text:
    UNITED STATES of America, Plaintiff-Appellee, v. John DOE, a/k/a D. J., Defendant-Appellant.
    No. 73-2408
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 15, 1973.
    George Gold, Miami, Fla. (Court-appointed) , for defendant-appellant.
    Robert W. Rust, U. S. Atty., Sam A. Alter, Jr., Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Indicted as John Doe, a/k/a D. J., David Lee Jones after a court trial was convicted and sentenced under Count II of an indictment under Title 21, U.S.C., Section 841(a)(1) and Title 18, U.S.C., Section 2, for distributing about 2 grams of cocaine. The trial judge found Jones not guilty under Count I of the indictment which charged knowing and intentional possession with intent to distribute about 2 grams of cocaine in violation of Title 21, U.S.C., Section 841(a)(1) and Title 18, U.S.C., Section 2. We find no merit in the three questions raised by Jones on appeal, and affirm.

The first error alleged is the claimed inconsistency in the court’s finding the appellant guilty of distributing the 2 grams of cocaine involved while acquitting him of possession with intent to distribute. Jones urges that the deficiency in the government’s proof which required acquittal under Count I would also apply to Count II. This argument overlooks the fact that the trial court found that Jones aided and abetted in the distribution of the cocaine (Title 18, U.S.C. Section 2) not that he actually distributed it. Quite simply put the trial court did not find that the defendant possessed but only that he aided in the distribution of the 2 grams of cocaine. A like contention was held by us to be without merit in United States of America v. McCray, 5 Cir. 1973, 482 F. 2d 286 [decided July 23, 1973] with respect to identical charges of aiding and abetting in the possession with intent to distribute heroin and aiding and abetting in the distribution of heroin, in violation of the same two criminal statutes, Title 21, U.S.C., Section 841(a)(1) and Title 18, U.S.C., Section 2.

Jones’ next contention that he was simply a buyer’s agent is also rejected under two recent decisions by this Court. See United States of America v. McCray, supra, and United States of America v. Miller, 5 Cir. 1973, 483 F.2d 61 [decided August 6,1973].

Finally, Jones urges that the evidence showed that he was the victim of entrapment by the government agent. The trial court sitting without a jury found that the defendant and not the government initiated the conversations as to the possibility of the sale or distribution of narcotics. While the evidence was such as to entitle Jones to an instruction on the defense of entrapment if the trial had been a jury trial, we do not consider that the conduct of the government agents was so outrageous or that there was such an intolerable degree of government solicitation or participation in this case as to constitute entrapment as a matter of law. United States v. Russell, 1973, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366; United States v. McCray, supra.

Affirmed.

      . For treatment and study pursuant to the provisions of Title 18, U.S.C., Chapter 311, Section 4208(b)


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Luther Ernest HENDRIX, Defendant-Appellant.
    No. 73-2701
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 16, 1973.

      Gus L. Wood, Newnan, Ga., court appointed, for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

Luther Ernest Hendrix was convicted of violations of 26 U.S.C. § 5601(a)(1) and § 5601(a)(4) and 26 U. S.C. § 5686 and received a five year sentence on each count, sentences to run concurrently. On this appeal he alleges insufficiency of the evidence on all counts. However, the evidence, viewed most favorably to the government, is sufficient to sustain a conviction for violation of 26 U.S.C. § 5601(a)(4), carrying on the business of a distillery, “[ajn offense which is one of the most comprehensive of the criminal statutes designed to stop the production and sale of untaxed liquor.” United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 12 L.Ed. 2d 658 (1965). We therefore affirm.

Testimony was adduced indicating that Hendrix was present continuously for two days at a house in a remote and rustic area of Georgia. An illicit still was located fifty yards behind the house concealed in sylvan surroundings. An electrical wire from the house fuse box was connected to a water pump in a nearby brook. The water pipe from the pump supplied the still. When the dogs barked and once when a truck passed, Hendrix would come out of the house and search the area surrounding it. The evening before his arrest, he was observed unloading twelve sixty-pound bales containing sacks of sugar from the trunk of a car and placing them in a shed near the house. The next day, after arresting Hendrix, the revenue officers discovered that the sugar was missing from the shed and that there were hand truck tracks leading from the shed to the still. Finally, the agents determined that sugar had recently been added to the mash in the still.

Reasonably minded jurors could have concluded that this evidence was sufficient to prove a violation of 26 U. S.C. § 5601(a)(4) beyond a reasonable doubt. Therefore, since concurrent sentences were imposed, we need not determine whether the evidence was sufficient to convict on the other counts.

Affirmed.


author: PER CURIAM.

text:
    Maxwell OLIVER, Petitioner-Appellee, v. Henry E. COWAN, Superintendent, etc., Respondent-Appellant.
    No. 73-1474.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 12, 1973.
    Decided Nov. 21, 1973.
    James M. Ringo, Asst. Atty. Gen., Frankfort, Ky., for respondent-appellant. Ed W. Hancock, Atty. Gen. of Ky., G. Edward James, Asst. Atty. Gen., Frankfort, Ky., on brief.
    Curtis L. Wilson, Lexington, Ky., (Court-appointed), for petitioner-appel-lee.
    Before EDWARDS and LIVELY, Circuit Judges, and CECIL, Senior Circuit Judge.
   PER CURIAM.

This is an appeal from an order granting habeas corpus relief to a prisoner who is serving a life sentence imposed by a jury following a plea of guilty. Upon indictment for willful murder, Maxwell Oliver pled guilty with the assistance of appointed counsel on January 21, 1959. Under Kentucky procedure the jury fixed the punishment in criminal cases and was permitted in this case to decree either death or life imprisonment. On the same day that the jury verdict was received, the court passed formal sentence of life imprisonment in the absence of counsel for Oliver. The question presented is whether, under the circumstances of this case, formal sentencing was a critical stage in the criminal proceedings at which the defendant was entitled to the assistance of counsel.

Under the code of criminal practice in effect in Kentucky in 1959 the court was permitted to enter judgment immediately in cases involving guilty pleas while being required to wait two days before rendering judgment in other cases. Kentucky Criminal Code, Section 283; Sorke v. Commonwealth, 271 Ky. 482, 112 S.W.2d 676 (1938). The Code did not refer to sentencing, but prescribed certain procedures in connection with “rendering judgment” in criminal cases. References to “sentencing” and “pronouncing judgment” were held to have the same meaning in Lovelace v. Commonwealth, 285 Ky. 326, 147 S.W.2d 1029 (1941).

The Criminal Code, § 284, provided that the judgment of the court should affix the degree of punishment to be inflicted as found by the verdict of the jury or fixed by law. Section 285 required the presence of the defendant at the time that judgment was rendered against him in cases of felony and § 286 provided, “When the defendant appears for judgment, he must be informed by the court of the nature of the indictment, his plea and the verdict thereon, if any; and he must be asked if he has any legal cause to show why judgment should not be pronounced against him.” The next section of the Criminal Code, number 287, then provided causes which a defendant might impose to prevent the rendition of judgment against him. These included “. . . any sufficient ground for a new trial, or for arrest of judgment; [or] . . . that he is insane.” Since Kentucky procedure required that he be asked at formal sentencing if he had any legal cause why sentence should not be pronounced, it would appear that the assistance of counsel would be required to advise the defendant if any of the causes set forth in Section 287 existed in his case.

In his brief, the respondent argues that the defendant would have had ample opportunity to present any reasons why judgment should not have been rendered in accordance with the verdict upon his motion for a new trial or for probation, quoting from McIntosh v. Commonwealth, Ky., 368 S.W.2d 331, 335 (1963). • In 1959 a person serving a life sentence in Kentucky was ineligible for probation pursuant to Kentucky Revised Statutes, § 439.020. On page 12 of his brief the respondent states, “A defendant could not make a motion for a new trial in a case where he has pleaded guilty.” Thus the two opportunities for presenting reasons why judgment should not be rendered in accordance with the verdict were not available to the petitioner Oliver at a time subsequent to formal sentencing, which increased the importance of counsel at sentencing in his case.

Section 174 of the Criminal Code in effect in 1959 provided that the court could permit a plea of guilty to be withdrawn and a plea of not guilty substituted “[a]t any time before judgment.” Certainly the presence of counsel would be required for an intelligent determination of whether a change of plea should be undertaken. Cf. Mempa v. Rhay, 389 U.S. 128, 136, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967).

In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the Supreme Court held that a defendant in a criminal case “. . . requires the guiding hand of counsel at every step in the proceedings against him.” 287 U.S. at 69, 53 S.Ct. at 64. Even though under the 1959 Kentucky procedure the judge did not determine the degree of punishment, we view formal sentencing as more than a mere mihisteriai ceremony in light of the possible steps available to the defendant at that proceeding.

Although Kentucky continues to require that the jury fix the degree of punishment, new Rules of Criminal Procedure were adopted in .1962 and the issue decided here has not been presented to this Court in a case tried under the new rules.

The judgment of the district court is affirmed. Upon remand an order will be entered granting the habeas corpus petition of Maxwell Oliver unless he is resentenced with either retained or appointed counsel present within 60 days from the entry of such order.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Arthur Johnnie HAGAN, Defendant-Appellant.
    No. 73-2043
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 20, 1973.
    Brooks Taylor, Crestview, Fla., for defendant-appellant.
    William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., Stewart J. Carrouth, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

Arthur Hagan appeals from his conviction for passing, uttering, selling, and delivering counterfeited notes, in violation of 18 U.S.C. §§ 472-473 (1970). The sole question on appeal is whether the evidence supported a finding that the defendant acted with intent to defraud. We affirm.

In January 1973 the defendant, Hagan, got in touch with Wilbur E. Hall, an employee of the police department at Ol-ford, Florida, seeking to have Hall help him dispose of some counterfeit money Hagan then had in his possession. Hall reported this incident to the sheriff of the county who told him to go along with Hagan in order to apprehend Hagan with some of the counterfeit money. On January 20 and 21, Hagan gave Hall three counterfeit $100 bills. Hall then arranged to have Hagan meet with a Treasury Agent who agreed to purchase $50,000 in counterfeit $100 bills from Hagan. Later, the Agent and Hagan again met, but Hagan stated that he had been unable to get the $50,000 in counterfeit bills; he had only $2,000 in counterfeit money. The Agent paid $550 in genuine bills, the serial numbers of which he had recorded, for the counterfeit $2,000.

Hagan’s argument that the evidence did not support a finding of the requisite intent to defraud is based upon his testimony that the Treasury Agent represented to him that all the counterfeit money he was passing would be going to Mexico. He believed therefore that neither the United States Government nor anyone in the United States would be defrauded or otherwise injured by his passage of the notes. There is no merit to this argument. The record contains ample evidence tending to show that Hagan knew that somebody would ultimately be defrauded by the notés he was passing. The defendant knew that the notes were counterfeit: in his discussions with the Treasury Agent, he discussed their quality and their defects; he cautioned the agent that passing the notes was a federal offense; he negotiated their sale at a price far below their face value. Furthermore, there was testimony by the Treasury Agent that Hagan had told him .that the currency would pass through many hands before being detected.

Affirmed.


text:
    Thomas Larry KELLEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-1240.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 9, 1973.
    Decided Nov. 29, 1973.
    James D. Todd, Jackson', Tenn. (Court-appointed), for petitioner-appellant.
    Thomas F. Turley, Jr., U. S. Atty., William A. McTighe, Jr., Asst. U. S. Atty., Memphis, Tenn., on brief, for respondent-appellee.
    Before PECK and McCREE, Circuit Judges, and ALLEN, District Judge.

       The Honorable Charles M. Allen, United States District Judge for the Western District of Kentucky, sitting by designation.

   PER CURIAM.

This is an appeal from an order denying a motion to vacate sentence pursuant to 28 U.S.C. § 2255.

After a judgment of conviction entered on a plea of guilty to charges of bank robbery, in violation of 18 U.S.C. § 2113(a), appellant was sentenced to a term of 15 years on December 6, 1965. For some reason not apparent in the record before us, the official court reporter has destroyed all transcripts more than five years old, including that of Kelley’s sentencing.

On November 27, 1972, Kelley filed a motion to vacate sentence and alleged that the sentencing judge had been furnished a presentence report that contained, among other things, information that Kelley had several convictions for armed robbery, burglary and other offenses and that these convictions are vulnerable because he had not been represented by counsel and had not waived the assistance of counsel. His petition alleged that the sentencing judge commented from the bench about Kelley’s dangerous activities and pronounced the fifteen year sentence as part of his duty “to protect society from undesirables roaming our fair countryside, armed to the teeth and seeking ill-gotten gains from those who must survive through diligence and honest employment.”

Before the United States attorney filed a response to the motion, thb district court, presided over by a different judge from the one who had pronounced the sentence, denied appellant’s motion to vacate because the sentencing judge had not imposed the maximum sentence of twenty years and because it did not appear here, as it did in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), that the prior convictions relied upon had been conclusively determined to be invalid. He stated as a further reason his belief that the sentence imposed was not excessive in light of appellant’s record.

We conclude that the district court erred in not awaiting an answer by the United States attorney because if the allegations in the motion are true, appellant is entitled to relief because invalid convictions cannot be used to enhance a sentence. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). If appellant’s allegations were controverted, an evidentiary hearing would be required to determine whether the prior sentences were unconstitutionally void because of the failure to afford counsel as required by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Here, even though the maximum sentence was not imposed, it is clear from the quoted statement of the sentencing judge that the prior criminal record was an important factor in his determination of the length of the prison term he imposed.

Accordingly, the cause is remanded to permit appellee to file an answer and for further proceedings as may be appropriate.

Reversed and remanded.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Calogero D’ANNA, Principal Defendant, International Fidelity Insurance Co., Surety Defendant-Appellant.
    No. 73-1410.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 4, 1973.
    Decided Nov. 21, 1973.

      Norman L. Zemke, Zemke & Lustig, Southfield, Mich., on brief, for appellant.
    Gordon S. Gold, Detroit, Mich., for ap-pellee; Ralph B. Guy, Jr., U. S. Atty., Michael D. Gladstone, Asst. U. S. Atty., Detroit, Mich., on brief.
    Before PECK, MILLER and LIVELY, Circuit Judges.
   PER CURIAM.

This case involves the interpretation of a bail bond contract. Appellant surety posted a $10,000 appearance bond with the District Court oh behalf of a criminal suspect. The suspect pleaded guilty to a felony charge and was sentenced to one year in prison. Immediately after pronouncing sentence, the District Judge stated that “Bond may be cancelled.” The principal defendant requested time to put his affairs in order. The Court granted a one week delay in the commencement of sentence, but noted that “there is a $10,000 bond which is not being cancelled by the Court this morning . . . .” The Judgment and Commitment Order, however, stated as follows: “It is adjudged that defendant’s bond of $10,000 cash or surety be continued to Wednesday, October 25, 1972, at 9:00 A.M.”

Defendant did not return for service of sentence and the government obtained a judgment against the appellant on the bond. Appellant moved to have the bond forfeiture set aside on the basis that the bond had been cancelled, and on the basis that surety’s liability ended following the sentencing procedure. The District Court, in ruling on this motion, held that the bond had been continued and that the Court had correctly exercised its discretion in continuing the bond beyond sentencing. It was from this. adverse ruling that appellant perfected the appeal herein.

Appellant raises the same points here it raised in the District Court. The question of whether the bond was can-celled or continued need not be considered, however, because this Court concludes that the District Court could not continue the bond without the consent of the surety.

A bail bond is a contract between the government and the principal and surety. United States v. Jackson, 465 F.2d 964 (10th Cir. 1972). A number of federal courts have held that a bond contract must be interpreted in light of the applicable law of the state in which it was made. United States v. Gonware, 415 F.2d 82 (9th Cir. 1969); Swanson v. United States, 224 F.2d 795, 15 Alaska 608 (9th Cir. 1955); Heine v. United States, 135 F.2d 914 (6th Cir. 1943); Palermo v. United States, 61 F.2d 138 (8th Cir. 1932). Bond in the present case was made in Michigan and, therefore, its terms must be interpreted in light of that state's law.

The bond in issue specified that defendant appear in District Court to “answer to any indictment . . . and abide such order and determination as said Court may make . . . and . not depart said Court without leave thereof . . . . ” The Supreme Court of Michigan dealt with a similar bond in People v. Brow, 253 Mich. 140, 234 N.W. 117 (1931). In that case the surety appealed from a forfeiture ordered when the defendant failed to appear for commencement of a sentence delayed for more than a month. The trial court had imposed sentence and then ordered bond continued until commencement of sentence. The bond in that case required the defendant to come to the courthouse to “answer to an information . . .’ and to do and receive what shall by the court be then and there enjoined upon him and not depart the court without leave.” Brow, supra, 234 N.W. at 118. The Michigan Supreme Court, reasoning that the judgment of sentence constituted the final determination of a criminal case, held that the surety’s liability terminated when sentence was imposed and that the trial court lacked the authority to continue bond without consent of the surety.

The proposition set forth in Brow, that sentencing is the final disposition of an insured’s case which terminates the surety’s legal obligations, was repeated with approval in Brandimore v. Eaton Rapids Justice of Peace, 15 Mich.App. 676, 167 N.W.2d 360 (1969).

The government cites no authority which would indicate that the Brow decision has been o modified or overruled, although it does attempt to show that the language in the Brow bond was not the same as the language in the bond under consideration. We do not find the distinction urged by the government.

In interpreting a bond contract the language must be strictly construed in favor of the surety. United States v. Eisner, 329 F.2d 410 (6th Cir. 1964) (interpreting a Michigan bond); Bran-dimore v. Eaton Rapids Justice of Peace, supra. Appellant asserts, along these lines, that continuing bond beyond sentencing would introduce increased risk factors' not contemplated by the parties when the contract was entered into. We find merit in this position. As was stated in Gonware v. United States, supra, 415- F.2d at 83, “Like any other contract, a bail bond should be construed to give effect to the reasonable intentions of the parties.” Once sentence has been pronounced the principal’s hopes for freedom by vindication are considerably reduced. For this reason the risk of flight is substantially increased, a risk clearly not contemplated at the time of the execution of the instant bond.

It is true, as the government points out, that this Court reached the opposite result in a similar case, Detroit Fidelity and Surety Co. v. United States, 36 F.2d 682 (6th Cir. 1930), but that case involved a bond made in Ohio. The opinion did not consider the question of whether Ohio law should have been applied to the interpretation of that Ohio contract. On the other hand, a line of cases extending from 1917 to 1969 holds that a bond must be construed in accord with applicablé state law. United States v. Gonware, supra; Swanson v. United States, supra; Heine v. United States, supra; Western Surety Co. v. United States, supra; Heine v. United States, Palermo v. United States, supra; Ewing v. United States, 240 F. 241 (6th Cir. 1917).

Michigan law clearly holds that bond can not be extended beyond the sentencing procedure without consent of the surety, and therefore, the District Court was in error when it ordered bond continued.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.


text:
    Tully V. FOSTER et al., Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 73-1155.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 18, 1973.
    Decided Nov. 29, 1973.
    Bennet Kleinman, Cleveland, Ohio, for appellants; Kahn, Kleinman, Yanowitz & Arnson, Cleveland, Ohio, on brief.
    Jonathan S. Cohen, U. S. Dept. of Justice, for appellee; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Richard W. Perkins, Libero Marinelli, Jr., Gordon S. Gilman, Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief; Lee H. Henkel, Jr., Chief Counsel, I.R.S., Washington, D. C., of counsel.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and LIVELY, Circuit Judges.
   PER CURIAM.

The Tax Court determined that the appellants are liable for income tax deficiencies together with fraud penalties as prescribed by Section 6653(b) of the Internal Revenue Code of 1954. Tully V. Foster filed individual income tax returns for the years 1955 through 1958 and he and his wife Mary Foster filed joint returns for the years 1959 through 1962. On August 29, 1972 Judge Tan-nenwald of the Tax Court filed a Memorandum Opinion covering all eight years in issue. 31 T.C.M. 913.

There were many conflicts in the evidence, both between that of the táxpayers and the government and among the various witnesses for the taxpayers. In addition, the trier of facts was required to make a judgment of credibility in view of the explanation put forward by the taxpayers as to the source of their increased net worth and their consistent failure to report items of income. In resolving the contradictions in the evidence and the issue of credibility the findings of the Tax Court are not clearly erroneous, but are supported by substantial evidence, and are conclusive on review. Rule 52(a) Fed.R.Civ.P.; Commissioner of Internal Revenue v. Duber-stein, 363 U.S. 278, 80 S.Ct. 1190, 4 L. Ed.2d 1218 (1960); Buckeye Union Casualty Co. v. Commissioner of Internal Revenue, 448 F.2d 228 (6th Cir. 1971).

The deficiencies were based on a net worth statement prepared by I.R.S. agents. A stipulation entered into by the parties prior to the trial of this ease disclosed the fact that the taxpayers agreed with the net worth calculations of the Commissioner at the end of each year in question. However, appellants maintain that the government did not sustain its case against them as a matter of law because it failed to establish the “likely source” of the funds which contributed to the increase in net worth. United States v. Massei, 355 U.S. 595, 78 S.Ct. 495, 2 L.Ed.2d 517 (1958), makes it clear that proof of a likely source of income is not a prerequisite to use of the net worth method. In Massei, the Court held that there is no necessity for proof of a likely source of income when all possible sources of nontaxable income are negatived.

The taxpayers were the owners of a business which was capable of producing large profits over the years which they operated it. It was a restaurant business in which virtually all receipts and disbursements were made in cash and the Commissioner and Tax Court were entitled to find that the admitted increases in net worth flowed from the operation of this business. The fact that the books of the restaurant were consistent with the figures reported on Schedule C of the taxpayers’ returns does not establish the accuracy of the business records. Holland v. United States, 348 U.S. 121, 132, 75 S.Ct. 127, 99 L.Ed. 150 (1954).

The taxpayers maintain that the allocation of income made by the Commissioner and the Tax Court is completely arbitrary and that the profits ascribed to their business in the years 1961 and 1962 are incredible. Additional income over and above that reported was allocated to those years in which the net worth of the appellants increased. Since the taxpayers did not come forward with credibile explanations for these increases, under the net worth method it was assumed that the income which produced the increases was earned in the years that the new assets appeared. This is a reflection of the fact that only an approximation is reached when the net worth method is used to determine income tax deficiencies, but it is justified by the failure of the taxpayers to furnish accurate information. ' Cf. Holland v. United States, supra, at 129, 75 S.Ct. 127.

Without a showing of fraud, deficiencies for the years 1955 through 1958 would be barred by the statute of limitations. The burden of establishing fraud is on the Commissioner and he must meet this burden by clear and convincing evidence. 26 U.S.C. § 7454(a), Drieborg v. Commissioner of Internal Revenue, 225 F.2d 216 (6th Cir. 1955). The standard of review of the Tax Court’s finding of fraud is the same as with other factual matters — -it will not be set aside unless clearly erroneous. Biggs v. Commissioner of Internal Revenue, 440 F.2d 1 (6th Cir. 1971). The record in this case is replete with instances where items of income were omitted from the returns of the taxpayers. Taken as a whole, the evidence was clearly sufficient to support the findings of fraud. Kurnick v. Commissioner of Internal Revenue, 232 F.2d 678 (6th Cir. 1956).

The Tax Court did not abuse its discretion in denying the motions of the taxpayers for retrial and reconsideration on the basis of newly discovered evidence.

The judgment of the Tax Court is affirmed.


author: GEE, Circuit Judge:

text:
    ABBOTT FARMS, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
    No. 72-3586.
    United States Court of Appeals, Fifth Circuit.
    Nov. 29, 1973.
    Charles Cleveland, Birmingham, Ala., for petitioner-cross respondent.
    Elliott Moore, Acting Asst. Gen, Counsel, N.L.R.B., Washington, D. C., Walter C. Phillips, Regional Director, Atlanta, Ga., William Gaus, N.L.R.B., Washington, D. C., for respondent-cross petitioner.
    Before GODBOLD, DYER and GEE, Circuit Judges.
   GEE, Circuit Judge:

Abbott Farms, Inc., petitions for review, and the NLRB for enforcement, of the Board’s order directing Abbott to bargain with the certified collective bargaining representative of a unit composed of employees who work in or in connection with its feed mill.

Abbott is a family corporation in the poultry and egg business, and other pastoral pursuits, in a large scale in rural Alabama. Some of the eggs from its breeder hens are sold commercially, others are sent to its hatchery. The resulting chicks are reared either as replacement breeders by Abbott, or as broilers by Abbott or by growers under contract to it. Title to all chicks remains in Abbott, which furnishes feed, medicine, etc., to the contract growers as well as to its own rearing operations. The growers provide poultry houses and daily care, and for their services they receive a fixed compensation per pound plus incentive payments. Abbott does not process the birds, but rather sells all broilers raised directly or indirectly by it to poultry plants.

The bargaining unit consists of seventeen employees who mill and distribute about three-quarters of Abbott’s feed and medicine requirements, which are produced at its feed mill on one of its farms; Abbott purchases the remaining quarter of these requirements. All products of the mill are consumed by Abbott, none are sold to anyone. Two of the seventeen are in-haul truck drivers bringing feedstuffs, vitamins and other ingredients to the mill. Seven operate the feed mill. Eight are out-haul drivers who take feed to Abbott’s breeding operations, hatchery, broiler houses and contract growers.

Almost five years ago, in NLRB v. Strain Poultry Farms, Inc., 405 F.2d 1025 (5th Cir. 1969), this Court denied enforcement on a well-nigh identical fact situation and contention by the Board. The sole factual distinction is that in Strain it was the truck drivers delivering finished broilers to market who were sought to be organized.. Then, as now, the National Labor Relations Act provided “The term ‘employee’ . shall not include any individual employed as an agricultural laborer. . . . ” 29 U.S.C. § 152(3). Then, as now, Congress had since 1946 added a rider to the NLRB’s appropriation bill providing that no part of the appropriation should be used in connection with bargaining units composed of “agricultural laborers” as defined in Section 3(f) of the Fair Labor Standards Act. 29 U.S.C. § 203(f). And then, as now, that section defined “Agriculture” as including:

“ . . .' farming in all its branches and among other things includes the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.”

There, as here, the question was whether the poultry raiser was conducting a trucking operation (feed mill) on the side or whether the operation (mill) was part of the poultry raising venture; and the Board relied heavily if not primarily upon Maneja v. Waialua Agricultural Co., 349 U.S. 254, 75 S.Ct. 719, 99 L.Ed. 685 (1955), and NLRB v. Gass, 377 F.2d 438 (1st Cir., 1967), both of which we then found inapposite. Cited with approval in our opinion in Strain, however, is Mitchell v. Georgia Broiler Supply, Inc., 186 F.Supp. 341 (N.D.Ga., 1960), a decision on facts even closer to Abbott’s than those in Strain: in Georgia Broiler, the question was whether employees who worked in just such a feed mill as Abbott’s and hauled the feed to contract growers for Mitchell were agricultural employees. The Court held that the raising of poultry was within the primary definition of agriculture set forth in 29 U.S.C. § 203(f) and that the feed production and hauling performed by these employees was incident to or in conjunction with the poultry raising venture as preparation of the birds for market.

Counsel for the Board points out that in Strain the truckers hauled the finished product to market, thus falling squarely within § 3(f)’s definition as performing “delivery to market.” This faintly distinguishes Strain on its facts but not its principles and ignores Georgia Broiler, which rests on “preparation for market.” 29 U.S.C. § 203(f).

Five years have passed since our Strain decision without' action by the Congress to disturb it. Our sister circuit has since reversed the Board decision in Victor Ryckebosch, Inc., 189 NLRB No. 8, on which the Regional Director in the instant case relied and by which he felt bound, citing and relying on Strain in its opinion. NLRB v. Victor Ryckebosch, Inc., 471 F.2d 20 (9th Cir., 1972). If anything favorable to this Board position has occurred during that period, we have not been advised of it. To enforce this Board order, it would be necessary for us either to overrule Strain or to distinguish withotit differentiating it. We adhere to it.

Enforcement denied.


author: STEPHENSON, Circuit Judge.

text:
    BICHEL OPTICAL LABORATORIES, INC., Plaintiff-Appellant, v. The MARQUETTE NATIONAL BANK OF MINNEAPOLIS, Defendant-Appellee.
    No. 73-1330.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 19, 1973.
    Decided Nov. 7, 1973.
    Rehearing Denied Dec. 6, 1973.
    James B. Lund, Minneapolis, Minn., for plaintiff-appellant.
    Stephen Winniek, Minneapolis, Minn., for defendant-appellee.
    Before HEANEY, ROSS and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

This appeal raises the question of whether seizure by defendant-appellee bank of plaintiff-appellant borrower’s funds and collateral in the form of accounts receivable without foreclosure or notice is an act under color of state law, thus giving rise to a claim under 42 U.S.C. § 1983. The trial court found that the alleged seizure by appellee bank did not constitute governmental action. See Bichel Optical Laboratories, Inc. v. Marquette National Bank, 336 F.Supp. 1368, 1372 (D.Minn.1971). We agree.

In 1967, appellee bank made several loans to appellant in exchange for promissory notes. The loans were secured by appellant’s checking account with appel-lee bank and by means of a receivables security agreement. On September 20, 1968, 31-day renewal notes were executed in the amount of $4,000 bearing interest at 8%. The notes provided that in the event of appellant’s insolvency, or in the event that appellant failed to keep a margin of security satisfactory to ap-pellee bank, the latter had the right to accelerate payment of such indebtedness and to collect any collateral securing the notes, without giving prior notice or demand to appellant. Seven days after the renewal notes were executed appellee bank exercised its options under the notes which action was triggered by adverse financial information it had received concerning appellant. Appellee bank accelerated payment on the notes and proceeded to collect the collateral by notifying appellant’s debtors to pay appellee bank directly, and by setting off against appellant’s checking account.

Appellant subsequently brought this action against- appellee bank claiming that the seizure of funds without foreclosure or notice constituted violations of state and federal antitrust laws, the Robinson-Patman Act, and appellant’s constitutional protection against unlawful search and seizure. Appellant also claimed that the loan was usurious.

Appellant moved to amend its complaint based upon alleged state and federal constitutional claims, and upon alleged breach of agreement. The trial court denied leave to add the constitutional claims, but allowed the additional claim of breach o-f agreement. Appellee bank in turn moved for partial summary judgment which was granted on the allegations as to usury and violation of the Robinson-Patman Act. The remainder of the case was tried to a jury. Appel-lee bank received a directed verdict on the alleged antitrust violations and a jury verdict on the remaining claims.

It is from the trial court’s denial of appellant’s motion to amend its complaint to include the constitutional claim that appellant appeals. In effect, appellant sought to challenge the constitutionality of the pre-judgment “self-help” remedies as authorized by statute in Minnesota under Article 9 of the Uniform Commercial Code. See Minn.Ann.Stat. §§ 336.9-502(1), 336.9-503 and 336.9-504. Essentially, appellant now contends that since Minnesota has provided the machinery for the alleged seizure by a .private party by means- of a pervasive statutory scheme, the state has significantly involved itself in the pre-judgment “self-help” process.

Unlike Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), which involved the pre-judgment seizure of goods by a state agent pursuant to a private creditor’s writ of replevin, the procedures challenged herein by appellant involve only private actions arising out of the express written agreements between the parties. See Adams v. Southern California First National Bank, 492 F.2d 324, at 329, 337-338 (CA9, 1973).

It is our view that the State of Minnesota by the mere passage of the Article 9 “se'lf-help” remedies has not so significantly involved itself in the procedures followed by appellee bank as to constitute an act under color of state law giving rise to a § 1983 action. Adams v. Southern California First National Bank, supra, 492 F.2d 324 (CA9, 1973); see also Pease v. Havelock National Bank, 351 F.Supp. 118, 120 (D.Neb.1972); accord, Kirksey v. Theilig, 351 F.Supp. 727, 732 (D.Colo.1972); Greene v. First National Exchange Bank of Virginia, 348 F.Supp. 672, 673-675 (W.D.Va.1972). We therefore affirm the decision of the trial court denying appellant’s motion to amend its complaint to include the alleged deprivation of constitutional rights.

Affirmed.

      . Appellant moved to add alleged violations of the constitutions of both the United States and the State of Minnesota. This included allegations based upon the due process clauses of the Fifth and Fourteenth Amendment of the United States Constitution and Article 1, Section 7 of the Minnesota Constitution, and upon the search and seizure clauses of the Fourth Amendment of the United States Constitution and Article 1, Section 10 of the Minnesota Constitution. The trial court held that “[b]oth due process clauses of the Federal Constitution are by their terms restrictions upon the state government, not upon private parties as here. Similarly, the Fourth Amendment to the United States Constitution and Article 1, Sec. 7 of the Constitution of the State of Minnesota are constraints upon the federal and state governments, respectively. The fact that the defendant Bank is a national bank in no way makes it an arm or agent of either government, and there is no allegation, that officials of either government were in any way involved.” 336 F.Supp. at 1372.
      Appellant now raises for our determination alleged violations of the same constitutional provisions as those raised in its motion to amend its complain);. We find its claim based upon deprivation of constitutional rights by federal action to be wholly without merit, and therefore confine our discussion to appellant’s claim based upon alleged state action.

      . See 57 Minn.L.Kev. 621 (1973).


text:
    DELZER CONSTRUCTION CO. et al., Appellees, v. UNITED STATES of America et al., Appellants.
    No. 73-1219.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 16, 1973.
    Decided Dec. 4, 1973.
    Thomas G. Wilson, Atty., Dept, of Justice, Washington, D. C., for appellants.
    Gene R. Bushnell, Rapid City, S. D., for appellees.
    Before LAY and BRIGHT, Circuit Judges, and EISELE, District Judge.

       G. Thomas Eisele, District Judge, Eastern District of Arkansas, sitting by designation.

   PER CURIAM.

The Government appeals from a judgment of the United States District Court for the District of South Dakota which permanently enjoins the Federal Highway Administration (FHWA) from conducting proceedings under 23 C.F.R. § 2.1 et seq. to debar plaintiff-appellees, South Dakota contractors, for one year as construction contractors on federally-funded highway projects. We reverse because the action, as brought by appel-lees is premature.

In a letter dated October 18, 1971, the FHWA Administrator notified appellees that he proposed to declare their “unae-ceptability for employment” because ap-pellee-Hilt Engineering Company (Hilt) had allegedly conspired with appellee-Delzer Construction Company (Delzer) to defraud the Government by using Delzer’s “qualification” to bid on highway projects which were actually to be constructed by Hilt. The letter included notice that a hearing on the matter was available upon request, stating: “The hearing will be nonadversary in nature and the provisions of section 7 of the Administrative Procedure Act will not apply.”

Appellees did request such a hearing, and it was scheduled initially for November 23, 1971. At appellees’ request, the hearing was postponed and, when appellees failed to suggest a more acceptable date, rescheduled for December 14, 1971. On December 10, prior to the administrative hearing, an ex parte temporary restraining order was sought by appellees in district court in South Dakota and was issued by District Judge Andrew Bogue. A hearing on this matter was held before him on December 20, 1971, and a preliminary injunction granted on December 30, 1971. Trial of the action was held on January 15, 1973, and final judgment rendered on February 7, 1973.

In their original complaint, appellees contended that the regulation under which the FHWA Administrator was proceeding, 23 C.F.R. § 2.1 et seq., was in violation of the fifth amendment and the Administrative Procedure Act (5 U. S.C. § 1006) because it did not provide for a hearing which comports with due process. In granting the permanent injunction, Judge Bogue agreed. Such a conclusion, however, cannot be drawn as the present record remains inadequate and still incomplete.

The doctrine of exhaustion of administrative remedies holds an important position in our scheme of laws, allowing the agency an opportunity to exercise its discretion, apply its expertise, or, relevantly here, make a factual record upon which to base subsequent judicial review. See McKart v. United States, 395 U.S. 185, 193-194, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) ; Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 82 L.Ed. 638 (1938). Appellees claim that their livelihood is being stripped from them in violation of their due process rights, yet they have not carried through to the hearing stage which is theirs by right; nor, despite their complaint of expense and inconvenience, have they attempted to have the location of the hearing moved to South Dakota.

The regulation under which defendants are proceeding herein, 23 CFR 2, contains no provision for a hearing on the question of plaintiffs’ unacceptability for employment on the highway projects in question or for a fair hearing thereon and such

The situation here is much like that faced by the District of Columbia Court of Appeals in Robeson v. Dulles, 98 U.S. App.D.C. 313, 235 F.2d 810 (1956). In that case, the well-known singer Paul Robeson challenged the denial of a passport by the State Department by bringing an injunctive proceeding in district court without availing himself of the informal hearing on the matter proffered by the Government. The court held that the action was premature, and said:

Robeson failed to exhaust his administrative remedies. We think he was required to do so. He did not ask for a hearing but instead asserted the invalidity of the regulation providing for one. We cannot assume the invalidity of a hearing which has not been held * * *. [235 F.2d at 811.] regulation and defendants’ conduct herein, under the evidence, is violative of the Fifth Amendment to the Constitution of the United States and plaintiffs will be, unless defendants are restrained by this Court, deprived of their right to pursue their livelihood, all without due process of law.

If the hearing is actually held, the present controversy may resolve itself in any number of ways. The allegations against the appellees may be proven false and no debarment take place. Cf. Beard v. Stahr, 370 U.S. 41, 82 S.Ct. 1105, 8 L.Ed.2d 321 (1962). The hearing may actually meet due process requirements even though the language of the regulation does not specify the exact manner in which the hearing will be conducted except to state that it “shall be nonadversary in nature and the provisions of section 7 of the Administrative Procedure Act shall not apply.” 23 C.F.R. § 2.7(c). Cf. Jennings v. Mahoney, 404 U.S. 25, 92 S.Ct. 180, 30 L.Ed. 2d 146 (1971). To examine appellees’ due process contentions on the present record, however, would produce the re-

suit deplored by the Supreme Court in DuBois Clubs v. Clark, 389 U.S. 309, 88 S.Ct. 450, 19 L.Ed.2d 546 (1967), and “[t]he effect would be that important and difficult constitutional issues would be decided devoid of factual content * * 389 U.S. at 312, 88 S.Ct. at 452.

The judgment of the district court is therefore vacated and the cause is remanded with directions to dissolve the injunction and to dismiss the action. If a hearing is held which does fail to comport with the Constitution, adequate procedures for seeking redress will remain open. See Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570 (1964).

Reversed and remanded.

      . In the Conclusions of Law attached to the judgment order, Judge Bogue stated :


text:
    Gerald J. BROWN, Plaintiff-Appellant, v. GENERAL ELECTRIC COMPANY, Defendant-Appellee.
    No. 73-1307.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 8, 1973.
    Decided Dec. 6, 1973.
    Gerald J. Brown, pro se.
    William Waller, Nashville, Tenn., for defendant-appellee; Waller, Lansden, Dortch & Davis, Nashville, Tenn., of counsel.
    Before WEICK, McCREE, and MILLER, Circuit Judges.
   PER CURIAM.

We consider an appeal from a judgment for appellee in an action charging it with racial discrimination in its hiring practices in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

The complaint alleged that appellant, a Negro, read appellee’s newspaper advertisement for appliance technicians in Nashville, Tennessee, and, on August 27, 1967, despite the advice in the advertisement to apply for a position by telephone or letter, went in person to General Electric’s business establishment where he filled out an application after consulting a person designated by a secretary as the supervisor. It further alleged that when appellant was not contacted after two months, he returned in November to up-date his application but was told that it could not be found.

Appellant then filed a complaint with the Equal Employment Opportunity Commission (EEOC). After efforts at conciliation failed, the Commission, observing that all 35 persons employed by appellee in its. Nashville facility were Caucasians, determined that there was “reasonable cause to believe that Title VII has been violated’’ and issued to appellant a notice of his right to sue. This action is based upon that letter.

Judgment for appellee was entered after trial upon findings of fact and conclusions of law. The critical findings of fact are: (1) that appellant failed to prove by credible evidence that an employment application was filed in August 1967; (2) that appellant failed to prove by credible evidence that an attempt was made by him to update this application in November 1967, and (3) that appellant failed to prove any discrimination because of race by appellee in its employment practices. On the basis of these findings the court below concluded, as a matter of law, that ap-pellee was not guilty of any unlawful discrimination in its hiring practices as alleged in the complaint. .

Findings of fact may not be disturbed unless they are clearly erroneous. Fed. R.Civ.P. 52(a). We have examined the record with meticulous care because appellant is a former navy serviceman, and, as a Negro, is a member of a class discrimination against which provided the principal impetus for the enactment of the Civil Rights Act of 1964. We agree with the United States Court of Appeals for the Fifth Circuit that:

Racial discrimination in employment is one of the most deplorable forms of discrimination known to our society, for it deals not with just an individual’s sharing in the “outer benefits” of being an American citizen, but rather the ability to provide decently for one’s family in a job or profession for which he qualifies and chooses. Title VII of the 1964 Civil Rights Act provides us with a clear mandate, from Congress that no longer will the United States tolerate this form of discrimination. It is, therefore, the duty of the courts to make sure that the Act works ■. . . .

Culpepper v. Reynolds Metals Co., 421 F.2d 888, 891 (5th Cir. 1970) (Tuttle, J.).

The record in this appeal presents a square conflict of testimony between appellant, who testified in careful detail that he filed an application with appellee in August 1967, and appellee’s supervisors who testified with equal certainty that he made no application. Logic would suggest that appellant must have filed an application in August 1967, if he subsequently attempted to update it (although appellee’s supervisors also contradicted this assertion), and if the record were otherwise silent, the finding that he had not filed an application might be suspect because of appellee’s admitted record of employing only Caucasians. However, appellant has been engaged in a personal crusade to change racial hiring practices' in the Nashville area to conform with the national policy expressed in the Civil Rights Act of 1964, and at about the same time during which appellant testified he made application for a position with General Electric, he had claims of unlawful employment practices pending against 12 or 13 other employers and had filed 5 or 6 Equal Employment Opportunity actions in the federal courts. It is not inconceivable that appellant could have been confused in his testimony about the particular company or the precise time of application.

We are mindful that appellant presented his case pro se after his appointed counsel, who had accepted employment with the United States District Attorney, was permitted to withdraw because of a possible conflict of interest. Although the district court suggested a continuance to permit appellant to engage other counsel, appellant, nevertheless, elected to proceed without counsel because there had been previous delays in bringing the case to trial and he was understandably impatient. We observe that at trial the district court was helpful in assisting appellant in the presentation of his case and the record is utterly devoid of any suggestion of bias on his part.

Accordingly, we conclude from our review of the entire record, including the complete transcripts of deposition and trial and the exhibits, that the findings of fact of the district court are not clearly erroneous and that no error infects the judgment.

Affirmed.


text:
    UNITED STATES of America, Appellee, v. Darrell Duane HENRY, Appellant.
    No. 73-2255.
    United States Court of Appeals, Ninth Circuit.
    Nov. 20, 1973.
    Gary D. Gayton (argued), Seattle, Wash., for appellant.
    Stan Pitkin, U. S. Atty., Marvin L. Gray, Jr., Charles F. Manefield, Asst. U. S. Attys. (argued), Seattle, Wash., for appellee.
    Before DUNIWAY, ALDRICH, and SNEED, Circuit Judges.

       Honorable Bailey Aldrich, Senior Judge, First Circuit, sitting by designation.

   OPINION

PER CURIAM:

Appellant Henry was convicted on two counts of sale of heroin and conspiracy to sell heroin. The sole issue on appeal is whether the destruction of the heroin prior to appellant’s trial necessitates reversal of his conviction.

Ronald' Mattos was indicted for sale and possession of heroin and pleaded guilty. The Government discussed with Mattos the possibility of testifying against appellant, his supplier, but Mat-tos refused to do so. The. heroin was then destroyed by the Government. Mattos later experienced a change of heart and agreed to testify against appellant.

In the absence of bad faith or connivance on the part of the Government, destruction of evidence prior to trial does not necessitate reversal of a conviction. United States v. Sewar, 468 F.2d 236 (9th Cir. 1972), cert, denied, 410 U.S. 916, 93 S.Ct. 972, 35 L.Ed.2d 278 (1973); Munich v. United States, 363 F.2d 859 (9th C'ir. 1966), cert, denied, 386 U.S. 974, 87 S.Ct. 1167, 18 L. Ed.2d 135 (1967). In this case the government acted in good faith when it destroyed the evidence in question. . It then had no reason to believe that the evidence would be needed in the present case, and there are obvious reasons for promptly getting rid of the • contraband once the ease in which it has been used as evidence has been completed. While this is not a case like United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), where the missing evidence was only collateral, we apply the same rule where the evidence was not of a type on which a defense is usually made and the expert on whom the issue hangs was available for cross-examination. Since Appellant has failed to meet his burden of demonstrating improper motive on the part of the Government in this case, and suggests no reason to suppose he was prejudiced, the judgment is affirmed. Cf. United States v. Sewar, 468 F.2d 236, 238 (9th Cir. 1972), cert, denied, 410 U.S. 916, 93 S.Ct. 972, 35 L.Ed.2d 278 (1973).


text:
    Sterling Maurice WILLIAMS, Plaintiff-Appellant, v. Alfonso C. SEPE, Defendant-Appellee.
    No. 73-2294
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 14, 1973.
    Carling H. Stedman, Richard Yale Feder, Stephen L. Raskin, Miami, Fla., for plaintiff-appellant.
    Tobias Simon, Elizabeth J. du Fresne, Miami, Fla., for defendant-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

This action under 42 U.S.C.A. § 1983, brought by Sterling M. Williams against Judge Alfonso C. Sepe, was terminated by the district court’s granting summary judgment to Judge Sepe on the ground that the undisputed facts did not fall within the “clear absence of all juris-, diction” exception to the doctrine of judicial immunity. We affirm.

The record clearly establishes that in attempting to investigate a report that Williams had misrepresented himself as the Judge’s law clerk, Judge Sepe failed to comply with the procedure for prosecuting an indirect contempt' of court. Specifically, Williams was not given “written notice of the criminal contempt charged,” as required by Rule 3.840 of the Florida Rules of Criminal Procedure, 33 F.S.A., before he was ordered arrested by Judge Sepe. It is Williams’ contention that the deviation from the statutory procedure resulted in an absence of subject matter jurisdiction and that the Judge, therefore, is not shielded by judicial immunity.

While it may be true that the procedural irregularities would necessitate a reversal of a conviction if one had been obtained on the facts of this case, see, e. g., State ex rel. Giblin v. Sullivan, 1946, 157 Fla. 496, 26 So.2d 509, the test for the abrogation of judicial immunity is whether there is a clear absence of all jurisdiction over the subject matter. Bradley v. Fisher, 1872, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646. The policy underlying the doctrine requires that its application not depend on the determination of “nice questions of jurisdiction.” Sullivan v. Kelleher, 1 Cir. 1968, 405 F. 2d 486, 487. The defects in the procedure employed in this case will not support a conclusion that there was a clear absence of all jurisdiction. The judgment of the district court is therefore

Affirmed.


text:
    Miguel A. GARGALLO, Plaintiff-Appellant, v. Tecla GARGALLO, Defendant-Appellee.
    No. 73-1874.
    United States Court of Appeals, Sixth Circuit.
    Nov. 29, 1973.
    Miguel A. Gargallo, pro se.
    Paul A. Scott, Tyack, Scott & Colley, Columbus, Ohio, for defendant-appellee.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges,
   PER CURIAM.

This is another domestic relations action involving a dispute between a husband and wife. A previous action was dismissed by this Court for lack of jurisdiction. Gargallo v. Gargallo, 472 F. 2d 1219 (6th Cir. 1973), cert, denied, 414 U.S. 805, 94 S.Ct. 77, 38 L.Ed.2d 41 (1973).

In the present case the husband contends that:

(1) His wife committed perjury against him in divorce proceedings;

(2) The wife has converted certain of his personal property; and

(3) The wife has instituted malicious prosecution against him.

Upon the authorities cited in the former opinion of this Court, “[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” In re Burrus, 136 U.S. 586, 593-594, 10 S.Ct. 850, 853, 34 L.Ed. 500, 503 (1889).

We hold that the District Court correctly dismissed this action for lack of subject matter jurisdiction. Whatever merits the claims of appellant may have should be resolved in the State Courts.

Affjrmed. Rule 8, Rules of this Court.


text:
    Jerry MAY, Plaintiff-Appellant, v. LEASE SERVICE, INC., et al., Defendants, Dino Star, Inc., Defendant-Appellee.
    No. 73-2644
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 16, 1973.
    Steven K. Faulkner, Jr, New Orleans, La, for plaintiff-appellant.
    William D. Hunter, Morgan City, La, for D. Berry and others.
    Mat M. Gray, III, New Orleans, La, for Dinq Star, Inc, and others.
    John R. Peters, Jr, New Orleans, La, for Lease Service and others.
    James H. Daigle, New Orleans, La, for Mobil Oil.
    Frank A. Courtenay, Jr, New Orleans, La, for Newsor.
    Bert M. Cass, Jr, Christopher Tompkins, New Orleans, La, for Amer. Motors.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

Affirmed for the reasons stated by the district court. See May v. Lease Service, Inc., E.D.La.1973, 365 F.Supp. 1202.


author: BALDWIN, Judge.

text:
    The UNITED STATES, Appellant, v. L. BATLIN & SON, INC., Appellee.
    Custom Appeal No. 5521.
    United States Court of Customs and Patent Appeals.
    Dec. 6, 1973.
    Harlington Wood, Jr., Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Joseph I. Liebman, New York City, for the United States.
    Earl R. Lidstrom, Irving Levine, New York City (Barnes, Richardson & Colburn), New York City, attorneys of record, for appellee.
    Before MARKEY, C. J., and RICH, BALDWIN, LANE and MILLER, JJ.
   BALDWIN, Judge.

This appeal is from the decision and judgment of the United States Customs Court granting the importer’s motion for summary judgment upon his classification protest.

The merchandise consists of half birdcages with flowers and lights therein, which were classified under item 653.40 of the Tariff Schedules of the United States (TSUS) as “ [i] lluminating articles * * *: Other” and assessed at 19 per centum ad valorem. The importer had claimed that classification was proper under item 688.40, TSUS as “[e]lectrieal articles and electrical parts of articles, not specially provided for” which are dutiable at 11.5 per centum ad valorem.

The issue before us is whether the Customs Court, in granting the importer’s motion for summary judgment, was correct in holding that Ross Products, Inc. v. United States, 433 F.2d 804, 58 CCPA 1, C.A.D. 994 (1970), on the admitted facts before the court, was stare decisis of the instant controversy.

In support of its motion for summary judgment, the appellee relied upon certain admissions in the pleadings. In particular, the appellant had admitted that the imported merchandise was not an illuminating article, as that term is used in item 653.40, TSUS. It was further admitted that the merchandise consisted of bird cages with flowers and lights, which are decorative, which provide illumination from an electrical source sufficient only to illuminate said cages, and which are wired so that they may be connected to an electrical power source. These admissions were made by appellant in response to appellee’s contention that the merchandise was the same in all material respects as the merchandise at bar in Ross wherein the merchandise was held to be properly classified under item 688.40, TSUS.

In its determination of whether the appellee had established the absence of a genuine issue of any material fact to be tried by the court, the Customs Court reviewed this court’s decision in Ross and considered the admissions in the pleadings. The court held the merchandise and legal issues at bar to be the same as those of Ross, in consequence of which, that decision was stare decisis of the instant controversy. Our review of the record before us convinces us of the correctness of this holding. Furthermore, clear and convincing error in our prior decision has not been demonstrated such as would preclude the application of the principle of stare decisis. United States v. Dodge & Olcott, Inc., 47 CCPA 100, C.A.D. 737 (1960); R. J. Saunders & Co., Inc. v. United States, 54 CCPA 29, C.A.D. 898 (1966).

We do not find persuasive appellant’s numerous arguments drawn to appellee’s failure to meet his burden of proof. It should suffice to merely point out that the appellee’s dual burden of proof was to produce substantial evidence tending to prove not only that the original classification was incorrect, but also that some specific alternative classification was proper. United States v. New York Merchandise Co., Inc., 435 F. 2d 1315, 58 CCPA 53, C.A.D. 1004 (1970). The appellant admitted that the original classification was incorrect and thus the first part of appellee’s burden was satisfied. By pleading that the merchandise was the same in all material respects as the merchandise in Ross, which in substance was admitted by the appellant, the second portion of appellee’s burden was satisfied. The burden of going forward thereupon shifted to the appellant to properly plead and show either the applicability of an alternative classification, such as one of the unspecified household article provisions suggested by the appellant, or the inapplicability of appellee’s asserted alternative classification. On the record before us, we agree with the finding of the Customs Court that the appellant failed to discharge that burden.

With regard to appellant’s contention that the Customs Court abused its discretion in denying its request for a continuance in order to permit additional discovery, we fully agree with the analysis of the issue in the opinion below and accordingly find no abuse of discretion.

For the foregoing reasons, the judgment of the Customs Court is affirmed.

Affirmed.

      . L. Batlin & Son, Inc. v. United States, 69 Cust.Ct..-, C.D. 4365, 345 F.Supp. 996 (1972).

      . Although these facts were admitted, the appellant denied that the merchandise was otherwise the same in all material respects as the merchandise in Ross, insofar as the issues of chief use and component material of chief value were not litigated in that case.


author: RICH, Judge.

text:
    Application of PNEUMATIQUES, CAOUTCHOUC MANUFACTURE ET PLASTIQUES KLEBER-COLOMBES.
    Patent Appeal No. 9067.
    United States Court of Customs and Patent Appeals.
    Nov. 15, 1973.
    Paul M. Craig, Jr., attorney of record, for appellant.
    S. Wm. Cochran, for the Commissioner of Patents, R. V. Lupo, of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   RICH, Judge.

This, appeal is from the decision of the Patent Office Trademark Trial and Appeal Board (abstracted at 170 USPQ 543) affirming the examiner’s refusal to register appellant’s mark for tires, application serial No. 307,233, filed September 12, 1968, described as follows:

The belt shown as surrounding the tire is shown in red color and the representation of the tire is disclaimed apart from the mark as shown.

Rejection is under section 2(d) of the Trademark Act (15 U.S.C. § 1052(d)) because of likelihood of confusion, mistake, or deception with reference to Reg. No. 837,954, Oct. 31, 1967, of the following mark for pneumatic tires.

United States Patent Office

837,954

Registered Oct. 31, 1967

The Armstrong Rubber Company (Connecticut corporation)

475 Elm St. West Haven, Conn.

For: PNEUMATIC TIRES, in CLASS 35.

First use on or about Oct. 17, 1966; in commerce on or about Oct. 17, 1966.

The representation of a tire is disclaimed apart from the mark as shown.

Surrounding the tire which is in a vertical plane is the representation of a belt having the appearance of an automobile safety belt lying in a horizontal plane.

OPINION

We agree with the examiner and the board that the visual and commercial impressions created by the marks “are substantially the same, and hence, that their contemporaneous use for identical goods would be likely to cause confusion or mistake or to deceive.”

We recognize that there may be differences between the marks, as noted by appellant, in the types of belts involved and their orientations with respect to the tire portions of the marks. However, we are not convinced that they would be such as to be noted and so well remembered by prospective purchasers of these goods that the marks, as a whole, would be unlikely to cause confusion, mistake or to deceive within the meaning of § 2(d).

The fact that appellant’s belt portion is red does not obviate the likelihood of confusion where there is no color designation for the belt portion of the reference registration.

Contrary to appellant’s argument, the decision of the board does not grant “to the prior registrant an exclusive trademark to advertise its goods as belted tires” or “belted tires having inherent safety features.”

If there be doubt on the issue of likelihood of confusion, the familiar rule in trademark cases, which this court has consistently applied since its creation in 1929, is that it must be resolved against the newcomer or in favor of the prior user or registrant. The rule is usually applied in inter partes eases but it applies equally to ex parte rejections.

The Court of Appeals of the District of Columbia, our predecessor in jurisdiction, in the ex parte case of In re Midwest Oil Co., 53 App.D.C. 287; 289 P. 1018 (1923), held that the benefit of the doubt “as to whether the trade would not be confused and the public misled” must be given “to the prior appropriation.”

Similarly, the rule that doubt as to likelihood of confusion shall ,be resolved against the newcomer has been applied in the Patent Office in ex parte cases from an early time as shown by the decisions in Ex parte Brown, 1909 C.D. 96, 143 O.G. 561 (Com’r.); Ex parte Barrett Mfg. Co., 1910 C.D. 225, 160 O.G. 1272 (Com’r.); Ex parte St. Anthony Milling & Elevator Co., 1910 C.D. 253 (Com’r.); Ex parte The Auto Grand Piano Co., 1910 C.D. 86, 155 O.G. 307 (Com’r.); Ex parte The Charles E. Hires Co., 1912 C.D. 203, 180 O.G. 879 (Com'r.).

The decision of the board is affirmed.

Affirmed.


text:
    Application of Theodore S. SULKOWSKI.
    Patent Appeal No. 9038.
    United States Court of Customs and Patent Appeals.
    Dec. 6, 1973.
    Ellsworth H. Mosher, Arlington, Va., attorney of record, for appellant, Robert Wiser, Philadelphia, Pa., (Wyeth Laboratories), John W. Routh, Vito Victor Bellino, New York City (American Home Products Corporation), of counsel.

      Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents, Raymond E. Martin, Washington, D. C., Gerald H. Bjorge, of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   BALDWIN, Judge.

This is an appeal from the decision of the Board of Appeals sustaining the rejection of claims 22, 23, 24 and 25 of appellant’s application under 35 U.S.C. § 102(e) of Houlihan patent No. 3,334,113, issued August 1, 1967, on an application filed December 18, 1963. The appealed claims were copied from Houlihan for purposes of interference Appellant’s application having been filed later than Houlihan, the question is whether the appealed claims of that application are entitled to the benefit of the filing date of application serial No. 272,216, filed April 11, 1963, of which it is a continuation-in-part.

Claims 22 and 24 are illustrative:

22. 9b - phenyl - 1,2,3,9b - tetrahy-dro - 5H - imidazo [2,1-a] isoindol - 5 - one.
24. A process for preparing a 9b-phenyl - 1,2,3,9b - tetrahydro - 5H - imidazo [2,1-a]. isoindol-5-one which comprises contacting an o-benzoylben-zoic acid, in an inert solvent, with a diamine of the formula H2N(CHR)2 NH2, wherein each R is, independently, hydrogen or lower alkyl, and refluxing the same in said inert solvent.

Claim 23 is directed to a p-chloro derivative of the claim 22 product and claim 25 defines the process of claim 24 wherein the diamine is ethylenediamine. No additional issues arise as to claims 23 and 25 and they need not be separately considered.

The compound of claim 22, 9B-phen-yl-l,2,3,9B-tetrahydro-5-H~imidazo [2, 1-a] isoindol-5-one, so identified in both Houlihan and appellant’s present application, may be graphically represented

The parent application appellant relied upon discloses 3,4-dihydro-6-phenyl-2,5-benzodiazoein-1 (2H) -one, graphically represented as:

Each of appellant’s applications disclose a process for producing its product and identifies the product by melting point of 155-7 °C and empirical formula C16H14N20.

The examiner held that the disclosure in the parent application was not such as to entitle appellant to its filing date “even though the subject matter of the invention may have been inherently produced.” She stated that obviousness of the error in the structure has been the criteria in determining inherency issues. In support, she cited Riester v. Kendall, 159 F.2d 732, 34 CCPA 859 (1947), which states that a disclosure “will not be held to be insufficient for constructive reduction to practice by reason of a mistake in [the] specification which is obvious to a person skilled in the art.” She considered the same criteria to be followed in In re Nathan, 328 F.2d 1005, 51 CCPA 1059 (1964), which citesRies-ter with approval and in Spero v. Rin-gold, 377 F.2d 652, 54 CCPA 1407 (1967). The latter stated that the adequacy of the disclosure in a parent application is determined by what has been taught by the parent specification to “those skilled in the art to which it pertains,” citing 35 U.S.C. § 112.

The examiner, in effect, accepted as a fact, at least for purposes of the rejection, that the parent application discloses how to make the claimed compound, but she considered the inaccurate description of the structure in the parent to differ so significantly from the correct structure as “to indicate a failure to appreciate the real essence of the invention.” She found nothing in the parent application to lead one skilled in the art to the correct structure. Rather she considered that the erroneous structure “appears to be accurate on its face” and that it would not be readily apparent or obvious to one skilled in the art what the correct structure was. On this basis she rejected both the product and process ■ claims.

The board observed that appellant urged the presently described structural formula as the correct formula for the products and claimed such products were inherently produced by following the specific examples in the parent application. It stated:

If there were positive proof supporting this position we might agree with appellant.

However, the board found it uncertain from the record that “the products specifically described in the parent application are necessarily products having the structure herein and not the structure specifically described in said parent application.” It further found that appellant has alleged that he discovered an error in the structure as described in the parent application, but has not presented any proof to support the contention. It continued:

His comparison of Examples 1 and 3 herein with Examples 1 and 3 in the prior application overlooks the fact that different reaction conditions were employed.

It then specified what it considered to be different reaction conditions and rejected appellant’s contention that the products herein claimed were inherently produced in the examples of the parent application.

Turning specifically to the process claims, the board stated:

As to the * * * two process claims, we disagree with the examiner insofar as the holding is with the operative teaching in the process. The process steps are supported in the parent application.

However, it concluded:

While the operative portion of process claims 24 and 25 is set forth in the parent application, the claims require the production of a particular product. Since the structure of this product is not set forth in the parent application, one skilled in the art could not employ the process parameters to produce such product, would not know when the product was present, and would not know how to recover it. The parent application, therefore, is deficient with respect to a process for preparing the product specifically required in claims 24 and 25.

Appellant requested reconsideration by the board as to product claims 22 and 23, stating:

At no time during the proceedings before the Examiner was any question raised respecting a difference in the procedures of Examples 1 and 3 of the instant application on the one hand, and of Examples 1 and 3 of Serial No. 272,216 on the other hand, which might lead to different products. No criticality was asserted in either application for the process conditions of time and temperature, i. e., refluxing for 2 to 16 hours. Hence we regard the decision as one under Rule 196(b) and accordingly submit herewith as a timely submission the affidavits of appellant and of Mr. Bruce R. Hof-mann. Appellant’s affidavit with exhibits sets forth the procedures of Examples 1 and 3 of Serial No. 272,216 together with the results of experiments following the procedures of Examples 1 and 3 of the instant application, including melting point, micro-chemical, ultraviolet, nuclear magnetic resonance and infrared analyses. The affidavit of appellant, as does that of Mr. Hofmann, concludes that the products of the respective examples are identical, and hence that the products of the instant application were inherently produced by following the examples in the parent application, and notes that the structure is that set forth in the instant application.

The board denied that any new rejection was made and declined to consider the evidence offered.

As to claim 22, the rationale of the examiner’s rejection was that a person skilled in the art would not find it obvious from the parent application that the product therein was incorrectly named 3,4-dihydro-6-phenyl-2,5-benzodi-azoein-l(2H)-one and that it properly could be named 9-b-phenyl-l,2,3,9b-te-trahydro-5H-imidazo [2,1-a] isoindol-5-one. The board on the other hand ignored any test of obviousness of the error in naming. It stated that if there were positive proof supporting the appellant’s position that the claimed structural formula is the correct formula for the products and that such products were inherently produced by following the specific examples in the parent application, it “might agree with appellant.” However, the board’s affirmance as to product claims was solely on the basis that the process differences pointed out by it for the first time negated such inherency. It thus affirmed their rejection on grounds incompatible with the premise relied on by the examiner and implied that it might not agree with the' examiner’s basic position that the error in naming an inherently formed product must be obvious to a person of ordinary skill in the art.

The showing appellant submitted with the request for reconsideration thus is directed specifically to a new ground of rejection. The refusal to consider that showing constitutes clear error and requires remand as to claims 22 and 23. See In re Eynde, 480 F.2d 1364 (CCPA 1973). In re Waymouth, 486 F.2d 1058 (CCPA 1973).

As to claims 24 and 25, the board’s statement that the process steps therein are supported in the parent application is not readily reconciled with its holding that the process of that application does not inherently produce the claimed products. This obviously introduces difficulty in understanding the board’s position on these claims. Furthermore, an attempt to review its position would require determination of whether the process of the parent application inherently produces the claimed products — a determination that would amount to our prejudging the very showing which the board must evaluate as to the product claims. We therefore are constrained to remand the case as to the process claims also. Cf. In re Herrick, 344 F.2d 713, 52 CCPA 1664 (1965).

Accordingly, the case is remanded to the board for consideration of the affidavit showing submitted by appellant and for such other proceedings not inconsistent with this opinion as may be necessary to dispose of the case or place it in appropriate condition for judicial review. ,

Remanded.

      . Serial No. 554,672, filed June 2, 1966.

      . Claims 24 and 25 omit limitations in the corresponding Houlihan claims that appellant apparently regards as immaterial.

      . We note that the basic question here may be more precisely stated as whether the parent application contains “a written description of the i) — ention” as required by the first paragraph of section 112. See In re Ahlbrecht, 435 F.2d 908, 58 CCPA 848 (1971).


text:
    Application of Riyad R. IRANI and Robert S. Mitchell.
    Patent Appeal No. 8986.
    United States Court of Customs and Patent Appeals.
    Dec. 6, 1973.
    Herbert B. Roberts, St. Louis, Mo., attorney of record, for appellants.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; Henry W. Tarring, II, Falls Church, Va., of counsel.
   RICH, Judge.

This appeal is from the decision of the Patent Office Board of Appeals affirming the examiner’s rejection of claim 30 of application serial No. 824,378, filed May 7, 1969, entitled “An-hydrides of Organo-phosphonic Acids.” We reverse.

Claim 30 reads:

An anhydride of amino tri (methylene phosphonic acid) having the formula N(CH2)3P306.

Appellants’ specification discloses that amino tri (methylene-phosphonic acid) is reacted with acetic anhydride to produce the anhydride of claim 30.

The rejection of the claim is based solely on two related grounds: (1) “an inadequate disclosure of utility” under 35 U.S.C. § 112; (2) lack of utility under 35 U.S.C. § 101.

The specification as filed contains the following statements about use (paragraph designations added):

[A] In general, the anhydrides of organo-amino-phosphonic acids of the present invention have utility in practically all fields wherein their amine and/or phosphonic anhydride properties can be utilized as well as fields employing an aqueous medium wherein they, by reversion to their corresponding organo-amino-phosphonic acids, have the same utility as such phosphonic acids.
[B] In particular, the compounds of’the present invention can find utility in such fields as sequestering or chelating agents, water-treating agents, stabilizers for peroxy compounds, soap anti-oxidants, additives in liquid soap, detergents and shampoos, agents for use in scouring wool cloth and cotton kier boiling, metal cleaning compositions, rubber and plastic compositions and polymerization processes, bottle washing compositions, dairy cleaning compositions, agents for use in pulp and paper processing, corrosion inhibitors, feed and vegetation supplements, herbicides, insecticides, metal treating compositions, electroplating, detergent builders for organic surfactant actives, lime soap dispersants, surfactants, film formers in hair sprays and soluble packages, dispersants for clays, drilling muds, paper pulps, inorganic and organic pigments, and cement slurries, bactericide potentiators, hair modifiers in shampoos, fertilizers, food and beverage acidulants, leavening agents, cheese emulsifiers, modifying agents in evaporated and condensed milk, flame retardants in paints, oil additives, gasoline additives, dentifrice compositions and the like.

These statements, when filed, did not apply only to the claim 30 compound. In context, they applied to all of the compounds disclosed by a generic formula and 27 specific examples of the preparation of various compounds.

Example 1, which is the specific disclosure of the compound of claim 30, concludes by stating:

[The] anhydride of amino tri (methy-lenephosphonic acid), N(CH2)3P306, [is] a white crystalline product melting in the range of 350-400°C(d) as compared to a melting point of 210-212°C(d) for crystalline amino tri (methylenephosphonie acid).

We note that the “melting” range for the anhydride is much higher than that of the corresponding acid, a point relied on by appellants.

The brief of the Patent Office Solicitor accurately restates the questions on appeal as (a) whether the specification provides a “sufficient teaching of how to use the claimed compound” and (b) whether the claimed compound has “the utility required by 35 U.S.C. 101.” As to ground (a) the Patent Office argues that the specification contains no explicit disclosure of a specific use for the an-hydride, that the statement that the compounds of the invention “can find utility” in the listed “fields” of use would not enable one skilled in the art to use it, that the statements above quoted are merely suggestions of possible uses, that considerable experimentation would be necessary to discover in which suggested field the anhydride would actually be useful, and that the statute, § 112 (first paragraph), “requires disclosure of how to use the invention in full, clear, concise and exact terms.” As to (b), the Patent Office argues that “no adequately specific utility for the claimed anhydride has been asserted, shown, or demonstrated.” Therefore, it says, 35 U.S.C. § 101 has not been complied with.

Appellants argue that their admittedly novel and unobvious anhydride had utility at the time their parent application was filed, so that § 101 is complied with, and that the specification enables one skilled in the art to use the anhy-dride for at least one disclosed practical use, one such use being sufficient under the law. See In re Gottlieb, 328 F.2d 1016, 51 CCPA 1114 (1964). They say, “Any person skilled in the art can read the specification and practice the invention without experimentation.”

OPINION

We shall first consider the question of compliance with § 112.

The solicitor has not stated the statutory requirement correctly. It does not require disclosure of how to use the claimed invention “in full, clear, concise and exact terms,” as he states in his brief. What § 112 says of the required description (emphasis ours) is that it shall be

* * * in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it [the invention] pertains, or with which it is most nearly connected, to make and use the [invention].

The question before us is whether such a. description has been provided and to answer it we must take into consideration what those skilled in the art (chemists) already knew, or are presumed to have known, from the disclosures available to them before the filing date of appellants’ application.

For the following reasons, we are of the opinion that appellants’ specification meets the requirements of § 112. It teaches that the anhydride of claim 30, among others, when slurried in water is converted into the corresponding acid. That acid had known utility for at least two practical purposes prior to the date of appellants’ parent application as shown in two patents issued to Irani, Nos. 3,234,124 and 3,234,140, both issued Feb. 8, 1966. The ’124 patent discloses in detail the use of the acid as a sequestering agent to inhibit the precipitation of metal ions from aqueous solutions in commercial uses such as cotton dyeing and bleaching, metal cleaning, pulp and paper manufacture, and others. The T40 patent discloses the use of the acid as a stabilizer for aqueous peroxy solutions used for bleaching cotton, linen, jute, rayon, paper, and the like. Given this much information, which was in the published literature, coupled with the statement in paragraph [A] which we have quoted from appellants' specification, that the anhydride will revert to the acid in aqueous solution, and with the statement in paragraph [B] that it “can find utility in such fields” as, inter alia, sequestering agents and stabilizers for peroxy compounds, we cannot conceive that any competent chemist familiar with such operations would have the slightest difficulty in using the anhy-dride.

The two Irani patents to which we have referred were placed in the record by appellants in connection with a request for reconsideration of the board’s first opinion. They are therefore properly before us. The board considered the request but appears to have given no weight to the disclosure of these patents, apparently because of its adoption of the examiner’s theory that there could not be utility in the statutory sense where an acid is converted to an anhydride and the anhydride is converted back to the acid for use. We disagree with this position. The acid having an established practical utility, it follows that the an-hydride, which is taught by the specification to be a source of the acid, also has utility. Appellants have also pointed out that their claimed anhydride has a much higher melting point than the acid and is, therefore, more stable. These points answer the Patent Office contention that the anhydride does not meet the utility requirement of § 101.

As we find both utility sufficient to meet § 101 and disclosure adequate to enable anyone of ordinary skill in the art to use the claimed invention as required by § 112, the decision of the board on these two points was in error and is reversed.

Reversed.

      . The record contains references to a “parent” of the instant application, serial No. 538,198, filed March 29, 1966. The solieitor’s brief acknowledges the present application to be a continuation-in-part of said parent, which was abandoned.

      . There is no indication in the record or briefs of the meaning of “(d)” and it is of no imj)ortance to the issues but it may indicate that the substance decomposes at the temperature stated instead of melting.

      . This “admission” is inferred from the failure of the Patent Office to assert any reason to deny a patent under 35 U.S.C., sections 102 or 103.

      . The requirement has been the same since the Patent Act of 1870, § 26, 16 Stat. 198. See also the Revised Statutes, 1874, § 4888.