author: HAYS, Circuit Judge: MANSFIELD, Circuit Judge

text:
    UNITED STATES of America ex rel. Anthony REGINA, Petitioner-Appellant, v. Edwin LaVALLEE, Superintendent, State Correctional Facility at Dannemora, New York, Respondent-Appellee; UNITED STATES of America ex rel. John J. BATTISTA, Petitioner-Appellant, v. Harold N. BUTLER, Superintendent, State Correctional Facility at Wallkill, New York, Respondent-Appellee.
    Nos. 1066, 1067, Dockets 73-2722, 73-2737.
    United States Court of Appeals, Second Circuit.
    Argued June 10, 1974.
    Decided Oct. 2, 1974.
    Certiorari Denied Feb. 24, 1975.
    See 95 S.Ct. 1330.
    Mansfield, Circuit Judge, filed a concurring opinion.

      Betty D. Friedlander, Waverly, N. Y. (Victor J. Rubino, New York City, on the brief), for petitioners-appellants.
    Arlene R. Silverman,‘Asst. Atty. Gen. of N. Y. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondents-appellees.
    Before HAYS, MANSFIELD and TIMBERS, Circuit Judges.
   HAYS, Circuit Judge:

Petitioners brought this action for ha-beas corpus relief under 28 U.S.C. § 2254 (1970) claiming that at the state court trial at which they were convicted the. prosecution had failed to disclose a promise of leniency to a key prosecution witness. The district court denied relief. We affirm.

In early 1964 appellants were convicted in a New York court of first degree murder and first degree assault. The prosecution based its case in part on the testimony of one Anthony Getch. The defense sought to discredit this testimony by claiming that Getch, who had been subject to being returned to prison as a parole violator, had been promised an early release from prison in return for his cooperation. However, the defense did not call as a witness either Assistant District Attorney Catterson, the prosecutor at the trial, or former Assistant District Attorney Bendersky, who had handled part of the pre-trial preparation of the case prior to leaving the District Attorney’s office. These were the two persons who the defense claimed might have made the promise. Both Getch and the prosecution denied that any such promise had been made.

The convictions were affirmed by the Appellate Division, 25 A.D.2d 658, 268 N.Y.S.2d 1006 (2d Dep’t 1966) and by the New York Court of Appeals, 19 N.Y.2d 65, 224 N.E.2d 108, 277 N.Y.S.2d 683 (1966).

In 1970 appellants commenced a coram nobis proceeding in state court. The court conducted a hearing at which former Assistant District Attorney Ben-dersky testified that he had promised Getch that in return for his cooperation he would be released within a few months. However, other persons who had been present when the promise was alleged to have been made testified that no promise was made concerning Getch’s release. The court concluded that Regina and Battista had failed to discharge their burdens of proving that a promise had been made. The Appellate Division affirmed and leave to appeal to the New York Court of Appeals was denied.

Appellants then commenced this habeas corpus proceeding, relying on Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The district court denied relief on the grounds that under 28 U.S.C. § 2254(d) (1970) it had to presume that the state court’s finding was correct, and that the alleged promise, even if it had been made, was not sufficiently material to warrant a new trial. We affirm.

28 U.S.C. § 2254(d)(8) (1970) provides that in habeas corpus proceedings by a state prisoner the federal courts shall presume the findings of fact by a state court to be correct unless they are “not fairly supported by the record.” See Townsend v. Sain, 372 U.S. 293, 316, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); United States ex rel. Sabella v. Follette, 432 F.2d 572, 574-575 (2d Cir. 1970) cert. denied, 401 U.S. 920, 91 S.Ct. 905, 27 L.Ed.2d 822 (1971); United States ex rel. Liss v. Mancusi, 427 F.2d 225, 227-229 (2d Cir. 1970); United States ex rel. Fein v. Deegan, 410 F.2d 13, 17 (2d Cir.), cert. denied, 395 U.S. 935, 89 S.Ct. 1997, 23 L.Ed.2d 450 (1969). If the findings are supported by the record the petitioner bears the burden of showing that they áre erroneous.

In this case the record of the state coram nobis proceeding supports the finding of the state court, and petitioners have not shown the findings to be erroneous. The only testimony in behalf of appellants was given by Bender-sky, who met with Getch on September 18, 1963, to discuss Getch’s cooperation in the prosecution of Regina and Battista. Getch first expressed fear for the safety of his family and Bendersky assured him that they would receive protection. Bendersky claimed that he then further promised Getch that in return for his cooperation an effort would be made to release him after a few months. His testimony was somewhat equivocal, however. He qualified his remarks with such statements as “to my recollection” and “I believe that I told him.” His uncertainty is not surprising since the meeting at which he allegedly made the promise occurred six years before the coram nobis hearing.

Several witnesses testified in opposition to appellant’s petition. William J. Quinn, an employee of the New York State Division of Parole at the time of the meeting, testified that he was present throughout the meeting and heard the promise of protection for Getch’s family, but that Bendersky had never promised Getch an early release from prison or even discussed the matter with Getch or anyone else. Orey Edwards, an employee of the Suffolk County Police Department, also testified that he attended the entire meeting of September 18 and heard the promise of protection but that Bendersky neither made any promise concerning nor even discussed the subject of Getch’s parole.

• The testimony of these two witnesses furnishes fair support in the record for the state court’s finding. But there was additional evidence which further buttresses the finding. Getch himself had testified at the trial that no promise had been made. James Catterson, Jr., who became an Assistant District Attorney in Suffolk County on September 1, 1963, and took over prosecution of appellants, testified that in January or February of 1964 he met with Bendersky to discuss the case. He asked Bendersky whether any promises had been made to Getch, and Bendersky replied that no promises had been made except the promise to protect Getch’s family. Catterson also testified that he spoke to Getch before speaking to Bendersky and that Getch had told him no promises had been made. John McCarthy, a parole officer with the New York State Division of Parole, testified that he was present during the first part of the meeting of September 18 and that he heard no promise of early release. Quinn,' Edwards and McCarthy also testified that Bendersky never discussed Getch’s parole status with them or, to their knowledge, with anyone else connected with the Division of Parole. Appellants produced no testimony that Bendersky had discussed the matter with anyone else.

The testimony at the eoram nobis proceeding also showed that shortly after the meeting of September 18 began, a stenographer was brought in to take the minutes of the meeting. The minutes contain many references to promises of protection, but the only reference to Getch’s release tends to negate appellants’ claim. The minutes show that near the end of the meeting Getch asked Quinn if it would be possible for him “to get home before Christmas” and that Quinn replied that “this matter would have to be discussed with the Parole Board and that Getch would be advised of their decision in the future.”

The conclusion of the state court was “fairly supported by the record.” Under the circumstances the district court acted properly in denying the habeas corpus petition without a hearing. See, e. g., United States ex rel. Liss v. Mancusi, supra, 427 F.2d at 227-229.

Appellants claim that under Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), it was improper for the state court to weigh the conflicting evidence in the coram nobis proceeding and for the federal district court to accept the state court’s conclusions. They assert that once the new evidence was presented the court was obliged to order a new trial so that the conflicting evidence could be weighed by a jury. Under the circumstances of this ease we cannot agree.

First, by failing to call 'Bender-sky as a witness at trial appellants waived their right to claim that he had made a promise to Getch. Unlike Giglio, this is not a case where defendants had no inkling of a promise at the time of the trial. An alleged promise by Bendersky was an integral part of the defense. Bendersky was readily available as a witness. The defense consciously decided not to call him. Appellants should not be permitted first to claim before the jury that a promise was made, without calling the person who purportedly made the promise, and then only after the first tactic had failed, to call that person as a witness in a habeas corpus proceeding in an attempt to obtain a new trial. A defendant may not obtain a new trial on the basis of evidence which he could have discovered by reasonable diligence. United States v. Marquez, 363 F.Supp. 802, 808 (S.D.N.Y.1973), aff’d mem., 490 F.2d 1383 (2d Cir. 1974); United States v. Munchak, 338 F.Supp. 1283, 1293-1294 (S.D.N.Y.), aff’d, 460 F.2d 1407 (2d Cir.), cert. denied, 409 U.S. 915, 93 S.Ct. 236, 34 L. Ed.2d 177 (1972); United States v. Edwards, 366 F.2d 853, 873-874 (2d Cir. 1966), cert. denied, 386 U.S. 908, 919, 87 S.Ct. 852, 17 L.Ed.2d 782 (1967).

Second, this case arises in a procedural setting very different from Giglio. Giglio involved a motion for a new trial addressed to the trial judge before a direct appeal to the Court of Appeals had been concluded. The claim by the Assistant United States Attorney followed the conviction closely and occurred while he was still with the United States Attorney’s office and under its control. Under such circumstances, the argument for a new trial is much stronger than here, where Bendersky first claimed to have made the promise six years after trial and more than six years after he left the District Attorney’s office.

We also affirm on the ground that the additional evidence brought out at the coram nobis hearing was not material. In Giglio, the Court stated:

“We do not, however, automatically require a new trial whenever ‘a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict . . . .’ United States v. Keogh, 391 F.2d 138, 148 (2d Cir. 1968). A finding of materiality of the evidence is required under Brady, supra [Brady v. Maryland, 373 U.S. 83], at 87 [83 S.Ct. at 1196, 10 L.Ed.2d 215]. A new trial is required ‘if the false testimony could . in any reasonable likelihood have affected the judgment of the jury . . . .’ Napue, supra [Na-pue v. Illinois, 360 U.S. 264], at 271 [79 S.Ct. 1173, 3 L.Ed.2d 1217].” 405 U.S. at 154, 92 S.Ct. at 766.

In this case Bendersky’s testimony was equivocal and the promise he claimed to have made was quite vague. The trial occurred only after Getch had completed his term, thus rendering it even more unlikely that any promise affected his testimony. Moreover, the State has shown that it has overwhelming evidence that no promise was made. Finally, Bendersky’s testimony would also permit the disclosure of the promise to protect Getch’s family, which would probably have an adverse effect on appellants’ case. Thus it is most unlikely that the new testimony would have “affected the judgment of the jury.”

For the foregoing reasons the decision of the district court is affirmed.

MANSFIELD, Circuit Judge

(concurring) :

I concur, but on limited grounds.

The principal issue, as I view it, is not whether a promise was in fact made by Bendersky to Getch but whether the state, at or immediately prior to trial, knew that Bendersky might furnish evidence of such a promise and failed to disclose that fact to appellants. If so, the next question is whether the evidence was material.

On the first issue there is no showing that the state had any knowledge that Bendersky would testify to a promise. On the contrary, Assistant District Attorney Catterson (whose testimony was credited by the state coram nobis judge in findings that were properly accepted by Judge Mishler pursuant to 28 U.S.C. § 2254(d)) testified that shortly before trial Bendersky denied having made the alleged promise. Furthermore, since Bendersky was not employed by the state at. the time of trial, which is the crucial period for our purposes, his knowledge, unlike that of Assistant U.S. Attorney DiPaola in Giglio v. United States, 405 U.S. 150, 152 n. 1, 92 S.Ct. 763, 31 L.Ed.2d 104 (1971), cannot be attributed to the state as the basis for a claim of non-disclosure. Thus there was no concealment or negligent non-disclosure, which is essential to the grant of relief. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). For these reasons I see no need to decide whether appellants waived their present claim by failing to call Bendersky as a witness at the trial.

On the question of whether in any event the alleged promise was material, I agree that it was not, for the reasons stated by Judge Hays in his opinion.

      . The statute provides iu pertinent part:
      “(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—
      “(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record: “And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless . . . the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.”
      28 U.S.C. § 2254 (1970).


source: Caselaw Access Project

author: OPINION PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frederick Isiah GRANGER, Defendant-Appellant.
    No. 73-2864.
    United States Court of Appeals, Ninth Circuit.
    Sept. 24, 1974.
    John S. Lane, Long Beach, Cal., for defendant-appellant.
    Steven Rathfon, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before TRASK and GOODWIN, Circuit Judges, and ENRIGHT, District Judge.

       Honorable William B. Enriglit, United States California, sitting by designation. District Judge for the Southern District of

   OPINION

PER CURIAM:

Appellant Granger challenges the District Court’s denial of a motion for a new trial after a conviction for violations of 18 U.S.C. §§ 472, 473, transfer and possession of counterfeit money. We affirm.

The conviction of appellant was affirmed by this court. 475 F.2d 1022 (9th Cir.), cert, denied, 412 U.S. 929, 93 S.Ct. 2757, 37 L.Ed.2d 157 (1973). A new trial is sought because of the presence of “newly discovered” evidence. A full hearing was held by the trial court on appellant’s motion.

It is well settled that the scope of review of a denial of a motion for a new trial is narrow and reversal will be ordered only when it is clear that the District Court abused its discretion. United States v. Craft, 421 F.2d 693, 695 (9th Cir. 1970); Pitts v. United States, 263 F.2d 808, 810-811 (9th Cir.), cert, denied, 360 U.S. 919, 79 S.Ct. 1438, 3 L.Ed.2d 1535 (1959).

A review of the record clearly discloses that the evidence relied upon by the appellant was not newly discovered and unknown to the defendant at the time of trial. Nor would the evidence probably have produced an acquittal. United States v. Cativiela, 460 F.2d 192 (9th Cir. 1972) (per curiam).

Judgment affirmed.


author: PELL, Circuit Judge.

text:
    CONTINENTAL ILLINOIS NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Executor of the Estate of Josephine W. Speth, Deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    Nos. 73-1967, 73-2077.
    United States Court of Appeals, Seventh Circuit.
    Argued April 16, 1974.
    Decided Oct. 7, 1974.

      Scott P. Crampton, Asst. Atty. Gen., David English Carmack, Atty., Tax Div., Dept, of Justice, Washington, D. C., James R. Thompson, U. S. Atty., and Gary L. Starkman, Asst. U. S. Atty., Chicago, 111., for defendant-appellant.
    Leonard R. Hartenfeld, David D. Ro-senstein, Chicago, 111., for plaintiff-ap-pellee.
    Before FAIRCHILD, PELL and STEVENS, Circuit Judges.
   PELL, Circuit Judge.

The Continental Illinois National Bank and Trust Company of Chicago brought this action as executor of the estate of the decedent Josephine W. Speth to recover' an alleged overpayment of estate tax and interest. After a bench trial, the district court entered judgment in favor of the taxpayer from which the Government has appealed.

The decedent Josephine Speth died on March 28, 1966, at the age of 75. Her sister, Margaret Speth, had died one month earlier on February 21, 1966. By her will, Margaret bequeathed to the decedent a life estate in certain property. At the time of Margaret’s death, Josephine was suffering from cancer of the colon with metastasis to the liver.

The taxpayer, in computing the federal estate tax on Josephine’s estate, claimed a credit under § 2013 of the Internal Revenue Code of 1954 for the amount of federal estate tax paid by the estate of Margaret on the life estate transferred to Josephine. In calculating the amount of this credit, the taxpayer used the actuarial tables set forth in § 20.2031-7(f) of the Treasury Regulations to value Josephine’s life estate at the time of Margaret’s death. The indicated table expectancy was approximately six years. The Commissioner disallowed the taxpayer’s computation of the credit on the ground that, under Revenue Ruling 66-307, Josephine’s actual life expectancy had to be utilized in determining the value of her life estate.

The district court held, alternatively, that (1) the Revenue Ruling did not control this case, and (2) the Revenue Ruling was invalid. The Government contests both holdings on appeal.

I

Section 2013 of the Internal Revenue Code was enacted “to prevent the diminution of an estate by the imposition of successive taxes on the same property within a brief period.” Sen.Rep.No. 1622, 83rd Cong., 2dSess. 121 (1954), U.S.Code Cong. & Admin.News, 1954, pp. 4629, 4755. The section provides for a credit against estate tax where the decedent has received property in a transfer during the previous ten years which transfer was itself subject to estate tax. With certain adjustments and limitations not relevant here, the tax credit is the amount which bears the same ratio to the total estate tax paid by the trans-feror as the value of the property transferred bears to the total value of the transferor’s taxable estate. If the transferred property has no value, the credit will, therefore, be zero. The percentage of credit allowed to the transferee’s estate decreases ratably over the ten-year period.

The credit applies to any beneficial interest in property received by the transferee. § 2013(e). Thus, the credit is available for a life estate held by the decedent-transferee, even though the life estate will not be included in his estate and, therefore, cannot itself be the subject of double taxation. See Treas.Reg. §§ 20.2013-1(a) and 20.2013-5(a).

Section 2013(d) provides, in general, that “the value of property transferred to the decedent shall be the value used for the purpose of determining the Federal estate tax liability of the estate of the transferor” subject to .certain adjustments not relevant here. The Code itself does not, however, set forth the manner for computing the value of a life estate in property transferred to the decedent when the property was taxed in the estate of the trans-feror. The Treasury Regulations state, inter alia, at § 20.2013-4(a), that:

“If the decedent received a life estate or remainder or other limited interest in property included in the transfer- or’s gross estate, the value of the interest is determined as of the date of the transferor’s death on the basis of recognized valuation principles (see especially §§ 20.2031-7 and 20.2031-10).” «

Section 20.2031-7 of the Regulations contains the mortality tables for valuing life estates.

The Government admits that, as a general rule, the § 2013 credit on a life estate is to be calculated by finding the actuarial life expectancy, as determined by the tables in Treasury Regulation § 20.-2031-7, of the life tenant as of the transferor’s death. The Government contends, however, that there is an exception to this general rule and this exception is embodied in Revenue Ruling 66-307.

II

Revenue Ruling 66-307 is predicated upon a factual situation “where it was known at the death of the transferor that the life tenant, afflicted with a ravaging and incurable disease of advanced state, could not survive for more than a year.” (Emphasis added.) In this situation, the Revenue Ruling directs that, for the purpose of calculating a § 2013 credit, the life tenant’s actual life expectancy, rather than his actuarial life expectancy, as of the transferor’s death, be used in valuing the life estate. The Revenue Ruling goes on to state that, as a general rule, such a departure from the mortality tables is proper, for the purpose of § 2013, “if it is known on the valuation date that a life tenant is afflicted with a fatal and incurable disease in its advanced stages, and that he cannot survive for more than a brief period of time.” (Emphasis added.)

The Government contends that this Revenue Ruling covers the present case and that, therefore, Josephine’s actual life expectancy as of her sister’s death should be used in valuing her life estate. The taxpayer, on the other hand, argues that Revenue Ruling 66-307 is invalid and, even if it is valid, it does not cover the present case.

Forceful arguments have been made by both of the litigants with respect to the issue of the validity of the Revenue Ruling. We need not, however, resolve this matter in order to decide this case since, in our opinion, even assuming ar-guendo that the Revenue Ruling is valid, the present case falls outside the ruling.

In reaching this conclusion, we are assuming that words used in the Revenue Ruling were employed precisely. Such an assumption is particularly warranted in the field of tax law where the decision is ordinarily determined by the< language utilized and not necessarily by application of logical principles. We first note that the statement of the rule is in two-pronged form joined by the conjunctive “and.” Thus, we conclude that it is essential not only that it be known that the disease is fatal and incurable in an advanced stage but also that the life tenant cannot survive for more than a brief time. It is at this point that we find ourselves deserted insofar as further guidance is concerned. Outside of the particular fact situation the Ruling presents, we are not advised as to the meaning of “brief,” or whether it is an absolute or relative term.

The Government, in its brief, states that departure from the tables is proper if the actual life expectancy is “considerably shorter” or “far less” than that predicted in the mortality tables. Under the Government’s interpretation of “brief” as a relative term, a person with a fatal, incurable disease in its advanced stages who had an actuarial life expectancy of 25 years but an actual life expectancy of 5 years would apparently have only a “brief” life span and, therefore, departure from the tables would be proper. As an absolute, as opposed to a relative matter, two years might be deemed by some to be a “brief” life span. Thus, some might consider that a failing nonagenarian whose life expectancy, according to the mortality tables, was approximately two years and who had an actual life expectancy of only slightly less than this actuarial expectancy, had only a “brief” life expectancy. Nevertheless, we doubt that the Government would contend, in this situation, that the “brief” life expectancy (in absolute terms) should require departure from the actuarial tables.

Turning to source books such as Words and Phrases and Black’s Law Dictionary, we find no definitions of “brief” in the time sense. Webster tells us that “brief” in its duration meaning is synonymous with “short.” Accepting that definition we construe the Revenue Ruling ' to be applicable only to a situation in which it is known that death will follow closely after a crucial date. Moreover, although a court might well wish to consider the actuarial life expectancy in determining whether the life tenant’s actual life expectancy is “brief,” we construe “brief,” as used in the Revenue Ruling, to be essentially an absolute, not a relative, term. We are fortified in this interpretation by the prefatory synopsis of the Revenue Ruling which speaks in terms of “where the death of a life tenant from known causes is predictable and imminent on the valuation date.” “Imminent,” in the time sense, appears unlike “brief” to have been the subject of considerable judicial attention. 20 Words and Phrases 215 (1959). Without citing individual cases, it is clear that “imminent” refers to something which is threatening to happen at once, something close at hand, something to happen upon the instant, close although not yet touching, and on the point of happening. With this construction of the Revenue Ruling in mind, we turn to the evidence adduced in this case.

. According to the actuarial tables, Josephine’s life expectancy, at the time of her sister’s death, was six years. The medical evidence indicated, however, that, at that time, it was known that Josephine was suffering from cancer of the colon which had metastasized to the liver. There was no dispute over the fact that this was a fatal and incurable disease.

The question of the decedent’s actual life expectancy, due to this disease, however, was disputed at the trial. Dr. Myles Cunningham, a cancer expert presented by the taxpayer, testified that, at the time of Margaret’s death, Josephine did not have any of the clinical signs associated with liver metastasis which would indicate an imminent death. Absent such clinical signs of imminent death, a physician could not predict with reasonable certainty, according to Dr. Cunningham, how long a patient with liver metastasis would live. In particular, Dr. Cunningham noted, “for one patient in the condition that Josephine Speth was in in January of 1966, I don’t believe you can place a time span on her expected length of life.” Dr. Cunningham further stated that there was a reasonable chance that Josephine could have lived a year or more after Margaret’s death, that it was possible that she could have lived 18 months, and that, although it was unlikely, it was not impossible for her to live two years. The doctor noted that he himself had “had at least one case who has lived six years now with liver metastasis.”

Dr. Samuel Taylor, a cancer expert presented by the Government, testified that he would have expected Josephine to live four to six months after February 21, 1966. Dr. Taylor admitted, however, that she possibly could have lived for a year. He further noted that “in medicine you can’t be too didactic, because someone always surprises you.” Finally, Dr. Taylor agreed with Dr. Cunningham that spontaneous remission was a medical fact and could occur in any cancer patient prior to the emergence of clinical signs of imminent death.

The third doctor to testify, Dr. Kenneth Kettleson, was the decedent’s physician. Dr. Kettleson was an internist but not a cancer expert. He stated that, in his opinion, Josephine’s life expectancy at the time in question was between one and six months.

All three physicians agreed that, on the basis of the autopsy report, cancer may not have been the actual cause of Josephine’s death but rather that her death could have been caused by a heart attack or a blood clot in her lung.

The district court found that the present case was distinguishable from the fact situation presented in the Revenue Ruling in that it was possible that, on February 21, 1966, Josephine could have lived for another year. Based on the testimony of Dr. Cunningham, we cannot say that this finding was clearly erroneous. Rule 52(a), Fed.R.Civ.P.; Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960). To the extent that the doctors disagreed about Josephine’s actual life expectancy on February 21, 1966, this was a question of credibility to be determined by the trial judge. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969); Aunt Mid, Inc. v. Fjell-Oranje Lines, 458 F.2d 712, 716 (7th Cir. 1972), cert. denied, 409 U.S. 877, 93 S.Ct. 130, 34 L.Ed.2d 131.

Moreover, we agree with the district court that the general rule which the Revenue Ruling purports to establish (i. e., that the taxpayer should use the actual life expectancy of the decedent where it is “known” on the valuation date that the life tenant is afflicted with a fatal and incurable disease in its advanced stages, and that he cannot survive for more than a “brief” period of time) does not cover this case. The testimony of the experts indicated that there was a range of longevity among patients with liver metastasis. According to Dr. Cunningham, this range could, for some patients, extend at least as far as six years. Where a particular patient fell within this range of longevity could not, according to Dr. Cunningham, be predicted, absent clinical signs of imminent death. In view of this testimony and the fact that the life expectancy predicted by the mortality tables for the decedent was itself six years, we cannot say that it was “known” that Josephine’s actual life expectancy was so “brief” as to require a departure from the tables.

In addition to the Revenue Ruling, the Government relies on a number of eases (most of which concern Code sections other than § 2013), in which departures from the actuarial tables have been permitted for the purpose of valuing life estates. The case before us is, however, readily distinguishable from these cases.

In the majority of these cases permitting departures from the tables, the life tenant’s maximum actual life expectancy was one year or less. In Estate of Nellie H. Jennings, 10 T.C. 323 (1948), for instance, the Tax Court held that the life tenant’s actual life expectancy should be used in valuing a charitable remainder where, at the time of the decedent-trans-feror’s death, the life tenant was almost totally paralyzed, had a complete loss of memory and was described by his physician as “just an individual protoplasm.” 10 T.C. at 327. The life tenant in Jennings had an actual life expectancy, according to the medical experts, of “not more than one year” from the date of the transferor’s death. 10 T.C. at 327. Similarly, in Estate of Nicholas M. Butler, 18 T.C. 914 (1952), also a charitable remainder case, a departure from the mortality tables was permitted to value a life estate where the life tenant had cancer and “[t]he facts in existence at the time of [the transferor’s] death were such as to render it certain that [the life tenant] would not live more than one year after [the transferor’s] death.” (Emphasis added.) 18 T.C. at 919-920.

In Estate of Lion v. Commissioner, 438 F.2d 56 (4th Cir. 1971), cert. denied, 404 U.S. 870, 92 S.Ct. 52, 30 L.Ed.2d 114, the Fourth Circuit applied the actual life expectancy, rather than the actuarial life expectancy, of a life tenant in determining a § 2013 credit. Lion, however, involved a situation in which the transferor and the life tenant died simultaneously.

The cases permitting the substitution of actual life expectancy for actuarial life expectancy are typically characterized as “exceptional” cases. Miami Beach First Nat’l Bank v. United States, 443 F.2d 116, 120 (5th Cir. 1971); Estate of Lion v. United States, supra at 62; Estate of Carl E. Weller, 38 T.C. 790, 803 (1962). Absent “exceptional” circumstances, the actuarial tables should be used since these tables “afford a reasonable norm and some degree of certainty in ascertaining the value of property and the consequent tax liabilities of the beneficiaries thereof.” Miami Beach First Nat’l Bank v. United States, supra at 119. See Simpson v. United States, 252 U.S. 547, 550, 40 S.Ct. 367, 64 L.Ed. 709 (1920). Although the tables prove to be accurate when used in large numbers of cases, discrepancies are bound to occur in individual cases. But, as the First Circuit has noted, “the discrepancies may have to be suffered in the interest of a simplified overall administration of the tax laws.” McMurtry v. Commissioner, 203 F.2d 659, 667 (1st Cir. 1953). Departures from the tables are permitted, if at all, only where the result of using the tables is “unrealistic and unreasonable,” Estate of Carl E. Weller, supra at 803; Estate of Chauncey Stillman, 24 T.C.M. 478, 497 (1965), or “ignore [s] common sense.” Hall v. United States, 353 F.2d 500, 505 (7th Cir. 1965).

Moreover, although the taxpayer has the burden of showing the error in the Commissioner’s determination, where the taxpayer proves that normally the actuarial tables provided in the Regulations would be applicable to his case, the burden is on the Government to show that the case is “exceptional,” justifying a modification of or departure from the prescribed method. Estate of Carl E. Weller, supra at 803; Estate of Chauncey Stillman, supra at 497; Mercantile-Safe Deposit & Trust Co. v. United States, 368 F.Supp. 743, 746 (D.Md.1974).

The mere fact that the life tenant is suffering from an incurable and fatal disease is not necessarily sufficient to justify a departure from the actuarial tables. In Estate of Chauncey Stillman, supra, the taxpayer transferred a contingent remainder interest to a trust for the benefit of his daughters. In valuing the gift for gift tax purposes, the taxpayer determined the life expectancy of the life tenant by means of the actuarial tables provided in the Regulations. The Government contended, however, that the actual life expectancy of the life tenant should be used since the life tenant was afflicted, at the time of the gift, with multiple myeloma, a fatal and incurable type of cancer. The tax court noted the expert testimony that the disease, although fatal, was variable among patients and predictions as to individual longevity were therefore impossible. The court held in Stillman that departure from the tables would be improper in this situation.

“[The Commissioner] relies on the Jennings rule. Since the ultimate finding is that on the gift date, the life expectancy of the life tenant was indeterminate and could not be foretold, [the Commissioner’s] method of valuation falls. On the evidence, this case is distinguishable from Jennings and the other cases in the Jennings group and the Jennings rule does not apply. ... In this instance, departure from the method of valuation prescribed in section 25.2512-5(e) is neither justified nor required. . [The Commissioner’s] determination was little better than a guess which cannot be approved.” 24 T.C.M. at 502-503. (Footnote omitted.)

See also, Miami Beach First Nat’l Bank v. United States, supra; Mercantile-Safe Deposit & Trust Co. v. United States, supra.

In the present case, the Government has failed to show that, assuming ar-guendo a departure from the prescribed actuarial tables may be proper in certain § 2013 cases, the circumstances here justify such a departure, from the prescribed method. Rather, as in Estate of Chauncey Stillman, supra, any determination of Josephine’s actual life expectancy as of her sister’s death would be “little better than a guess.” The physicians who. testified were candid in admitting their Sybyllic efforts of necessity lacked exactitude. In this situation, departure from the tables is not justified.

Affirmed.

      . The taxpayer paid estate tax in the amount of $256,819.51. The District Director of the Internal Revenue Service assessed an estate tax deficiency in the amount of $33,950.52 plus interest. The taxpayer paid the assessed tax and interest and timely filed a claim for refund.

      . “Actual life expectancy” means the life tenant’s life expectancy at the valuation date as predicted on the basis of known facts concerning that individual rather than on the basis of actuarial tables. “Actual life expectancy,” being predictive, may be, of course, more or less than the life tenant’s actual life span.

      . A credit is also allowed where the decedent predeceased his transferor by less than two years.

      . One commentator lias noted that § 2013 “can ... be characterized as the most complex and confusing provision of the estate tax law.” Rudick, The Estate Tax Credit for Tax on Prior Transfers, 13 Tax L.Rev. 3 (1957). Without examining all the estate tax sections, we are inclined to agree.

      . The Congressional rationale for permitting a credit for terminable interests was apparently that “the terminable interest may have produced income [presumably during the life tenant’s life time] that might be taxable in the decedent’s estate. Sen.Rep.No.1622, supra at 122. A second possible rationale, suggested by one commentator, is that possession of the life estate may enable the' life tenant to conserve other assets which otherwise lie would have expended, and which subsequently are included in his gross estate. Kirby, Proposed Estate Tax Regulations, 96 Trusts & Estates 12 (1957).

      . In determining a § 2013 credit, it is necessary to look at the dollar value of the property as it was taxed in the prior estate since the credit in the second estate is founded on the fact that the property was taxed ■ at a specified dollar amount in the prior estate. However, unlike a fee simple interest in property, the value of a life estate is based not only on the value of the property on which the life estate is imposed but of necessity is also dependent upon the extent of the period of enjoyment. Some conceptual difficulties might arise as to the rationale for utilization, in § 2013, of the predictive process as to the number of years the life tenant will live since in the case of the life estate, § 2013 comes into play only after the •transferee-life tenant has died, when the extent of enjoyment is a known fact. This is not a situation in which the life expectancy of a transferee-life tenant must be predicted in order to calculate the estate taxes of the transferor (e. g., the charitable remainder cases). Nor is it a case in which the “taxable event” clearly occurred at a particular date prior to the transferee’s death and the transaction, for valuation purposes, “closed” as of that earlier date (e. g., a transfer for full and adequate consideration : see United States v. Righter, 400 F.2d 344 (8th Cir. 1968)).
      According to the Senate Report, “[t]o eliminate the tracing [of the transferred property] the credit is based upon the value of the property at the time of the death of the prior decedent.” Sen.Rep.No.1622, supra at 121, U.S.Code Cong. & Admin.News 1954, p. 4755. Under § 812 of the Internal Revenue Code of 1939, the transferee was permitted a deduction from the gross estate for taxes paid by the transferor and the amount of the deduction was computed by tracing the transferred property in the hands of the transferee.
      Regardless of the rationale, it is clear that in valuing a § 2013 credit on a life estate, the value is to be determined as of the date of the transferor’s death and that the valuation process is not aided by the hindsight provided by the actuality of duration.

      . Section 20.2031-10 of the Regulations covers the valuation of limited property interests for decedents dying after December 31, 1970.

      . 1966-2 Cum.Bull. 429.

      . Tlie decision of this court in Hall v. United States, 353 F.2d 500 (7th Cir. 1965), is not controlling with respect to the issue of the validity of the Revenue Ruling. In Sail, this court held that for the purpose of § 2037(b) of the Internal Revenue Code of 1954 (pertaining to reversionary interests), taxpayers are not required to use the actuarial tables in all cases. Section 2037(b) provides, in part:
      ‘‘The value of the reversionary interest . . . shall be determined ... by usual methods of valuation, including the use of tables of mortality and actuarial principles, under regulations prescribed by the Secretary or his delegate.” (Emphasis added.)
      The wording of § 2037 was construed in Sail to mean that the use of the actuarial tables was not mandatory. In the present case, however, neither the Code section nor the Regulation involved contains language similar to that involved in Sail.

      Ignoring any dilemmatic impaling aspects arguably present, the Government in its brief, while citing Sail to support its position, states that the Commissioner does not agree with the result reached by this court in Sail, as “Congress obviously contemplated the use of mortality tables to determine life expectancy under Section 2037.” The Government does not deem this obviousness to be present in Section 2013. In Sail, the use of the mortality tables would have been to the detriment of the taxpayer; in the present case, the converse is, of course, true.

      . The judicial definitions for the most part pertained to those documents filed in .courts by lawyers. We scarcely need to observe that the word in this sense is frequently not associated with brevity.

      . In Shippee v. Shippee, 122 N. J.Eq. 570, 195 A. 728 (1937), it was held that the death of a sister, 41 days after the death of the testatrix, did not occur “shortly” after the latter’s decease. • In that case, the second decedent apparently had been suffering from a fatal disease for several months before the death of her sister; however, the will liad been executed several years' previously. We are not unmindful that terms of time must be viewed in the context in which the words are used. “The expression ‘a long time’ would refer to a very different period or duration, and have a widely different meaning in measuring time when used by an archaeologist having reference to the period of existence of the Egyptian pyramids, than when used by Carolina Governors with reference to the time between drinks.” Wilson v. State, 2 Ala.App. 203, 56 So. 114, 115 (1911). We have viewed the word “brief” in the context in which we find it.

      . The Government agrees that the fact that the life tenant actually died within a relatively short time subsequent to the date of the transfer is, in itself, not a decisive factor. Ithaca Trust Co. v. United States, 279 U.S. 151, 49 S.Ct. 291, 73 L.Ed. 647 (1929).

      . The last medical examinations of Josephine, prior to her hospitalization immediately before her death in March 1966, were conducted in January 1966. All of the physicians who testified at the trial based their predictions as to Josephine’s actual life expectancy on February 21, 1966 on these January reports.

      . When asked to give his opinion as to the percentage of persons with liver metastasis who live one year or 18 months, Dr. Cunningham stated that approximately 10 to 15 percent survive one year and probably about 5 to 10 percent survive 18 months.

      . Although it apparently played no part in the district court’s decision, and we have given it no weight in our decision, a fact, of which the reading public cannot be unmindful, is that a lively discussion and considerable controversy has developed from the ability of modern medical science, by various sophisticated devices, to keep life in existence or “vital functions [continuing! long after a patient’s awareness has departed.” William 1). Poe, “Do We Need Restraint in Medicine?” The Christian Century, September 19, 1973, at 914.
      Although we are unaware of any generic term for the particular subject, such as euthanasia in an allied area of discussion, “prolongevity” might well be used.
      The point at which death may be said to have occurred poses difficult problems with both legal and moral implications to which medical practitioners have addressed themselves, particularly as the situation bears on the transplanting of organs. “AMA Passes ‘Death with Dignity’ Resolution,” Science News, December 15, 1973, at 375.
      The record in this case did support the district court’s conclusion, notwithstanding the Government’s characterization of it as erroneous as a matter of law, that “because of individual biological differences, it is possible to make a medically reliable prediction of longevity with relation only to a large group of cancer patients, but that such predictions are unreliable with reference to any individual patient.”

      . Other cases in the “Jennings line” which have permitted departures from the mortality tables include: Estate of John P. Hoelzel, 28 T.C. 384, 388 (1957), life expectancy “did not exceed 1 year”; Huntington Nat’l Bank, 13 T.C. 760, 765 (1949), life expectancy “not greater than one year”; Estate of James W. Douglas, 12 T.C.M. 347 (1953), life expectancy of “somewhere between six months and a year”; Estate of T. G. Hendrick, 9 T.C.M. 581, 583 (1950), life expectancy “was not greater than one year.”
      In Estate of John Halliday Denbigh, 7 T.C. 387 (1946) a departure from the mortality tables was permitted where the life tenant’s actual life expectancy was “a year or two” —but this was compared with a 16 year life expectancy predicted by the mortality tables.

      . “[T]he United States is in business with enough different taxpayers so that the law of averages has ample opportunity to work.” Gelb v. Commissioner, 298 F.2d 544, 552 (2d Cir. 1962).

      . The Government contends that the district court’s decision suggests that to be able to depart from the actuarial tables, it is necessary to be able to predict the exact day upon which the decedent would die. The Government argues that a “probable” prediction should be sufficient.
      Neither this decision nor those of other courts implies that, assuming departure is I>ermitted in some eases, such departure is only justified upon a showing of the very day upon which the life tenant will die. The point is that in this ease, as in Stillman, there was a range of longevity and there was no certainty where a particular patient would fall within this range, thereby rendering any determination of actual life expectancy uncertain.


author: J. JOSEPH SMITH, Circuit Judge:

text:
    Francis C. PLANO, Appellant, v. Clifford W. BAKER, Individually and as Supervising Principal of the Westmoreland Central School District, et al., Appellees.
    No. 4, Docket 74-1527.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 12, 1974.
    Decided Oct. 11, 1974.

      Bernard F. Ashe, Albany, N. Y. (James R. Sandner and Ivor R. Moskow-itz, Albany, N. Y., of counsel), for appellant.
    Michael P. DeSantis, Utica, N. Y., for appellees Baker, Melie, Acee, Barns, No-wak, Plehn, Richards, Romeo, Walker in their official capacities and for appellee Bd. of Ed. of the Westmoreland Central School Dist.
    Arthur F. Barns, Utica, N. Y. (Evans, Severn, Bankert & Peet, Utica, N. Y.), for appellees Baker, Melie, Acee, Barns, Nowak, Plehn, Richards, Romeo, and Walker, individually.
    John C. Scholl, Utica, N. Y., for appel-lee F. Wright Johnson.
    Before KAUFMAN, Chief Judge, and SMITH and TIMBERS, Circuit Judges.
   J. JOSEPH SMITH, Circuit Judge:

Francis C. Plano appeals from an order of the United States District Court for the Northern District of New York, James T. Foley, Chief Judge, granting appellees’ motions to dismiss and denying appellant’s motion for a temporary restraining order and preliminary injunction. Appellant, a probationary teacher in the Westmoreland Central School System, Westmoreland, New York, instituted an action pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) alleging that he was discharged from his position during the 1973-74 school term for activity protected by the First Amendment and in a manner that deprived him of his right to procedural due process under the Fourteenth Amendment. He sought reinstatement, back pay and damages, and moved for a temporary restraining order and preliminary injunction. Appellees, the Supervising Principal of the Westmoreland Central School District, the District Superintendent of Schools of Oneida 1— Madison-Herkimer Counties, the clerk and members of the Board of Education of the Westmoreland Central School District (all of whom were sued individually and in their official capacities) and the Board of Education of the West-moreland Central School District moved to dismiss the complaint for failure to state a claim upon which relief could be granted and for failure to exhaust state administrative remedies. It was uncontested that appellant had failed to appeal the Board's order of dismissal to the New York State Commissioner of Education despite the fact that he had a right to do so pursuant to N. Y. Education Law § 310 (McKinney’s Consol. Laws e. 16, 1969). Rather than going to the Commissioner, he went to Judge Foley. Relying on our decisions in Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L.Ed.2d 75 (1970), and Blanton v. State University of New York, 489 F.2d 377 (2d Cir. 1973), requiring exhaustion of state administrative remedies in civil rights actions, Judge Foley sent him to the Commissioner, but he came here instead. We hold that the administrative remedy in this case was inadequate, and we therefore reverse and remand for further proceedings.

I.

Appellant would have us abandon the exhaustion requirement of Eisen and Blanton. It is undeniably true that statements in various Supreme Court opinions appear to cast some doubt on that requirement. We dealt with most of those opinions in Eisen, 421 F.2d at 567-569, and in Blanton, 489- F.2d at 384, and there is no need to repeat those discussions here. Subsequent to Blanton, the Supreme Court decided Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), holding that the doctrines of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) and Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971) do not preclude an action in federal court seeking a declaratory judgment that a state criminal statute is unconstitutional in those cases of actual controversy where no state criminal proceeding has yet been initiated. In the course of its opinion, the Court observed :

When federal claims are premised on 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) — as they are here — we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights.

415 U.S. at 472-473, 94 S.Ct. at 1222 (emphasis added). This language, standing alone, coneededly appears contrary to Eisen and Blanton. There are several factors, however, which we must admit argue against the claim that Ei-sen and Blanton have definitely been overruled. First, the statement from Steffel is dictum; the holding of that case involved state judicial proceedings, not state administrative remedies. See, Blanton, 489 F.2d at 384 & n. 9 (distinguishing Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971) and Preiser v. Rodriguez, 411 U. S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)). Second, there is ample breathing room under our holdings for allowing civil rights actions to proceed without requiring “a wooden application of the exhaustion doctrine.” Eisen, 421 F. 2d at 569. Thus, we have not required exhaustion of state administrative remedies where their pursuit would be futile or inadequate. Third, we recognize that there are benefits to be derived from a sensible application of the exhaustion doctrine. In light of these factors, this Circuit’s exhaustion rule should be subjected to re-examination only in a case requiring that issue to be reached. We have concluded that, under the facts of this case, the administrative remedy was inadequate. There is thus no need to decide whether Eisen and Blanton retain validity, and we decline appellant’s invitation to do so.

II.

Appellant’s complaint alleged that he had been discharged by appellees because of a homework assignment given to his eleventh and twelfth grade English students on the subject of teen-age attitudes toward premarital sex. It was also alleged that appellees took into consideration a rumor regarding his moral character, thereby damaging his reputation, and that he was dismissed without notice or hearing. Appellant claimed that he was thus deprived of his right to freedom of speech, and deprived of property without procedural due process of law. Appellees maintained that appellant was discharged because he was demanding and uncooperative and showed poor judgment. They maintained further that, because of his probationary status, he had no property rights of which he could have been deprived.

As the district court repeatedly emphasized, the case in its present posture presents a dispute which is largely factual. Yet nowhere in the administrative process which the district court required appellant to exhaust was there a procedure designed to resolve factual issues. The Board did not conduct a fact-finding hearing, and the regulations governing appeals to the Commissioner, 8 N.Y. Code of Rules and Regulations § 276.2, make oral argument discretionary and expressly prohibit the taking of testimony:

(b) The commissioner may, in his sole discretion, determine whether oral argument shall be had.
(d) All evidentiary material shall be presented by affidavit or by exhibits. No testimony is taken and no transcript of oral argument will be made.

Where a dispute is largely factual, we fail to see how an administrative remedy that expressly forbids the examination and cross-examination of witnesses can be considered adequate for purposes' of the exhaustion rule. We find ourselves in substantial agreement with the observation of Chief Judge Caleb Wright in Hayes v. Cape Henlopen School District, 341 F.Supp. 823, 831 (D.Del.1972):

Although the prerequisites to adequate administrative remedies have not been specifically enumerated, the Court is of the opinion that unless the procedures involved provide a practical avenue for an aggrieved party to contest an administrative decision, it is not necessary for that party to exhaust its procedures. Since under Section 1983 an individual seeks to preserve or vindicate federally guaranteed rights, a strong national interest in protecting those rights makes it incumbent upon the federal courts to avoid erecting barriers to prosecution of such suits in federal tribunals. Thus, absent a clear showing that the state administrative procedures afford a realistic alternative for an aggrieved litigant, the exhaustion doctrine should not be implemented. The right to hear and refute evidence presented against oneself, the right to present evidence on one’s behalf, the right to call witnesses on one’s behalf and the right to an impartial tribunal would most likely be the components of an administrative procedure sufficiently adequate to require exhaustion prior to commencing a suit under Section 1983 to vindicate the interference with a constitutional right. To demand less is to vitiate the Supreme Court’s repeated declaration that Section 1983 creates a separate and supplementary remedy for deprivation of constitutional rights.

(Footnote omitted.) It should be emphasized that we are not holding that such procedures were constitutionally mandated in this case. Whether appellant was entitled to a hearing as a matter of due process goes to the merits of this case, which we do not reach. Our holding is simply that the administrative remedy was inadequate for purposes of the exhaustion rule.

A second factor leading us to hold that the administrative remedy was inadequate is that the constitutional issues raised by this case, particularly in the First Amendment area, lie within the expertise of courts, not the expertise of administrators. And although it is no doubt true that the facts as viewed by an administrator's expert eye may provide guidance to a court in reaching constitutional determinations, such guidance will necessarily be absent where the administrator does not have an adequate procedure for finding facts. This case therefore presents little opportunity for the administrator to put his expertise to work in a manner that will be useful to a reviewing court.

An additional element to be considered is the fact that appellant’s complaint sought damages for a conspiracy to violate his civil rights. The Commissioner has no power to grant such relief. In Ray v. Fritz, 468 F.2d 586 (2d Cir. 1972) (per curiam) we held that exhaustion of state administrative remedies in § 1983 actions is not required where the administrator is not empowered to grant the relief sought. Of course, a boilerplate claim for damages will not automatically render the administrative remedy inadequate. Where the relief claimed is the only factor that militates against the application of the exhaustion requirement, the complaint should be carefully scrutinized to ensure that the claim for relief was not inserted for the sole purpose of avoiding the exhaustion rule.

In light of the procedural nature of the administrative remedy, the issues presented, and the relief sought, we hold that the state administrative remedy in this case was inadequate, and that it was error to dismiss the complaint for failure to exhaust that remedy.

III.

Some additional matters require only brief mention. The district court held that the alternative basis for appellees’ motions to dismiss — that the complaint failed to state a claim on which relief could be granted — was without merit. We are in agreement with this conclusion since plaintiff clearly stated at least one valid claim for relief. It is well settled that a public employee, tenured or not, cannot be discharged for engaging in activity that is protected by the First Amendment. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) ; Russo v. Central School District, 469 F.2d 623 (2d Cir. 1972), cert. denied, 411 U.S. 932, 93 S.Ct. 1899, 36 L.Ed.2d 391 (1973). We, of course, intimate no opinion on whether the activity engaged in by appellant was thus protected.

In addition to granting the appellees’ motions to dismiss, the district court denied appellant’s motion for a temporary restraining order and preliminary injunction. The court stated that it could not have granted such a motion even if the motion to dismiss had been denied, since it appeared that appellant expected a ruling on that motion without an evi-dentiary hearing. In his brief on appeal, appellant states that he fully expected that an evidentiary hearing would be held. In light of our determination that the motion to dismiss was erroneously granted, the case must be remanded, and appellant should then be allowed to renew his motion for preliminary relief and to pursue it through the proper procedures.

Finally, several of the appellees contend that they were improperly joined as defendants. We leave it to the district court on remand to sort out the parties.

Reversed and remanded.

      . See Goetz v. Ansell, 477 F.2d 636, 639 (2d Cir. 1973) (concurring opinion).

      . Goetz v. Ansell, supra note 1.

      . Ray v. Fritz, 468 F.2d 586 (2d Cir. 1972) (per curiam).

      . Eisen v. Eastman, supra, 421 F.2d at 567 n. 11, quoting Note, Exhaustion of State Remedies Under the Civil Rights Act, 68 Colum.L.Rev. 1201, 1206 (1968).

      . The nature of a hearing before the Commissioner was described by this court in James v. Board of Education, 461 F.2d 566, 569 (2d Cir.), cert. denied, 409 U.S. 1042, 93 S.Ct. 529, 34 L.Ed.2d 491 (1972) : “The ‘hearing’ before the Commissioner, as we were informed at the argument of this appeal, was no more than an informal roundtable discussion between the Commissioner, the parties and their attorneys. No transcript of the proceedings was made.”

      . Compare, Eisen v. Eastman, supra, where the issue raised was whether the maximum level of rents set by a New York City District Kent and Rehabilitation Director was so low as to deprive a landlord of property without duo process of law. This is essentially a rate-making issue, in which courts are inclined to defer to administrative bodies’ expertise.


author: TALBOT SMITH, Senior District Judge.

text:
    James H. HAMPTON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-1841.
    United States Court of Appeals, Tenth Circuit.
    Argued Aug. 21, 1974.
    Decided Oct. 23, 1974.
    Rehearing Denied Nov. 29, 1974.

      Gerald Sawatzky, Wichita, Kan. (James H. Hampton, appellant pro se on the brief), for petitioner-appellant.
    Givens L. Adams, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., Oklahoma City, Old. on the brief), for respondent-appellee.
    Before HILL and McWILLIAMS, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

This is an appeal from the denial, without an evidentiary hearing, of post-conviction relief under 28 U.S.C. § 2255. The petitioner, James H. Hampton, is presently in federal custody under a ten year sentence entered upon his 1970 conviction of violation of 18 U.S.C. § 2314, interstate transportation of a falsely made and counterfeit security, specifically, a cashier’s check drawn on the South-side National Bank, St. Louis, Missouri, in the amount of five hundred dollars, dated January 9, 1970, payable to Wesley Gene Smith. His direct appeal, which did not raise the contentions now urged, was unsuccessful. Hampton v. United States, 458 F.2d 29 (10th Cir. 1972).

In order .that the petition before us may be properly appraised it is necessary to set it in context. The proofs adduced at the trial were not complicated. The defendant was positively identified by the Vice-President and cashier of the Shepherd Mall State Bank, and a Sears Roebuck cashier, as having endorsed in their presence cashier’s checks, using the name Wesley Gene Smith, and presenting for identification, Smith’s driver’s license and an A. T. & T. credit card. He was also identified by other employees of the bank, Sears and a neighboring store as having attempted to cash the same or similar checks. Mr. Wesley Smith himself testified that his wallet, with identification, had been stolen from him. In defense a handwriting expert testified that the endorsement on the two checks before her, the checks cashed at the Shepherd Mall State Bank, and the Sears store, were not written by the' person whose exemplars had been submitted to her as those of the defendant. In addition defendant submitted the testimony of an East St. Louis policeman who, a month later, had arrested one Jimmy Poe on a bad check charge. Poe was of the same general build as defendant and carried the same Wesley Gene Smith identification papers previously mentioned, the Government in turn suggesting a possible sale thereof to Poe as “a common modus operand! in this regard.” After the instructions, as to which no issue is presented, the jury returned a verdict of guilty.

The precise point in issue arises from the fact, conceded by the defendant, that during the trial it became known that the Government’s Exhibit 1, the cashier’s check presented to the Shepherd Mall, State Bank, the endorsement of which by defendant had taken place in the presence of the cashier, had been subjected to laboratory examination. As the defendant acknowledges in his brief: “The trial transcript clearly shows that the counterfiet (sic) security underwent extensive testing by the Governmant (sic) (tr. pgs. 46 thru 48, 51, 68, 151, 152, 153).” The Government did not use such reports nor were they requested by the defendant. Upon motion by the defendant the Government had been ordered to “furnish to the defendant’s counsel any written signed statement of any of your witnesses so that he can read and understand when you put that witness on, and he’s ready to cross examine the witness to test his statement and knowledge.” No complaint is made of noncompliance with this order and no further request or demand was made by petitioner, or objection made to information furnished. It is clear that neither the Jencks Act (18 U.S.C. § 3500) nor the Court’s order applied to the subject report in view of the fact that the person, responsible for its preparation was not called.

But the defendant’s petition under § 2255 made an additional charge, going beyond mere noncompliance with Rule 16 or the Court’s order, namely that the Government had at the time of trial “a detailed report from the laboratories of the Federal Bureau of Investigation which stated that after expert and chemical analysis was made of the counterfeit security, your petitioner’s handwriting and fingerprints did not appear anywhere on said counterfeit security,” placing reliance upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and kindred eases.

The broad charges thus' made were not documented in any way, nor their source disclosed. But in petitioner’s brief on appeal the obvious deficiencies are remedied. We are told (here the petitioner pro se is referring to himself in the third person) that “After Hampton commenced service of the sentence imposed in this case, he was approached by two agents from the Federal Bureau of Investigation and shown copies of certain reports from the Government’s criminal laboratories that would conclusively show that he was not guilty of the crime for which he is presently being confined.”

The United States Magistrate conducted a preliminary review of the petition presented and recommended its denial to the District Judge. The latter, upon review thereof, held in part that “The files and records conclusively show that petitioner is not entitled to relief on his allegation that the Government failed to disclose evidence which would have been favorable to the petitioner for the reason that the petitioner filed no motions for discovery under Rule 16, Federal Rules of Criminal Procedure, or pursuant to the requirements of Brady v. Maryland, 373 U.S. 83 [83 S.Ct. 1194, 10 L.Ed.2d 215] (1963).”

Upon these facts we are clear that it is not enough, to entitle a petitioner to either a hearing or relief under § 2255, that he simply make a charge of constitutionally offensive conduct against agents of the Government. The assertions made are subject to careful scrutiny by the District Court in the light of all of the surrounding circumstances. As the Supreme Court held in Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1961):

What has been said is not to imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim, no matter how vague, conclusory, or palpably incredible his allegations may be. The language of the statute does not strip the district courts of all discretion to exercise their common sense.

Addressing the same point it was held shortly thereafter in Malone v. United States, 299 F.2d 254, 255-256 (6th Cir. 1962), in denying a motion to vacate a sentence, that

Section 2255 of Title 28 U.S.C. provides in part as follows:
“A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.
“The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.”
It is not the law that in every case where the movant may set forth a claim which appears to be good on paper although manifestly false in fact and frivolous, the District Court is nevertheless obliged to grant him an oral hearing. United States v. Thomas, 291 F.2d 478 (CA6); Johnson v. United States, 239 F.2d 698 (CA6), cert. denied 354 U.S. 940, 77 S.Ct. 1404, 1 L.Ed.2d 1539.
It is necessary that the movant substantiate his conclusions by allegations of fact with some probability of verity. O’Malley v. United States, 285 F.2d 733 (CA6); Stephens v. United States, 246 F.2d 607 (CA10).
In the present case the District Judge who passed upon the second motion to vacate presided at the criminal trial and also heard the first motion. We believe that he was thoroughly familiar with the record and files of the case.

Here the allegations made are so vague as to east the most serious, if not decisive, doubts as to their probity. It is noteworthy that the allegations as to the two F.B.I. agents were not made in the first instance to the District Court but were reserved for consideration at this level of the judicial process. As opposed to the allegations made by petitioner in Machibroda, supra 368 U.S. at 489, 82 S.Ct. 510, where the petitioner’s charges as to the Assistant United States Attorney were “identified as to time and place,” here the identity of the alleged agents is not disclosed, nor the time of their alleged visit, nor the purpose thereof, nor the motivation therefor. The incident described is palpably incredible, made not the more trustworthy by the manner in which it reaches us.

But we do not place decision on this ground, however sound. The fact of the matter is that as petitioner himself concedes, supra, he was well aware during the trial that a test of some kind had been made upon the check in question, yet he made no request for the production of the results of the test at trial. In this situation a post-conviction claim of error comes too late.

The purpose of the Brady rule is not to provide a defendant with a complete disclosure of all evidence in the government’s file which might conceivably assist him in preparation of his defense, but to assure that he will not be denied access to exculpatory evidence known to the government but unknown to him. [Emphasis added.]

United States v. Ruggiero, 472 F.2d 599, 604 (2nd Cir.), cert. denied, 412 U.S. 939, 93 S.Ct. 2772, 37 L.Ed.2d 398 (1973).

A similar observation is found in United States v. Purin, 486 F.2d 1363, 1368 n. 2 (2nd Cir. 1973), cert. denied, 417 U.S. 930, 94 S.Ct. 2640, 41 L.Ed.2d 233 (1974):

Even where evidence falls within the rule of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), however, the Government need not sua sponte give notice to the defense where the accused has knowledge of the evidence (Wallace v. Hocker, 441 F.2d 219, 220 (9th Cir. 1971); see United States v. Soblen, 301 F.2d 236, 242 (2d Cir.), cert. denied. 370 U.S. 944, 82 S.Ct. 1585, 8 L.Ed.2d 810 (1962)) and here no pretrial discovery motions were made.

We note, in passing, that precisely the same allegation with respect to an F.B.I. report was made in Nash v. State of Maryland, 371 F.Supp. 801 (D.Md.1973). In petitioning for habeas corpus relief, arising from conviction of charges of uttering counterfeit cheeks, petitioner charged for the first time “The prosecution failed to introduce into evidence an FBI report favorable to him.” In denying relief the District Judge noted that “The prosecution, however, is not required to introduce evidence that is equally available to the defense,” where defense counsel at trial was aware of the report. The court held that the defendant’s “ ‘Brady-type’ allegation is patently devoid of merit and is hereby rejected.”

The reason for the rule, of course, is to prevent the sandbagging of the Government by a defendant’s deliberate withholding of request for production. If aware, as was this defendant, of the existence of a report, he may not request the report and gamble on the verdict. If he loses before the jury and on direct appeal, he may then come before us on a § 2255, making any allegation with respect to the contents of the report suggested by his ingenuity. Neither the applicable rules nor the decided cases countenance placing such a premium upon defendant’s failure to request examination of a known report.

In the view we have taken of the facts in this record we do not deem it necessary to analyze in detail the Brady doctrine or the variations thereon, discussed by Judge Friendly in United States v. Keogh, 391 F.2d 138 (2nd Cir. 1968). Upon the record here made, which we have considered in detail, the District Court, addressing its rulings principally to defendant’s failure to move either under Rule 16 or the teachings of Brady, supra, held that petitioner was entitled to no relief on this portion of his petition. In this there was no error.

Petitioner also asserts that his case “is identical in every way to United States v. Tucker, 404 U.S. 443 [92 S.Ct. 589, 30 L.Ed.2d 592] (1972)” in that information contained in the presentence report with respect to prior convictions was incorrect and that he is entitled to a re-sentencing. The Government does not deny errors in the list of prior convictions. The District Court, however, in ruling upon the § 2255, after consideration of these matters, held that “The matters in the presentence report now criticized by the petitioner were not determinative matters in the imposition of sentence and upon present reconsideration of all relevant and proper information and circumstances and without consideration of such matters the sentence is appropriate and should stand.” Such holding by the District Court, upon review, is determinative of the matter upon the record before us. Johnson v. United States, 485 F.2d 240, 242 (10th Cir. 1973); United States v. Green, 483 F.2d 469 (10th Cir.), cert. denied, 414 U.S. 1071, 94 S.Ct. 583, 38 L.Ed.2d 477 (1973).

Finally, petitioner asserts that the United States Magistrate was also the presentence investigator “who investigated and prepared the presentence report in this case” and was biased against him. The Government submits an affidavit from the Magistrate denying the charge and asserting that he “has never seen or met the petitioner.” Without expressing any opinion as to the materiality of such charge we simply note that this issue was raised for the first time on this appeal and we will, therefore, not give it consideration here. Fitts v. United States, 376 F.2d 516 (10th Cir. 1967); Williams v. United States, 323 F.2d 90, 92 (10th Cir. 1963).

Affirmed.

      . The sentence, the maximum allowable under 18 U.S.C. § 2314, was imposed pursuant to 18 U.S.C. § 4208(a)(2).

      . 28 U.S.C. 636(b)(3).

      . We do not overlook, but do not reach, the point made that there is a question as to the materiality of the report allegedly suppressed. Under the statute, supra, it was not necessary to be established that the defendant forged the instrument which he “caused” to be transported in interstate commerce but only that he knew the security to be falsely made. Kreuter v. United States, 376 F.2d 654 (10th Cir. 1967), cert. denied, 390 U.S. 1015, 88 S.Ct. 1267, 20 L.Ed.2d 165 (1968) ; Cloud v. United States, 361 F.2d 627 (8th Cir. 1966).

      . It does, however, point out that the presen-tence report was furnished counsel prior to sentencing with the order that errors therein be brought to the attention of the court. None was cited by either the defendant or counsel at sentencing. The report contains the notation that “The defendant did not cooperate at all in the preparation of the pre-sentence report, and all the information contained hei-ein was not confirmed nor denied by the defendant.”


author: EUGENE A. WRIGHT, Circuit Judge:

text:
    SUMITOMO FORESTRY CO., LTD. OF JAPAN, Plaintiff-Appellee, v. THURSTON COUNTY, WASHINGTON, a legal subdivision of the State of Washington, Defendant-Appellant.
    No. 72-2395.
    United States Court of Appeals, Ninth Circuit.
    Oct. 8, 1974.

      William L. Britton, Deputy Pros. Atty., Olympia, Wash., for defendant-appellant.
    Thomas G. Holcomb, Seattle, Wash., for plaintiff-appellee.
    Before HUFSTEDLER and WRIGHT, Circuit Judges, and WILLIAMS, District Judge.

       Of the Northern District of California.

   OPINION

EUGENE A. WRIGHT, Circuit Judge:

In this case we must decide whether Thurston County, Washington, may impose an ad valorem tax on logs stored at the Port of Olympia awaiting ships for transportation to Japan. The district court held that the logs were in the process of exportation and that the tax was, therefore, a state imposed duty on exports prohibited by Article I, Section 10, Clause 2, of the United States Constitution. Following submission of the appeal, we vacated our action pending the Supreme Court’s disposition of Kosydar v. National Cash Register Co., 417 U.S. 62, 94 S.Ct. 2108, 40 L.Ed.2d 660 (1974). After the opinion therein was filed, we vacated the judgment of the district court and remanded for reconsideration in light of the decision in Kosydar. The district court concluded that Kosydar did not affect its earlier disposition. We disagree, and reverse with directions to the district court to enter judgment in favor of appellant Thurston County.

The parties submitted the case on stipulated facts. Sumitomo is a foreign corporation which imports logs to Japan. Each summer it takes orders from its Japanese customers and buys logs to meet demand. The logs in issue were purchased in Washington state and delivered to Sumitomo f. o. b. the Port of Olympia. The seller performed all sorting, scaling, loading, and unloading of the logs except they were not sorted by length at delivery. The logs were then stored in a storage yard at the port awaiting ships to take them to Japan.

In order to load ships efficiently as they arrived at the port, Sumitomo continuously had a supply of logs on hand in the storage area. The average turnover was 45 days, although specific logs may have stayed in the storage area for a shorter or longer period of time. All logs were stored only as long as necessary to await arrival of a ship upon which they could be loaded. Sumitomo sold no logs domestically, and the financial arrangements, the company’s past practices, and the type of logs purchased indicated with reasonable certainty that the logs would be exported.

The issue on appeal is whether the county may levy an ad valorem tax on logs stored by Sumitomo at the Port of Olympia awaiting shipment. We hold that it may.

Although Article I, Section 10, Clause 2, of the Constitution prohibits a state from imposing a duty on exports, property within the state is not exempt from taxation solely because it may be exported in the future. See, e. g., Empresa Siderurgica, S.A. v. Merced County, 337 U.S. 154, 69 S.Ct. 995, 93 L.Ed. 1276 (1949). The exemption from taxation attaches only after the property has entered the export process. The problem is to define the point at which that process begins. Kosydar v. National Cash Register Co., 417 U.S. 62, 70-71, 94 S.Ct. 2108, 40 L.Ed.2d 660 (1974). Appellant county contends that the logs do not begin the export process until they are loaded on the ship to be transported to Japan. Appellee Sumitomo argues that logs stored at the port awaiting the first available ship have begun the export process and are exempt from taxation.

Sumitomo’s position must be rejected as it is contrary to the holding in Coe v. Errol, 116 U.S. 517, 6 S.Ct. 475, 29 L.Ed. 715 (1886). In Coe the Court was concerned with the point at which goods enter the stream of interstate commerce and thereby become protected by the Interstate Commerce Clause from certain local taxation. Although Coe dealt with the Interstate Commerce Clause, its standard for the point at which goods commence an interstate journey has been explicitly adopted to determine the point at which goods commence a foreign journey and thereby become “exports” under Article I, Section 10, Clause 2. Kosydar v. National Cash Register Co., supra, at 71, 94 S.Ct. 2108; Empresa Siderurgica, S.A. v. Merced County, supra at 156, 69 S.Ct. 995; Richfield Oil Corp. v. State Board, 329 U.S. 69, 79, 67 S.Ct. 156, 91 L.Ed. 80 (1946).

Applying the Coe standard to Sumi-tomo’s logs, it is clear that they had not yet become “exports” immune from local taxation when the ad valorem tax was levied. In Coe the Court considered two collections of logs. The first had been cut in Maine and floated down the An-droscoggin River enroute to another location in Maine. The course of the River took the logs through the town of Errol, New Hampshire, where they were delayed by low water. The Court held that these logs were merely passing through New Hampshire and were already in the course of commercial transportation. Therefore, they enjoyed constitutional protection from taxation. 116 U.S. at 525, 6 S.Ct. 475.

The second crop of logs had been cut in New Hampshire and brought to Errol to be floated out of state. The logs were floated in and placed on the banks of a tributary of the Androscoggin River awaiting commencement of the journey. The Court held that the logs had not yet begun their journey and were not constitutionally protected:

There must be a point of time when [the logs] cease to be governed exclusively by the domestic law and begin to be governed and protected by the national law of commercial regulation, and that moment seems to us to be a legitimate one for this purpose, in which they commence their final movement for transportation from the State of their origin to that of their destination. When the products of the farm or the forest are collected and brought in from the surrounding country to a town or station serving as an entrepot for that particular region, whether on a river or a line of railroad, such products are not yet exports, nor are they in process of exportation, nor is exportation begun until they are committed to the common carrier for transportation out of the State to State of their destination, or have started on their ultimate passage to that State.'

116 U.S. at 525, 6 S.Ct. at 477.

Sumitomo’s logs are in the same position as the second collection of logs in Coe. They were cut in the forests of Washington state and taken to an entrepot within that state, the port of Olympia, to await shipment out of the state. They had neither been committed to a common carrier for export, A. G. Spalding & Bros. v. Edwards, 262 U.S. 66, 43 S.Ct. 485, 67 L.Ed. 865 (1923), nor loaded upon the ship that would take them to Japan, Richfield Oil Corp. v. State Board, supra. Neither Spalding, Richfield, nor any other case of which we are aware, suggests that Coe is no longer controlling in cases presenting similar facts. To the contrary, both Richfield and Empresa Siderurgica, S.A. v. Merced County, supra, cite Coe approvingly and rely on its standard. Any doubt of the viability of Coe v. Errol has been dispelled by the language in Kosydar. Thus, under Coe, Sumitomo’s logs were not “exports” while stored at the port awaiting shipment.

Sumitomo makes two counter arguments to support its position. First, it argues that the quality of the logs, the contractual and financial arrangements covering them, and Sumitomo’s past practices indicated with reasonable certainty that the logs would be exported. Thus, there was no reasonable probability that the logs would be diverted to the domestic market after escaping taxation.

There is some case law support for the conclusion that certainty of exportation is a criterion for determining whether exportation has begun. In Richfield the Court concluded that oil became an “export” when loaded on a ship bound for a foreign destination, even though the ship was not a common carrier. The Court reasoned that the theoretical possibility of diversion to the local market should be overlooked because it was reasonably certain that the oil was going to be delivered outside the United States. 329 U.S. at 82-83, 67 S.Ct. 156.

The reliance on the certainty of export in Richfield was, however, used merely to excuse the fact that the ship was not a common carrier. Certainty of export evidenced by financial and contractual relationships does not by itself render goods “exports” before the commencement of their journey abroad. Empresa Siderurgica, S.A. v. Merced County, supra at 156-157, 69 S.Ct. 995. Thus even if we “accept as fact the [appellee’s] assurances that the prospect of eventual exportation here was virtually certain,” the immunities of the Import-Export Clause are unavailable absent an actual entrance of the appellee’s logs into the export stream. Kosydar v. National Cash Register Co., supra, at 70, 94 S.Ct. 2108. Since nothing in Rich-field undermines Coe on the question of when the journey begins, the fact that diversion to the domestic market was unlikely does not remove Sumitomo’s logs from the “entrepot” standard Coe announced.

Second, Sumitomo argues that Carson Petroleum Co. v. Vial, 279 U.S. 95, 49 S. Ct. 292, 73 L.Ed. 626 (1929), controls this case and undermines the validity of Coe. In Carson, oil was being transported from Texas, Oklahoma, and Kansas to Europe. The journey consisted of railroad transportation through Louisiana to a location near New Orleans. There the oil was transferred to shore tanks to await the arrival of ships for the ocean voyage. Shore based storage tanks were used to avoid the necessity of ships being delayed awaiting the arrival of sufficient oil to comprise a'full load, and all oil stored was awaiting the arrival of a ship for transportation to Europe. The Court held that Louisiana could not tax the oil being stored awaiting an available vessel.

Sumitomo argues that, as with the oil in Carson, its logs were being stored at the port only to await the arrival of a ship to transport them to Japan. This is true. But unlike the oil in Carson, Sumitomo’s logs had not been traveling interstate prior to their storage at the Port of Olympia. Carson involved the interruption of an interstate/international journey that had admittedly begun long before the oil reached New Orleans. The Court held merely that when such a journey is interrupted by a geographically necessary change in transportation modes, reasonable delays and inventories to facilitate that change do not cause the goods to cease being “exports” or “goods in interstate commerce,” Thus, Carson involved a situation similar to the first group of logs in Coe which were delayed by low water during their journey through New Hampshire.

Sumitomo’s logs, on the other hand, were not interrupted on a journey through Washington from another state to a foreign destination. They were, like the second group of logs in Coe, products of Washington taken to an entrepot from surrounding areas within the state. Thus, under the holding of Coe they had not yet become “exports” falling under the protection of Article I, Section 10, Clause 2.

It is true that Carson did not explicitly distinguish the oil delayed at the port from the logs collected at the entrepot in Coe on the basis that the former had begun its journey in another state. Thus, it is not unreasonable for Sumito-mo to contend that Carson casts doubt on the validity of Coe. But since Coe has been explicitly approved and its standard relied on in Richfield, Empresa Siderúr-gica, and most recently, in Kosydar— all decided after Carson — Sumitomo’s interpretation of Carson must be rejected.

The logs upon which Thurston County levied its ad valorem, tax had not yet become “exports” entitled to the protection of Article I, Section 10, Clause 2, of the United States Constitution. The judgment of the district court is reversed, and the case is remanded for entry of judgment in favor of appellant county.

      . No state shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its inspection Laws ....

      . Sumitomo’s purchases exceeded orders by 10%, but this was merely “to account for those unavoidable problems which necessarily arise when dealing with a semi-perishable commodity.”

      . Although Spalding and Richfield involved sales taxes, each result explicitly depended on the point at which the goods commenced their journey and thereby became “exports.”

      . Noting that the Court had adhered to the basic principle of Coe v. Errol for the nearly 90 years since that case was decided, Kosydar v. National Cash Register Co., supra, at 67, 94 S.Ct. 2108, Justice Stewart, writing for a unanimous Court, stated:
      It may be said that insistence upon an actual movement into the stream of export in the case at hand represents an overly wooden or mechanistic application of the Coe doctrine. This is an instance, however, where we believe that simplicity has its virtues. The Court recognized long ago that even if it is not an easy matter to set down a rule determining the moment in time when articles obtain the protection of the Import-Export Clause, “it is highly important, both to the shipper and to the State, that it should be clearly defined so as to avoid all ambiguity or question.” Coe, supra, 116 U.S. at 526, 6 S.Ct. at 478.

        Id. at 71, 94 S.Ct. at 2113.

      . See also Cordell v. Coyne, 192 U.S. 418, 24 S.Ct. 383, 48 L.Ed. 504 (1904). Cornell involved Article I, Section 9, Clause 5, -winch prohibits Congress from levying a tax on goods “exported from any State.” But this difference is irrelevant for determining the point at which the exportation process begins. Empresa Siderurgica, S.A. v. Merced County, supra at 156 & n. 2, 69 S.Ct. 995. Richfield Oil Corp. v. State Board, supra at 83, 67 S.Ct. 156.

      . The likelihood of eventual exportation was probably even greater in Kosydar than under the facts presented in this case. The taxpayer in Kosydar -was engaged in the manufacture of business machines, and its wholly separate international division did not commence manufacture until actual receipt of foreign orders. The machines produced were designed for the peculiar foreign market, using unique keyboards, characters, and decimal point placement, and quite often were designed to utilize the electric supply of the foreign country which often differs from that in standard use in this country. Each machine so constructed was eventually exported, and none ever re-entered the domestic market.

      . Although we rely on the difference between out-of-state and in-state goods delayed at the water’s edge, we do not hold that this distinction is necessarily conclusive in all factual situations. Specifically, we infer no holding concerning the situation where goods are consigned to a common carrier within a state for out-of-state shipment but are delayed at the interface of two modes of transportation prior to leaving the state while still within the control of the common carrier. See Empresa Siderurgica v. Merced County, supra at 156-157, 69 S.Ct. 995; A. G. Spalding & Bros. v. Edwards, supra, Coe v. Errol, supra at 525, 6 S.Ct. 475. Nor do we intimate an opinion on the situation where goods are delivered to a port from out of state but are delivered to the control of the shipper. See General Oil Co. v. Crain, 209 U.S. 211, 28 S.Ct. 475, 52 L.Ed. 754 (1908). Finally, we note that the tax imposed on Sumitomo’s logs was not levied for the reason that they were intended for exportation. See Coe v. Errol, supra at 525-526, 6 S.Ct. 475.