author: DUNIWAY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eneliko Fatu FALEAFINE, Defendant-Appellant.
    No. 73-1850.
    United States Court of Appeals, Ninth Circuit.
    Jan. 25, 1974.

      Eneliko Fatu Faleafine, in pro per.
    James L. Browning, U. S. Atty., F. Steele Langford, Dennis Michael Ner-ney, Asst. U. S. Attys., San Francisco, Cal., for plaintiff-appellee.
    Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.
   OPINION

DUNIWAY, Circuit Judge:

Faleafine appeals from a judgment of conviction under a two-count indictment.

The indictment reads in pertinent part:

“COUNT ONE: (18 U.S.C. § 2113(a), (d))
1. On or about October 13, 1972, . defendants herein, did by force and intimidation take from the person and presence of manager Leonel Vargas, at the Union City Branch of the Bank of America, NT & SA . money in the sum of $52,-000 belonging to and in the care, custody, control and possession of the aforesaid bank. .
2. In the commission of the offense alleged in the preceding paragraph of this Indictment, defendants herein, did assault and did put in jeopardy the life of Leonel Vargas, by the use of a dangerous weapon, to wit: handguns.”
“COUNT TWO: (18 U.S.C. § 2113(e) )
In the commission of the offense alleged in Count One of this Indictment, the particulars of which are incorporated herein by reference as if fully set forth, . . . defendants herein, did force Clarence Baptista, a Loan Officer at said bank, to accompany said defendants to said bank without the consent of said Clarence Baptista.”

The jury’s verdict is set out in the margin. Faleafine was sentenced to twenty-five years imprisonment under count one and fifty years imprisonment under count two, the sentences to be served consecutively.

In his brief, Faleafine, who is acting pro se, argues that the consecutive sentences imposed amount to cruel and unusual punishment, thus violating the Eighth Amendment to the Constitution: We do not reach this question, however, because another defect in the proceedings, apparent on the face of the record, requires that the judgment be reversed in part.

Section 2113, Title 18 U.S.C., now reads, in pertinent part:

“(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, .
Shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
* * * * * -x-
(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.
(e) Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct.”

The foregoing provisions, in almost identical language, have been in the statute from its inception. We quote the statute, as originally enacted, in the margin. The statute has been repeatedly amended, to bring certain savings and loan associations and credit unions within its coverage and to cover: in subsection (a), the present second paragraph, entering a bank with intent to commit a felony or larceny; in new subsection (b), two degrees of stealing from a bank; in new subsection (c), receiving property taken from a bank. None of these amendments has changed the relationships between the part of subsection (a) and present subsections (d) and (e) that we have quoted above.

We are of the opinion that subsection (d) which deals with conduct “in committing . . . any offense defined in subsections (a) and (b)” and subsection (e) insofar as it deals with homicide or kidnaping occurring “in committing any offense defined in this section,” each prescribes a more severe punishment for the substantive offense defined elsewhere in section 2113, but does not create a separate offense for which a separate sentence may be imposed. We are impelled to this conclusion by the language of the statute, by the rationale of certain decisions of the Supreme Court, and by the great weight of authority in the courts of appeals.

First, the language of the statute. So far as it is pertinent here, subsection (d) provides: “Whoever, in committing . any offense defined in subsection (a) . . . assaults any person,” etc., “shall be fined not more than $10,000 or imprisoned not more than twenty-five years or both.” This increases the subsection (a) penalty from up to $5,000 fine or twenty years, or both. So far as it is pertinent here, subsection (e) provides: “Whoever, in committing any offense defined in this section . . . kills any person or forces any person to accompany him without the consent of such person, shall be imprisoned for not less than ten years [i.e., up to and including life, Carter v. Johnston, 9 Cir., 1944, 145 F.2d 882.] or punished by death. . ” This, too, increases the subsection (a) penalty and also if subsection (d) is involved, the subsection (d) penalty. We hold that the statutory language points to the creation of an enhanced penalty for the basic subsection (a) offense when certain conduct is involved in committing it, rather than to the creation of a new and separate offense.

Each of the offenses defined in the added subsection (b) and (c), like subsection (a), carries its own basic penalties. They are less than the subsection (a) penalties. It would be harsh indeed to permit consecutive sentences of twenty years under the first paragraph of subsection (a), which is here involved, of twenty years under the second paragraph of subsection (a), of ten years under the first paragraph of subsection (b), of ten years under subsection (c), of twenty-five years under subsection (d), and of, say fifty years under subsection (e). Yet if these subsections all define separate offenses that can occur in the course of one bank robbery, that could be the result. A lone bank robber, armed with a loaded gun, might accost a bank manager on the street when the bank was closed, force him to accompany him to the bank (subsection (e) ), put his life in jeopardy with the gun (subsection (d) ), enter the bank with intent to commit larceny (subsection (a), second paragraph) take money under threat of the gun (subsection (a), first paragraph), walk out with over $100 (subsection (b) ), and possess, conceal, store the money (subsection (c) ). For this, if all of these are separate offenses, he could get consecutive sentences to-talling 135 years or more. We do not think that Congress intended such a result. This is particularly true of subsection (d) and the pertinent part of subsection (e), which refer to conduct, occurring “in committing or in attempting to commit, any offense defined” elsewhere in the section.

Decisions of the Supreme Court, although not squarely in point here, support our views. In 1937, the statute was amended by adding to the then subsection (a) of section 2 the present second paragraph of present subsection (a), dealing with entering a bank with felonious intent, and the present subsection (b), dealing with taking money or property from a bank (Act of August 24, 1937, ch. 747, 50 Stat. 749.) In Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, Prince had entered a bank, pulled a gun, and committed a robbery. He was indicted on two counts. One charged robbing a bank in violation of what are now the first paragraph of subsection (a) and subsection (d). The other charged entering the bank with intent to commit a felony in violation of the present second paragraph of subsection (a). Convicted on both counts, Prince was given consecutive sentences. His motion under Rule 35, F.R.Crim.P. to correct sentence was denied. The Supreme Court reversed. It reviewed the history of the Act and concluded that there was “no indication that Congress intended also to pyramid the penalties.” (at 327, 77 S.Ct. at 406.) It held that the entry merged into the robbery, so that there was but one offense (at 328, 77 S.Ct. 403).

What the Court said about subsection (d) is particularly pertinent here, although it is dictum. Footnote 6, at 327, 77 S.Ct. at 406 reads:

“6. The Bank Robbery Act has, since it was passed in 1934, contained a special provision for increased punishment for aggravated offenses. One who, in committing robbery, assaults any person or puts the life of any person in jeopardy by the use of a dangerous weapon can be sentenced to 25 years in jail or fined $10,000 or both. When the Act was amended in 1937 to add larceny and unlawful entry, these were incorporated in the same paragraph with robbery and thus made subject to the increased penalty under aggravating circumstances. This provision currently is found in 18 U.S.C. § 2113(d).”

And in footnote 11, the Court points out that Prince was convicted of “robbery aggravated by assault with a deadly weapon” and thus subject to the subseetion (d) penalty (at 329). We think that the Court’s characterization of subsection (d) is equally applicable to the portion of subsection (e) that is here involved.

In 1940, the Act was amended by inserting subsection (c), which makes it an offense to “receive, possess, conceal, store, barter, sell or dispose of property . taken from a bank in violation of subsection (a).” Act of June 29, 1940, ch. 455, 54 Stat. 695. In Heflin v. United States, 1959, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407. Heflin had been convicted of robbery in violation (count one) of subsections (a) and (d), (count two) of subsection (c), (count three) conspiracy. He was given three consecutive sentences. His motion under 28 U.S.C. § 2255, in which he claimed that he could not have been convicted under both of the first two counts was denied in the lower courts. The Supreme Court reversed, citing Prince. The Court said, after reviewing the “meagre” legislative history:

“From these Reports it seems clear that subsection (c) was not designed to increase the punishment for him who robs a bank but only to provide punishment for those who receive the loot from the robber. We find no purpose of Congress to pyramid penalties for lesser offenses following the robbery. It may be true that in logic those who divide up the loot following a robbery receive from robbers and thus multiply the offense. But in view of the legislative history of subsection (e) we think Congress was trying to reach a new group of wrongdoers, not to multiply the offense of the bank robbers themselves.” (at 419-420, 79 S.Ct. at 454.)

The case is not directly in point here, but its rationale is applicable. It accords with the principle announced in Bell v. United States, 1955, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905, where the Court said:

“It may fairly be said to be a presuppostion of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. This in no wise implies that language used in criminal statutes should not be read with the saving grace of common sense with which other enactments, not cast in technical language, are to be read. Nor does it assume that offenders against the law carefully read the penal code before they embark on crime. It merely means that if Congress does not fix the punishment for a federal offense clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses, when we have no more to go on than the present ease furnishes.” (at 83-84, 75 S.Ct. at 622.)

In accord is United States v. Canty, 1972, 152 U.S.App.D.C. 103, 469 F.2d 114, in which the defendant was indicted, convicted and sentenced on four counts of bank robbery under the first paragraph of subsection (a), one for each of the four bank tellers that he robbed. The court held that the defendant had committed only one offense:

“Although there seem to be no cases precisely on point, we cannot agree with the Government’s position that the robbery of each teller constitutes a separate ‘taking’ within the meaning of the statute. While it may be true that under general theft and robbery statutes, a defendant may be punished under separate counts for taking money from different people in the same transaction, the statute here is not for theft or robbery against the person generally. The crime is bank robbery, and the statute is entitled ‘Bank Robbery and Incidental Crimes.’ There is no doubt here that only one transaction took place and that only one bank was robbed.” (at 126-127; emphasis in original.)

In so holding, the court cited and relied upon Bell, supra.

There are two other Supreme Court decisions which refer to the question whether subsection (d) creates a separate offense or merely provides for aggravated punishment of a single offense. In Holiday v. Johnston, 1941, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392, the government conceded that subsections (a) and (d) do “not create separate crimes but prescribe[s] alternative sentences for the same crime depending on the manner of its perpetration” (at 349, 61 S.Ct. at 1017). The Court, however, did not decide the question. In Green v. United States, 1961, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670, the government made the same concession (at 305, 81 S.Ct. 653). Again, however, the Court did not decide the question.

We now turn to the decisions of the courts of appeals, and first, to those dealing with subsection (d). In doing so, we are aware that, in the present case, subsection (d) was treated as creating only aggravated punishment, rather than a separate offense. We consider the cases dealing with subsection (d) only because its language is the same as that of the portion of subsection (e) that applies here.

We have repeatedly held or said that subsection (d) does not create a separate offense, that violation of it merely enhances the penalty. United States v. Parson, 9 Cir., 1971, 452 F.2d 1007. Separate counts under subsections (a) and (d), concurrent sentences. Held, the subsection (a) offense merged into the subsection (d) offense. Vacated and remanded for sentencing under the subsection (d) count alone. United States v. Paszek, 9 Cir., 1970, 432 F.2d 780. Both subsections (a) and (d) charged in one count. Held, conviction as aider and abettor of lesser included offense, subsection (a) only, is valid, although the principal was convicted under (a) and (d). Lynch v. United States, 9 Cir., 1966, 364 F.2d 313. Subsections (a) and (d) charged in one count, as in the present case. Bayless v. United States, 9 Cir., 1965, 347 F.2d 354. Separate counts charging violations of subsections (a) and (d). Sentence twenty years under (a), twenty-five years under (d), concurrent. Held, sentence under (a) vacated — the conviction under (a) merged into that under (d). Sentence under (d) left standing. Crum v. United States, 9 Cir., 1945, 151 F.2d 510. Separate counts under subsections (a), (d) and (e), former 12 U.S.C. §§ 588b(a) and (b) and 588c. Sentences: twenty years under (a), twenty-five years under (d), twenty-five years under (e), concurrent. Held, sentence under (a) invalid — that offense merged into the (d) offense; sentences under (d) and (e) are valid. Barkdoll v. United States, 9 Cir., 1945, 147 F.2d 617. Same charges as in Crum, swpra', same conclusion, but the subsection (a) and (d) sentences were concurrent with a life sentence under subsection (e). None of the sentences was vacated. Wilson v. United States, 9 Cir., 1944, 145 F.2d 734. One count under subsection (a), another under (d), (former (b)). Sentences consecutive. Held, only one offense charged; sentence under (a) is invalid; sentence under (d) is invalid because less than minimum under that subsection. Judgment under (a) vacated ; remanded for resentencing under (d). Dimenza v. Johnston, 9 Cir., 1942, 130 F.2d 465, rehearing denied, 1942, 131 F.2d 47. One count under subsection (a) and three separate counts under (d) (former (b) ), each relating to jeopardizing a different person in committing the subsection (a) robbery. Four sentences, consecutive. Held, there was but one offense, and only one sentence, under (d), is valid. Defendant ordered released because he had served the one valid sentence. In denying the government’s petition for a rehearing we said :

“If the lives of a dozen persons were imperiled the fact that the draftsman chose to name each individual in a separate count rather than to include them all in one count, as was done in Hewitt v. United States, 8 Cir., 110 F.2d 1, 6, did not constitute each count a separate and distinct bank robbery, although, if the offense charged had been that of an assault upon the individual, it would do so.” (131 F.2d at 48.)

A recent decision of this court, however, is directly contrary to Dimenza, supra. In Clermont v. United States, 9 Cir., 1970, 432 F.2d 1215, the charges were: count three, subsection (a); count four, subsection (b); count five, subsections (a), (b) and (d), assault on one Hamer; count six, subsections (a), (b) and (d), assault on one Oehler; count seven, subsections (b) and (c). There were separate but concurrent sentences on each count. Held, counts-three, four, and seven are merged into the convictions under counts five and six, but the sentences under counts five and six are valid because they charge assaults on different persons. Sentences on counts three, four and seven set aside; affirmed as to counts five and six. Dimenza was not cited. In light of our earlier decisions, Clermont appears to be an aberration. It is arguable, in view of the concurrent sentence doctrine, see Benton v. Maryland, 1969, 395 U.S. 784, 788-790, 90 S.Ct. 2056, 23 L.Ed.2d 707; United States v. Moore, 9 Cir., 1971, 452 F.2d 576, that the statement that the convictions under both counts five and six are valid was unnecessary to the decision and is dictum.

Every other circuit that has considered the relationship of subsection (d) to subsections (a) and (b) has come to the same conclusion that we have reached; subsection (d) does not create a separate offense; it merely provides, under the defined circumstances, for an enhanced penalty for violating subsections (a) or (b).

We now turn to cases dealing with subsection (e). At the outset, we note that subsection (e) differs from subsection (d) in an important respect. Subsection (d) refers only to “Whoever, in committing, or attempting to commit, any offense defined in subsection (a) and (b). . . .” Subsection (e), on the other hand, deals with three separate circumstances, stated in the disjunctive, which, for clarity, we number in brackets: “Whoever [1] in committing any offense defined in this section, [2] or in avoiding or attempting to avoid apprehension for the commission of such offense, [3] or in freeing himself or attempting to free himself from arrest or confinement for such offense. .” (Emphasis added.) In this case we deal only with type [1] circumstances. Neither type [2] nor type [3] circumstances are charged in the indictment. We leave to another time the question whether type [2] and [3] circumstances create separate offenses. It is certainly arguable that they do; see cases cited infra.

Two of our decisions, Crum v. United States, supra, and Barkdoll v. United States, supra, involve type [1] circumstances under subsection (e), then 12 U.S.C. § 588e, as well as subsections (a) and (d), then 12 U.S.C. § 588b(a) and (b). The cases arose from the same indictment. In each case, we hold that the subsection (e) count charged a separate offense, but with no discussion or citation of authority. In both cases, the sentences under the (a) and (d) counts were concurrent with that under the (e) count. In Crum, the sentences were equal; in Barkdoll, however, the sentences under the (a) and (d) counts were twenty-five years, while that unde? the (e) count was for life. The result, however, would have been the same if we had held, in line with our subsection (d) eases, that there was but one offense, the lesser subsection (a) and £d) offenses being merged into the subsection (e) offense. It is clear from the Barkdoll opinion that the subsection (e) count charged only type [1] circumstances and not type [2] or type [3] circumstances. However, we cannot tell whether the person kidnapped (the (e) count) is the same person as the person assaulted (the (d) count). In the case now before us, the two persons are different, thus perhaps bringing into play our decision in Clermont, supra. Compare, however, Dimenza, supra.

There are comparatively few decisions of other circuits dealing with whether subsection (e) defines a separate offense. Those that deal with type [1] circumstances, i.e., conduct “in committing any offense defined in this section,” hold that subsection (e) does not create a separate offense. United States v. Drake, 7 Cir., 1957, 250 F.2d 216; Jones v. United States, 8 Cir., 1968, 396 F.2d 66. There are no contrary decisions, other than our own, involving type circumstances.

When it comes to circumstances of types [2] and [3], the authorities are in conflict. The following cases hold that such circumstances do not give rise to a separate offense; Sullivan v. United States, 5 Cir., 1973, 485 F.2d 1352 type [2] circumstances; Forrester v. United States, 5 Cir., 1972, 456 F.2d 905, type [2] circumstances; Simunov v. United States, 6 Cir., 1947, 162 F.2d 314, type [2] circumstances. The following cases hold that subsection (e) creates a separate offense as to type [2] or type [3] circumstances: United States v. Parker, 7 Cir., 1960, 283 F.2d 862, type [3] circumstances; Clark v. United States, 10 Cir., 1950, 184 F.2d 952; Clark v. United States, 10 Cir., 1960, 281 F.2d 230, type [2] circumstances; Ward v. United States, 10 Cir., 1950, 183 F.2d 270, type [2] circumstances; Gilmore v. United States, 10 Cir., 1942, 124 F.2d 537, type [3] circumstances. See also Casebeer v. United States, 10 Cir., 1937, 87 F.2d 668, involving both type [1] and type [2] circumstances.

We conclude that, like subsection (d), subsection (e), insofar as it relates to type [1] circumstances, does not create a separate offense, but only provides for enhanced punishment for the offense elsewhere defined in § 2113. If the jury finds a violation of subsection (a), (d) and (e), type [1] circumstances, as it did here, there is but one offense, even though different persons may have been the victims of the subsection (d) conduct and the subsection (e) conduct under type [1] circumstances. The subsection (d) and subsection (e) type [1] circumstances charges are both aggravations of the subsection (a) offense. The proper way to charge subsection (d) conduct and subsection (e) conduct under type [1] circumstances is in a single count, as was done with subsection (a) and subsection (d) conduct in this case. Because the jury in this case found Faleafine guilty of violating subsections (d) and (e), type [1] circumstances, it is subsection (e) that fixes the applicable penalty. Faleafine attacks only his sentence. He can only be sentenced under subsection (e). The sentence under count one is invalid. The sentence under count two is valid. We find no basis for holding that the sentence amounts to cruel and unusual punishment. We leave to another day the question whether subsection (e) conduct under type [2] or type [3] circumstances is a separate offense. Insofar as our decisions in Crum v. United States, 9 Cir., 1945, 151 F.2d 510; Barkdoll v. United States, 9 Cir., 1945, 147 F.2d 617, and Clermont v. United States, 9 Cir., 1970, 432 F.2d 1215, are inconsistent with this opinion, they are overruled.

The judgment of conviction under count one is reversed, with directions to vacate the sentence under that count. The judgment of conviction under count two is affirmed.

      . “(1) We, the Jury, find ENELIKO FATU FALEAFINE, the defendant at bar guilty of bank robbery;
      (a) We, the Jury, further find the defendant in the commission of the above offense did assault, or put in jeopardy the life of another by the use of a dangerous weapon or device;
      (2) We, the Jury, find the defendant at bar guilty of kidnapping;”

      . Act of May 18, 1934, ch. 304, 48 Stat. 783: (Section 1 defines “bank.”)
      “Sec. 2. (a) Whoever, by force and violence, or by putting in fear, feloniously takes, or feloniously attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.
      (b) Whoever, in committing, or in attempting to commit, any offense defined in subsection (a) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous ■ weapon or device, shall be fined not less than $1,000 nor more than $10,000 or imprisoned not less than five years nor more than twenty-five years, or both.
      Sec. 3. Whoever, in committing any offense defined in this Act, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be punished by imprisonment for not less than 10 years, or by death if the verdict of the jury shall so direct.”
      (Section 4 deals with jurisdiction.)

      . See also United States v. Clements, 9 Cir., 1972, 471 F.2d 1253, in which we applied the same principle in construing the National Firearms Act, 26 U.S.C. § 5861(c), (d) and (f).

      . In United States v. Tyler, 9 Cir., 1972, 466 F.2d 920, cert. denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 497 (1972), we held, in' a two to one decision, that subsections (b) and (e), insofar as subsection (c) involves possession, create separate offenses, for which a defendant ' may be separately charged and convicted, even though the events involved occurred in one transaction. An alternative ground, as to which we were unanimous for affirmance, was the concurrent sentence doctrine. The present case does not raise the question of the relationship between subsections (b) and (c), and we express no opinion as to whether Tyler was correctly decided, even though the writer of this opinion, who dissented in Tyler, obviously thinks that the decision in Tyler was wrong.

      . See, e. g., O’Clair v. United States, 1 Cir., 1972, 470 F.2d 1199; United States v. Tomaiolo, 2 Cir., 1957, 249 F.2d 683; United States v. Welty, 3 Cir., 1970, 426 F.2d 615; Walters v. Harris, 4 Cir., 1972, 460 F.2d 988, 994; United States v. White, 5 Cir., 1971, 440 F.2d 978; Coy v. United States, 6 Cir., 1946, 156 F.2d 293; United States v. Trumblay, 7 Cir., 1961, 286 F.2d 918; Hewitt v. United States, 8 Cir., 1940, 110 F.2d 1, 10-11; Holbrook v. Hunter, 10 Cir., 1945, 149 F.2d 230. But see Gebhart v. Hunter, 10 Cir., 1950, 184 F.2d 644; McDonald v. Hudspeth, 10 Cir., 1942, 129 F.2d 196.


source: Caselaw Access Project

author: ALDISERT, Circuit Judge.

license: Public Domain

text:
    John FERGUSON, Jr., et al. v. George H. EAKLE et al. Appeal of John KITTREDGE and Lois Kittredge.
    No. 73-1649.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 17, 1973.
    Decided Feb. 15, 1974.
    Patrick W. Kittredge, Harold Greenberg, Thomas M. Kittredge, Philadelphia, Pa., Charles W. Heuisler, Camden, N. J., for appellants; Cohen, Shapiro, Polisher, Shiekman and Cohen, Morgan, Lewis & Bockius, Philadelphia, Pa., of counsel.
    Gerard C. Gross, McGahn and Friss, Atlantic City, N. J., for appellees.
    Before VAN DUSEN, ALDISERT and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ALDISERT, Circuit Judge.

The sole question remaining in this appeal is whether the district court abused its discretion in granting a voluntary dismissal of plaintiff-appellees’ complaint in equity. After both the complaint and defendant-appellants’ counterclaim were dismissed, the defendant lodged this appeal. Plaintiff-appel-lee has now conceded that it was error to dismiss the counterclaim.

The record discloses that the plaintiff John Ferguson had represented the defendant Kittredges as a real estate agent in the purchase of a summer home in Avalon. Later, when they decided to sell the property, they listed it with Ferguson who found a buyer for them. At this time, evidencing a desire to purchase a bay front property, they asked Ferguson to find this type of property for them. Subsequently, Ferguson, Jeffrey Potter, one of his business associates, and their respective wives signed an agreement to purchase the bay front property of defendant George Eakle. Before the April 15, 1972 settlement date of this agreement, the Kittredges, without consulting Ferguson, purchased the Eakle property, which property had been listed with a broker named Cleveland Thomas.

The proceedings began as an equity action on April 19, 1972, in the Superior Court of New Jersey, Chancery Division, Cape May County, in which the plaintiffs requested that the court void the real estate conveyance from Eakle to the Kittredges, order reconveyance from Ea-kle to the Fergusons and the Potters, and award compensatory and punitive damages. The Kittredge defendants filed a timely petition for removal to the district court, 28 U.S.C. § 1441 et seq., on the basis of diversity, 28 U.S.C. § 1832, and by an Answer and Counterclaim, averred that plaintiff John Ferguson had violated a fiduciary duty owed them as their real estate agent by attempting to purchase property for his account. The litigation clusters around ' New Jersey law relating to specific performance of an agreement to convey real estate, malicious interference, fraudulent conveyance, damages and legality of contract.

Discovery went forward in the district court. Defendants’ depositions of plaintiffs were taken on November 11, 1972. A pre-trial conference was held on January 3, 1973, at which the district court ordered that all discovery be completed within 60 days thereafter. The plaintiffs completed discovery, consisting of the deposition of John Kittredge, on January 27, 1973. In the course of his deposition, Kittredge stated that Cleveland Thomas had told him that the agreement between the plaintiffs and Eakle was invalid and the Eakle property would be placed back on the market.

On April 23, 1973 — approximately six weeks after the district court’s deadline for the completion of discovery — the then counsel for the plaintiffs withdrew his appearance. Plaintiffs’ new counsel later told the district court that information given by John Kittredge in his deposition revealed that Thomas, a former client of withdrawn counsel, was involved in the Eakle-Kittredge sale in such a way that he (Thomas) would be liable to the plaintiffs. This potential conflict of interest was the basis for the substitution of counsel. Shortly after this substitution, new counsel moved for an order allowing dismissal of the complaint, stating as reasons therefor that it would be necessary to join Thomas as a co-defendant, that this joinder would destroy diversity, that no further discovery of the Kittredges would be required, that all discovery completed in the district court would be used in the state court proceedings, and that the defendants’ counterclaim could stand independently. Over the defendants’ objection, the district court dismissed the Complaint and Counterclaim on June 18, 1973 — some five months after the pretrial conference and over a year after the proceedings had been removed from the state to the federal court. Prior to the entry of these orders, plaintiffs instituted a new action in the state court in June, 1973.

Appellee has conceded, and quite properly, that we are obliged to vacate the district court judgment and reinstate the counterclaim. Remaining for our consideration is the propriety of the order permitting dismissal of the complaint. We take as a starting point that the district court had discretionary power to order the dismissal. Ockert v. Union Barge Line Corp., 190 F.2d 303, 304 (3d Cir. 1951); Stern v. Barnett, 452 F.2d 211, 213 (7th Cir. 1971). Thus, our review is limited to a determination whether there was an abuse of this discretion.

In Ockert v. Union Barge Line Corp., supra, 190 F.2d at 304, Judge Goodrich explained:

There are some situations in which a plaintiff is entitled to dismiss of his own motion without any limitations by the trial judge. They are set out in Rule 41(a)(1), quoted above. The stated instances show clearly a thought-out purpose behind such provisions. They are to give a man a right to take his case out of court when no one else will be prejudiced by his doing so. The situation is quite different when answers have been filed, especially if a counterclaim is included. It is likewise an increasingly burdensome matter to one’s opponent if a case has been prepared, trial date set and the party and his witnesses on hand and ready for trial. While it is quite true that the practice in many states has permitted a voluntary non-suit as of right at advanced stages in the litigation, sometimes even after submission of a case to a jury, we think the object of the federal rules was to get rid of just this situation and put control of the matter into the hands of the trial judge.

So viewed, it becomes necessary to decide the presence or extent of any prejudice to the defendant by the draconian measure of dismissing plaintiff’s complaint. The defendants were hauled into court in April 1972 and were required to retain counsel who removed to federal court and joined issue by filing an Answer and Counterclaim. By January of 1973, defendants had completed discovery and had had a pre-trial conference before a federal judge. They had reason to believe that in accordance with F.R.Civ.P. 16 there had been a simplification of the issues, that there was no necessity or desirability of amendments to the pleadings, and that the order entered by the pre-trial judge “control [led] the subsequent course of the action, unless modified at the trial. . ” Moreover, in accordance with the special pre-trial order, they had reason to expect that all discovery was to be completed by March, 1973 and that trial would follow, seasonably thereafter.

The district court changed all that. Fourteen months after they became defendants in one case and had gone to the expense of retaining counsel, six months after they had gone through pre-trial, and at least two months after they had expected that all discovery had been completed, they were ordered to defend anew in another court. This, we believe, amounted to prejudice — financial prejudice requiring additional counsel fees for the time and energies to be expended for the preparation and conduct of new discovery and proceedings up to trial. They sustained all the emotional and psychological trauma associated with the experience of having been ready for trial in a federal court and then told that the proceedings would be started once again in the state court. Most important, they suffered the non-financial prejudice reflected by the uncertainty over their title to the bay front property. We believe that the totality of these circumstances amounted to a quantum of prejudice to the defendants so as to characterize the district court’s action as an abuse of discretion.

Our conclusion is buttressed by analyzing the plaintiffs’ primary reason for seeking dismissal: the desire to sue Thomas in an action at law seeking damages. We do not perceive this separate claim for money damages to be inexorably intertwined with plaintiffs’ complaint in equity, which seeks to invoke the power of the court to set aside a deed previously executed from Eakle to the Kittredges and order conveyance of the property to the plaintiffs. That the plaintiffs may have a separate cause of action at law against Thomas does not appear to be compelling reason to dismiss the federal action at such a late date. Indeed, we express extreme doubt that these circumstances would have been persuasive if the motion to dismiss had been presented at either pre-trial or prior to the close of discovery.

The plaintiffs can draw no support from the fact that they agree that the defendants’ counterclaim should still stand. Were we to uphold the dismissal of the complaint, the defendants would then be in the anomalous position of arguing essentially the same issues against the same parties in two ongoing proceedings; one in a federal court, the other in a state court. Plaintiffs have not, and cannot, set forth a reasonable justification for such a result.

A litigant in a federal court has the right to expect that a trial on the merits will be scheduled at a reasonable time following a pre-trial conference. Similarly, given a court order requiring that parties complete discovery within 60 days, the litigant has a right to expect a trial on the merits within a reasonable time thereafter. The most a litigant should anticipate following pre-trial and the close of discovery is the normal delay associated with the calendar of the court or the assigned judge. At the very least, the trial court should minimize that delay.

The order of the district court dismissing the complaint and the counterclaim will be reversed and the complaint and the counterclaim will each be reinstated. The time of discovery having expired and the district judge who entered the order having died, upon remand to the district court, the Chief Judge of the District of New Jersey is requested to assign the matter to a judge for immediate trial. The mandate of this court will issue forthwith.

      . Plaintiffs’ contentions are set forth in the pre-trial order:
      “2. Factual Contentions of Plaintiff:
      Plaintiffs contend that on or about February 11, 1972 they entered into written agreement with the defendant Eakle for the purchase of certain real estate located in Avalon, New Jersey at 506 22nd Street, all as more particularly set forth in the Agreement of Sale attached to the complaint. Plaintiffs further contend that they did everything required of them but that prior to settlement the defendant Kittredge ap-prached [sic] Eakle and persuaded him to breach his agreement with plaintiffs and convey the property instead to Kittredge all with knowledge of plaintiffs agreement and all with the intent to deprive plaintiffs of the benefit of their bargain. Since the subject matter is unique specific performance is an appropriate remedy as are money damages suffered by plaintiffs for lost rent issues and profits of the premises.”

      . Defendant Eakle is not a party to this appeal :
      “Defendant George H. Eakle has never entered an appearance, either personally or through counsel, has not participated in this litigation, and is not a party to this appeal. All references to defendants, therefore, are only to defendants Kitt-redge.” Brief for appellants, at 2.

      . Defendants’ counterclaim contentions as set forth in the pre-trial order:
      “Defendants Kittredge have asserted a counterclaim against plaintiff John Ferguson for breach by Ferguson of the contractual obligations and fiduciary duties which he owed to defendants Kittredge. The defendants Kittredge first met Ferguson in the fall of 1967. Ferguson was at that time employed by a real estate agency in Avalon, New Jersey. Ferguson showed the Kitt-redges a house, located at 688 [sic] 21st Street, which the Kittredges then purchased through Ferguson. The Kittredges rented the property at 668 21st Street in the summers of 1968, 1969, 1970 and 1971. Ferguson acted as their agent for the rental of the premises on all these occasions.
      “In the fall of 1971, defendant John Kitt-redge advised Ferguson that he was considering the sale of his property at 668 21st Street, and the purchase of a bay front house, since the Kittredges wished to be located on the water. Ferguson agreed to handle the sale of the Kittredges’ property on 21st Street, meanwhile keeping the Kitt-redges advised of bay front properties which became available in Avalon. Thereafter the 21st Street property was sold, and Ferguson accepted the commission on this sale.
      “When John Ferguson first learned, on February 11, 1972, that the bay front property on 22nd Street, involved in this action, was for sale, he did not advise the defendants Kittredge of this fact. Bather, and in breach of the contractual and fiduciary duties he owed to defendants Kittredge, he undertook immediately, along with the other plaintiffs, to purchase the property for his own profit as an investiment [sic], and for a consideration which was grossly insufficient and substantially less than market value.”

      . We note defendants’ argument that plaintiffs’ former counsel knew of Thomas’ involvement in the Eakle-Kittredge sale at the time of the pre-trial conference, prior to Kittredge’s deposition. Plaintiff-appellees do not deny this in their brief. Since we feel that any claim plaintiffs may have against Thomas does not require dismissal of this action, the point is not important.

      . Count One repeats the same claim as the one asserted in this case and seeks the same relief. Count Two sets forth an independent claim against Thomas and seeks damages.

      . “Appellee concedes that it was error to dismiss the counterclaim when the complaint was dismissed. The motion for a voluntary dismissal was directed only to the complaint, not to the counterclaim.” [Appellee’s brief, at 3.]
      The diversity jurisdiction supporting the counterclaim precluded its dismissal even if the complaint had been properly dismissed. See, The National Research Bureau, Inc. v. Bartholomew, 482 F.2d 386, 389 (3d Cir. 1973).

      . At oral argument appellees’ counsel informed the court that he was willing to utilize in the state court the depositions of defendants already taken in the federal court, but that it would be necessary to conduct additional discovery procedures.

      . Appellees argue that “if [Thomas is] not joined in the suit against Kittredge, a second suit would be necessary.” Brief for appel-lees, at 7. Appellees’ desire to “kill two birds with one stone” should not serve as basis for dismissal of the complaint in this case.

      . In the pre-trial order, there was no reference to Thomas in the “Factual Contentions of Plaintiff.” Other relevant provisions include :
      “6. Amendments: None.
      “7. Legal Issues:
      Specific performance, malicious interference, fraudulent conveyance, damages, legality of contract.
      “14. Other Matters: None.”


author: WYZANSKI, Senior District Judge.

text:
    DANLY MACHINE CORPORATION, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 73-1073.
    United States Court of Appeals, Seventh Circuit.
    Heard Oct. 19, 1973.
    Decided Feb. 15, 1974.

      Edward C. Rustigan, Chicago, Ill., for plaintiff-appellant.
    Scott P. Crampton, Asst. Atty. Gen., Donald H. Olson, Atty., Tax Division, Dept, of Justice, Washington, D. C., Hon. James R. Thompson, U. S. Atty., Chicago, Ill., for defendant-appellee.
    Before KILEY, Senior Circuit Judge, STEVENS, Circuit Judge, and WYZANSKI, Senior District Judge.

       Senior District Judge Charles Edward Wyzanski, Jr., of the District of Massachusetts, is sitting by designation.

   WYZANSKI, Senior District Judge.

The question here presented is whether when on December 23, 1968, by regulation, the Secretary of the Treasury allowed each corporate taxpayer which had issued after December 31,. 1954 dollar obligations as part of an investment unit consisting of a dollar obligation and an option to purchase stock, thereafter to deduct from gross income annually, but only in years when those obligations remained outstanding, a prorated part of that portion of the amortizable bond discount which' could have been, but was not, claimed before the adoption of the regulation, the Secretary abused his statutory authority by his failure to permit a comparable deduction to plaintiff taxpayer and other corporations which had issued similar obligations, but which at the time the regulation was adopted no longer had outstanding such obligations.

That foregoing question arises in this action brought by plaintiff to recover an alleged overpayment of its federal corporate income tax for its taxable year ended June 30, 1965. Jurisdiction of the case rests upon 28 U.S.C. § 1291. The essential facts may be briefly stated.

In its fiscal year 1956 plaintiff, for a consideration of one million dollars issued as an investment unit $1,000,000 of its debentures, payable in installments from 1956 through 1970, together with options to acquire, at predetermined prices, 30,000 shares of its common stock.

In fiscal 1966 plaintiff retired the last of its debentures.

In its returns for the years 1956 through 1966 plaintiff claimed no deduction for amortizable debenture discount.

In September 1967 plaintiff filed a claim for partial refund of its income taxes paid for its fiscal year 1965. As modified, the claim sought to deduct as an interest cost under § 163 of the Internal Revenue Code of 1954 the proportionate part of the original issue discount which it could have claimed, but did not claim, in all of the years of 1956 through 1965.

The Commissioner partially allowed the modified claim to permit a deduction from 1965 gross income of the proportionate part of the original issue discount attributable to that year, but the Commissioner disallowed the proportionate parts of the original discount attributable to earlier years. The reason for the Commissioner’s disallowance was that the tax returns for those years were no longer open, and there was no applicable regulation giving to those in plaintiff’s position benefits calculated “retroactively” to “catch up” on lost opportunities for taking deductions for amortization.

The taxpayer seeks judicial reversal of the Commissioner’s disallowance. It points to the Secretary of the Treasury’s December 23, 1968 regulation numbered Section 1.163-3, and entitled “Deduction for discount on bonds issued on or before May 27, 1969,” and reading as follows:

§ 1.163-3 Deduction for discount on bonds issued on or before May 27, 1969.
(a) Discount upon issuance.
(1) If bonds are issued by a corporation at a discount, the net amount of such discount is deductible and should be prorated or amortized over the life of the bonds. For purposes of this section, the amortizable bond discount equals the excess of the amount payable at maturity (or, in the case of a callable bond, at the earlier call date) over the issue price of the bond (as defined in paragraph (b)(2) of § 1.-1232-3).
(2) In the case of a bond issued by a corporation after December 31, 1954, as part of an investment unit consisting of an obligation and an option, the issue price of the bond is determined by allocating the amount received for the investment unit to the individual elements of the unit in the manner set forth in subdivision (ii) (a) of § 1.1232-3(b)(2). Discount with respect to bonds issued by a corporation as part of investment units consisting of obligations and options after December 31, 1954, and before December 24, 1968—
(i) Increased by any amount treated as bond premium which has been included in gross income with respect to such bonds prior to December 24, 1968, or
(ii) Decreased by any amount which has been deducted by the issuer as discount attributable to such bonds prior to December 24,1968, and
(iii) Decreased by any amount which has been deducted by the issuer prior to December 24, 1968, upon the exercise or sale by investors of options issued in investment units with such bonds, should be amortized, starting with the first taxable year ending on or after December 24, 1968, over the remaining life of such bonds.

That regulation affords to corporate taxpayers whose obligations were still outstanding on December 24, 1968, a “retroactive” opportunity to “catch up” on lost opportunities in earlier years to take deductions for amortization, properly prorated. But, as plaintiff notes, it gives no comparable retroactive catch-up bounty to those who, like plaintiff, had redeemed all obligations before the regulation was promulgated.

The Secretary’s failure to embrace within the retroactive bounty scheme plaintiff and others in consimili casu is alleged by plaintiff to be an abuse of the Secretary’s statutory authority under § 7805(b) of the Internal Revenue Code of 1954, which provides that “The Secretary or his delegate may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect.” Plaintiff, during the argument at our bar, expressly disclaimed any attack based upon Constitutional grounds. The question is only one of alleged arbitrary, unfair, unreasonable abuse of a discretionary statutory power.

We might initially observe the futility of plaintiff’s approach. If, as it claims, the regulation were arbitrary and a misapplication of statutory authority, our only power as judges would be to prohibit the Secretary from applying the regulation: that is, to forbid the Secretary to bestow bountifully a new deduction upon corporate taxpayers which had obligations outstanding on December 24, 1968. We as a court have no power to give, or to direct the Secretary to give, an enlarged bounty to classes of persons not heretofore covered by any regulation.

But even if we leave aside the point made in the preceding paragraph, we are not impressed by plaintiff’s argument.

In matters of taxation the selection of subjects of taxation, rates, classes of beneficiaries, and permissible deductions has a large element of arbitrariness. Familiar illustrations are the different rates at which long and short-term capital gains and losses are taxed; or the different rates for net income at above and below a capriciously selected figure; or the different rate for excises on foreign-built and domestically-built yachts. Billings v. United States, 232 U.S. 261, 34 S.Ct. 421, 58 L.Ed. 596 (1913).

The broad freedom that the legislature has in subjecting to taxation, classes of persons, property, income and other matters is perhaps exceeded by the legislature’s freedom, as a matter of grace, to grant deductions or exemptions. Congress may give a deduction to all in a narrowly defined class and deny to those who are objectively distinguishable from the class as limited. Perhaps the fullest judicial discussion of the relevant principles is in Colgate v. Harvey, 296 U.S. 404, 56 S.Ct. 252, 80 L.Ed. 299 (1935).

What, without being thought unreasonable, Congress may do in allowing deductions retroactively calculated, the Secretary may do under the broad powers conferred upon him by § 7805(b) of the Internal Revenue Code of 1954, 26 U.S.C. § 7805(b).

We have not overlooked the decision in Farmers’ and Merchants’ Bank v. United States, 476 F.2d 406 (4th Cir. 1973). Were we required to do so, we could distinguish the facts there from those here by noting that the Secretary’s regulation involved in that bank case obviously drew a line which seems to have been nearly if not quite irrational from any point of principle, policy, or pragmatism. In the regulation in the case at bar it was plainly rational for the Secretary to permit catch-up deductions only to those who had not fully closed their bond or debenture account and who had an ongoing taxable relation to outstanding obligations. However, while the distinction we have mentioned seems to us sound enough, we admit that we would be less than candid if we did not recognize that our approach differs from that of our fellow judges in the Fourth Circuit. We take a more generous view of the discretion allowed to the Secretary of the Treasury; and we are less willing to see an abuse of statutory authority where he exércises the ample powers available to him under § 7805(b) of the Internal Revenue Code of 1954. Automobile Club of Michigan v. The Commissioner of Internal Revenue, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957).

We agree that the District Court correctly dismissed plaintiff’s action.

Judgment affirmed.


author: PER CURIAM:

text:
    AMERICAN LEASE PLANS, INC., Plaintiff-Appellant, v. HOUGHTON CONSTRUCTION COMPANY, INC., et al., Defendants-Appellees.
    No. 73-3077
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 8, 1974.
    Tabor R. Novak, Jr., Robert S. Lamar, Jr., Montgomery, Ala., for plaintiff-appellant.
    George B. Azar, Montgomery, Ala., for defendants-appellees.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   PER CURIAM:

This dispute concerns damages resulting from defaults by defendants-appel-lees (collectively, “Houghton”) in payments under lease agreements with the plaintiff (“ALP”). ALP purchased various pieces of equipment at defendants’ request and leased them to defendants under long-term contracts with rentals premised on repayment of the purchase price plus financing charges. Plaintiff’s profits stem from charges for financing such equipment.

Houghton ceased making payments, and ALP took possession of the equipment and sold or leased all of it, except for an accounting computer, to others. ALP then brought this suit to recover the deficiency between the amount claimed to be due under the contracts and the amount received from resales and new leases of the equipment. Houghton admitted the contractual obligations but asserted as defenses that plaintiff had failed to properly mitigate damages, that plaintiff’s damage computations were incorrect, and that plaintiff had agreed to release defendants from liability as to some of the equipment if defendants found someone to whom it could be sold or leased. In a jury trial the issues were designated as separate for each of the five pieces of equipment and a separate verdict rendered as to each. With respect to four pieces the jury found for the defendants. As to the fifth, damages were assessed at an amount which ALP claims is unjustifialy low. Plaintiff’s motion for a new trial was denied and this appeal followed.

I.

ALP’s major contention is that each verdict was contrary to the evidence. Our inspection of the record reveals, however, that at no time did ALP move for a directed verdict. In such circumstances “the sufficiency of the evidence supporting jury submission of a case or the jury’s findings is not reviewable on appeal.” Little v. Bankers Life and Casualty Co., 426 F.2d 509, 510 (C.A.5, 1970). Our inquiry is thus limited to whether “there was any evidence supporting the submission of the . issue and the jury’s finding” irrespective of its sufficiency, or “to whether plain error has been committed which, if not noticed, would result in a manifest miscarriage of justice.” Id. at 511. Nor does the fact that ALP moved for a new trial reopen the question of sufficiency for review; we may inquire only whether there was an abuse of discretion in denying the motion. Id. After examining the evidence in accordance with these standards, we have concluded that there was some evidence to support the verdicts with regard to three pieces of equipment. With respect to the remaining two, the evidence was inadequate under even these relaxed standards.

With respect to each unit of equipment, plaintiff proved by testimony of its vice-president in charge of accounts the amounts of rent due and unpaid and the amounts that plaintiff would have received from defendants for rentals in the future. Except for an argument over right to accelerate, defendants made no claim at trial or now that the testimony of the vice-president was not accepted by the jury as credible. Indeed the issues were tried in the form of disputes over the amounts of credits to which defendants were entitled against plaintiff’s proven figures for rentals.

The forklift truck. ALP claimed damages of $2,589.42, and the jury returned a verdict for the defendants. There was evidence that this unit had been damaged by abuse and vandalism after plaintiff assumed possession and control. There was thus some evidence from which the jury might have inferred that actions attributable to the plaintiff produced a reduction in the unit’s resale value exceeding plaintiff’s claimed damages.

The accounting computer. Plaintiff claimed damages of $15,610.97, and the jury awarded $2,133.70. On appeal plaintiff concedes that its claimed damages should be reduced by the salvage value of the computer, which at the time of trial remained in the plaintiff’s possession. The defendants produced testimony that ALP initially insisted on receiving the full amount due under the lease agreement as the price for resale of the computer and that, because this amount exceeded the price of a new computer, the potential purchasers secured by defendants bought new computers instead. After finding itself unable to obtain a buyer willing to pay the requested price in the vicinity of Houghton’s office, the plaintiff took physical possession of the computer in order to transfer it to ALP’s offices in South Carolina. There was evidence that in effecting this transfer agents of the plaintiff transported the computer in an open pickup truck during a rain. There was thus some evidence on the basis of which the jury could find that the actions of plaintiff constituted a failure to mitigate damages and that this failure, when coupled with whatever value the computer retained, reduced plaintiff’s damages to the amount awarded.

The backhoe. Plaintiff claimed damages of $1,840.83, and the jury returned a verdict for the defendants. There was testimony by one of the defendants that plaintiff’s agent had represented that the negotiation of a new lease on the backhoe with another contractor would relieve defendants of all liability. If the jury believed this, then under the oral charge,

I charge you that if you are reasonably satisfied from the evidence in this case that the plaintiff in repossessing any of the equipment or property involved in their lease, or their leases, represented to the defendants that this repossession was to cancel any future payments or liability under the lease, then in that event the plaintiff would not be entitled to recover on their lease for that particular piece of equipment,

the jury could find for the defendants.

The trenching machine.- Plaintiff claimed damages of $3,370.36, and the jury returned a verdict for the defendants. An agent of the defendants testified that he received and communicated to ALP a “firm offer” of $10,500 for the trenching machine, but that at the time ALP refused to sell for that price. Subsequently the machine was sold for $2,150.00 less than this amount, thus raising the possibility that the jury could have found that ALP failed reasonably to mitigate to the extent of $2,150.00. The testimony also evidences a dispute over whether the factor for discounting future rent to present value should be 6% rather than the 3% factor actually employed by ALP in its damage calculations. Use of 6% rather than 3% would have reduced plaintiff’s claimed damages of $3,370.36 by $967.00. A jury finding in favor of the defendants on both of these issues to the maximum-extent permitted by the evidence would reduce the total claimed damages by $2,150.00 plus $967.00, or $3,117.00, an amount which falls $253.36 short of justifying the verdict of total exoneration returned by the jury. Thus, while there was evidence on the basis of which the jury could reduce plaintiff’s claim to a much smaller amount, there is no evidence to support total exoneration of defendants with respect to this item of equipment.

The loader. ALP claimed damages of $3,886.07. The jury returned a verdict in favor of the defendants. Plaintiff’s vice-president testified to figures showing amounts due less a credit to defendants of $11,500.00, leaving the claimed balance of $3,886.07. The amount of the credit was corroborated by the testimony of plaintiff’s agent to the effect that he and defendant Houghton Smith worked together in the resale of the loader, that Smith suggested the $11,500.00 price at which the loader was sold, and that in order to obtain this price Smith offered to and did include as an inducement to the buyer an older model loader belonging to the defendants. The only evidence even arguably tending to show that the defendants were entitled to credit larger than $11,500.00 was a single generalized statement that “in practically every instance” in which defendants procured a prospective purchaser ALP would demand an excessive price. This testimony was not tied specifically to the loader or to any other piece of equipment. This statement, insofar as the loader is concerned, does not rise to the level of “some evidence.” A new trial with respect to this piece of equipment is thus necessary.

II.

ALP assigns as error the giving of several jury charges. At trial it made no objection to any of the allegedly erroneous charges before the jury retired. Its failure to do so precludes our reviewing them except for plain error, which is not shown to be present. “[U]nder Rule 51 ... a litigant may not complain of a charge unless he has specifically pointed out the error and given the court an opportunity to correct it.” Moore v. L&N RR. Co., 223 F.2d 214 (C.A.5, 1955).

III.

Defendants say that under Alabama law a lessor cannot repossess leased property and at the same time, sue for future rent, so that as a matter of law the plaintiff was not entitled to recover anything except unpaid rent due at the time of repossession. The argument was noted in the pretrial order (“Defendants contend that the Plaintiff is not entitled to accelerate any monthly rentals,” and “Plaintiff is not entitled to recover for future rent.”), though it is unclear whether the defendants were saying that the leases did not contain a proper acceleration clause or that as a matter of law such acceleration was impermissible. The argument was not asserted in the defendants’ answer, nor can we find any indication in the record that it was developed or passed on at trial. Failure to adequately present and develop this issue precludes our considering it on appeal. See D. H. Overmyer Co. v. Loflin, 440 F.2d 1213, 1215 (C.A.5, 1971).

Affirmed in part, reversed and remanded in part for further proceedings on issue of damages only. Costs are equally divided.

      . See part III below.

      . Plaintiff argues that a finding pursuant to this instruction could not cancel liability for rent which was due and unpaid at the time the backhoe was repossessed. Plaintiff computed damages as follows:
      Unpaid Rent — -8/1/72 $ 1,790.80
      Present cash value of future rents 10,534.44
      Less credit for sale 10,500.00
      Total due $ 1,840.83
      (Plaintiff’s addition and subtraction do not quite work out, but this is irrelevant.) In order to maintain its argument, plaintiff must assume that the jury was bound first to apply the “credit for sale” to the “future rents” item rather than to the “Unpaid Rent” item. AVe are given no reason why the jury should be thus restricted, nor does one occur to us.
      Additionally in cross-examining one of plaintiff’s witnesses, defendants’ counsel elicited testimony to the effect that ALP’s damage computations relating to the backhoe were premised on charging defendants interest on money invested in the machine while at the same time ALP was collecting interest on the same investment under the new lease to a second contractor. The jury might infer from this testimony that ALP had not carried its burden of proving damages on the backhoe transaction.

      . There was some dispute over the proper discount rate, but use of the defendants’ rate would come nowhere near justifying the verdict.


author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ernest Wesley MILLER, Defendant-Appellant.
    No. 73-1083.
    United States Court of Appeals, Fifth Circuit.
    April 8, 1974.

      Ray Gene Smith, Wichita Falls, Tex., (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Robert G. Darden, James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.
   DYER, Circuit Judge:

By its order dated October 15, 1973, the Supreme Court of .the United States vacated our judgment affirming Miller’s conviction of possession with intent to distribute 240 pounds of marihuana in violation of 21 U.S.C.A. § 841(a)(1), and remanded the cause to this Court for further consideration in light of Almeida-Sanchez v. United States, 1973, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596.

The evidence is undisputed and uncomplicated. A United States border patrol officer saw Miller driving an automobile with non-local license plates, travelling west a mile from Hebbron-ville, Texas, on Highway 359, about 55 miles from the Mexican border. The officer stopped the vehicle and asked Miller for his identification. Miller responded that he was a citizen of the United States and displayed identification which indicated that his last name was Durante. After being asked to open the trunk in order to permit a search for aliens, Miller stated that he was unable to do so with the ignition key, that he did not have a trunk key, and that he was driving the automobile for someone else. The officer then inspected the interior of the automobile and noticed a strong odor of marihuana. Miller and the automobile were taken to the border patrol office and, with the aid of a flashlight, the examining officer was able to see into the trunk through an opening behind the back seat, from which a radio speaker had been removed. He observed burlap bags in the trunk, which were then removed and found to contain marihuana.

Prior to trial Miller filed a motion to suppress the evidence and, after a full hearing, the motion was denied. The jury returned a verdict of guilty, and this appeal ensued.

Relying on our prior cases in which we observed that by Texas standards, 63 miles from the border is a short distance, United States v. Wright, 5 Cir. 1973, 476 F.2d 1027; United States v. McDaniel, 5 Cir. 1972, 463 F.2d 129; United States v. De Leon, 5 Cir. 1972, 462 F.2d 170; Martinez v. United States, 5 Cir. 1965, 344 F.2d 325, and further relying on a case in which we upheld a search made about 75 miles north of the Rio Grande River on the authority of § 287 of the Immigration and Nationality Act, Ramirez v. United States, 5 Cir. 1959, 263 F.2d 385, we found the search in the case sub judice to be reasonably necessary for those enforcing the immigration laws to assure themselves that the automobile in question was not illegally carrying aliens, in spite of the fact that there was no contention that probable cause existed to search Miller’s automobile.

In Almeida-Sanchez the petitioner’s automobile was searched by a roving patrol some 20 miles north of the Mexican border. The Court held that “[i]n the absence of probable cause or consent, that search violated the petitioner’s Fourth Amendment right to be free of ‘unreasonable searches and seizures.’ ” 413 U.S. at 273.

In the case now before us, both the search and our affirmance of the judgment of the district court occurred prior to the holding in Almeida-Sanchez. After that decision, Miller filed his petition for certiorari, which was granted, and our judgment was vacated. Miller urges that we must follow the ratio decidendi of Almeida-Sanchez because his conviction was not “final” in the sense that the time for appeal or certiorari had expired. Tehan v. Shott, 1966, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453; Linkletter v. Walker, 1965, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601. In the alternative, Miller argues that since our affirmance of his conviction was vacated and remanded by the Supreme Court for further consideration in the light of Almeida-Sanchez, it is manifest that the Court intended its decision to be given retrospective application. We disagree on both points.

In our view the finality vel non of the conviction is irrelevant. The Supreme Court heard Desist v. United States, 1969, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248, on certiorari, after affirmance of the convictions on direct appeal, on the question of the retroactivity of Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. Under the principle established in Katz, evidence obtained through electronic eavesdropping and offered against the defendants would have been excluded. The defendants in Desist urged that the Katz principle was applicable to them since their eases were pending on direct review when Katz was decided. The Supreme Court rejected this argument, pointing out that in Johnson v. New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 the Court had abandoned the approach of Tehan-Linkletter, supra, and had concluded that there were no jurisprudential or constitutional obstacles to the adoption of a different cutoff point:

All of the reasons for making Katz retroactive also undercut any distinction between final convictions and those still pending on review. Both the deterrent purpose of the exclusionary rule and the reliance of law enforcement officers focus upon the time of the search, not any subsequent point in the prosecution, as the relevant date. Exclusion of electronic eavesdropping evidence seized before Katz would increase the burden on the administration of justice, would overturn convictions based on fair reliance upon pre-Katz decisions, and would not serve to deter similar searches and seizures in the future.
•X- * # * * *
In sum, we hold that Katz is to be applied only to cases in which the prosecution seeks to introduce the fruits of electronic surveillance conducted after December 18, 1967 [the date of the Katz opinion]. Since the eavesdropping in this case occurred before that date and was consistent with pre-Katz decisions of this Court,the convictions must be affirmed.

Id. 394 U.S. at 253-254.

This approach has since been uniformly followed in search and seizure cases. In United States v. White, 1971, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453, relying on Desist, the Court held that even on direct review, the Katz principle applied only if the search occurred after the date of the Katz decision. In Hill v. California, 1971, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484, the Court, on direct review, held that the restricted scope of searches incident to arrest announced in Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, was applicable only if the search occurred subsequent to the date of Chimel. Williams v. United States, 1971, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388, reached precisely the same result as Hill. See also Scarpati v. Wainwright, 5 Cir. 1972, 469 F.2d 1154; United States v. Nooks, 5 Cir. 1971, 446 F.2d 1283, cert. denied, 404 U.S. 945, 92 S.Ct. 299, 30 L.Ed.2d 261; United States v. Avila, 5 Cir. 1971, 443 F.2d 792, cert. denied, 404 U.S. 944, 92 S.Ct. 295, 30 L.Ed.2d 258. We are thus faced with the retroactivity question, even though the case sub judice was on direct appeal at the time Almeida-Sanchez was decided.

In limine, we think it to be of some importance that in the memorandum of the Department of Justice to the Supreme Court in this case, it was suggested that the Court might desire to remand the case for consideration of the retroactivity issue. Thus, the fact that our judgment was vacated and the case remanded for further consideration in the light of Almeida-Sanehez, particularly when the retroactivity issue had not been considered by this Court, does not imply that Almeida-Sanehez is necessarily retrospectively applicable to cases tried before it was decided. We take it that, had this been the Court’s desire, certiorari could have been granted and this case summarily reversed on the authority of Almeida-Sanehez, rather than being remanded for further consideration. We thus move on to the question of whether Almeida-Sanehez should be given retrospective application.

We start with the general observation that the retroactivity of a “new rule” in an overruling decision is neither required nor prohibited by constitutional provisions, but is to be determined by judicial policy, after weighing “the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. . . . [T]his approach is particularly correct with reference to the Fourth Amendment’s prohibitions as to unreasonable searches and seizures.” Linkletter, supra 381 U.S. at 629.

It is clear that Almeida-Sanchez announced a “new rule” which invalidates searches conducted without probable cause anywhere but at the border or its functional equivalent. That it was a case of first impression in the Supreme Court and was therefore not a clear break with past principles as established by prior Supreme Court decisions is not controlling. For example, in Lemon v. Kurtzman, 1973, 411 U.S. 192, 93 S.Ct. 1463, 36 L.Ed.2d 151, the Supreme Court refused to retroactively deny payments for educational services rendered to church-related schools which were incurred prior to its decision establishing a “new rule,” saying:

[Statutory or even judge-made rules of law are hard facts on which people must rely in making decisions and in shaping their conduct. This fact of legal life underpins our modern decisions recognizing a doctrine of nonre-troactivity.

Id. at 199. Accord, Allen v. State Board of Elections, 1969, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1. A similar issue was presented in Chevron Oil Co. v. Huson, 1971, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296, a case in which the district court, relying on Rodrigue v. Aetna Casualty & Surety Co., 1969, 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 had determined that the Louisiana one-year statute of limitations barred a personal injury action under the Outer Continental Shelf Lands Act. Although this was also a case of first impression, the Supreme Court held that the “new rule” established in Rodrigue should not have been retroactively applied:

Upon consideration of each of these factors, we conclude that the Louisiana one-year statute of limitations should not be applied retroactively in the present ease. Rodrigue was not only a case of first impression in this Court under the Lands Act, but it also effectively overruled a long line of decisions by the Court of Appeals for the Fifth Circuit holding that admiralty law, including the doctrine of laches, applies through the Lands Act. It cannot be assumed that [respondent] did or could foresee that this consistent interpretation of the Lands Act would be overturned. The most he could do was to rely on the law as it then was.

Id. 404 U.S. at 107.

While Almeida-Sanchez was likewise a case of first impression in the Supreme Court, an unbroken line of decisions by this Court held that searches conducted under the provisions of 18 U.S.C.A. § 1357 and “within 100 air miles from any external border,” 8 C.F.R. § 287.1, were valid border searches. Consequently, when the Supreme Court struck down such searches made on less than probable cause, which were carried out under the statute and regulations, it establishes a new exclusionary rule which law enforcement officials could not have foreseen. If the primary object of the exclusionary rule is deterrence, foreseeability must be a prerequisite. It seems undeniable that the purpose of the new rule announced in Almeida-Sanchez with respect to the admissibility of unconstitutionally obtained evidence was to deter unreasonable searches and seizures in the future.

The purpose of the new rule is the bench mark for its application prospectively or retrospectively. In Williams v. United States, supra, the Supreme Court succinctly put it this way:

Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances. (footnote omitted)
It is quite different where the purpose of the new constitutional standard proscribing the use of certain evidence or a particular mode of trial is not to minimize or avoid arbitrary or unreliable results but to serve other ends. In these situations the new doctrine raises no question about the guilt of defendants convicted in prior trials.

Id. 401 U.S. at 653. See also Adams v. Illinois, 1972, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202; Stovall v. Denno, 1967, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

While it has been said that “the extent to which a condemned practice infects the integrity of the truth-determining process at trial is a ‘question of probabilities,’ ” Stovall v. Denno, supra at 298, it seems clear that the new rule formulated in Almeida-Sanchez was not fashioned to correct serious flaws in the fact-finding process at trial, and that the probabilities of the past practice of obtaining evidence as “border searches” hardly, if at all, affected the fair determination or the integrity of the fact-finding process. Manifestly, nothing about the admission of the 240 pounds of marihuana uncovered in the search in this case vitiated the essential fairness of the trial or conviction. The evidence was properly seized and admitted under the Fourth Amendment as construed and applied in our seminal case of Kelly v. United States, 5 Cir. 1952, 197 F.2d 162, which we consistently followed thereafter. See United States v. De Leon, supra, and cases cited therein. The Ninth Circuit has travelled the same road. See Mienke v. United States, 9 Cir. 1971, 452 F.2d 1076; United States v. Miranda, 9 Cir. 1970, 426 F.2d 283; Fernandez v. United States, 9 Cir. 1963, 321 F.2d 283. In weighing the probabilities “against the prior justified reliance upon the old standard and the impact of retroactivity upon the administration of justice,” Stovall v. Denno, supra 388 U.S. at 298, we are firmly convinced that Almeida-Sanchez should be given only prospective application. Therefore, because the search and seizure in the case before us took place before the date of that decision, the marihuana was properly admitted into evidence.

Affirmed.

      . 8 U.S.C.A. § 1357. The Act provides that Immigration Service officers have the power to search vehicles for aliens without warrant within a reasonable distance from any external boundary of the United States. The term “reasonable distance,” according to 8 C.F.R. § 287.1, means within 100 air miles from any external boundary of the United States.

      . Search upheld as constitutional under 8 U.S.C.A. § 110, the precursor of § 1357, which contained practically identical language authorizing searches.


author: GODBOLD, Circuit Judge: THORNBERRY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Francis CASHION, Defendant-Appellant.
    No. 73-1386.
    United States Court of Appeals, Fifth Circuit.
    April 8, 1974.

      Louis Vernell, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Lawrance B. Craig, III, Harold F. Keefe, Asst. U. S. Attys., Miami, Fla., for plaintiff-ap-pellee.
    Before THORNBERRY, GODBOLD and CLARK, Circuit Judges.
   GODBOLD, Circuit Judge:

The appellant was convicted of the charge that on or about December 6, 1971, he “did knowingly and unlawfully fail and neglect to perform a duty required of him ... in that he did fail and neglect to keep his local [Selective Service] Board advised of the address where mail would reach him,” and was sentenced to $500.00 fine and 18 months probation. We affirm the conviction.

At age 18 Cashion had registered with his Board in Miami, Florida, in 1963. Subsequently he received a student deferment while attending college for three quarters. After that and until about the time he was arrested, a period of approximately seven years, he worked part of the time as a carpenter and spent part of the time racing sailboats. Usually he resided part of each year in the Chicago area, and part of the year in the Miami area, and some periods traveling back and forth between the two areas in a somewhat leisurely fashion. Following is a specific chronology of pertinent events.

June 1967: Cashion was ordered to report for induction but did not report. He testified that he never received the order but learned of it and discussed with his Board having his file transferred to a draft board in the Chicago area.

July 14, 1967: Cashion furnished the Board in Miami with an address of 1217 Michigan Avenue, Evanston, Illinois, which he described at trial as the address of a lifelong friend.

April 18, 1968: A notation was made by the Board of a telephone conversation which appears to have related to defendant’s younger brother, Joseph William Cashion, but to have revealed information about defendant’s whereabouts. A copy appears to have been placed in the file of each of the two brothers. The memo is of a phone call from a person identifying himself as the father of Joseph William Cashion, the younger brother. The memo states that the person said he had received a letter from the Board to Joseph William Cashion concerning his failure to report for a physical examination, that he did not know where registrant was but would “notate” the letter and return it to the Board. The person stated that John B. Cashion, Jr., an attorney, at Suite 450, 10 South LaSalle Street, Chicago, might have knowledge of the whereabouts of James Francis Cashion (the instant defendant), that James Francis had been in Miami but had returned to Chicago, and that the spokesman believed he was living aboard a boat and could be reached in care of the Harbormaster, Monroe Street Harbor, Chicago. The spokesman also gave the address of another son, older than both of the two just referred to.

October 8, 1970: An order was sent to 1217 Michigan Avenue, Evanston, Illinois, directing Cashion to report for physical examination. It was returned to the Board with a notation that the registrant had moved and was no longer there.

October 21, 1970: An induction order was sent to the same address, ordering Cashion to report for induction on November 2, 1970, at Coral Gables, Florida. Between October 15 and November 15, 1970, the appellant was, as he described it, “in Ohio, Pittsburg, New York, Washington, D. C., driving down to Miami.”

November 2, 1970: Cashion did not report for induction.

February 8, 1971: A copy was placed in defendant’s file of a report to the U. S. Attorney concerning a violation of the Act. The report referred to an effort to locate the registrant by means of mail sent to the brother J. B. Cashion, Jr. [the attorney in Chicago] and not returned. It also referred to the phone message from the father in 1968. It listed as “Persons who will always know address [of registrant]” these:

Mrs. Peah Clarke
1013 Greenleaf, Wilmette, 111.
Mr. and Mrs. J. B. Cashion
1526 N. LaSalle St., Chicago
Mr. J. B. Cashion

Suite 450, 10 S. LaSalle St., Chicago. Who designated these as “always know” addresses was not shown.

Spring, 1971: FBI agents talked with defendant at a Yacht Club on Lake Michigan and advised him that he had failed to report for induction and that he was required to keep his draft board advised of his current address. Defendant had attained age 26. He denied having received induction orders.

May 10, 1971: Defendant wrote the Board, stating he had been contacted by the FBI about his draft status, did not know what it was all about and would appreciate their telling him. He said also: “I am staying with my brother Jerry in Chicago for the summer at 1930 N. Cleveland Street, Chicago, Illinois — 60614.” This, defendant stated at trial, was the residence of his older brother and younger brother and the latter’s wife.

Fall, 1971 (around September and October) : According to defendant’s testimony, his younger brother and wife moved to Bloomington, Indiana, to attend college, and he left a change of address card with the post office and went with them for a short visit. He then spent six or seven weeks traveling in a camper around Kentucky, Tennessee, Georgia, North and South Carolina, New Orleans, and through the panhandle of Florida and thence to Miami.

October, 1971 (approx.): Defendant arrived in the Miami area.

November 30, 1971: A notice was sent to report for induction on December 9, 1971, mailed to the North Cleveland Street, Chicago, address.

December 6, 1971: The notice was returned with stamped notations “Moved, Left No Address” and “Return to writer Unclaimed.”

May 3, 1972: Defendant arrested in the Miami area.

May 26, 1972: Cashion notified his Board he was at 3969 New York Street, Coconut Grove, Florida.

The main point of the appeal is whether the court erred in denying motion for judgment of acquittal.

Failure of a registrant to keep his board advised of where mail will reach him is not a crime unless the registrant knowingly and wilfully fails, neglects or refuses to perform the duty. Graves v. United States, 252 F.2d 878 (CA9, 1958). “[A] registrant who is expecting a notice of induction [is not required] to remain at one place or to notify the local board of every move or every address, even if the address be temporary. . . . The regulation is satisfied when the registrant, in good faith, provides a chain of forwarding addresses by which mail, sent to the address which is furnished the board, may be by the registrant reasonably expected to come into his hands in time for compliance.” Bartchy v. United States, 319 U.S. 484, 488-489, 63 S.Ct. 1206, 1208, 87 L.Ed. 1534, 1537 (1943).

The appellant had notified his Board that the address on North Cleveland Street, Chicago, to which the November 30, 1971, induction notice was sent, was a “summer address.” The period of its viability had expired, just as registrant had said it would. Appellant urges upon us that the Board’s action in sending this induction order to a stale address in some fashion freed him of all his responsibilities. While it resulted in his non-receipt of the order, requiring a directed verdict of acquittal on the failure to report count, the question remains whether once the summer expired the Board possessed a chain of forwarding addresses, provided by the registrant, through which mail might reasonably be expected to come into his hands in time for compliance. There was no such chain with the summer address as the first link, which we know because that is the address to which the Board dispatched the order of November 30, 1971, which came back December 6 marked that Cashion had moved and left no address. The jury was entitled to disbelieve defendant’s oral testimony that he left a change of address card with the post office. The card was not produced, and the most logical inference from the notations on the letter are that it never existed.

The only previous address appellant had ever given the Board was 1217 Michigan Avenue, Evanston, Illinois, furnished in 1967. The order of October 8, 1970, to report for a physical had been sent to that address and returned noted that the addressee had moved and was no longer there. The induction order of October 21, 1970, also sent to the Michigan Avenue address was not returned, but Cashion did not comply with it and he told the FBI agent he never received it.

Thus appellant’s claim that there was insufficient evidence of requisite intent is off the target. Neither of the only two addresses he had provided was where he was present in the fall of 1971. Experience had established that neither was a link in a chain of forwarding addresses. There is a total absence of evidence that mail sent to either of those two addresses would be forwarded to any South Florida address. Despite two orders to report for physicals and three induction orders over a four-year period, the appellant has never obeyed any order and has never acknowledged receiving a single order, letter or inquiry except those made in person by FBI agents.

There is no evidence that in the fall of 1971, over the period of six to seven weeks that Cashion' was traveling in a camper through a dozen or more states, any one of the various persons referred to in his file had knowledge of where he was or how to reach him or that he made the slightest effort to stay in contact with any of the various Chicago and Evanston addresses. The jury was entitled to conclude that he dropped out of sight during the last period the Board was seeking him, and, before the last order was sent, surfaced in the Miami area where his Board was located without ever giving it notice.

Appellant also claims that his prosecution was barred by 32 CFR § 1642.41(b) which provided

In endeavoring to locate and to secure the compliance of a delinquent prior to reporting him to the United States Attorney, the local board should contact the delinquent and the “employer” or “person wh<5 will always know” the delinquent’s address, as shown on the Registration Card (SSS Form No. 1), or any other person likely to know his whereabouts. The local board may enlist the aid of local and State police officials or any other public or private agencies it deems advisable. In no event shall the local board order or participate in the arrest of a delinquent.

We need not decide whether Cashion is within the scope of this regulation. It was revoked effective December 10, 1971 and was not replaced by any corresponding new regulations. The evidence presented was sufficient to show that his course of conduct continued at least until some time in 1972. (Cashion was located by the FBI in the Miami area and arrested in early May 1972.) Thus unless the “on or about December 6, 1971” date recited in the indictment restricted prosecution to an offense committed before December 10, Cashion was convicted of an offense committed after the regulation was revoked and cannot, therefore, claim its protection. The recited date did not impose so severe a constraint. In United States v. Preston, 420 F.2d 60 (CA5, 1969), the indictment charged knowing failure to report for induction on September 5. This court, assuming that the evidence was insufficient to prove knowledge as of that date, sustained the defendant’s conviction on the theory that the offense was a continuing one, that the indictment was not required to specifically charge the continuing offense, and that the evidence demonstrated knowledge some time after September 20. We find nothing which suggests that a different analysis should be applied in this case.

Additionally, the regulation relied on was directed to the method through which a local board initiated prosecution by a U. S. Attorney. The indictment on which Cashion was tried was not returned until August 27, 1972. After December 10, 1971, the local Board and the U. S. Attorney were no longer operating under the constraints of § 1642.-41(b) and could initiate prosecution even if they had not complied with the provisions of the former regulation.

Affirmed.

THORNBERRY, Circuit Judge

(concurring in the result):

I agree that the conviction should be affirmed. However, I cannot join in the majority opinion’s treatment of appellant’s claim that his conviction was barred by 32 CFR § 1642.41(b). That regulation, while it was in force, required the local board to contact the “person who will always know” the registrant’s address, after an induction order mailed to the registrant had been returned to the board. There was a reason for the regulation other than to indicate the method through which a local board might initiate prosecution. Where the board had not complied with the regulation, the inference might be drawn that the registrant could be reached through a “person who will always know” his whereabouts, thus dispelling the notion that the registrant deliberately failed to apprise his board of an address where mail would reach him. And in cases where the regulation applied, we could not sustain a conviction unless we could find that the board had made some compliance with it. See United States v. Chudy, 9th Cir. 1973, 474 F.2d 1069, 1071.

The majority opinion rejects the appellant’s contention by suggesting that it is immaterial whether the local board complied with the regulation, because the evidence was sufficient to show that the appellant’s “course of conduct” continued at least until some time in 1972 and thus beyond the revocation date of the regulation. My concern is the extent to which evidence of a pre-Decem-ber 10 course of conduct can be relied upon to sustain a conviction if the government has failed to comply with pre-December 10 law. The more fundamental question is the extent to which the government can retroactively diminish a defendant’s rights by the administrative removal of a substantive requirement for conviction. These are difficult questions which, in my opinion, are not properly considered by the majority opinion in its suggestion that the regulation is of no moment.

Under the circumstances of this case and viewing the evidence in the light most favorable to the government, I would hold that the local board complied with the regulation. There is evidence in the record indicating that the board attempted to contact one or more persons listed in the appellant’s file as persons “who will always know” the appellant’s address and that these contacts were made after the appellant had failed to comply with induction orders.

I would leave the difficult questions for another day and would make no suggestion that it is immaterial whether the board complied with the regulation.

      . In violation of 50 U.S.C. App. § 462.

      . The motion was granted as to another count charging failure to report for induction.

      . Cashion testified that in October 1970 he “definitely knew” that his mail would get to him through 1217 Michigan Avenue, Evan-ston, Illinois, and that is why he gave that address [of a long-time friend]. But one notice dispatched to that address in October 1970 was returned marked that Cashion had moved and was no longer there, and the induction notice sent to that address later in the same month was not obeyed and ultimately Cashion denied receipt of it. And when that induction order was sent appellant was driving around in Ohio, Pennsylvania, New York, Washington, D. C., and on to Miami.

      . Cases involving this regulation include United States v. Burton, 472 F.2d 757 (CA8, 1973); United States v. Chudy, 474 F.2d 1069 (CA9, 1973); Kokotan v. United States, 408 F.2d 1134 (CA10, 1969); Venus v. United States, 287 F.2d 304 (CA10, 1960), rev’d per curiam 368 U.S. 345, 82 S.Ct. 384, 7 L.Ed.2d 341 (1961); Ward v. United States, 195 F.2d 441 (CA5, 1952), rev’d per curiam 344 U.S. 924, 73 S.Ct. 494, 97 L.Ed. 711 (1953).

      . 36 Fed.Reg. 23383 (1971). See United States v. Chudy, supra, at 1071 n. 3 of 474 F.2d.

      . We believe it is readily apparent that failure to keep a local board advised of an address where mail will reach a registrant is, by its nature, a continuing offense. See Venus v. United States, 287 F.2d 304, 310-311 (CA9, 1960), rev’d on other grounds, 368 U.S. 345, 82 S.Ct. 384, 7 L.Ed.2d 341 (1961).