transferred from the Secretary of the Navy (at which time naval officers were customarily designated) to the Secretary of the Interior. Similar considerations apply to the issue of whether the Ryukyus were an “occupied zone of a foreign country” after the signing of the peace treaty, with undisputed recognition that no trace of belligerency survived.

However, we need not resolve those questions, because in the present case it is enough that there was no U. S. civilian-type court in the island that had jurisdiction over the offense of statutory rape. The crime of statutory rape was not defined as a crime by the U. S. civilian-type courts of the Ryukyus.

Perhaps if there were civilian courts available to try such offenses they should be prescribed for American servicemen for off-base offenses. But the fact that such civilian courts are unavailable cannot be translated into a requirement that this element of military discipline must be waived entirely, and that American servicemen must be left free of all restraints off base other than those prescribed for the protection of citizens of the exotic lands in which they may be based, notwithstanding the impact of their acts on other servicemen or civilians in the families of servicemen.

As to appellant’s reliance on Latney v. Ignatius, 135 U.S.App.D.C. 65, 416 F.2d 821 (1969), that case did not involve a serviceman defendant, and in such cases there is a special set of criteria for determining whether their crime is service connected.

The judgment is affirmed.

      . “VVe note that Article 134 of the UCMJ, 10 U.S.C. § 934, under which appellant was convicted for the transfer of marijuana, was held unconstitutional by this Court in Avrech v. The Secretary of the Navy, 155 U.S.App.D.C. 352, 477 F.2d 1237 (March 20, 1973). The constitutionality of Article 134 was not raised as an issue in the instant case, nor do we feel constrained to determine whether the ruling in Avrech' affects appellant’s conviction here, since lie was primarily convicted for statutory rape under Article 120 of the UCMJ.

      . 1. The serviceman’s proper absence from the base.
      2. The crime’s commission away from the base.
      3. Its commission at a place not under military control.
      4. Its commission within our territorial limits and not in an occupied zone of a foreign country.
      5. Its commission in peacetime and its being unrelated to authority stemming from the war power.
      G. The absence of any connection between the defendant’s military duties and the crime.
      7. The victim’s not being engaged in the performance of any duty relating to the military.
      8. The presence and availability of a civilian court in which the case can be prosecuted.
      9. The absence of any flouting of military authority.
      10. The absence of any threat to a military post.
      11. The absence of any violation of military property.
      One might add still another factor implicit in the others:
      12. The offense’s being among those traditionally prosecuted in civilian courts.

      . In tlie ftyukyus this -would have required the Military Commander to surrender jurisdiction over tlie servicemen to the civilian courts in O’Callahan type situations of off base offenses.


source: Caselaw Access Project

author: MacKINNON, Circuit Judge:

license: Public Domain

text:
    DEMOCRATIC NATIONAL COMMITTEE, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Broadcasting Companies, Inc., et al., Intervenors.
    No. 72-1314.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 12, 1972.
    Decided June 29, 1973.

      Charles H. Wilson, Jr., Washington, D. C., with whom Joseph A. Califano, Jr., Washington, D. C., was on the brief for petitioner.
    Jon H. Marple, Counsel, F. C. C., with whom John W. Pettit, Gen. Counsel, Joseph A. Marino, Associate Gen. Counsel, and Charles A. Zielinski, Counsel, F. C. C., were on the brief, for respondents.
    Timothy B. Dyk, Washington, D. C., with whom J. Roger Wollenberg, Daniel Marcus and Stephen F. Black, Washington, D. C., were on the brief, for intervenor, Columbia Broadcasting System, Inc.
    Lawrence J. McKay, New York City, Donald J. Mulvihill, Laurence T. Sorkin and Raymond A. Messina, Washington, D. C., were on the brief, for intervenor, National Broadcasting Co., Inc.
    James A. McKenna, Jr., and Carl R. Ramey, Washington, D. C., entered appearances for intervenor, American Broadcasting Cos., Inc.
    Before WINTER, Circuit Judge for the Fourth Circuit, and MacKINNON and ROBB, Circuit Judges.

       Sitting by designation pursuant to 28 U.S.C. § 201(a).

   MacKINNON, Circuit Judge:

Once again we are confronted with the issue on appeal of whether the FCC has properly applied its fairness doctrine to a particular set of facts. The petitioner, the Democratic National Committee (hereinafter DNC), contends that the Commission erred in determining that the three major television networks had acted reasonably in pursuing their obligation to provide adequate coverage of public issues in their refusal in August-October 1971 to make available free prime-time television air to DNC to respond to certain Presidential addresses concerning the Administration’s economic policy.

The Presidential broadcasts at issue consisted of the following appearances on all three networks:

(1) An address on August 15, 1971, announcing the Administration’s new economic program, broadcast by the networks live on television and radio between 9:00 p. m. and 9:20 p. m., EDT.
(2) A Labor Day address on September 6, 1971, clarifying the new program, broadcast by the networks live on radio only between 12:00 noon and 12:15 p. m., EDT.
(3) An address delivered on September 9, 1971, at the request of the Democratic congressional leadership to a joint session of Congress explaining the President’s new economic policy and outlining legislation designed by the Administration to help achieve the policy’s goals. The networks broadcast this speech live on television and radio during non-prime time from 12:30 p. m. to 1:08 p. m., EDT.
(4) An address on October 7, 1971, announcing Phase II of the new economic program, broadcast live by the networks on television and radio between 7:30 p. m. and 7:46 p. m., EDT.

Petitioner also argues that three non-prime-time press conferences with then Treasury Secretary John Connally dealing with the President’s economic program should be weighed along with the President’s personal addresses.

DNC sought permission from the networks to respond to some of these broadcasts, and, upon being refused, filed a complaint with the Commission seeking an order to compel NBC, CBS and ABC to provide free time for the presentation of its viewpoint on the national economy. In its arguments to the Commission, DNC again pressed its contention that Presidential addresses should give rise to an automatic right of reply by spokesmen of the opposing party — a position emphatically rejected by us in Democratic National Committee v. F. C. C., 148 U.S.App.D.C. 383, 460 F.2d 891, cert. denied 409 U.S. 843, 93 S.Ct. 42, 34 L.Ed.2d 82 (1972). In addition, DNC argued that under the Commission’s decision in Committee for the Fair Broadcasting of Controversial Issues, 25 F.C.C.2d 283 (1970) (hereinafter Fair Committee) these facts must give rise to a right of reply. In Fair Committee the Commission held that five uninterrupted prime-time television (and radio) Presidential addresses dealing with the Indochina war in a seven month period where coverage had otherwise been roughly in balance, presented a unique situation requiring the networks to provide an opportunity for some spokesman for the other side to respond with one uninterrupted prime-time appearance. In opposing these contentions, each of the three networks responded to DNC’s complaint by pointing out the factual distinction between this case and Fair Committee and describing a comprehensive coverage of the viewpoints of critics of the President’s economic program that had already been implemented by them. These facts relating to network programming of opposing viewpoints were uncontested by DNC. The Commission requested the transcripts of four of these opposing broadcasts (two from CBS, one from NBC and one from ABC) and these were duly submitted for the Commission’s study over the objections of DNC.

On February 17, 1972, the Commission denied DNC's complaint. J.A. 200-11. The Commission held that there was no showing that the networks had failed to meet their fairness doctrine obligation to present contrasting views on the President’s economic program. Following its earlier rulings, the Commission reaffirmed that there is no automatic right of reply to Presidential broadcast appearances. J.A. 208-09. While recognizing that in Fair Committee it had required the networks to afford additional time to respond to the President on the special facts of that case, the Commission noted that the present case was readily distinguishable from its earlier ruling and that, in light of the policies of the fairness doctrine and the Communications Act, the factual differences between the cases justified different results. J.A. 206-11. Finally, the Commission ruled that even if DNC’s complaint were substantively meritorious, DNC would not be entitled to an order requiring the networks to afford DNC time to respond to the President, since the fairness doctrine left the selection of appropriate spokesmen to the licensee’s discretion. J.A. 205-06. The Commission found the inappropriateness of the relief requested to be an independent ground for its decision. J. A. 206.

The fairness doctrine has been discussed at great length by the courts in recent years and it is unnecessary to examine its fundamental principles in detail here. Suffice it to say that the doctrine places a duty on the licensee to “give adequate coverage to public issues and coverage must be fair in that it accurately reflects opposing views.” Red Lion Broadcasting Co. v. F. C. C., 395 U.S. 367, 377-378, 89 S.Ct. 1794, 1800, 23 L.Ed.2d 371 (1969). We have repeatedly emphasized the importance of the discretion of the licensee in achieving this goal.

By its very nature the fairness doctrine is one which cannot be applied with scientific and mathematical certainty. There is no formula which if followed will assure that the requirements of the doctrine have been met. Procedurally, the doctrine can only succeed when the licensee exercises that discretion upon which he is instructed to call upon in dealing with coverage of controversial issues.

Democratic National Committee v. F. C. C., supra, 148 U.S.App.D.C. at 392, 460 F.2d at 900. Recently the Supreme Court has again reaffirmed its faith in licensee discretion. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973). Mr. Chief Justice Burger, writing for the majority, concluded from a review of legislative history that “Congress intended to permit private broadcasting to develop with the widest journalistic freedom consistent with its public obligations.” Id. at 110, 93 S.Ct. at 2090. In addition, we have “made it clear that unlike those corollaries to the doctrine that create equal-opportunities situations the doctrine itself does not create a right for any person or group to be granted time.” Democratic National Committee v. F. C. C., supra, 148 U.S.App.D.C. at 395, 460 F.2d at 903. “The licensees may exercise their judgment as to what material is presented and by whom .... The fairness doctrine is issue-oriented, and it would be sufficient if each licensee could show that the point of view advocated by petitioner . . . had been or was being presented on its station by others.” Green v. F. C. C., 144 U.S.App.D.C. 353, 358, 447 F.2d 323, 328 (1971). “Thus in opinion after opinion, the Commission and the courts have stressed the wide degree of discretion available under the fairness doctrine and we have clearly stated time after time, ad infinitum ad nauseam, that the key to the doctrine is no mystical formula but rather the exercise of reasonable standards by the licensee.” Democratic National Committee v. F. C. C., supra, 148 U.S.App.D.C. at 395, 460 F.2d at 903. And in our recent Democratic National Committee case we held unequivocally that a Presidential address does not automatically give rise to a special right to respond. Id., 148 U.S.App.D.C. at 396-397, 460 F.2d at 904-905.

In light of these established principles it is clear that DNC was not entitled automatically to any right to reply. That there is no equal-opportunities rule in the context of the fairness doctrine is now beyond dispute. The Commission must look to all the relevant facts and circumstances to determine whether the public had been left uninformed of opposing viewpoints during the period in question and the burden is on the petitioner to show that the networks had not exercised reasonable judgment in this regard. We feel that the Commission was completely justified in finding in this case that no such showing had been made. It correctly concluded that in light of “the extensive coverage which the networks appear to have given to the current issue, including presentation of contrasting viewpoints on their news and interview programs, as well as some special programs they have cited . . . we cannot find that the broadcast licensees have acted unreasonably or left the American people uninformed on the issue of the economic program.” (J.A. 209-10, 211).

Moreover, even if a right of reply were warranted, we again reiterate that the networks have discretion in the selection of the appropriate spokesmen. Especially relevant in this regard is our statement in Democratic National Committee, swpra, involving the same petitioner as well as a Presidential address on the issue of the economy:

Furthermore, they [DNC] assert that as the leading party out of the White House and as the majority party in Congress they would always be an appropriate party to respond. DNC feels it is obligated to inform the nation of the viable options open to it. Should this be DNC’s manifest destiny we can find no reason to compel the networks to assist it. Can it be said that others are not equally capable of the task? At times the President speaks to crucial problems to which other groups are far more qualified to speak. DNC and its representatives have no greater claim to expertise in the area of the economy than the National Chamber of Commerce or the president of the New York Stock Exchange, and that is the point; crucial issues must be reasonably aired after consideration of the viewpoints of. all significant factions. This is a matter for licensee discretion and not automatic rule because the speaker is the President of the United States.

148 U.S.App.D.C. at 402, 460 F.2d at 910.

Petitioners also vigorously claim that the facts of this case are indistinguishable from those in Fair Committee. We are convinced the Commission was correct in ruling to the contrary. The scope of the holding in Fair Committee was very carefully circumscribed by the Commission in its fear that it would be considered a step towards a modified equal-opportunities rule. In other words, it correctly envisioned the inevitability of a case such as this. In recognizing that Fair Committee was an exception to the mainstream of fairness doctrine cases, the Commission stated:

We wish to stress that we are not holding that such an obligation arises from a single speech — that where an uninterrupted address is afforded one side, the fairness doctrine demands that the other side be presented in the same format. . . . Rather, our holding here is based upon the unusual facts of this case — five addresses by the outstanding spokesman on one side of an issue.

(emphasis added). 25 F.C.C.2d at 297. Indeed, the F.C.C. emphasized that “the question of reasonableness calls for a judgment on the facts of each case.” Id. at 295. The Commission repeatedly underscored the unique facts of that case, mentioning over and over that the President had appeared five times on prime-time television and radio to deliver uninterrupted messages justifying his Indochina policy. In this case there were only two Presidential prime-time broadcasts accompanied by two other ■wow-prime-time appearances. Comparison of the total prime-time coverage reveals only 36 minutes in this case as compared with 132 minutes in Fair Committee. The Commission declined to “add in” Secretary Connally’s press conferences, stating that he “was subject in the three press conferences to the same kind of critical questioning that he would have faced on news interview programs, and his appearances were neither uninterrupted nor in prime time.” J.A. 208. In light of the special emphasis placed on the Presidential and the uninterrupted nature of the addresses involved in Fair Committee, we cannot say the Commission was incorrect in this regard.

That such distinctions as these perhaps seem overly refined is a direct consequence of DNC’s attempts to convert the “reasonable under the circumstances” rule to a more rigid, mathematical “modified equal-opportunities” doctrine — the very result the Commission was most cautious to avoid in deciding Fair Committee. The Commission declined in this ease to extend Fair Committee for precisely that reason. The Commission declared its belief that extension of its earlier decision would result in a “whittling away” of basic fairness doctrine principles and lead to the substitution of an equal-opportunities approach which Congress had expressly rejected. J.A. 209. The Commission further expressed its fear that a broad interpretation of its earlier decision would “lead us down a slippery slope with a consequent undesirable diminution of licensee responsibility . [since] a continuing series of ad hoc rulings by the Commission which necessarily constitute special departure from the general fairness weighing process would inevitably push the Commission further and further into the programming process.”

We find the Commission was correct in refusing to venture upon such dangerous waters. In light of the factual distinctions between this case and Fair Committee, and in view of the fact that the networks had adequately fulfilled their obligation to inform the public on the issue of the economy, as determined by the Commission, we cannot say that the Commission erred in holding that this particular pattern of Presidential addresses was not so intense as to give rise to a right of response. The decision of the Commission is therefore

Affirmed.

      . Secretary Connally’s press conferences were broadcast by the three television and radio networks as follows: August 16, 12 noon to 1 p. m.; October 8, 1 p. m. to 2 p. m.; November 22, 11:30 a. m. to 12:10 p. m.
      The Commission declined to equate the Connally conferences with the President’s addresses and we agree. See infra at 548.

      . DNC had recently argued this approach to the Commission and had it rejected— a decision we ultimately affirmed in Democratic National Committee v. F.C.C., 148 U.S.App.D.C. 383, 460 F.2d 891, cert. denied 409 U.S. 843, 93 S.Ct. 42, 34 L.Ed.2d 82 (1972). Since the argument had recently been rejected by the Commission, the DNC only briefly summarized it again in its letter of complaint in this case. J.A. 5.

      . ABC stated that after the August 15, 1971 Presidential appearance, it presented contrasting points of view in the ABC network evening and weekend news programs, and in public affairs programs. (J.A. 45). Among the leading spokesmen who expressed views critical of the President’s economic policies on these programs were Senators McGovern, Humphrey, Mansfield, Muskie, and Proxmire, Representatives Mills and Patman, Governor Smith of Texas, AFL-CIO President Meany, and UAW President Woodcock. (J.A. 45). Among the ABC programming on the economy issue was a special half-hour presentation, “The Economy: A Continuing Report,” broadcast on October 13 from 7:30 to 8:00 p. m. It included the views of prominent Democrats — Senators Humphrey and Proxmire and Dr. Arthur Okun, former Chairman of the Council of Economic Advisers under President Johnson. Many aspects of the Administration’s eeonomic policy were discussed in this program. (J.A. 46).
      CBS pointed out that contrasting views were included in its regular news coverage and that special programs and reports were aired which featured contrasting views by labor union leaders, including UAW President Woodcock, and other opposition spokesmen. On August 16, 1971, from 10:00 p. m. to 11:00 p. m., CBS presented the program “The Economy: A New Way to Go,” which constituted a broad ranging discussion of the issues raised by the Administration’s economic policy. And, on October 8, 1971 CBS presented the news special, “After the Freeze,” which included extensive criticism of the Administration’s wage and price freeze policy. In addition, between August 22 and September 26, 1971, the CBS program Face the Nation included interviews with Governor Preston Smith of Texas, Senator William Proxmire, and Senator Hubert Humphrey who each expressed views critical of various aspects of the Administration’s economic policy. (J.A. 51-52). CBS further pointed out that approximately 53 minutes of regularly scheduled television news programs during the one-month period following the President’s August 15th address were devoted to contrasting views on national economic issues. In addition, CBS aired part of a press conference by President George Meany of the AFL-CIO and an address by Mr. I. W. Abel, President of the United Steel Workers of America, both of whom strongly criticized the Administration’s program. (J.A. 51).
      NBO also indicated that views in contrast to the President’s had been aired in regularly scheduled news, discussion and interview programs. In addition to submitting a lengthy list of items dealing with coverage of economic issues in NBG’s nightly news programs (See J.A. 56-60), NBC indicated that it had presented a number of interviews and special programs on economic issues. These included appearances by UAW President Woodcock, Senator Fred Harris and Dr. Walter Heller (a leading Government economist during the Johnson Administration) who expressed contrasting views on the economy on individual Meet the Press programs during the period in question. In addition, leading- Democrats, Ohio Governor Gilligan, Representative Mills and Senator Humphrey appeared on NBC’s Today program to express their opposing views on various facets of the Administration’s economic policy. (J.A. 56-58).

      . In its decision in this case the Commission noted that it was concurrently engaged in considering the efficacy of the fairness doctrine in the context of a broad rule-making proceeding. J.A. 205. On June 16, 1972, the Commission issued its First Report in that proceeding in which it strongly reaffirmed its view that, while presidential appearances are subject to the fairness doctrine, there are no equal-opportunities rights of reply to such appearances. Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act, First Report, 37 Fed. Reg. 12744, 12746-47 (1972).

      . J.A. 209. In the Commission’s words:
      We believe that extension of the Committee for Fair Broadcasting ruling to the present situation would result in whittling away the basic fairness doctrine concept of reasonable opportunity for presentation of contrasting views in overall programming, and, as noted above, move us toward an “equal opportunities” requirement which we have consistently refused to adopt. . . .
      Moreover, extension of the Fair Broadcasting ruling to the facts of this case would lead us down a slippery slope with a consequent undesirable diminution of proper licensee responsibility. If, for example, we were now to hold that the broadcast of two prime-time Presidential addresses and two not in prime time (including the extra radio address) requires the networks to afford additional time for response despite their other presentations on the issues and without any showing of overall unfairness, what ruling would be appropriate if there were only one prime-time plus three non-prime-time addresses? or one prime-time plus two non-prime-time speech [sic], with or without one or more non-prime-time press conferences by a Cabinet member? Of course, the making of distinctions is a normal function of the application of policy; but a continuing series of ad hoe rulings by the Commission which necessarily constitute special departures from the general fairness weighing process would inevitably push the Commission further and further into the programming process. We believe this to be both undesirable and not required by the situation.


author: WILKEY, Circuit Judge: FAHY, Senior Circuit Judge,

text:
    Chauncie Caroline CURTIS, Appellant, v. Millie B. CURTIS.
    No. 72-1649.
    United States Court of Appeals, District of Columbia Circuit.
    July 12, 1973.
    Rehearing Denied Aug. 8, 1973.

      William F. Reed and Robert J. Stanford, Washington, D. C., were on the brief for appellant.
    Henry M. Fowler and Albert F. Beasley, Washington, D. C., were on the brief for appellee.
    Before FAHY and BASTIAN, Senior Circuit Judges, and WILKEY, Circuit Judge.
   WILKEY, Circuit Judge:

This case arises on appeal from a judgment entered against the plaintiff in an action to contest the validity of the will of Howard J. Curtis. Appellant’s major contention below was that the signature on the will was a forgery. On appeal, she complains that the District Court erred in placing on her the burden of proof as to that issue. We conclude that the burden was correctly allocated and that the judgment should be affirmed.

Howard J. Curtis died on 28 February 1970, domiciled in the District of Columbia. His widow, Millie B. Curtis, subsequently petitioned for probate of a writing dated 6 July 1969. This document in the nature of a last will and testament named her as executrix and sole beneficiary. On 4 June 1970 the court entered an order in Administration No. 920-70 admitting the will to probate and record. On 4 December 1970 appellant Chauncie Caroline Curtis (the surviving mother of decedent) filed this action, pursuant to 18 D.C.Code § 509 (1967), alleging forgery and seeking revocation of probate. The matter came on for trial, testimony at which included that of the witnesses to the will and of handwriting experts for both sides. The court found for defendant, entered judgment on 24 February 1972 confirming admission of the will to probate and record, and on 22 March 1972 denied plaintiff’s motion for a new trial.

The District Court did require the defendant-caveatee to proceed first in order of proof with evidence of due execution. However, the ultimate burden of persuasion was placed on the plaintiff-caveator. At the conclusion of its memorandum accompanying an order denying caveator’s motion for a new trial, the court said:

It was the plaintiff’s burden to prove her allegation that the signature on the Will was forged. Brosnan v. Brosnan. 263 U.S. 345 [44 S.Ct. 117, 68 L.Ed. 332] (1923). Clearly, the plaintiff failed to meet this burden. -

Appellant contends that this allocation of the ultimate burden of proof was error. She refers to the general proposition, which is beyond dispute, that the burden of proving the formal execution of a will rests in the first instance upon the proponent of the will. Patten v. Pinckney, 60 App.D.C. 224, 50 F.2d 989 (1931); 3 Bowe-Parker: Page on Wills § 29.16, p. 433 (3rd ed. 1961). Indeed, as appellant notes, even in the absence of a challenge or caveat, a will may not be admitted to probate and record except upon formal proof, presented by the will’s proponent, of proper execution. 18 D.C.Code § 504 (1967); National Safe Deposit, Savings and Trust Co. v. Heiberger, 19 App.D.C. 506 (1902).

To support its placement of the burden of persuasion on the caveator, despite this general principle, the District Court relied on Brosnan v. Brosnan, 263 U.S. 345, 44 S.Ct. 117, 68 L.Ed. 332 (1923). However, as appellant-caveator aptly observes, that case deals with the special circumstance of a challenge to the mental capacity of the testator. Due formal execution of the will was assumed — and there was no indication that the court even considered altering the proponent’s initial burden in that respect. The Bros-nan case’s exception to the general rule “rests upon the ancient presumption in reference to sanity.” 263 U.S. 345, 349, 44 S.Ct. 117, 118, 68 L.Ed. 332 (1923). For obvious reasons, there is no corresponding initial presumption of due execution or absence of forgery. Therefore, the allocation of the ultimate burden of persuasion to the plaintiff-caveator could not be supported by the authority cited by the District Court.

On the other hand, there is an additional exception to the general rule concerning the proponent’s burden. Once the proponent of a will has met his initial burden, and the will has been admitted to probate and record, subsequent caveators must bear the ultimate burden of proof as to execution. Here, the will had already been admitted to probate, presumably following appropriate notice and proof — so the burden was properly allocated in this case.

It has been established in the District of Columbia that the burden of going forward, in a will contest originating after initial admission to probate, shifts once the record of that admission is introduced. As this court said in Flocker v. Di Gennaro, a caveatee is “entitled to rely upon the record of the probate as . prima facie proof of due execution.” 88 U.S.App.D.C. 133, 187 F.2d 513, 514 (1951). Since the statute requires prima facie proof of due execution prior to admission to probate, even absent a caveat, it seems only fair to spare the proponent of a will from the necessity of repeatedly reoffering such proof after the initial production burden has been met.

As to the ultimate burden of persuasion, which was placed on the caveator by the District Court in this case, the law of,, the District of Columbia is less clear. Since the court in the Flocker case felt that due execution was “proven . . . beyond dispute,” it did not speak specifically to the issue of allocating the risk of non-persuasion. Further, if a will has not been challenged before admission to probate, it could be argued that the proponent, while having once met his production burden, has not yet been put to the test of overcoming contrary evidence.

Despite the lack of a clear District of Columbia precedent on point, both the weight of authority in other jurisdictions and general policy considerations compel the conclusion that, once a will has been admitted to probate, the ultimate burden of persuasion even as to execution rests on the caveator. 57 Am.Jur., Wills, See. 856, p. 570; 3 Bowe-Parker: Page on Wills § 29.13, pp. 426-27 and § 29.16, p. 435 (3rd ed. 1961). In a contest after probate, the contestant is in the procedural position of the moving party. Hoping to establish a case strong enough to compel revocation of the admission to probate, the plaintiff-caveator is the party seeking to change the status quo. Further, allocating the burden to contestants after admission of the will to probate has the beneficial effect of encouraging early caveats, thereby decreasing uncertainty. While an heir who consents to admission to probate does not thereby jeopardize his right to later bring a caveat under 18 D.C.Code § 509, delay in contesting due execution does affect the allocation of the burden of persuasion as to that issue. Accordingly, the judgment of the District Court is

Affirmed.

FAHY, Senior Circuit Judge,

concurring:

I agree we should affirm but I reach this result by the route now explained. The court, as the trier of fact, found, as appears in its judgment of February 24, 1972.

that the paper writing in question, dated July 6, 1969, was signed by Howard J. Curtis as his Last Will and Testament in the presence of the witnesses thereon, and the Court believes that the witnesses who appeared in court and testified that they did sign the Will as witnesses at the request of and in the presence of the said Howard J. Curtis were credible witnesses, and concludes as a matter of law that the paper writing dated July 6, 1969, is the Last Will and Testament of Howard J. Curtis, and finds for the caveatee.

In its denial of appellant’s motion for a new trial, the court further explained its decision as follows:

Three witnesses at the trial testified that they saw the testator sign the will while seated at his desk in a bedroom of his home. Two of them testified that they signed the will as attesting witnesses at the request of the testator, in his presence, and in the presence of each other.
The court applied to these three witnesses the usual criteria for assessing credibility. They impressed the court as being truth telling individuals who stated fairly and frankly what they knew to be so.
-* * * * * *
The court in comparing the signature on the will with the admittedly genuine specimens of handwriting on the aforementioned checks was and is convinced that the will was indeed signed by Howard J. Curtis.
* * * * *
The court considered with all due care the testimony as to the background, training and experience of each handwriting expert and all the reasons given by him in support of his opinion as well as the other evidence in the case favoring or opposing such opinion. The court was not persuaded of the soundness of the opinion expressed by plaintiff’s two handwriting experts that the signature on the will is a forgery.
It was the plaintiff’s burden to prove her allegation that the signature on the will was forged. Brosnan v. Brosnan, 263 U.S. 345 [44 S.Ct. 117, 68 L.Ed. 332] (1923). Clearly the plaintiff failed to meet this burden.

The court thus found that defendant had established that the will was duly executed and attested, including the genuineness of the testator’s signature. Although I agree that the caveatee as proponent of the will has the burden of proof of due execution, in the context of the court’s findings I construe the statement that the plaintiff failed to sustain her burden as indicating only that the court found plaintiff’s evidence insufficient to overcome the persuasiveness of the caveatee’s evidence of due execution.

      . I have considered appellant’s contention, first raised in her motion for a new trial, and based on an alleged physical characteristic of the testator’s signature in relation to the typed attestation clause. I am not persuaded the court erred in denjdng the motion.


author: GOLDBERG, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eliseo ESPINOZA, Jr., Defendant-Appellant.
    No. 72-3389.
    United States Court of Appeals, Fifth Circuit.
    July 3, 1973.
    John J. Pichinson, Corpus Christi, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Ellis McCullough, Robert G. Darden, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before GOLDBERG, CLARK and RONEY, Circuit Judges.
   GOLDBERG, Circuit Judge:

This appeal presents the question of whether a sentencing judge, after announcing a rather long sentence, can refuse to permit a defendant to rebut factually the reasons stated orally by the judge for the sentence when defendant claims that the reasons are factually erroneous. Finding that the court below erred in refusing defendant this opportunity, we vacate the sentence and remand for resentencing.

Defendant-appellant, Elíseo Espinoza, Jr., was charged in a three count indictment along with two co-defendants, Gonzales and Robelin, for an offense involving the distribution of heroin in violation of 21 U.S.C. § 841(a)(1). Count one of the indictment charged Gonzales and Robelin, but not appellant, with distributing 38.04 grams of heroin. Count two charged Gonzales and Robelin, but not appellant, with distributing 39.8 grams of heroin. Count three charged Robelin and appellant with distributing 0.62 grams of heroin. Gonzales and Robelin both pleaded guilty to all charges. Appellant went to trial on count three and was found guilty by the jury.

At a consolidated sentencing proceeding, the district judge allowed each of the three defendants and their attorneys to address the court prior to sentencing. Gonzales, who was on parole from another conviction and who pleaded guilty to two counts of distributing over 77 grams of heroin, was sentenced to consecutive six year terms on each of the two counts with a special parole term of six years (12 years imprisonment). Robelin, who pleaded guilty to three counts of distributing over 78 grams of heroin, was sentenced to five years on each count, the first two to run consecutively and the third concurrently with a special parole term of five years (10 years imprisonment). Appellant, who had been convicted of one count of distributing O. 62.grams of heroin, was sentenced to fifteen years with a special parole term of five years (15 years imprisonment).

Prior to sentencing, appellant’s counsel argued to the court that to his knowledge appellant had never been convicted of a felony, was 27 years old, was married with a couple of children, and had been gainfully employed prior to a recent back injury. Immediately prior to announcing the three sentences, the court made the following remarks on the record:

“One of the Defendants has been in trouble before, but they are all a part of what seems to be a very serious problem, and whether they have ever actually been convicted or not, Mr. Espinoza, your record is bad, your record for threats and assaults.”

No mention was ever made of a presentence report and appellant’s counsel never requested disclosure of the report, if in fact one existed.

On October 2, 1972, some seven days after the sentence was announced, appellant’s counsel filed a “petition for reduction of sentence,” see Rule 35, F.R. Crim.P., in which he requested an opportunity to present evidence to rebut the court’s statement and apparent presumption that appellant’s “record for threats and assaults was bad.” At a hearing on October 10, the judge, apparently without explanation, denied appellant’s request to submit evidence and overruled the motion for reduction of sentence. It is from this denial of the Rule 35 motion that Espinoza appeals.

As a threshold matter, it is important to note what is not involved in this appeal. We are not asked to review the length of the sentence, cf. United States v. Moore, 5 Cir. 1970, 427 F.2d 38; Withrow v. United States, 5 Cir. 1969, 420 F.2d 1220, 1225. There is no contention that the sentence itself was illegal, and it is undisputed that the sentence was within the statutory limit. Finally, we are not directly presented with any of the increasingly troublesome problems involved with disclosure of presentence reports, cf. United States v. Frontero, 5 Cir. 1971, 452 F.2d 406.

What is involved here is the right of a defendant to at least minimal safeguards to insure that the sentencing court does not rely on erroneous factual information when assessing sentence. From the record in this case, it is readily apparent that the court below relied, at least in part, on appellant’s “bad record” when assessing appellant a longer sentence than his co-defendants, both of whom were charged with considerably more than appellant. Appellant contested the court’s factual assumption as to his record and sought only an opportunity to present facts that he claimed would dispel the allegedly erroneous assumption.

In Townsend v. Burke, 1948, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, defendant challenged the fairness of the sentencing procedure where the judge had relied on apparently erroneous factual information in assessing sentence. The Supreme Court granted the requested habeas relief and stated inter alia:

“[T]his prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue. Such a result whether caused by carelessness or design is inconsistent with due process of law and such conviction cannot stand. 334 U.S. at 740, 68 S.Ct. at 1255.”

In 1972, in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592, the Supreme Court reiterated the holding of Townsend, and remanded for resentencing where the sentencing judge had considered defendant’s prior convictions in which defendant had not been represented by counsel. Implicit in the Court’s holding in Tucker is the principle that despite the broad discretion left to the trial judge in assessing background information for sentencing purposes, see Williams v. New York, 1949, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337, a defendant retains the right not to be sentenced on the basis of invalid premises. See Russo v. United States, 5 Cir. 1972, 470 F.2d 1357; Clay v. Wainwright, 5 Cir. 1972, 470 F.2d 478; Franchi v. United States, 5 Cir. 1972, 464 F.2d 1035; Lipscomb v. Clark, 5 Cir. 1972, 468 F.2d 1321; Davis v. Wainwright, 5 Cir. 1972, 462 F.2d 1354; Thomas v. United States, 5 Cir. 1972, 460 F.2d 1222.; Craig v. Beto, 5 Cir. 1972, 458 F.2d 1131; Wheeler v. United States, 9 Cir. 1972, 468 F.2d 244; Garnet v. Swenson, 8 Cir. 1972, 459 F.2d 464; United States v. Bishop, 7 Cir. 1972, 457 F.2d 260.

It is true, as the government argues, that a majority of jurisdictions, including the Fifth Circuit, have denied defendants an absolute right to see and thereby rebut information in a presentence report. See United States v. Frontero, 5 Cir. 1971, 452 F.2d 406; United States v. Bakewell, 5 Cir. 1970, 430 F.2d 721; United States v. Dockery, 1971, 145 U.S.App.D.C. 9, 447 F.2d 1178; United States v. Crutcher, 2 Cir. 1968, 405 F.2d 239; Thompson v. United States, 10 Cir. 1967, 381 F.2d 664. But see United States v. Picard, 1 Cir. 1972, 464 F.2d 215; United States v. Janiec, 3 Cir. 1972, 464 F.2d 126; Baker v. United States, 4 Cir. 1968, 388 F.2d 931; Verdugo v. United States, 9 Cir. 1968, 402 F.2d 599, 613 (Browning, J., concurring) ; United States v. Bryant, 1971, 143 U.S.App.D.C. 53, 442 F.2d 775. See generally Lehrich, The Use and Disclosure of Presentence Reports in the United States, 47 F.R.D. 225. Such assertions do not, however, dispose of this case. While the due process guarantee in Townsend has been judicially limited in order to preserve the confidentiality of the presentence report when and if in the district court’s discretion such confidentiality is desirable, and to prevent the sentencing process from turning into a full scale evidentiary-type hearing, it has also been widely recognized that where a sentencing judge explicitly relies on certain information in assessing a sentence, fundamental fairness requires that a defendant be given at least some opportunity to rebut that information.

In United States v. Battaglia, 5 Cir. 1972, 478 F.2d 854, defendant petitioned the district court to modify sentence on the ground that the judge relied on inaccurate information in assessing the sentence. This court vacated the sentence and stated:

“At the time of sentencing, the trial judge stated that he was taking into consideration certain facts which he believed to be true. The defendant says they are untrue. On consideration of the motion, the judge said that he would have imposed the same sentence even if the facts were untrue. Although this may be so, we think it is better to assure the defendant that the alleged untrue facts will not affect his sentence by permitting him a hearing at which he may seek to remove any lingering doubt the court may have had about the true situation. The court should then reconsider the sentence in the light of the true facts as found after hearing.”

In United States v. Malcolm, 2 Cir. 1970, 432 F.2d 809, defendant claimed in his § 2255 motion that he was sentenced on the basis of erroneous information and that the sentencing judge erred in refusing to hear certain evidence aimed at mitigating sentence. The Second Circuit remanded for resentencing and stated:

“The result of the procedural irregularity is that the sentence rests on a foundation of confusion, misinformation and ignorance of facts vitally material to mitigation. If justice is to be done, a sentencing judge should know all the material facts. The information which was curtailed and precluded here should therefore have been received and considered. Fair administration of justice demands that the sentencing judge will not act on surmise, misinformation and suspicion but will impose sentence with insight and understanding. Harris v. United States, 382 U.S. 162, 166, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965).
“The judge, therefore, is required to listen and to give serious consideration to any information material to mitigation of punishment. We cannot say that if the judge had acted on the basis of complete and accurate information, verified by the prosecutor, it would have had no mitigating impact on the sentence. This is so although the judge, in his discretion, is not required to lighten the penalty even if there are mitigating circumstances. But no man can make valid judgments without knwledge of the facts. It is thus of no moment that the judge summarily declared that he ‘did not care if he helps anybody. It does not matter to me.’ ”

432 F.2d at 819.

In United States v. Carden, 8 Cir. 1970, 428 F.2d 1116, the court refused to vacate a sentence where the information relied on had been disclosed and where rebuttal was permitted. The court stated:

“. . .If the defendant’s record, as publicly disclosed at the hearing, is incorrectly reported, defendant should have an opportunity to explain any discrepancy. If factual background is erroneous, defendant should have the opportunity to inform the court concerning the alleged misinformation.”

428 F.2d at 1118.

In United States v. Weston, 9 Cir. 1971, 448 F.2d 626, the sentence was challenged where it was clear that the judge had relied on potentially unreliable hearsay in assessing the maximum penalty, this despite defendant’s contention that the hearsay was inaccurate. The Ninth Circuit vacated the sentence and, after distinguishing Williams, supra, stated:

“In Townsend v. Burke, supra, the Supreme Court made it clear that a sentence cannot be predicated on false information. We extend it but little in holding that a sentence cannot be predicated on information of so little value as that here involved. A rational penal system must have some concern for the probable accuracy of the informational inputs in the sentencing process.”

448 F.2d at 634. Noted in 25 Vand.L. Rev. 252 (1972), 50 No.Car.L.Rev. 925 (1972). See also United States v. Janiec, supra; United States ex rel. Brown v. Rundle, 3 Cir. 1969, 417 F.2d 282; United States v. Picard, supra; Baker v. United States, supra; United States v. Bishop, supra; United States v. Donahoe, 10 Cir. 1972, 458 F.2d 237, 240 (Holloway, J., dissenting). Cf. United States v. Weiner, 5 Cir. 1969, 418 F.2d 849; United States v. Metz, 3 Cir. 1972, 470 F.2d 1140.

As with disclosure of presentence reports, the district court possesses wide discretion as to determining the feasibility and need for permitting rebuttal of sentencing information. See United States v. Sanders, 5 Cir. 1971, 438 F.2d 344. But the existence of such discretion presupposes that discretion will in fact be exercised and will be exercised in a manner consistent with the purposes of informed and appropriate sentencing. See United States v. Daniels, 6 Cir. 1971, 446 F.2d 967; United States v. McKinney, 6 Cir. 1972, 466 F.2d 1403; Woosley v. United States, 8 Cir. 1973, 478 F.2d 139 (en banc); United States v. Brown, 2 Cir. 1972, 470 F.2d 285; McGee v. United States, 2 Cir. 1972, 462 F.2d 243; United States v. Bryant, supra; United States v. Wilson, 4 Cir. 1971, 450 F.2d 495, 498. See also Taylor v. United States, 5 Cir. 1972, 456 F.2d 1101. Had the court below stated reasons for denial of the motion or, in the alternative, disclosed in some greater detail the basis for imposing the rather long sentence, the posture of this appeal might well be different. Rather, we are faced with a disturbing record that discloses only that defendant was given a lengthy sentence on the basis of possibly erroneous information and that the district court, without stating reasons, refused to permit rebuttal of the factual assumption. If an educated discretion was in fact exercised, we are unable to discern its premises. By endowing the district court with discretion in sentencing, it is presupposed that such discretion will be exercised consistent with both the appearance and reality of due process. The action of the court below, in refusing to permit rebuttal of the stated factual basis for the sentence, is tantamount to an abuse of discretion and is inconsistent with the need for enlightened sentencing.

It might appear anomalous or even inconsistent to permit the withholding of presentence reports and other information relied on by the sentencing judge, e. g., United States v. Lloyd, 5 Cir. 1970, 425 F.2d 711, while at the same time requiring the allowance for rebuttal when and if presentence information is disclosed and challenged. • Many of the factors present in the cases involving presentence reports, however, including, inter alia, the need for secrecy, the need to prevent embarrassment to the defendant, and the fear of informational sources drying up, are simply not present where all the defendant is requesting is an opportunity to rebut the information explicitly relied on. While the court retains discretion to prevent the sentencing process from becoming a full scale adversary hearing, there is no indication that such discretion was exercised here. In balancing the potential inconvenience of permitting defendant to have his rebuttal information at least considered against the needs for a fair and informed sentence, we can only conclude that the district court erred.

Almost twenty years ago Judge Rives observed:

“The lack of constitutional and evidentiary safeguards thrown around a convicted offender is in striking contrast to those surrounding him before he is found guilty. See Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337; Friedman v. United States, 8 Cir., 200 F.2d 690, 697; Robinson v. Swope, 9 Cir., 197 F.2d 633; United States v. Rosenberg, 2 Cir., 195 F.2d 583, 604, et seq. Yet every lawyer engaged in defending criminal cases knows that often a finding of guilt is a foregone conclusion, and that the real issue centers about the severity of the punishment.”

Smith v. United States, 5 Cir. 1955, 223 F.2d 750, 754, rev’d on other grounds, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041. Despite an ever-increasing body of criticism attacking the sentencing process, the process continues to depend almost entirely upon the “discretion” of the sentencing judge. This discretion is not, and has never been absolute, and while the appellate courts have little if any power to review substantively the length of sentences, see generally Cob-urn, Disparity in Sentences and Appellate Review of Sentencing, 25 Rutgers L.Rev. 207 (1971); Comment, Appellate Review of Sentences: A Survey, 17 St. L.L.J. (1972), it is our duty to insure that rudimentary notions of fairness are observed in the process at which the sentence is determined.

We therefore vacate the sentence and remand to the district court with instructions to resentence the defendant only after permitting adequate opportunity for the defendant to rebut the factual assumptions explicitly relied on by the court. United States v. Battaglia, supra.

Remanded.

      . The Judge explicitly stated “I’m not going to take into account the fact that two plead guilty and one did not plead guilty, he plead not guilty and was found guilty, but they are all three guilty, they are guilty of distributing heroin.”

      . The record indicates that Robelin and Gonzales made the actual sales to gov-eminent agents. Espinoza became involved when agents observed him handing a small package (0.62 grams) of heroin to Robelin in a car.

      . Appellant also made a motion for a new trial which was denied.

      . The Government attempts to distinguish Townsend by arguing that in Townsend the petitioner proved the sentencing judge was acting on erroneous premises, whereas here appellant has not proven they were erroneous. Inasmuch as all appellant is seeking here is an opportunity to make such proof, the attempted distinction is obviously without merit.

      . In Tuelcer, the Supreme Court remanded despite the rather obvious possibility that the sentencing judge would not change the original sentence on remand. 404 U.S. 449, 452, 92 S.Ct. 589, 30 L.Ed.2d 592 (Blackmun, J., dissenting).

      . Rule 32(c) (2) of the Federal Rules of Criminal Procedure states:
      “(c) Presentence Investigation.
      *4! * * * *
      “(2) Report. The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court. The court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation and afford an opportunity to the defendant or his counsel to comment thereon. Any material disclosed to the defendant or his counsel shall also be disclosed to the attorney for the government.”

      . In United States v. Jones, 5 Cir. 1973, 473 F.2d 293, we rejected a claim that under Townsend and Battaglia due process was violated when the district court refused to disclose information in a presentence report that defendant claimed was erroneous. There the district court permitted defendant to rebut the allegedly erroneous information and, after such rebuttal was presented, the district court required a supplemental report to be filed that ultimately verified the defendant’s repudiation. Further, the district court explicitly stated that he did not rely on the disputed information in assessing sentence, and attached a sealed copy of the entire presentence report so that the Court of Appeals could review the basis for his decision. The Court of Appeals, in distinguishing Battaglia stated, “in the present case, the sentencing judge possessed the true facts before he imposed sentence so no reconsideration is appropriate.” United States v. Jones, supra, 473 F.2d at 297. Obviously, we are in no position to make such a statement here, and this is a far different case from Jones.

      . B. g., Advisory Committee on Criminal Rules, Note, 48 F.R.D. 551 (1970) ; National Council on Crime and Delinquency, Model Sentencing Act (1963) ; A.L.I. Model Penal Code § 7.07(5) (1962-prelim. draft) ; ABA Standards Relating to Sentencing Alternatives and Procedures § 4.4 (1968, approved draft) ; President’s Commission on Law Enforcement and Administration of Justice, the Challenge of Crime in a Free Society (1967) at 145; M. Frankel, Criminal Sentences (1973) ; Frankel, Lawlessness in Sentencing 41 U.Cin.L.Rev. 1 (1972).


author: THORNBERRY, Circuit Judge:

text:
    Jack M. COLE, Plaintiff-Appellant-Cross Appellee, v. Gustavo G. BENAVIDES et al., Defendants-Appellees-Cross Appellants.
    No. 72-3399
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 5, 1973.
    John William Black, Brownsville, Tex., for appellants.
    Carlos M. Zaffirini, Laredo, Tex., for appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   THORNBERRY, Circuit Judge:

Appellant Cole sued Gustavo Benavides, Vicente Garza, Roy Gatling, and a corporation, R. I. of McAllen, Inc., to recover a commission allegedly due him under a contract to obtain a source of permanent financing for the construction of a motel in McAllen, Texas, by R. I. of McAllen, Inc. The trial judge, sitting without a jury, held that Cole had not fully performed his contractual obligations and therefore was not entitled to the commission specified in the contract. He further held, however, that Cole was entitled to the reasonable value of the services he had rendered to appellees, and entered judgment for Cole on the theory of quantum meruit. We reverse with instructions that judgment be entered for appellees.

Cole’s contract with appellees is evidenced by a May 25, 1970, letter from Benavides to Cole, which we reproduce in full in the margin. In pertinent part, the letter stated that if, at any time in the future, appellees should “secure permanent financing for the construction for the above referred to motel from the source which you have advised us you are reasonably certain will issue a commitment for such permanent financing,” then appellees would pay Cole “a commission in the amount of six (6%) percent of the total amount of such permanent financing loan” [emphasis added]. The terms of this contract are clear: Cole would be entitled to his commission only if appellees actually secured permanent financing from a source supplied by Cole.

Subsequent to the execution of this contract, Cole divulged the name of Life Investors Insurance Company as a probable source of permanent financing for construction of the motel. On September 21, 1970, Life Investors issued a commitment to appellees for a mortgage loan in the amount of $1,100,000 in return for which appellees paid Life Investors a non-refundable fee of four percent of the amount of the contemplated loan. This commitment was expressly conditioned upon appellees’ performance under an earlier sale-leaseback agreement with Life Investors. The testimony established that the September 1970 commitment from Life Investors was neither a loan nor a commitment to provide permanent financing. Rather, it was merely a “stand-by” commitment; both parties to the agreement understood that appellees would accept it only if they could not find more favorable permanent financing terms elsewhere. It is undisputed that appellees never obtained permanent financing from Life Investors or from any other source supplied by Cole. Permanent financing was obtained from Paul Revere Life Insurance Company, through the efforts of Glenn Justice Mortgage Co., for which appellees paid a brokerage fee of $45,000 to Glenn Justice.

Appellees later obtained temporary, or interim, financing from the McAllen State Bank. Mr. G. E. Roney, the bank officer who handled the temporary loan to appellees, testified unequivocally that in making the loan, the bank relied solely on the sale-leaseback agreement between appellees and Life Investors, not on Life Investors’ stand-by loan commitment. The temporary loan from the McAllen State Bank was repaid by means of the permanent financing from Paul Revere Life Insurance Company.

On the basis of these facts, we think that the trial judge correctly held that Cole was not entitled to his contractual commission. His right to the commission was conditioned upon appellees’ actually obtaining permanent financing from a source he supplied. Since appellees never obtained even a commitment for permanent financing from Life Investors, much less permanent financing itself, the condition governing Cole’s right to a contractual commission never occurred.

We believe, however, that the trial judge erroneously awarded Cole a recovery in quantum meruit, under the facts of this case. Under Texas law, a party may plead alternative theories of recovery in contract and quantum meruit, but if he proves the existence of an enforceable contract, he may not recover in quantum meruit. Phoenix Lumber Co. v. Houston Water Co., 94 Tex. 456, 61 S.W. 707, 709 (1901); Musick v. Pogue, 330 S.W.2d 696 (Tex.Civ.App. —San Antonio 1959, writ ref’d n.r.e.); Bennett v. Giles, 12 S.W.2d 843 (Tex. Civ.App. — Fort Worth 1928). No one questions the validity, legality, or enforceability of Cole’s contract with appellees. The only obstacle to his recovery under the contract is that he had no present right to the commission because the contractual condition governing that right — appellees’ actually obtaining permanent financing from a source he supplied- — -had not occurred. In short, Cole proved the existence of an express contract with appellees, but he failed to prove that that contract had been breached. Under these circumstances, it was error to permit Cole to recover on the alternative theory of quantum meruit.

Accordingly, the judgment is reversed with instructions that judgment be entered for appellees.

      . Hall and Zaffirini
      Attorneys-at-Law
      Samos-Moore Building
      Laredo, Texas 78040
      H. C. Hall, III P.O. Box 207
      O. M. Zaffirini (A.C. 512) 723-5527
      May 25, 1970
      Mr. J. M. Cole
      419 Exeter Drive
      Birmingham, Alabama
      Dear Sir:
      On behalf of the joint venture between Mr. Roy Gatling, Mr. Vicente V. Garza and Mr. Gustavo G. Benavides for the building of a Ramada Inn Motel in McAllen, Texas, on land heretofore purchased by them, this is to evidence our agreement with you that in the event that we should at any time in the future secure permanent financing for the construction of the above referred to motel from the source which you have advised us you are reasonably certain will issue a commitment for such permanent financing, that and in that event [sic] we agree that we will owe you a commission in the amount of six (6%) per cent of the total amount of such' permanent financing loan.
      This letter is written prior to your advising us as to the name of such company and this letter is an inducement to you, as well as a memorandum of our contract and agreement to pay you such commission in the event that we are able to secure such loan from your source.
      Yours very truly,
      Gustavo G. Benavides,
      Joint Venturer.
      HCH, III :EGA.

      . It is worth noting that Cole’s complaint made no mention of recovery in quantum meruit. The theory found its way into the case through an amendment to the pre-trial order over the objection of appellees.

      . Colbert v. Dallas Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031 (1937), relied upon by Cole, holds that quantum meruit affords an alternative basis for recovery under an unenforceable contract, but is inapplicable to a case in which plaintiff has proved the existence of an enforceable contract.