author: FRIENDLY, Circuit Judge:

text:
    Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and John J. Gordon Company, Respondents.
    No. 360, Docket 73-1729.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 16, 1974.
    Decided Feb. 25, 1974.

      Donald Etra, Dept. of Justice, Washington, D. C. (Irving Jaffee, Acting Asst. Atty. Gen., and Walter H. Fleischer, Dept. of Justice, Washington, D. C., and Michael H. Levin, Dept. of Labor, Washington, D. C., of counsel), for petitioner.

      Submitted by Barth, Sullivan & Lancaster, Buffalo, N. Y. (John J. Sullivan, Jr., Buffalo, N. Y., of counsel), for respondent John J. Gordon Co.
    Before MOORE, FRIENDLY and ANDERSON, Circuit Judges.
   FRIENDLY, Circuit Judge:

The Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678, is one of many important but as yet rather unfamiliar pieces of federal regulatory legislation enacted in recent years. It requires, § 654, “[e]ach employer” to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees” and authorizes, § 655, the Secretary of Labor to promulgate standards to implement this. The term “employer” is defined, § 652(5), to mean "a person engaged in a business affecting commerce who has employees . . .” Sections 658 and 659 authorize the Secretary to issue citations for violations of the Act, fixing a reasonable time for the abatement of each violation and indicating the penalty, if any, proposed to be assessed. If the employer desires to contest the citation. or proposed assessment of a penalty, he is to notify the Secretary and the case is determined by the Occupational Safety and Health Review Commission (OSHRC), whose orders are reviewable, § 660, in the courts of appeals.

Respondent John J. Gordon Company, Inc. (Gordon) is a medium-sized company engaged in sandblasting, painting, masonry contracting, window cleaning and janitorial work on industrial and commercial buildings in the Buffalo, N. Y., area. On August 6, 1971, two employees were painting a building in Buffalo. The citations later issued charged, as has not been seriously challenged, that the scaffold had no horizontal hand rail, no toeboard, no tie-back lines, and no life lines, and that no safety belts were used by the employees. Although the Administrative Law Judge noted that the specific standards, promulgated by the Secretary, which would be violated by these failings, see 29 C.F.R. §§ 1910.28(g)(5); 1910.21(f) (21), (31); 1910.28(g)(9); cf. 1926.107(b), (c), (f), were not effective as against Gordon at the relevant time, he went on to hold, and Gordon does not dispute, that the same failings “constituted a hazard which is generally and commonly recognized as such in the industry in which Gordon was engaged.” The scaffold fell; one employee was killed and the other seriously injured. After investigation the Secretary promptly issued two citations which, as amended, proposed a penalty of $1300.

Gordon having served notice of its desire to contest the citations, Administrative Law Judge Harris directed the parties to be prepared to stipulate facts about which there could be no reasonable dispute, including circumstances which would indicate whether Gordon “was engaged in a business affecting commerce.” The parties stipulated that the nature of Gordon’s business was as indicated above. In the course of the hearing some testimony came in to the effect that Gordon had worked on a Blue Cross building and a Bethlehem Steel plant. Counsel for Gordon made no claim that it was not in a business affecting commerce — an issue which he first presented in proposed findings of fact submitted after the record had been closed.

The Administrative Law Judge, sm sponte, reopened the record to take further evidence on this point. At the reopened hearing the Secretary showed, over Gordon’s objection but without contradiction, that Gordon supplied services, some on long term service-contracts, to a number of organizations, including McDonald Products Corp. (on whose premises the accident had occurred), Houdaille Industries, Inc., a Chevrolet engine plant, Bethlehem Steel, Blue Cross of New York, and Dunlop Tire & Rubber Co., all of which were engaged in interstate .commerce, and that it used supplies produced outside New York State although purchased from local suppliers. It is beyond dispute that this evidence was ample to show that Gordon was “engaged in a business affecting commerce” — a phrase often used when Congress means to signal an intention to go beyond the regulation of businesses engaged “in commerce”. Construing essentially the same phrase in the National Labor Relations Act, where Congress supplied a definition, § 2(7), the Supreme Court has held that the Act goes well beyond persons who are themselves engaged in interstate or foreign commerce, NLRB v. Fainblatt, 306 U.S. 601, 604-605, 59 S.Ct. 668, 83 L.Ed. 1014 (1939); cf. NLRB v. Vulcan Forging Co., 188 F.2d 927, 930 (6 Cir. 1951); see also United States v. Ricciardi, 357 F.2d 91, 97-98 (2 Cir.), cert. denied, 384 U.S. 942, 86 S.Ct. 1464, 16 L.Ed.2d 540; 385 U.S. 814, 87 S.Ct. 35, 17 L.Ed.2d 55 (1966) (interpreting the phrase “industry affecting commerce” as defined in the Taft-Hartley Act, 29 U.S.C. § 142(1)). As was said by Congressman Steiger in presenting to the House the Conference Report on the Occupational Safety and Health Act, 116 Cong.Rec. 42199, 42206 (1970):

The coverage of this bill is as broad, generally speaking, as the authority vested in the Federal Government by the commerce clause of the Constitution.

Throughout the legislative history of the Act, the objective was repeatedly stated to be to make maximum use of the commerce power so that, as was almost as often said, states and employers insisting on a high degree of safety should not be disadvantaged by the failure of others to do so. See Sen.Rep.No.91-1282 on S. 2193, 91st Cong. 2d Sess., pp. 4, 22; H.R.Rep.No.91-1291 on H.R. 16785, 91st Cong. 2d Sess., pp. 14-16, 24, U.S.Code Cong. & Admin.News 1970, p. 5177; 116 Cong.Rec. 36509 (Senator Dominick), 36537 (Senator Saxbe), 38369 (Rep. Perkins), 38704 (Rep. Sikes) (1970). Accordingly, the Administrative Law Judge found that Gordon was “engaged in a business affecting commerce.” He further found that Gordon had violated its general duty to provide a work place free from recognized hazards, but that only a single serious violation was warranted; thus, he con-them as consolidated, and assessed a solidated the two citations, affirmed penalty of $750.

In addressing the jurisdictional issue, the OSHRC never reached the question of the adequacy of the evidence adduced at the reopened hearing. By a divided vote it held that it was improper for the Administrative Law Judge to have reopened the hearing and that the evidence at the initial hearing was insufficient. Chairman Moran went to great lengths in condemning the reopening, which he thought “so contrary to the impartiality required of persons presiding at adversary proceedings as to amount to a denial of due process of law.” Commissioner Van Namee, concurring, while dissociating himself from this characterization, thought the Administrative Law Judge had abused his discretion. Commissioner Burch dissented. He pointed out that the Commission’s rules place upon the Administrative Law Judge the duty to “assure that the facts are fully elicited” and empower him to reopen hearings; while these rules had not yet become effective at the time of the reopening here at issue, he said they merely “make explicit what was implicit in the interim rules.” He thought the majority was subscribing to a “game theory” of administrative adjudication. So do we.

It is true, as the majority said, that in reviewing agency refusals to reopen or in passing on applications by a petitioner to present additional evidence to an agency under statutes similar to 29 U.S.C. § 660(a), courts have adopted a very strict standard. But the classic statement of that principle, by Mr. Justice Jackson in I. C. C. v. Jersey City, 322 U.S. 503, 514-515, 64 S.Ct. 1129, 88 L.Ed. 1420 (1944), illustrates the distance separating such problems from that with which OSHRC was here confronted. Dealing with a petition for a rate increase which had been pending before the I. C. C. for more than 16 months and on which plenary' hearings had been completed more than 13 months before the final order issued, the Court said:

Administrative consideration of evidence — particularly where the evidence is taken by an examiner, his report submitted to the parties, and a hearing held on their exceptions to it —always creates a gap between the time the record is closed and the time the administrative decision is promulgated. This is especially true if the issues are difficult, the evidence intricate, and the consideration of the case deliberate and careful. If upon the coming down of the order litigants might demand rehearings as a matter of law because some new circumstance has arisen, some new trend has been observed, or some new fact discovered, there would be little hope that the administrative process could ever be consummated in an order that would not be subject- to reopening. It has been almost a rule of necessity that rehearings were not matters of right, but were pleas to discretion. And likewise it has been considered that the discretion to be invoked was that of the body making the order, and not that of a reviewing body.

Whatever the standard by which we should evaluate an agency’s review of the decision of an administrative law judge to grant a reopening, it is certainly less severe than that applicable to a court’s review of an agency’s denial of one.

To be sure, the agency itself has an interest in expedition and, if it has no other means to prevent its administrative law judges from indulging in too frequent reopenings, as it should have, it may occasionally be required to reverse an order of reopening. But we cannot think of a ease less appropriate than this for the drastic course here taken by the majority of OSHRC. Counsel for Gordon had maintained silence on the jurisdictional issue until the hearing was ended, although he had moved to dismiss on three other grounds; counsel for the Secretary and the Administrative Law Judge could reasonably have thought the point was conceded, especially in light of the stipulation, Gordon’s failure to list jurisdiction as among the “issues to be tried” in response to an inquiry in that regard by the Administrative Law Judge, and the evidence that Gordon’s clients included Blue Cross and the country’s second largest steel producer — which even the OSHRC could think might be engaged in interstate commerce. The order of reopening came three months after the hearing and two months after the jurisdictional issue was raised. The reopened hearing apparently was completed in a day; and the evidence could not be controverted.

The action of the Administrative Law Judge was in line with Judge Hays’ well-known admonition to the Federal Power Commission that its role as representative of the public interest “does not permit it to act as an umpire blandly calling balls and strikes for adversaries appearing before it; the right of the public must receive active and affirmative protection at the hands of the Commission.” Scenic Hudson Preservation Conf. v. F. P. C., 354 F.2d 608, 620 (2 Cir. 1965), cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966). See also Landis, The Administrative Process 39 (1938); Richardson v. Perales, 402 U.S. 389, 410, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). If he had refused to reopen and had dismissed the citation, and OSHRC had affirmed, we might well have ruled this to be the exceptional case where discretion had been so seriously abused as to fall outside the Jersey, City decision, supra, 322 U.S. 503, 64 S.Ct. 1129, 88 L.Ed. 1420. See Cappadora v. Celebrezze, 356 F.2d 1, 5-7 (2 Cir. 1966); cf. Blue Bird Coach Lines, Inc. v. United States, 328 F.Supp. 1331, 1337-1338 (W.D.N.Y.1971). Here, where the Administrative Law Judge had acted properly, it was clearly an abuse of discretion for OSHRC to reverse him.

Since the record permits only one conclusion on whether Gordon was engaged in a business affecting commerce and it has withdrawn any contest on the merits, we reverse the order of dismissal and remand to OSHRC for the sole purpose of entering a final order enforcing the decision of the Administrative Law Judge.

Reversed and remanded.

      . The notice from the Administrative Law Judge crossed in the mail a request by the Secretary for a reopening.

      . Ironically in light of the present posture of the ease, it was the Secretary who initially petitioned the OSHRC for discretionary review. He objected to the consolidation of-the two violations. OSHRC Chairman Mor- « an’s direction of review extended well beyond that issue, however, and included among other things the question “whether the record in this case properly establishes jurisdiction.” On the present petition for review, the Secretary does not press his objection to the consolidation of the two violations ; he asks only that the Review Commission be instructed “to reinstate the administrative law judge’s decision as the Commission’s final order.”

      . We have examined the relevant portion of the interim rules, 29 C.F.R. § 2200.21 (1972). It is not altogether clear to us that those of the present provisions on which Commissioner Burch relied were “implicit” in this. Indeed his claim in that regard seems to have rested partly on the fact that the proposed permanent rules were already circulating among those affected, a fact of dubious legal significance and of which we can hardly take judicial notice.

      . Against this, respondents rely heavily on the provision of the Administrative Procedure Act, 5 U.S.C. § 557(b), that “[o]n appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision . . . .” This cannot change the fact that in the present case, by contrast to the situation in a case such as Jersey City, all the evidence sought to be considered is already in the record. Cf. note 7 infra.

      . We have no occasion to decide whether that evidence alone would have sufficed.

      . It is somewhat ironical, in light of OSHRC’s concern for speed, that more than nine months elapsed between the Chairman’s direction for review, see note 2 supra, and the date of decision.

      . The standard to be applied in such a case would be a strict one, however. Although the policies demanding a strict standard of review when an agency has refused to reopen are especially forceful where the request for reopening was based on the alleged staleness of the record, supra, they would also pertain to any situation in which additional proceedings would need to he had after an order had come down. Cf. Kentucky Broadcasting Corp. v. FCC, 84 U.S.App.D.C. 383, 174 F.2d 38, 41-42 (1949). This is to be contrasted with the circumstances of the present case, in which all the evidence sought to be considered is already in the record.


source: Caselaw Access Project

author: WILLIAM E. MILLER, Circuit Judge.

license: Public Domain

text:
    Fred ARMOUR, Petitioner-Appellee, v. W. D. SALISBURY, Superintendent, Respondent-Appellant.
    No. 73-1315.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 30, 1973.
    Decided Feb. 20, 1974.

      Jack H. Cook, Columbus, Ohio, for respondent-appellant; William J. Brown, Atty. Gen., Jeffrey L. McClelland, Asst. Atty. Gen., Columbus, Ohio, on brief.
    Michael E. Geltner, ACLU of Ohio, Columbus, Ohio, for American Civil Liberties Union, amicus curiae.
    Lucas, Prendergast, Albright, Gibson, Brown & Newman, Timothy J. Ucker (court-appointed), Columbus, Ohio, on brief, for petitioner-appellee.
    Before WEICK, PECK and MILLER, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

In May of 1968 the appellee was convicted in an Ohio state court on counts II and IV of a four-count indictment charging various narcotics violations. He was given an indeterminate sentence under count II, charging illegal possession of marijuana, of 2-15 years, and a sentence under count IV, charging an illegal sale of the same drug, of 20-40 years. The sentences were to run consecutively. After exhausting state remedies, appellee petitioned the United States District Court for a writ of ha-beas corpus. The present appeal is from the grant of that writ.

In May of 1967 Richard Lee Sees was contacted by an undercover agent of the Federal Bureau of Narcotics and Dangerous Drugs who asked him to purchase marijuana for him. On July 15 Sees and the agent drove to the vicinity of the apartment building in which ap-pellee lived. Later, Sees testified at ap-pellee’s trial that he had gone inside the building and purchased from appellee seven or eight ounces of marijuana— five ounces of which he sold to the agent. Although appellee was indicted for this alleged sale, the jury found him not guilty.

Sees also testified that on July 26, 1967 he again purchased marijuana from appellee and again sold it to the agent. Sees, himself, was arrested and charged on this transaction. His testimony led to the conviction of appellee for the sale of marijuana on that date.

One Glenn Allen Vance was arrested on September 2, 1967 on charges of publishing a forged instrument and possession of marijuana. He was repeatedly interrogated by police officers between September 2 and September 5. At the conclusion of the questioning, he was given a twenty dollar bill, the serial number of which was recorded, and was told to go to appellee’s residence and purchase marijuana. Vance followed a part of his instructions: he went to ap-pellee’s apartment and brought marijuana, but he did not return to the police station.

As a result of the information which the police now had, a raid was planned on appellee’s apartment building. Shortly before midnight on September 5, Detective Newman and the prosecutor prepared the following affidavit for a search warrant:

Ray Newman, being first duly sworn according to law, deposes and says that he believes and has good cause to believe that unknown quantities of cannabis sativa (marijuana) or other narcotic drugs are being concealed in or about the building and individual apartments numbered 1, the office, 2, 3 and 4 and other vacant apartments under the custody and control of Fred Armour and located at 279 Park Street, Akron, Ohio, also known as the Armour Apartments.
The affiant further says that he believes and has good cause to believe that the said cannabis sativa is in the possession and control of Fred Armour, the manager and custodian of the building located at 279 Park Street, Akron, Ohio, and the above named articles should be seized along with Fred Armour who will be charged with violation of 3719.20(A) Revised Code of Ohio.
This knowledge is based on the following facts:
Information from a reliable informant whose name the affiant has and will reveal to this court if requested and whose information in the past has proved reliable, that:
1. He, the said informant, purchased a quantity of cannabis sativa from the above named Fred Armour at 279 Park Street, Akron, Ohio, on or about 3:00 a. m., September 2, 1967.
2. Fred Armour is the manager and custodian of the apartment building located at 279 Park Street, Akron, Ohio, and known as the Armour Apartments.
3. The informant has personally observed Fred Armour in apartment number 1, the office of the said Armour Apartments; apartment number 2, the residence of Fred Armour and his wife, Addie Armour ; apartment number 3, wherein the informant negotiated the purchase of the cannabis sativa from Fred Armour; apartment number 4, the room through which Fred Armour passed to gain access to the other vacant apartments, over which Fred Armour has custody and control, wherein the cannabis sativa is stored.
4. The informant has purchased quantities of cannabis sativa at 279 Park Street, Akron, Ohio, on several occasions, and on each occasion Fred Armour has left the informant isolated in one apartment and entered another apartment for the purpose of obtaining the cannabis sativa.

The reliable informant referred to in the affidavit was Glenn Vance.

Based on this affidavit a warrant was. obtained and executed in the early morning hours of September 6, 1967. Seized in the search were a bag of marijuana and the twenty dollar bill that had been given to Vance by the prosecutor, evidence used to convict appellee on the possession charge. The police found Vance at the residence in a stupor, apparently caused by his use of some the marijuana he had bought.

On September 8, 1967, Vance signed a written confession that he had purchased marijuana from appellee on or about September 1. However, at appel-lee’s trial, Vance said that the September 1 purchase was not from appellee but from another person. Furthermore, he stated that he had never bought marijuana from appellee. Consequently, the charge against appellee for the sale to Vance was dismissed for lack of evidence, but appellee was convicted for possession of the marijuana seized in the raid.

Appellee’s conviction was affirmed by an Ohio appellate court, and the Ohio Supreme Court denied review. Subsequently, he petitioned the court below for a writ of habeas corpus. A hearing was held by the court on the basis of the state court record and some live testimony with respect to the several constitutional violations alleged by appellee. Of the seven claims presented, the court found five to be without merit. It upheld two of the claims which we now consider.

The court found that although the search warrant appeared valid on its face, in reality probable cause was not established because, contrary to the statement in the affidavit, the informant, Vance, had not given reliable information in the past. This reasoning was based, in large measure, on Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) — decisions in which the Supreme Court held that when the affidavit for a search warrant is based on information given by an undisclosed informant, the affiant must support his claim that the informant is credible. After considering the testimony of both Vance and the affiant Newman, the district court concluded that the statement that the informant had given reliable information in the past was inaccurate. Absent this statement, the court found that the affidavit did not contain sufficient support for the credibility of the informant. It was therefore found that probable cause did not exist for the issuance of the warrant.

Were the disputed statement as to the giving of reliable information in the past the only support for the credibility of the informant, the validity of the warrant might be questionable. See United States v. Harwood, 470 F.2d 322 (10th Cir. 1972); United States v. Upshaw, 448 F.2d 1218, 1221 n. 3 (5th Cir. 1971). We do not reach that issue here. We are required to view the affidavit as a whole. If there exists a basis for crediting the informant, excluding the incorrect statements, then there was probable cause to justify issuance of the warrant. Cf. United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684 (1964). The affidavit stated that the informant had purchased marijuana on several occasions from the appellee. In giving this information to the police, Vance admitted that he had participated in a crime under Ohio law. An admission against penal interest, as this was, is a significant, and sometimes , conclusive, reason for crediting the statements of an informant. United States v. Harris, 403 U.S. 573, 583-585, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1961). The language of the Supreme Court in Harris is a guide for our decision:

Common sense in the important daily affairs of life would induce a prudent and disinterested observer to credit these statements. People do not lightly admit a crime and place critical evidence in the hands of the police in the form of their own admissions. Admissions of crime, like admissions against proprietary interests, carry their own indicia of credibility —sufficient at least to support a finding of probable cause to search. That the informant may be paid or promised a “break” does not eliminate the residual risk and opprobrium of having admitted criminal conduct. Con-cededly admissions of crime do not always lend credibility to contemporaneous or later accusations of another. But here the informant’s admission that over a long period and currently he had been buying illicit liquor on certain premises, itself and without more, implicated that property and furnished probable cause to search. 403 U.S. at 583-584, 91 S.Ct. at 2082.

The affidavit now before us contained sufficient indicia of credibility for the magistrate to find probable cause to issue the warrant. It was clear from the face of the affidavit that the informant had, by giving the information, admitted a crime- — and one that carried a substantial penalty. Furthermore, the affidavit described the place where the sale occurred and the marijuana was kept. The informant’s knowledge was based not merely on one illegal sale but upon several.

As already mentioned, two days after the search of appellee’s apartment, Vance signed a confession in which he stated that he had purchased marijuana from appellee on September 1, the sale referred to in the affidavit. Subsequently, at appellee’s trial, Vance denied •that he had ever bought marijuana from appellee, and stated that his confession was the result of police duress. Although a search warrant based on information fabricated by the police or forced involuntarily from an informant could raise grave constitutional questions, statements in affidavits for' probable cause are not subject to the same rigorous standards as those governing admissibility of evidence at trial. Spinelli v. United States, supra, at 419 of 393 U.S., 89 S.Ct. 584. In the present case the statements in the warrant are independently corroborated by Vance’s confession. Absent compelling evidence that the informant did not make the statements which were the basis of the affidavit, the decision of the magistrate on probable cause should be left undisturbed. Our examination of the record in this case convinces us that the magistrate was correct.

Appellee was also convicted for a sale of marijuana on July 26, 1967 to Richard Sees. At trial Sees gave crucial testimony against appellee. Commenting on this testimony, the prosecutor, in his closing argument, made the following statements:

Now, what does he have to gain? There is nothing that can be done to him now. He is already sentenced. He is in the penitentiary. There is not a thing that can be done for him, but he is here because he is willing to tell the truth.
-» * * * * * Now, they [defense counsel] also spoke about Sees having something to gain, and pointing to this indictment. Well, that is completed now. That is over. Sees could have told us to go fly a kite, and nothing could be changed, because that is an order of the Court. He didn’t have to come here and testify in this case. That ease is done, and as it says he was sentenced from ten to twenty years, as it says in there.

Sees had been convicted and was sentenced in the fall of 1967 to a term of ten to twenty years in the Mansfield, Ohio, Reformatory. The prosecutor visited him in the reformatory and solicited his testimony against appellee. During the meeting the prosecutor told Sees that while testifying he might be asked whether any promises were made to him in return for his testimony. He further stated that while no promises could be made specifically in consideration for Sees’ testimony, he would help Sees receive probation whether or not he testified. Shortly before the trial Sees was transferred to the county jail and never returned to Mansfield. Five months after trial he was released from jail pursuant to Ohio’s shock probation statute. Ohio Revised Code § 2947.061. As a consequence he served less than one year out of a sentence of ten to twenty years.

The district court found that, contrary to the statements of the prosecutor, Sees did have something to gain from his testimony. He was awaiting a decision on his petition for probation, and he had a sentence of up to twenty years hanging over his head. Although the prosecutor told Sees that he would help him either way, the prior statements of the prosecutor about the questions that would be asked at trial and also the motivation for the visit — to discuss the possible testimony — could, according to the district court, reasonably have caused Sees to conclude that the vigor of the prosecutor’s efforts for probation would be determined by whether Sees testified. Upon this basis the district court held that the prosecutor’s statement to the jury was deliberately misleading and that appellee in consequence was denied due process of law.

In Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1970), the Supreme Court considered a case in which the key witness was promised that he would not be prosecuted if he would testify against his co-conspirator. When asked by defense counsel whether any promises of leniency had been made, the witness lied and said that none had. And in his closing argument the prosecutor told the jury that no promises had been made to the witness.

Relying upon a consistent line of cases, e. g., Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Court held that the witness’s credibility was “an important issue in the case, and evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.” 405 U.S. at 155, 92 S.Ct. at 766. The conviction was reversed, and the case was remanded for a new trial.

It is true that there is a factual distinction between the situation in Giglio and that now before us. Sees was not asked at trial whether promises had been made to him to testify. But the basic tenent of Giglio does not depend on whether misleading information was given to the jury in the form of a closing argument by a prosecutor rather than through the testimony of a witness.

We need not decide whether the prosecutor on the particular facts presented here had an affirmative duty to disclose what he had told Sees about helping him. The critical error was that the prosecutor deliberately misled the jury by assuring it that Sees had nothing to gain by giving his testimony. The only fair and logical inference is that Sees would conclude from his conversation with the prosecutor that he would receive more help in securing probation if he testified against appellee than otherwise would be the ease.

The judgment of the district court is therefore affirmed in part and reversed in part. The action is remanded to the district judge for the entry of an order granting the writ of habeas corpus only with respect to the conviction and sentence of appellee under the count of the indictment charging the illegal sale to Sees, and denying the writ with respect to the conviction and sentence for illegal possession. The issuance of the writ to the extent herein indicated shall be conditioned upon the right of the state to retry appellee on the sale charge within such time as the district court shall determine.


author: ELY, Circuit Judge:

text:
    Robert F. MERRILL, Appellee, v. The NATIONAL CASH REGISTER COMPANY, a Maryland corporation, Appellant.
    No. 72-2036.
    United States Court of Appeals, Ninth Circuit.
    March 4, 1974.

      Ralph J. Lester (argued), Phoenix, Ariz., for appellant.
    Richard A. Steiner (argued), and George Welch, Jr., of Roush, Mori, Feinstein & Welch, Phoenix, Ariz., for appellee.
    Before MERRILL and ELY, Circuit Judges, and ZIRPOLI, District Judge.

       Honorable Alfonso J. Zirpoli, United States District Judge, San Francisco, California, sitting by designation.

   OPINION

ELY, Circuit Judge:

Robert Merrill was employed as a senior salesman by the National Cash Register Company (hereinafter “NCR”) at its branch office in Phoenix, Arizona. Merrill, contending that NCR was obligated to him for a commission on a certain sale of NCR equipment, brought suit in an Arizona state court. NCR, as authorized by 28 U.S.C. § 1441(a), then removed the action to the District Court. The court, sitting without a jury, found that Merrill was entitled to the commission and entered judgment in Merrill’s favor for $14,720, plus costs.

The NCR branch in Phoenix was composed of two divisions, the Accounting Machine Computer Division and the Cash Register Sales Division. Merrill was the senior salesman in the accounting division. According to the employment practices of NCR, each salesman was assigned a specific territory. Within that territory, the salesman was authorized to sell certain products. Under Merrill’s contract, he was credited with a commission whenever there was a sale of his specified product within his assigned territory, even if he did not participate in the transaction.

In October, 1966, the home office of NCR in Dayton, Ohio sold two pieces of equipment, designated “420 Optical Scanners”, to the General Electric Computer Division (hereinafter “GE”) in Phoenix. The sale was coneededly made within the sales territory of Merrill, as that territory was specified in his contract.

The 420 Optical Scanner is a multiple-purpose piece of equipment. Depending upon the manner in which the scanner is programmed, the machine can convert, for input into a computer, information from any tape-producing equipment, including tape information produced by cash registers and accounting machines. The scanner’s function is to “read” the tapes and to transfer the information contained therein to a computer. GE originally contemplated constructing an adapter in order to utilize the scanner in conjunction with a GE computer. Before GE began its experiments with one of the scanners, it requested NCR to furnish tapes. NCR delivered cash register tapes to GE, apparently since those were the only tapes then available in NCR’s Phoenix branch office. During the entire experimentation period with the 420 Optical Scanner, the scanner was programmed to receive tapes produced by cash registers only. Because of its program, the scanner was unable to receive or to function with accounting machine tapés. Ultimately the experimental procedures of GE proved unsatisfactory, and, at GE’s request, the two scanners were repurchased by NCR in March, 1967, at a thirty per cent loss to GE.

Since the 420 Optical Scanner had many possible applications, NCR had previously anticipated that conflicting claims concerning sales commissions might arise between its cash register and accounting divisions. In an effort to classify the sales of the 420 Optical Scanner, H. C. Keesecker, a Vice President of NCR, had issued a policy letter on July 16, 1962. The letter attempted to allocate the sales of the scanner to either the cash register or accounting division by establishing four general categories.

Upon learning of the sales transaction with GE, Merrill applied for the sales commission. Considerable discussion was held by various officers of NCR, and the application was finally resolved on November 22, 1967. On that date, W. E. Giesting, Vice President of the Pacific Division, determined, adversely to Merrill, that the commission would be credited to the Phoenix cash register division. Within two years of NCR’s final decision, Merrill instituted his suit.

Here, NCR attacks the District Court’s conclusion that Merrill qualified for the commission. First, NCR contends that the employment contract required Merrill to submit his dispute, for a final decision, to a designated arbitrator. The short answer to this contention is that the District Court found that no arbitration proceeding was ever conducted by NCR. This finding is supported by substantial evidence, for NCR neither notified Merrill of an arbitration hearing nor afforded him an opportunity to appear and present evidence; therefore, no valid arbitration award occurred. See Ariz.Rev.Stat.Ann. § 12-1505 (Supp.1973); Citizens Bldg., Inc. v. Western Union Tel. Co., 120 F.2d 982 (5th Cir. 1941).

NCR next asserts that the two-year limitation period imposed by the contract bars Merrill’s action. Its contention evidently is based on the premise that Merrill’s claim for a commission accrued in March, 1967, the date that the second 420 Optical Scanner was delivered to GE. We agree, however, with the District Court’s finding that Merrill’s claim was not resolved until November, 1967 and that the contractual limitation period did not begin until that date. See Hawkinson Tire Co. v. Paul E. Hawkinson Co., 13 Ariz.App. 343, 476 P.2d 864 (1970), aff’d 107 Ariz. 255, 485 P.2d 825 (1971).

Finally, NCR contends that neither Merrill’s employment contract nor established NCR policy entitled Merrill to a commission on the sale. NCR correctly maintains that in order for Merrill to qualify for the commission, he must

find authorization under the policy letter of July, 1962. Although the court below upheld Merrill’s claim, it failed to indicate which provision, either in Merrill’s employment contract or in the Keesecker policy letter, obligated NCR to award Merrill the commission.

The only conceivable basis upon .which Merrill could rely is the fourth category set forth in the policy letter, since, under the facts, the other three categories are obviously unavailing to him. That fourth category, designated “Other Applications”, declares that a sale of the 420 Optical Scanner “will be credited to the territory selling man in accordance with the machine creating the original journal tape.” (Emphasis added.) Both parties concede, and the District Court so found, that the original tape used by GE was produced by cash registers. Merrill emphasizes the District Court’s finding that cash register tapes were employed by GE solely because those were the only .tapes available from the NCR Phoenix branch office. This finding,' however, in no way supports the court’s conclusion that Merrill was thereby entitled to a commission under the provisions of the' controlling policy letter, and it cannot justify a “rewriting” of the controlling contractual terms. Merrill had the burden of proving that he was entitled to the commission, see Deck v. Hammer, 7 Ariz.App. 466, 440 P.2d 1006 (1968), but he was unable affirmatively to demonstrate that the “original journal tape” was created by an accounting machine. Moreover, the evidence positively demonstrates that the 420 Optical Scanners, one of which was in the possession of GE for five months, were unable to receive accounting machine tapes during the entire experimentation period. There simply is no evidentiary basis upon which we can properly sustain the challenged judgment.

Upon remand, the complaint will be dismissed.

Reversed and remanded, with directions.

      . The action originally was maintainable in federal court on the basis of diversity jurisdiction. 28 U.S.C. § 1332.

      . The letter established the following four categories:

        Retail Applications

      Where the 420 Optical Reader is sold or leased for a retail application of any type, and the primary function of the Optical Reader is the reading of tapes prepared by cash register’s, the sale or lease of the Optical Reader will be the exclusive responsibility of the cash register sales organization.

        Financial Institutions

      The sale or lease of the 420 Optical Reader to Financial Institutions including, but not by way of limitation to, banks, building and loan associations, and credit unions, will be the exclusive responsibility of the accounting machine organization.

        Service Bureaus

      The sale or lease of the Optical Reader to Service Bureaus regardless of the application will be considered as open territory and such sales or leases will be credited to the territory salesman who secures the order regardless of accounting machine, cash register, or adding machine affiliation.

        Other Applications

      For the present, nil other applications of the 420 will be credited to the territory selling man in accordance with the classification of the machine creating the original journal tape.

      . The employment contract contained the following clause:
      You agree to permit the head of our Sales Department or the person designated by him to arbitrate any controversy between you and any other salesman, or between you and your Branch Manager, concerning the commission credit which may be properly due you or such other salesman on any customer’s order and the decision made in such controversy shall be final.

      . Neither party requested that the District Court order arbitration proceedings in the event the court found that arbitration had not in fact occurred. Under Arizona’s law, the parties, in these circumstances, have waived their right to arbitration. See Bolo Corp. v. Homes & Son Constr. Co., 105 Ariz. 343, 464 P.2d 788 (1970).

      . Although, at oral argument, Merrill’s counsel contended that the explicit terms of the employment contract, exclusive of the policy letter, obligated NCR to pay Merrill the commission, he was unable to specify any such provision. The employment contract does provide that Merrill is entitled to a commission when an “accounting machine” is sold in his assigned territory. It was conceded, however, that the 420 Optical Scanner is not an “accounting machine”. It was the apparent purpose of the Keesecker policy letter to qualify salesmen in the accounting computer organization for the receipt of commissions under certain circumstances.


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Mark HOPKINSON et al., Defendants, Appellants.
    No. 73-1301.
    United States Court of Appeals, First Circuit.
    Argued Jan. 9, 1974.
    Decided March 4, 1974.

      Albert H. Russell, Jr., with whom Alfred Paul Farese, Everett, Mass., was on brief, for appellants.
    James J. McLaughlin, Atty., Crim. Div., Dept. of Justice, with whom William J. Deachman, U.S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

Hopkinson, Mancini and DePietro were indicted for possession of 286,984 grams of marijuana with intent to distribute, illegal importation, and conspiracy to import. Following a jury trial, Hopkinson and Mancini were found guilty of possession with intent to distribute and conspiracy to import, but the jury was unable to reach a verdict on the importation count against them. The court granted DePietro’s motions for acquittal of conspiracy and importation, and the jury found him guilty only of simple possession, 21 U.S.C. § 844(a), rather than possession with intent to distribute.

A government agent testified that he had observed Heffernan, an unindicted co-conspirator, leave from a Texas airport in a small empty aircraft and return several hours later with 18 Spanish-marked boxes of marijuana. After he was arrested, Heffernan agreed to complete his delivery exactly as previously arranged — only under the control of government agents — and he flew to New Hampshire where he was met by the three defendants. Heffernan was a principal witness for the government at the trial.

Appellants contest several evidentiary rulings and the court’s failure either to grant their motions for acquittal based on entrapment or to give their requested jury instructions on entrapment.

The first three asserted errors concern the admission of testimony revealing that Hopkinson and Mancini had engaged earlier in other criminal activity, namely armed robbery and illegal importation and distribution of marijuana. But the prior incidents were part of a continuing scheme to establish a large scale marijuana distributorship. There was testimony that “[t]he purpose of getting the [robbery] money was ... to set up a distributorship for marijuana in the United States.” Following the robbery, Hopkinson and Mancini imported 225 pounds of marijuana from Mexico; Heffernan testified Hopkinson,

“wanted to know what price we could get for the marijuana in Boston, how soon we could get rid of it, because he had to pay his suppliers back in Mexico, and how soon we could expect to get enough money for the flight down to Mexico for the downpayment and cost of the aircraft.”

When the first marijuana lot was being sold, Hopkinson and Heffernan discussed details of the importation conspiracy charged in the indictment. Mancini, who had received large payments for deliveries from the 225 pound lot, provided Heffernan with funds to pay the down-payment on the aircraft and to finance the Mexican venture. Evidence of prior criminal activity “is admissible if it is so related to or connected with the crime charged as to establish a common scheme or purpose so associated that proof of one tends to prove the other, or if both are connected with a single purpose and in pursuance of a single object . . .” Green v. United States, 176 F.2d 541, 543 (1st Cir. 1949). Here the prior history fleshed out the circumstances of the later conspiracy. The earlier marijuana importation and subsequent sale were, moreover, admissible as prior similar acts to prove intent to distribute. New England Enterprises, Inc. v. United States, 400 F.2d 58, 70 (1st Cir. 1968).

Also objected to was Heffernan’s testimony that Hopkinson asked him if he would be willing to fly marijuana from Mexico into the United States and “that it would be minimal risk, because he [Hopkinson] had done this in the past, and he had a very good contact in Mexico and I would be very safe.” While the reference to prior importations was, by itself, irrelevant, the statement as a whole was relevant to the conspiracy to import, one aspect of which was Hopkinson’s attempt to induce Heffernan to act as pilot. Cf. United States v. Johnson, 467 F.2d 804, 807 (1st Cir. 1972); United States v. Ravich, 421 F.2d 1196, 1204 (2d Cir. 1970). Had Hopkinson objected we would be faced with deciding whether the statement’s legitimate probative value was outweighed by the possibility of prejudice. But Hopkinson did not object, nor did he ask for a limiting instruction. We cannot say that the court committed plain error nor see that the statement could have materially prejudiced Mancini who was not present during the conversation.

Appellants claim error in the admission into evidence of copies, not originals of two rental contracts for a truck and aircraft. However, in the case of the Hertz truck rental agreement, it is now too late to raise the best evidence rule. At trial defendants first objected without stating a reason. Later a reason was given to the effect that the signature on the form could only indicate a name but not identify the defendant, DePietro. That a copy, not an original, had been tendered was never mentioned. Failure at the trial to cite the best evidence rule deprived the government of an opportunity to take corrective measures. Cf. Taylor v. Baltimore & O. R. R., 344 F.2d 281, 287-288 (2d Cir. 1965). There had, moreover, been no objection to the government’s eliciting information from a Hertz employee concerning what the form showed about the type of vehicle rented, the location of the Hertz rental agency, and the date of the rental. Admission of the form as an exhibit added little to what the jury had already learned.

Appellants did register a timely best evidence objection to the introduction of the aircraft rental agreement. The objection was overruled without any preliminary finding that a reasonable search had been made for the original or that the original was unavailable through no fault of the proponent. See Sylvania Electric Products, Inc. v. Flanagan, 352 F.2d 1005, 1008 (1st Cir. 1965).

However, when the rental agreement was introduced, Heffernan testified that it was his receipt for the contract he had executed in renting the aircraft. Although this circuit has not had occasion to express its view, and the rule varies among jurisdictions, there is strong authority elsewhere for admitting such a document as a duplicate original. See 4 Wigmore, Evidence § 1233 (Chad-bourn rev. 1972); McCormick, Handbook of the Law of Evidence § 235 (2d ed. 1972). But we need not decide, since, even if it were not admissible, the error would be harmless. Heffernan had already testified, without objection, that the type of aircraft he needed was a Cherokee 6, that Lease-A-Plane had this type of aircraft, and that he had picked up an aircraft from that firm on August 8.

Appellants contend that the court erred in permitting a customs agent who was a “marijuana expert” to testify to the “street value” in Boston of a pound of marijuana An opinion of value derived solely from reports from undercover agents and law enforcement agencies is inadmissible hearsay. See 3 Wigmore, Evidence § 719(2) (Chadbourn rev. 1970). However, since Heffernan had twice testified to the same per pound selling price, as well as to the net profit defendants planned to make on the sale, admission of the agent’s corroborative testimony was harmless.

Appellants argue finally that the government’s conduct in accompanying Heffernan, and paying for his travel expenses, was “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” United States v. Russell, 411 U.S. 423, 431-432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973). Where the government merely encouraged Heffernan to proceed as planned, the contention is frivolous. The government did not supply Heffernan with the contraband or the cash for his purchase or the means for its delivery; nor did it in any conceivable fashion coerce defendants into accepting delivery. The government’s activity did not raise a jury issue of entrapment; there was no evidence that the defendants were otherwise unwilling. Cf. Kadis v. United States, 373 F.2d 370 (1st Cir. 1967). Furthermore, the requested jury instructions misstated the law.

Affirmed.

      . In violation of 21 U.S.C. §§ 841 (a) (1), 952 (a), 963.

      . The court repeatedly cautioned the jury that the testimony was not evidence against De-Pietro.

      . It can also be argued that the best evidence rule is not in point. The leasing or renting of property may be shown by secondary evidence such as oral testimony. If the present exhibit was secondary evidence, it might still be adequate to prove that a lease was executed between particular parties on a particular date. See 4 Wigmore, Evidence § 1242 et seq. (Chadbourn rev. 1972); McCormick, Handbook of the Law of Evidence § 233 (2d ed. 1972).


author: ALDRICH, Senior Circuit Judge:

text:
    Louis G. SHERMAN, Jr., and Randolph W. Commins, Executors of the Estate of Louis G. Sherman, Sr., under Last Will and Testament of Louis G. Sherman, Sr., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 73-3056.
    United States Court of Appeals, Fifth Circuit.
    April 19, 1974.
    Hugh W. Gibert, David L. Ross, Atlanta, Ga., for plaintiffs-appellants.
    Julian Longley, Asst. U. S. Atty., John W. Stokes, Jr., U. S. Atty., William D. Mallard, Jr., Asst. U. S. Atty., Atlanta, Ga., D. Wendell Barnett, Trial Atty., Jay R. Weill, Elmer J. Kelsey, Michael J. Roach, Attys., Scott P. Crampton, Meyer Rothwacks, Asst. Attys. Gen., Tax Div., Dept. of Justice, Washington, D. C., for defendant-appellee.
    Before ALDRICH Senior Circuit Judge, and BELL and GEE, Circuit Judges.

       Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.

   ALDRICH, Senior Circuit Judge:

This action to recover an alleged overpayment of estate tax was previously before this court, 462 F.2d 577. At that time we affirmed a finding that there was a deductible obligation of the estate because of a support agreement between decedent and his wife from whom he had been separated, but we remanded for reconsideration of the amount. At the second trial the court took evidence, determined that the amount was immeasurable, and disallowed the deduction in its entirety. • The executors appeal.

The facts are relatively simple. Prior to their separation the decedent had created an inter vivos trust for the benefit of his wife for life, with a power in the trustees to invade principal. Thereafter the parties separated. A settlement agreement was entered into whereby decedent would pay his wife $1500 a month for life, or until she remarried, but it was provided that receipts from the trust should be credited towards its satisfaction. At decedent’s death the assets of the trust were $83,953. It was stipulated that as of that date, based upon actuarial tables showing the widow’s life expectancy and possibility of remarriage, the commuted value of the right to receive $1500 a month until her death or remarriage was $129,040. In spite of this liquidization, the government persuaded the district court that it was uncertain whether the widow would live or remain unremarried long enough to consume the assets of the inter vivos trust, and hence it was uncertain whether the estate would ever have to make payments on account of the separation agreement. The court concluded that the executors had not proven any allowable deduction.

This legerdemain whereby what would concededly have been a deductible obligation in the amount of $129,040 became worthless to the estate because $83,953 was available elsewhere to pay it, is sought to be explained by the government on the basis of an actuarial computation that we accept for present purposes subject to a comment, that there was a 30% chance that the widow would not live long enough to exhaust the trust. Our comment is that it would be equally appropriate, or, rather, equally inappropriate, to say that there may be, for example, a 30% possibility that the widow will live, unmarried, substantially longer than the normal expectancy date on which the $129,040 figure was computed; the government is rejecting the whole principle of actuarial evaluation. On the basis of that universally accepted practice, with an obligation whose stipulated value was $129,040 and a trust possessing $83,953, the estate was faced with a demonstrated deficiency of $45,087.

The government contends, however, that since there was a 30% possibility that the widow would not live beyond the capability of the trust, it is legally impermissible to take a deduction at all. For this it cites a number of cases holding that a testamentary charitable gift that is contingent may not be deducted if the chance that the contingency will not occur, viz., that the gift will not vest, is more than “negligible,” e. g., Commissioner of Internal Revenue v. Estate of Sternberger, 1955, 348 U.S. 187, 75 S.Ct. 229, 99 L.Ed. 246, and that a 30% chance meets that description, United States v. Dean, 1 Cir., 1955, 224 F.2d 26. The government discusses these cases at length to show their pertinency, but carefully avoids calling our attention to their express rationale, a Treasury Regulation specially, and solely, applicable to charitable gifts.

The government’s contention that we should follow these cases, without noting this distinguishing feature plainly relied on by the courts, see both the majority and dissenting opinions in Estate of Sternberger, ante, and the observations of the First Circuit in Dean, 224 F.2d at 28-29, we must regard as censurable; the court expects more forthrightness from government counsel. There is no comparable regulation limiting deductions on account of debts of the estate. Had there been no possibility of a contribution from the inter vivos trust, the estate would have been entitled to the full deduction of $129,040 in spite of the possibility that the widow would not have lived unmarried to normal expectancy. Commissioner v. Maresi, 2 Cir., 1946, 156 F.2d 929. This same possibility is not to be employed, in the absence of any compelling regulation, to permit the deduction to be wiped out by a trust whose assets are substantially inadequate on their face.

The executors argue that we should not assume as a fact that the trustees will elect to pay out, and that they, in turn, may have to pay a correspondingly even larger deficiency than $45,087. We do not face this problem in a theoretical area, however, but in one limited by realities. The executors and ultimate testamentary trustees, and the inter vivos trustees, are the same individuals. The burden of establishing a deduction is on the executors. We cannot permit them to increase the deduction by their own voluntary action as to choice of payment. Nor do we think it appropriate to review the difficulties allegedly facing the trustees under Georgia law, which, at most, do not seem insuperable.

Reversed and remanded for entry of judgment for appellants consistent with this opinion.


author: WYZANSKI, Senior District Judge:

text:
    UNITED STATES of America v. Benorarias T. WEBSTER, Appellant.
    No. 73-1183.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Jan. 14, 1974.
    Decided Feb. 1, 1974.
    As Amended April 18, 1974.
    Maureen P. English, Law Student, with whom John R. Kramer, Washington, D. C. (appointed by this court), and Ann Steinberg, Law Student, were on the brief, for appellant.
    Michael G. Scheininger, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry, and Vincent R. Alto, defense counsel at the time the brief was filed, were on the brief, for appellee. Earl J. Silbert, U. S. Atty., also entered an appearance for appellee.
    Before WRIGHT and TAMM, Circuit Judges, and WYZANSKI, Senior District Judge.

       Entered an appearance as student counsel pursuant to Rule 20 of the General Rules of this court.

       Of the United States District Court for the District of Massachusetts, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   WYZANSKI, Senior District Judge:

This is an appeal from the November 23, 1971 order of the District Court revoking appellant’s probation.

It appears that on June 11, 1969 the grand jury indicted appellant on two counts, each charging an assault with a dangerous weapon on a different policeman, in violation of 22 D.C.C. § 505(b). After he was arraigned August 8, 1969, the Assistant United States Attorney on February 16, 1970 moved that appellant should undergo a mental examination at St. Elizabeth’s Hospital. Appellant’s counsel opposed the motion, and favored a mental examination by court-appointed experts. March 23, 1970 the court ordered appellant to be examined by a psychiatrist of the Legal Psychiatric Service. The doctor found Webster “competent.”

Appellant was set to trial November 30, 1970; and on the same day was convicted by a jury. On April 19, 1971, more than four months later, the delay not being explained in the record, the trial judge imposed on defendant-appellant with respect to each of the two counts a concurrent sentence of one to five years, but adjudged that the execution of said sentence be suspended and placed defendant on probation for three years.

Then on May 31, 1971 the Metropolitan Police Department arrested him on a charge of unlawful entry with threats— a charge later reduced to assault with a dangerous weapon. Before that new case went to trial, the District Judge brought defendant before him on June 16, 1971 for “a hearing on a violation of probation.” The judge then said that “we have a signed statement from [the appellant] Mr. Webster to the effect that he acknowledged that he had been informed by Mr. Hunter [the probation officer] that he violated the conditions of probation granted by the Court on the 31st day of May, in that he was arrested by the Metropolitan Police Department, charged with unlawful entry and threats, that was subsequently left to his being charged with assault with a dangerous weapon.” [Emphasis added.]

Defendant’s counsel at the June 16, 1971 hearing suggested that the revocation proceeding stand in abeyance until the criminal trial of Webster on the charge of a crime allegedly committed on May 31, 1971. But instead, the judge began proceedings. Webster (not being under oath) told the court the incident was only a family quarrel, he being unarmed and having pursued his wife to the home of people named Bannister. But then Bannister testified that Webster came to his house with a gun and said, “I don’t want no trouble out of you, all I want is my wife,” that Webster put the gun to Mrs. Webster’s head, and that she started to leave with him, but suddenly she slammed the door and from the kitchen called the police.

Without making any finding, the judge then announced that he would send Webster to St. Elizabeth’s for an examination.

Five months later on November 19, 1971 (not 1972, as the transcript erroneously states) the judge resumed the hearing. At the outset defense counsel pointed out “that the charges brought against Mr. Webster for which the motion for revocation of probation was made have since been dropped by the United States Attorney.” He then added that the reason may have been that meanwhile the witness Bannister had been indicted for murder, and his credibility had been put in question.

It next appeared that while the trial judge was on vacation in July, the Chief Judge had ordered Webster to report to St. Elizabeth’s for examination. However, the hospital was then unable to take him. Four months later, on October 26' 1971, the hospital informed the probation officer it would be ready to see Webster for examination the very next morning at 8:30. Late on the afternoon of October 26, 1971 the probation officer directed Webster to report on October 27, 1971 at 8:30 a. m. at the hospital. He did ' not report at that hour. Apparently 8 hours before the appointment, at 12:25 (it seems) a. m., Webster had been arrested and taken into custody for another assault with a dangerous weapon. Learning of this on the morning of October 27, 1971 the probation officer told the United States Attorney that Webster was supposed to have reported to St. Elizabeth’s at 8:30 a. m., when obviously, being in custody, he could not have gone to the hospital. At once the judge who had this new case ordered Webster taken to St. Elizabeth’s. That hospital on November 12, 1971 filed a letter stating that Webster was “competent to fully understand the quality and nature of the probation revocation proceedings.”

The probation officer at the second November 15, 1971 hearing on the revocation of probation informed the trial judge conducting that hearing that Bannister, whom he chanced to meet on the street, had told him that because he made a mistake as to the courtroom, he did not show up at the hearing of the earlier charge for which Webster had been arrested on May 31, 1971 and therefore the case against Webster had been dismissed. But it is not clear whether Bannister or the probation officer knew that the reason the charge of the May 31, 1971 crime had been dismissed was the prosecutor’s lack of confidence in Bannister’s credibility.

In this confusion, the trial judge, without making any finding as to whether Webster had in fact committed the offense for which he had been arrested on May 31, 1971, declared he was .“going to revoke Mr. Webster’s probation. It seems to me that he’s been living very close to the line. He’s a threat to the community. The dismissal of the other [May 31, 1971] case, apparently because of an absence of witnesses, proves nothing to us; in addition to the fact that he’s got the subsequent involvement when he violated his probation by not even showing up on time for St. Elizabeth’s.” Accordingly, on November 23, 1971 the trial judge revoked the probation which had been imposed on April 19, 1971.

January 4, 1972 Webster moved for reconsideration of the order revoking his probation. January 11, 1972 the trial judge denied that motion. March 7, 1972 Webster appealed to this court from that denial. That is the appeal which is before us.

The government’s first point is that Webster’s appeal is not timely, and so it should be dismissed.

At first blush, the point seems well taken, for, as has been stated above, the District Court filed November 23, 1971 its order revoking Webster’s probation, January 4, 1972 Webster moved to reconsider, January 11, the court denied the motion, and not until fifty-six days later, March 7, 1972, did Webster file a notice of appeal. This was not “within 10 days after the entry of the judgment or order appealed from,” as required by Rule 4(b), Fed.Rules, App.P., nor within the 30-day extension period allowable upon a showing of excusable neglect. Thus it is claimed that this court lacks jurisdiction of the appeal, as such. United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960).

However, we are mindful that Webster was uninformed by the revoking judge of his right to appeal and was represented by a counsel who, though he purported to give him “the assistance of counsel” to which Webster had a right under the Sixth Amendment to the Constitution, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), did not point out to the trial judge, first, that there was no written notice from the court that there would be a hearing on revocation of Webster’s probation; second, that the notice given by the probation officer, and acknowledged in writing by Webster, charged him with having violated the conditions of probation merely by having been “arrested charged with unlawful entry and threats” (later reduced to a charge of an assault with a dangerous weapon) —and that is only a charge of a charge, not a charge of a crime; third, that the foregoing assault charge not only was dismissed, but was dismissed because of lack of credibility of the only witness who testified before the revoking judge; fourth, that the revoking judge failed to make an explicit finding that he believed the testimony of the witness whose credibility was suspect; fifth, that the trial judge seems to have misunderstood that the reason Webster did not appear at St. Elizabeth’s on October 28, 1971 was not because he was unreliable but because he got the notice late on the preceding afternoon and was arrested and held in custody within a few hours thereafter; and sixth, that the trial judge based his revocation on grounds which had never been articulated in any notice given to the defendant in advance of, or even during, the taking of testimony at the hearing. Compare Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

This wholly unsatisfactory representation by counsel would have been a more than colorable basis for a collateral attack, by a 28 U.S.C. § 2255 or a habeas corpus proceeding. But Webster, who seems not to have had any lawyer in the District Court once the probation had been revoked, ignorantly- did not explicitly advert to such remedies. Instead he filed papers which he erroneously regarded as timely notices of appeal or appeals.

We conclude that it is in the interests of justice to treat the papers before us as though Webster had asked the District Court and this court for relief pursuant to 28 U.S.C. § 2255. Not to take this position would merely delay matters and require, for no useful purpose, a new and redundant proceeding.

Regarding our jurisdiction as having been invoked properly and in due time, we do not, however, view this as a case in which it is transparent that the trial judge has reached a wrong result; we merely are of opinion that he failed in several respects to follow the appropriate procedure.

The court itself should have given a written notice or show cause, order to Webster of the precise ground on which the court would hear evidence as to whether his probation should be revoked.

That ground could properly have been stated to be “whether Webster had engaged in an assault on May 31, 1972,” but it could not properly have been stated to be whether Webster had been “charged” with an assault. It is not a ground for revoction that a’ probationer has merely been charged with a crime; on the other hand, it is not necessary that the ground be that the probationer has been convicted of a crime. Correctly stated, the issue is whether he committed a crime; and on that issue the judge considering revocation is free to reach his own finding if the matter is one where the crime said to have been committed was not prosecuted or was dismissed on some basis not going to the merits.

Moreover, the trial judge was faced with inconsistent statements which he did not sharply analyze; and he seems to have misunderstood Webster’s want of fault in not appearing at St. Elizabeth’s on October 28,1971.

While these matters, taken together, demand that we should vacate the November 23, 1971 revocation of probation, we are not to be understood as saying that there should not be a new hearing on revocation, nor are we expressing any view as to whether, quite apart from proof that he committed any crime subsequent to April 19, 1971, Webster has demonstrated such a want of regard for persons in his family or in the community that a trial court is warranted in revoking his probation. There are obvious advantages in having questions of this nature looked at afresh by the trial court, not by us. And we take it for granted that in any further proceedings the exploration of Webster’s mental state (which has obviously already been of concern to the judge as well as to the prosecution, the defense counsel, and the probation officer) will not stop with a mere determination whether Webster is competent to participate in a judicial hearing on revocation. In his case there are difficult questions as to whether he should be confined, and, if so, in what type of institution. Perhaps those who know the circumstances of the family may throw light on the matter, even if Webster’s wife chooses to invoke, as she previously did, her spouse’s privilege not to testify.

In view of the likelihood of a further proceeding in the District Court, our order will be merely that the appellant is to be discharged one month after our judgment is entered unless before then he is arrested on process from the District Court requiring him to show cause why his probation should not be revoked, and, pending determination of that matter, denying him his release except on reasonable bail.

So ordered.

      . The government contends that we are precluded from treating appellant’s papers as a § 2255 motion by the decision of this court in Freeman v. United States, 103 U.S.App.D.C. 15, 254 F.2d 352 (1958). The Freeman court refused to consider a § 2255 motion which attacked a probation revocation as untimely. The court stated that this section was available only to question the imposition as distinct from the execution of sentence. However, since Freeman was decided, the Supreme Court, in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973), held that probationers have a constitutional right to revocation hearings conducted according to certain specified procedures. See also Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254 (1967). In light of Gagnon, the force of Freeman must be limited. The first paragraph of § 2255 states that a prisoner in custody may claim the right to be released because of certain specified infirmities in his sentence or because his sentence “is otherwise subject to collateral attack.” The Freeman court did not focus on the quoted language. We think this language is broad enough to encompass a constitutional claim of deprivation of fair procedures at a revocation hearing.


author: DONALD RUSSELL, Circuit Judge:

text:
    Carl E. SPRING, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-2273.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 4, 1974.
    Decided March 14, 1974.
    Boyd L. Warner, Clarksburg, W. Va. (James A. Harris and Stathers & Cantrall, Clarksburg, W. Va., on brief) for appellant.
    William A. Kolibash, Asst. U. S. Atty. (James F. Companion, U. S. Atty., on brief) for appellee.
    Before HAYNSWORTH, Chief Judge, and CRAVEN and RUSSELL, Circuit Judges.
   DONALD RUSSELL, Circuit Judge:

The plaintiff seeks in this action against the United States recovery of severance pay following his discharge from Government Service. His right of recovery is predicated on Section 5595(b), 5 U.S.C., and jurisdiction rests on Section 1346, 28 U.S.C. The District Court granted the Government’s motion for summary judgment against plaintiff. The plaintiff has appealed. We reverse.

Plaintiff was a career employee of the Soil Conservation Service in the Department of Agriculture. He was notified on July 17, 1968 that he was to be transferred to a new duty station, some 250 miles from his then current station, and promoted to a higher pay grade, effective August 12, 1968. Citing financial, personal, and family reasons, the validity of which are not contested, he informed his superiors of his inability to change his residence and to accept the administrative transfer. He, however, expressed his willingness to accept an assignment to any duty station within a reasonable commuting distance from his residence, even at a reduction in pay grade. Following failure to report to his new duty station as ordered, he was discharged. Appeals from the order of discharge to both the Department of Agriculture and the Civil Service Commission proved fruitless. He then filed for severance pay, as provided for in 5 U.S.C. § 5595(b). The claim was disallowed on the ground that his discharge was “for cause”.

The sole issue on appeal is whether or not, as a matter of law, plaintiff’s discharge was “voluntary” or “for cause”, so that he is excluded from the coverage of 5 U.S.C. § 5595(b) and thus not entitled to severance pay. Section 5595(b) provides as follows:

“Under regulations prescribed by the President or such officer or agency as he may designate, an employee whog — (1) has been employed currently for a continuous period of at least 12 months; and (2) is involuntarily separated from the service, not by removal for cause on charges of misconduct, delinquency, or inefficiency; is entitled to be paid severance pay in regular pay periods by the agency from which separated.”

The terms “involuntarily separated” and “removal for cause”, as used in the statute, are not defined by the regulations promulgated pursuant to such statute by the Civil Service Commission. Specifically, the regulations in effect at the time of plaintiff’s discharge did not state whether or not an employee who refuses to accept an administrative transfer and is separated from the Service is entitled to severance pay. In such regulations, however, it was recognized that Section 5595(b), 5 U.S.C. was to be given a liberal and generous construction. Thus, Section 550.705 of the Regulations provided expressly that, “[T]he separation of an employee by a department when the employee declines to accompany his position when it is moved to another commuting area because of a transfer of function is deemed to be an involuntary separation not by removal for cause on charges of misconduct, delinquency, or inefficiency, for purposes of entitlement to severance pay.” It is conceded by both parties that this regulation did not, at the time of the termination of plaintiff’s services, explicitly apply to an administrative transfer such as involved in this case. The Government contends that the absence of any specific reference to administrative tranfers as a basis for an “involuntary separation” is decisive and that the “transfer of function” situation constituted, in 1968, the only exception to the general rule that all similar separations were voluntary. Plaintiff argues, on the other hand, that Section 550.705 of the Regulations, expressive as it was of a liberal construction of what was plainly intended by Congress as a generous provision for Government employees whose services were terminated, was not intended by its reference to terminations of employment resulting from “transfer of function” to limit or restrict the operation of the statute exclusively to that single type of termination. As the plaintiff points out, there is no rational basis for any distinction between separations resulting from “transfer of function” and those resulting from administrative transfer, nor did either the statute or Regulations indicate any reason or intent to make such a distinction. Clearly, the rationale for construing a “transfer of function” as involuntary is no greater than that for construing an “administrative transfer” as involuntary. And the Commission apparently recognized this, for in 1971 it amended its regulation so as to make clear that both administrative transfers and transfers of function 'were to be treated as involuntary separations entitling the employee to severance pay.

The Government argues, however, that the 1971 amendment indicates a reversal, and not simply a clarification, of the Regulation as it had previously existed. To support such argument, the Government, as did the District Court, relies upon a so-called “interpretation” of the Regulation contained in the Federal Personnel Manual Supplement 990-2, compiled and published by the Civil Service Commission. Under the general heading, “Failure to Accompany Activity,” which would appear to refer to transfers of function and not administrative transfers, the Commission listed two situations:

“(i) Regulation. ‘The separation of an employee by a department when the employee declines to accompany his position when it is moved to another commuting area because of a transfer of function is deemed to be an involuntary separation not by removal for cause on charges of misconduct, delinquency, or inefficiency, for purposes of entitlement to severance pay.’ (Section 550.705)
“(ii) Administrative reassignment. Separation for failure to report for duty upon reassignment to a different position at another location outside the commuting area after having been directed to do so constitutes removal for cause on charges of misconduct or delinquency. (See Comp. Gen. decision B-159029 of June 17, 1966).”

The first statement is obviously a direct quotation from the version of Section 550.705 of the Regulations then in force, a regulation whose authority is not contested. But the second statement, which the Government argues represented a departmental interpretation, does not flow from any regulation and finds no basis in any regulation issued by the Civil Service Commission itself, which, by delegation,' is the sole authority to issue valid regulations under Section 5595(b), 5 U.S.C. It cites as its sole authority a 1966 decision of the Comptroller General. The Comptroller General was given no authority under the Act to issue regulations thereunder or to issue what in this case would represent pre-is-suance interpretations by one governmental agency of regulations thereafter issued by another governmental agency. It was never issued as an official interpretation by the Commission and it was incorporated in the Personnel Manual with no basis in either the Statute or in any regulation issued by the agency which was alone authorized to issue such regulations. Contrary as it is to the liberal intent and purposes of Section 5595(b), the opinion of the Comptroller General, which purported to interpret no outstanding regulation of the Commission and which was incorporated in the Personnel Manual as stating an opinion of the Comptroller General and not as an official interpretation by the Commission of the scope of the Statute, will not support a denial of severance pay in this ease.

Reversed and remanded with directions to grant plaintiff’s motion for summary judgment.

      . Published at 5 C.F.R. 550.701-708.

      . Section 550.705, 5 C.F.R now provides that “When an employee is separated because he declines to accept assignment to another commuting area, the separation is an involuntary separation not by removal for cause on charges of misconduct, delinquency, or inefficiency for purpose of entitlement to severance pay, unless his position description or other written agreement or understanding provides for these assignments.”


author: ELY, Circuit Judge: SWEIGERT, District Judge

text:
    Daniel Webster TILLERY, Appellant, v. Frank A. EYMAN, Superintendent, Arizona State Prison, Appellee.
    No. 72-2364.
    United States Court of Appeals, Ninth Circuit.
    Feb. 11, 1974.
    Rehearing Denied March 22, 1974.

      Wayne R. Godare (argued), Post-Conviction Legal Assistance Clinic, Tucson, Ariz., John P. Moore (argued), Scottsdale, Ariz., for appellant.
    William J. Schafer, Asst. Atty. Gen. (argued), Gary K. Nelson, State’s Atty. Gen., William P. Dixon, Asst. Atty. Gen., Phoenix, Ariz., for appellee.
    Before ELY and SNEED, Circuit Judges, and SWEIGERT, District Judge.

       Honorable "William T. Sweigert, United States District Judge, San Francisco, California, sitting by designation.

   OPINION

ELY, Circuit Judge:

In 1967 Tillery was convicted by an Arizona court of assault with a deadly weapon and of armed robbery. Tillery exhausted his available state remedies, the Arizona Supreme Court affirming his conviction in State v. Tillery, 107 Ariz. 34, 481 P.2d 271, cert. denied, 404 U.S. 847, 92 S.Ct. 151, 30 L.Ed.2d 84 (1971). Tillery filed a petition for a writ of habeas corpus in the District Court, pursuant to 28 U.S.C. § 2241(c). Upon a denial of his petition, Tillery appeals.

Here, Tillery raises the same two issues urged in the court below. He contends (1) that he was denied a fair trial when the trial court failed, sua sponte, to conduct an evidentiary hearing on Tillery’s competency to stand trial and (2) that he was deprived of his constitutional right to testify in his own behalf. Because the issue is dispositive of the appeal, we consider only Tillery’s contention concerning the trial court’s failure to conduct an evidentiary hearing on his mental capacity.

During the course of the trial Tillery exhibited erratic and irrational behavior. The court was aware that Tillery yelled and screamed from his jail cell throughout the nights. In open court, Tillery laughed at the jury and made gestures at the bailiff. On April 28, 1967, the fourth day of the trial, after another vocal outburst by Tillery, the court admonished him to be quiet. Til-lery thereupon ripped off his tie and shirt. He was removed from the courtroom screaming and the trial was recessed. In chambers, in the presence of the attorneys for both sides, the court stated:

“I don’t think he is faking it. I just —he has got that kind of a psychotic explosive behavior. I think under [Rule] 250 we had better take a look at him.”

The court ordered Dr. Norman D. Duley, a qualified psychiatrist, to examine Til-lery.

On April 30, two days after the outburst, Tillery was examined by Dr. Du-ley. Dr. Duley’s report, which was filed with the court, stated that Tillery did not show any signs of “psychosis or impairment of thinking processes.” It was the psychiatrist’s opinion that Tillery was competent to stand trial and to aid in his own defense. Upon receiving the report, the court decided to proceed with the trial without conducting an eviden-tiary hearing. Defense counsel did not object to the court’s action.

Before appearing in court on May 3d, Tillery refused to put on his shoes and socks. The deputies then completed dressing him and were escorting the defendant to the courtroom when Tillery broke away from them. He suddenly butted his head through a glass window, receiving superficial wounds. Dr. J. L. Sitterley, M. D., then examined Tillery and testified before the court as to his observations. Although Dr. Sitterley did not believe there was “any psychotic episode,” he further testified:

“I do not believe he is currently capable of aiding in his own defense, and in his present condition I think there would be considerable in the way of courtroom turmoil.
“I have the feeling further that if this man were placed under sedation he might well be more capable of assisting in his own defense and aiding in the entire court procedure.
“. . . I would further suggest that Dr. Norman Duley be asked to consult in this patient’s condition and that the trial be delayed until this man is in a more lucid condition and after having been seen by the psychiatrist.”

Even though the court then indicated that it was ordering Dr. Duley to examine Tillery again, the record at trial is silent as to the result of any subsequent examination.

One of Tillery’s attorneys also testified concerning the defendant’s condition of May 3d. Both defense counsel and the court were concerned- that Til-lery might demand to testify on his own behalf. Apparently they feared that, should Tillery take the stand, he would seriously prejudice his case by his emotional and erratic behavior. Defense counsel informed the court that Tillery, on May 3d, had demanded “in his wild-eyed ways” to take the stand, but the attorney stated that Tillery, at that time, “was very incoherent [and] very irrational.” He further opined that Tillery did not know what he was doing. Although the attorney’s testimony was directed at Tillery’s demand to testify, the evidence was relevant to Tillery’s mental capacity to stand trial. •

From the foregoing evidence before the trial court, we conclude that Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) required the court to conduct an evidentiary hearing concerning the defendant’s competency to stand trial. It is elementary that the conviction of an accused while he is incompetent violates his due process rights. Pate v. Robinson, supra at 378, 86 S.Ct. 836, 15 L.Ed.2d 815, citing Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956). A defendant is considered competent to stand trial if he “ ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding [and if] he. has a rational as well as factual understanding of the proceedings against him.’ ” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), quoted in Pate v. Robinson, 383 U.S. at 388, 86 S.Ct. at 843 (dissenting opinion). In Pate, the Supreme Court held that when the evidence at trial raises a bona fide doubt as to an accused’s competency to stand trial, the trial court, on its own motion if necessary, must conduct an evidentiary hearing to resolve that doubt.

This Court has previously explained that Pate requires an evidentiary competency hearing any time there is “substantial evidence” that the defendant may be mentally incompetent to stand trial. Moore v. United States, 464 F.2d 663 (9th Cir. 1972). We there stated:

“ ‘Substantial evidence’ is a term of art. ‘Evidence’ encompasses all information properly before the court, whether it is in the form of testimony or exhibits formally admitted or it is in the form of medical reports or other kinds of reports that have been filed with the court. Evidence is ‘substantial’ if it raises a reasonable doubt about the defendant’s competency to stand trial. Once there is such evidence from any source, there is a doubt that cannot be dispelled by resort to conflicting evidence. The function of the trial court in applying Pate’s substantial evidence test is not to determine the ultimate issue: Is the defendant competent to stand trial? It[s] sole function is to decide whether there is any evidence which, assuming its truth, raises a reasonable doubt about the defendant’s competency. At any time that such evidence appears, the trial court sua sponte must order an evidentiary hearing on the competency issue. It is only after the evidentiary hearing, applying the usual rules appropriate to trial, that the court decides the issue of competency of the defendant to stand trial.”

Moore v. United States, supra at 666; see Rhay v. White, 385 F.2d 883 (9th Cir. 1967).

The evidence at trial included Tillery’s outbursts in the courtroom and his irrational behavior while in confinement. The trial judge, after witnessing Tillery’s conduct, was convinced that Tillery was psychotic and ordered a psychiatric examination. Both defense counsel and Dr. Sitterley related facts which indicated that Tillery was unable to aid in his own defense, and Dr. Sitterley even suggested that Tillery be sedated during the trial. It is significant, too, that both defense counsel and the court were convinced that Tillery was not mentally capable of testifying in his own behalf without seriously prejudicing his case. We are persuaded that there was substantial evidence that Tillery may have been mentally incompetent to stand trial. Although there was information indicating that Tillery was in fact competent, such conflicting evidence can only be. resolved by an evidentiary hearing.

Although defense counsel did not object to the procedure followed at trial, the state cannot rationally contend that Tillery waived his right to an eviden-tiary hearing. “It is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial.” Pate v. Robinson, 383 U.S. at 384, 86 S.Ct. at 841, citing Taylor v. United States, 282 F.2d 16, 23 (8th Cir. 1960).

Since Tillery was not afforded the required evidentiary hearing at his trial more than six years ago, the writ of habeas corpus must issue. Because of the difficulty of retroactively determining one’s competency to stand trial, after the lapse of so many years, Tillery must be discharged unless Arizona elects to retry him within a reasonable time. Pate v. Robinson, supra; Moore v. United States, supra.

Upon remand, the District Court will hold Tillery’s petition in abeyance for a reasonable period, not exceeding sixty days, in order to afford Arizona authorities an opportunity to retry Tillery, should they choose to do so.

Reversed and remanded, with directions.

SWEIGERT, District Judge

(concurring) :

Although erratic behavior does not of itself necessarily constitute substantial evidence that a defendant is incompetent to stand trial (See People v. Laudermilk, 67 Cal.2d 272, 61 Cal.Rptr. 644, 652 [1972]), it appears that in the present case the trial judge, having actually ordered an examination on the competency issue, impliedly found substantial evidence to so require. Having so found and ordered, the judge was obliged to go through with the hearing. However, the hearing was never completed, and for this reason, I concur.

      . Former Ariz.R.Crim.P. 250(A) (reenacted and modified as 17 Ariz.Rev.Stat.Ann. Rules 11.2, 11.3, 16.4 (1973)) provided in pertinent part:
      “If before or during the trial the court has reasonable ground to believe that the defendant, against whom an indictment has been found or information filed, is insane or mentally defective, to the extent that he is unable to understand the proceedings against him or to assist in his defense, the court shall immediately set a time for a hearing to determine the defendant’s mental condition. The court may appoint two disinterested qualified experts to examine the defendant with regard to his present mental condition and to testify at the hearing. Other evidence regarding the defendant’s mental condition may be introduced at the hearing by either party.”

      . The Arizona Supreme Court ruled that there was no “manifest abuse of discretion” by the trial judge in refusing to hold an evi-dentiary hearing under former Rule 250. State v. Tillery, 107 Ariz. 34, 481 P.2d 271 (1971).

      . One court lias suggested that whenever a trial court orders a psychiatric examination as to the defendant’s present competency, then a bona fide doubt is immediately established as a matter of fact and as a matter of law. Brizendine v. Swenson, 302 F.Supp. 1011, 1019 (W.D.Mo.1969). We need not decide whether the trial court’s order for a psychiatric examination, standing alone, reflected such substantial doubt as to Tillery’s competency as to require, of itself, that a competency hearing be conducted.