author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Casey NEWSOM, Defendant-Appellant.
    No. 73-3615
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 29, 1974.
    Rehearing Denied May 20, 1974.

      Lawrence L. May, Jr., Vivian, La. (Court-appointed), for defendant-appellant.
    Donald E. Walter, U. S. Atty., L. Edwin Greer, Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM:

Casey Newsom appeals from his jury conviction of violating 18 U.S.C.A. § 1951 by threatening to harm the wife of the president of the First National Bank of Mansfield, Louisiana, in an attempt to extort $98,000 in bank funds. We affirm. We address each of the numerous errors asserted by Newsom seriatim.

(1) Newsom alleges the indictment failed to set forth the elements of the offense charged. Federal Rule of Criminal Procedure 7(c) specifies that the indictment “shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” This Court has interpreted Rule 7 (c) to require that the indictment sufficiently inform the accused of the charge to enable him to prepare his defense and to avoid the hazard of double jeopardy. James v. United States, 416 F.2d 467, 472 (5th Cir. 1969), cert. denied, 397 U.S. 907, 90 S.Ct. 902, 25 L. Ed.2d 87 (1970). See Robbins v. United States, 476 F.2d 26 (5th Cir. 1973). Newsom’s indictment tracked the statute which he was accused of violating. In Esperti v. United States, 406 F.2d 148 (5th Cir.), cert. denied, 395 U.S. 938, 89 S.Ct. 2005, 23 L.Ed.2d 454 (1969), this Court upheld an indictment drafted substantially in the language of the statute.

The indictment refers initially to both defendants, Newsom and his wife, but then uses the singular “defendant” in relating the facts of the charged violation. It does not appear that Newsom was misled by this error, however, nor that it interfered with his trial preparation. Any error was easily curable before trial through a bill of particulars and does not furnish grounds for reversal.

(2) In introducing Newsom and his attorney to the prospective jurors the trial judge made reference to the fact that Newsom’s attorney was court appointed. There was no prejudicial error in this passing statement made prior to voir dire.

(3) It was within the trial judge’s discretion to allow the Government agent to sit at counsel’s table during the trial. Del Cristo v. United States, 327 F.2d 208 (5th Cir. 1964). See United States v. Jones, 480 F.2d 954 (5th Cir. 1973). There was no violation of the District Court’s instructions when an F.B.I. agent not affiliated with the case interviewed a defense witness during the course of the trial, neither party being under the Rule of Sequestration at the time.

(4) Newsom alleges error in the District Court’s not granting a mistrial when informed that an F.B.I. agent, an assistant United States Attorney, the co-defendant wife of Newsom, and several defense witnesses were seen together on the night of the second day of trial in the lounge of a local motel at which they were all staying. The assistant United States Attorney was not prosecuting Newsom’s case but was involved in another trial. The trial judge made an independent determination out of the presence of the jury and prior to their testimony that the witnesses had. not discussed the case on the occasion in question. The District Court ruled that none of its orders had been violated and we uphold that determination.

(5) There was no abuse of discretion in permitting rebuttal testimony from witnesses who had testified in the case in chief. Rebuttal testimony concerning the defendant’s admissions against interest was properly admitted as an exception to the hearsay rule.

(6) Newsom moved to dismiss his court appointed trial counsel immediately prior to closing arguments. The District Court granted the motion after the jury had rendered its verdict. The defendant was not prejudiced by the Court’s timing in ruling on the motion after closing arguments.

(7) With different counsel on appeal than at trial, Newsom states that the court reporter did not transcribe the selection of the jury, the opening statements, and the proceedings at sentencing, and seeks reversal in light of our decisions in United States v. Upshaw, 448 F.2d 1218 (5th Cir. 1971), cert. denied, 405 U.S. 934, 92 S.Ct. 970, 30 L.Ed.2d 810 (1972), Alexander v. United States, 354 F.2d 59 (5th Cir. 1965), and Fowler v. United States, 310 F.2d 66 (5th Cir. 1962). In this case, however, the court reporter’s affidavit indicates that Newsom received all of the transcript routinely provided under the Criminal Justice Act, 18 U.S.C.A. § 3006A, plus closing arguments and the jury charge. The entire proceedings were recorded and available for transcription. The failure to subsequently request transcription of the excluded portions cannot now be the basis for a reversal, especially in the absence of any suggestion that error would be found therein.

(8) There was no error in the denial of the motion for new trial. The trial court found that Newsom’s allegations concerning counsel’s handling of the case were unfounded and specifically noted the energetic and capable representation that defendant received. On the claim of newly discovered evidence, defendant failed to meet the requirements set forth in United States v. Littlepage, 465 F.2d 63, 64 (5th Cir. 1972); Hudson v. United States, 387 F.2d 331, 333 (5th Cir.), cert. denied, 393 U.S. 876, 89 S.Ct. 172, 21 L.Ed.2d 147 (1968); Nagell v. United States, 354 F.2d 441, 448 (5th Cir. 1966).

Affirmed,


source: Caselaw Access Project

author: LEWIS R. MORGAN, Circuit Judge: RIVES, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Leon Franklin YAUGHN, Defendant-Appellant.
    No. 73-2333.
    United States Court of Appeals, Fifth Circuit.
    May 3, 1974.

      Floyd M. Buford, Macon, Ga., for defendant-appellant.
    John W. Stokes, U. S. Atty., Eugene A. Medori, Jr., Anthony M. Arnold, Asst, U. S. Attys., Atlanta, Ga., for plaintiff-appellee.
    Before RIVES, WISDOM and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

Appellant, Leon Franklin Yaughn, was tried by a jury in the U. S. District Court for the Northern District of Georgia on an indictment charging Yaughn and two others with entering into a conspiracy to defraud, pass, publish, utter and possess counterfeit notes, in violation of 18 U.S.C. § 371. Yaughn was found guilty and this appeal followed.

This court has carefully examined all four of appellant’s contentions and affirms the decision of the district court.

I.

Appellant Yaughn’s first contention on appeal is that the admission of testimony about his passing of “funny 20’s” to one Mills, in 1969, was evidence of a prior offense and, as such, was irrelevant and inadmissible because such evidence does not tend to prove the commission by the accused of the particular crime charged. Fabacher v. United States, 20 F.2d 735 (5 Cir. 1927).

Although the rule at common law is that proof of prior crimes is inadmissible for the purpose of showing the commission of the particular crime charged, there are exceptions. As early as 1842, «the United States Supreme Court recognized that evidence of acts similar to those charged is admissible for the purpose of showing a common scheme, plan or system. Wood v. United States, 16 Pet. 342, 41 U.S. 339, 10 L.Ed. 987 (1842), United States v. Southerland, 428 F.2d 1152 (5 Cir. 1970). Furthermore, anything having a legitimate tendency to throw light on the accuracy, truthfulness and sincerity of a witness may be shown and considered in determining the credit to be accorded this testimony. United States v. Lefner, 422 F.2d 1021 at 1023 (9 Cir. 1970). It should be noted that the government did not initially attempt to bring forth evidence of past offenses to prove the defendant’s state of mind or guilty knowledge. The case against Yaughn was a strong one, and the proffered testimony was sought in order to depict the witness’ participation in the charged offenses. United States v. Broadway, 477 F. 2d 991 (5 Cir. 1973).

In the instant case the evidence of a prior offense was not irrelevant and inadmissible. Its introduction at trial was not improper.

II.

During the trial, a Secret Service agent began to testify about a fingerprint test that had been taken, but was interrupted by the defendant’s objection that the agent’s testimony was not the best evidence because he had not been the party who had made the examination. The prosecuting attorney, in his closing argument, made some remarks relative to this, which appellant now claims was an improper attempt to create an inference of guilt.

Close examination of the closing arguments of both the prosecution and the defense demonstrates that the comments made by the prosecuting attorney were only in response to remarks made by the defense counsel in his closing argument. The prosecution had stated in his opening statement that it was necessary to use the testimony of people who were involved in the counterfeiting conspiracy in order to prove that the defendant committed the crime. The defense, then, in his closing summation, stated that it was not true that the government had to use these people, these co-conspirators, as witnesses. The defense went on to state that there are other methods which could be used to identify counterfeiters, “That’s not true, merchants identify them, fingerprints identify them, there are all kinds of ways of proving the counterfeiting eases. When they tell you that’s the only way they can prove it, that ain’t true.” The prosecutor then responded in his closing statement that the testimony of an accomplice was necessary in proving such a case, stating:

Ladies and gentlemen, I indicated in the beginning that this type of case can only be solved by such testimony. I did not mean to say, nor do I think I said, that counterfeiting cases in general can only be solved this way.
Certainly a man passing a counterfeit bill can be identified, certainly by a fingerprint which would be good circumstantial evidence on which the case could be made.
* * * * * *
There was much to-do made about the fact — the fact about the fingerprint examinations and the absence of fingerprints, but- you will recall that when I asked the question of the agent whether there were fingerprint analyses in this case, and he said, ‘yes, I have my report,’ I asked him, I believe, ‘what does the report contain?’ or ‘would you read the report?’—

At that point, the defense attorney objected to this reference to the fingerprint reports.

After reviewing the closing arguments in toto, this court finds that no prejudice resulted.

III.

During the latter part of his closing argument before the jury, the prosecuting attorney remarked, “No question about Mr. Yaughn’s involvement in this case, ladies and gentlemen, I don’t believe.” [Emphasis added.] Appellant’s counsel objected immediately, and moved for a mistrial. The trial court properly admonished the government attorney, who then stated:

My personal beliefs have no relevance in this case, ladies and gentlemen of the jury. I don’t believe the evidence would justify that.

The motion for a mistrial by the defense was denied.

This court has clearly stated that when a serious question as to the propriety of certain closing arguments is raised on appeal, “The challenged arguments must be viewed in context, which necessitates a detailed examination of the development of the case. It is the closeness of the evidence which makes the errors committed by the prosecuting attorney prejudicial.” United States v. Arendale, 444 F.2d 1260 (5 Cir. 1971). See, Wright, Federal Practice and Procedure, § 854, pp. 358-359.

This court finds, after having reviewed the comments in their proper context, that no prejudice resulted from these remarks. The trial court did not err in failing to grant the appellant’s motion for a mistrial.

This court, upon examining all the evidence presented in this case and the entire record of trial, finds that this does not appear to be such a close ease evi-dentially as to enable such minor impropriety to affect the jury’s verdict.

IV.

Appellant’s fourth contention presents the question: was it error for the trial court to allow the government to waive its opening argument to the jury.

At the conclusion of the presentation of evidence, and after both the government and the defense had rested their case, the government announced that it would waive its opening statement. Appellant objected. The trial court overruled the objection and stated,

It has been the practice and custom in this court to allow them to have an opening and concluding argument within their imposed time limit, and if they chose not to make an opening argument and reserve their time for concluding argument, they have that right.

We agree.

We realize that confusion is possible as to order of and waiver of jury summation, “the order of summing up varies somewhat in different jurisdictions.” The prevailing practice, however, gives the prosecution the closing argument to the jury. But, it should be noted also that these rules are subject to waiver. The practice in the district court where the trial in question took place the district court stated: is, as

. to allow them (the prosecution) to have an opening and concluding argument . . . and if they choose not to make an opening argument . . they have that right.

The law is well-settled on this question. In United States v. Kelly, 349 F.2d 720 (2nd Cir. 1965), cert. den. 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966), the defense attorney requested that the prosecution be required to sum up before the defense attorney made his summation. This request was denied. Upon careful review by a panel composed of Judges Medina, Moore and Marshall, Judge Medina stated, “We find no prejudicial error. . . .” Supra at 777. An even more detailed discussion is found in United States v. Barnes, 313 F.2d 325 (6 Cir. 1963). The court of appeals there held, “[The] closing argument is usually considered .to be a right of the party carrying the affirmative of the issue or issues involved. The right to close, as well as the right to open the argument may he waived. . . .” [Emphasis added.]

We hold that defendant Yaughn was not prejudiced by the prosecution’s waiver of his opening statement. After careful review of all of appellant’s contentions, the decision of the district court is, in all respects

Affirmed.

RIVES, Circuit Judge

(dissenting): abused its discretion when it overruled

In my opinion, the district court Yaughn’s objection to the proposed order of argument to the jury.

In the absence of the jury, Yaughn’s attorney articulated an objection to what he anticipated might happen as to arguments :

“MR. LARSEN: Please the Court, during the informal conference between the Court and counsel there was an indication as to arguments, that the United States Attorney does not propose to make an opening argument but proposes only to make a concluding argument after an argument by the defense.
“I object to this on the grounds that such procedure would deny due process to the defendant Yaughn in this respect. The argument, as I understand the process of law to be, the other side is to have an opportunity to rebut the argument. The closing argument on the part of the Government is intended in our system of law for the purpose of rebuttal to enable the Government to rebut the argument of the defense. It is not intended as a time to make an affirmative argument for the Government so that the defense has no opportunity to answer the theories and the arguments of the Government propounded in that closing argument.
“We object to a procedure that would enable the Government to proceed without making a full and fair disclosure of their position in argument at a time when we have an opportunity for rebuttal argument.” (App. 474-475.)

The court overruled this objection, saying:

“THE COURT: Well, taking the first motion first, I know of no rule that requires that the Government reserve their concluding argument only for rebuttal argument made by the defendant. As far as I know, there is no rule of that nature in the Fifth Circuit.
“It has always been the practice and custom in this court to allow them to have an opening and concluding argument within their imposed time limit, and, if they choose not to make an opening argument and reserve their time for concluding argument, they have that right.
“I don’t know why I should restrict that right for this particular reason. There is nothing unusual about this case that would in any way restrict it.” (App. 478.)

The attorney for Yaughn’s codefendant made a like motion, and the court denied it.

When the jury returned to the courtroom, the district judge announced that the evidence in the case was complete and that it was time to go forward with the arguments. The judge then stated: “The government has the opening and concluding argument.” (App. 480.) The government attorney responded: “Your Honor, the Government will waive its right to open at this time but would specifically reserve its right to con-elude.” (App. 480.) The attorney for Yaughn’s codefendant proceeded to argue the case. Then, Yaughn’s attorney argued the case to the jury. Finally, the government attorney presented the argument for the United States.

Admittedly, some courts have refused to find prejudicial error in situations similar to the circumstances of this case. 2*Also, it has been stated generally that the order and extent of argument is entirely within the discretion of the court. However, in none of these cases is there an adequate discussion of the issue presented by Yaughn in this case.

The Supreme Court has held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 1970, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368. Thus, of course, the government has the burden of proof in a criminal trial. The order of argument should reflect this fundamental proposition. If the government is allowed to waive its opening argument, and to reserve an opportunity to make a full closing argument, the defendant is forced to argue his nonculpability before the government has fully revealed its theory of the case. This puts the burden of going forward upon the defendant at a critical stage in the trial, and may understandably lead to confusion among the jurors as to who has the burden of proof. It is true that the judge’s instructions to the jury will usually include a charge that the government carries the burden of proof. However, the existence of a curative instruction does not justify a potentially prejudicial practice which has no apparent advantage.

The order of argument utilized in this case also meant that the defendant had no adequate opportunity to reply to the arguments advanced by the government. As explained by the Florida Supreme Court,

“The purpose of allowing the attorney on whom the burden lies to open and conclude is that in his opening address he shall fairly state his case — the particular evidence, and the law upon which he relies — so that the opposite attorney may have an opportunity to discuss his position. The attorney who has thus opened his case has an opportunity to reply to his adversary. The whole case is thus fairly presented to the tribunal which has to decide it.”

Andrews v. State, 1930, 99 Fla. 1350, 129 So. 771, 773, quoting S.A.L. Ry. v. Rentz, 1910, 60 Fla. 449, 54 So. 20, 23. Yaughn’s attorney was forced to argue his case without any sure knowledge of the contentions which would be made in behalf of the prosecution. The government attorney was then permitted to conclude the argument by presenting the government’s case in full for the first time. Yaughn had no chance to respond to the government’s argument. A defendant in a criminal case has a right to defend himself against the charges of the prosecution. This right properly includes not only the right to cross-examine witnesses and to present evidence, but also to reply to the prosecution’s argument to the jury.

I think the district court clearly abused its discretion. In my opinion, the district court erred in holding that the government has a “right” to waive opening argument and to reserve all of its time for its closing argument. This Court compounds that error when it expresses agreement with the district court’s holding. At most, such a ruling may arguably be within the discretion of the trial court. Absent unusual circumstances, that discretion should be exercised to require the government to make a fair opening argument. In this case, Yaughn objected at an appropriate time to the government’s proposed waiver of its opening argument and reservation of closing argument. No unusual circumstances justified reversal of the usual order of argument. I would reverse because I think the district court abused its discretion to the prejudice of the defendant-appellant. I therefore respectfully dissent.

      . The trial court’s actions are strongly supported in Wharton’s Criminal Procedure, § 2080, Vol. 5, p. 239, where it is stated:
      “The court may and should regulate the argument of counsel, . . .
      “If the court properly rebukes the prosecuting counsel for making improper statements, and the latter thereupon ceases to make them, the improper statement will ordinarily not require a reversal, . . . For example, the statement by the prosecuting attorney of his belief in the guilt of the defendant, which is ordinarily improper, may ordinarily be rendered harmless by appropriate corrective action in the trial court. To be effective, however, corrective action must be sufficiently definite and emphatic or forceful to nullify or counter-balance the consequences or potentialities of the objectionable statement.” [Footnotes omitted.]

      . Wharton’s Criminal Law and Procedure, Vol. 5, § 2077, p. 235.

      . During oral argument before this court the attorney for the appellant stated that the practice in all the federal district courts in the State of Georgia was that the prosecutor had the right to waive his opening argument to the jury. This attorney stated to his knowledge it had always been that way.

      . This passage might be better appreciated when seen in full context:
      “In the absence of a clear intent to effect such a legitimate end as conservation of time, we think that open waiver of closing argument by the government in a criminal case is of dubious propriety and may be done in such manner as .to work prejudice to a defendant. Closing argument is usually considered to be a right of the party carrying the affirmative of the issue or issues involved in litigation. The right to close, as well as the right to open the argument may be waived. This principal is usually advanced in connection with the trial of civil cases but it, no doubt, applies to the trial of criminal cases as well. It is the manner of waiver, then, with which we are concerned and the impression the jury obtained therefrom.” Id. at 328.
      In the case at bar, this court has found no attempt to impress the jury and none was claimed by the appellant.

      . Hale v. United States, 5 Cir. 1969, 410 F.2d 147; United States v. Kelly, 2 Cir. 1965, 349 F.2d 720; United States v. Barnes, 6 Cir. 1963, 313 F.2d 325, 328 (however, the court commented, “we think that open waiver of closing argument by the government in a criminal case is of dubious propriety”) ; United States v. El Rancho Adolphus Products, M.D.Pa.1956, 140 F.Supp. 645.

      . United States v. Owens, 5 Cir. 1971, 453 F.2d 355; Hale v. United States, supra; Hardie v. United States, 5 Cir. 1927, 22 F. 2d 803.

      . See discussion of this point in In re Win-ship, supra, at 361-364, including cases cited in support of the statement that “Expressions in many opinions of this Court indicate that it has long been assumed that proof of a criminal charge beyond a reasonable doubt is constitutionally required.” 397 U.S. at 362.

      . See State v. Peterson, Mo.1968, 423 S.W.2d 825, 26 A.L.R.3d 1400; State v. Hale, Mo. 1963, 371 S.W.2d 249, 256; Burrow v. State, 1913, 109 Ark. 365, 159 S.W. 1123; Andrews v. State, 1930, 99 Fla. 1350, 129 So. 771; Tindall v. State, 1930, 99 Fla. 1132, 128 So. 494; Moore v. United States, 1965, 120 U.S.App.D.C. 173, 344 F.2d 558.

      . Since I would hold that the district court abused its discretion, I would not explicitly reach the serious constitutional due process questions raised by the order of argument in this case.

      . Closing argument is the last word of government counsel to the jury, and in our adversary system, it is usually the time when the prosecution delivers its most telling blows against the hapless defendant. This advantage already possessed by the government should not be magnified by changing the usual order of argument in the manner followed in this case.


author: JOHN R. BROWN, Chief Judge:

text:
    J. B. ZARZAUR, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    No. 72-3422.
    United States Court of Appeals, Fifth Circuit.
    May 2, 1974.
    Rehearing Denied May 28, 1974.

      Scott P. Crampton, Asst. Atty. Gen., Jack Warren, Meyer Rothwaeks, James H. Bozarth, Attys., Tax Div., Dept, of Justice, Washington, D. C., Wayman G. Sherrer, U. S. Atty., William D. Mallard, Jr., Asst. U. S. Atty., Birmingham, Ala., for defendant-appellant.
    Walter L. Mims, William G. West, Jr., Birmingham, Ala., for plaintiff-appellee.
    Before BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   JOHN R. BROWN, Chief Judge:

We are once again confronted with the specter of the moribund cabaret tax after having thought to have laid it to a legislative and judicial rest. On this our second and perhaps hopefully last encounter with this case, we must decide whether there was sufficient evidence at the second trial to support the jury’s implied finding that the establishment operated by the Taxpayer, J. B. Zarzaur, during the tax years in question was a private club instead of a business providing public performance for profit. 26 U.S.C. § 4231 (6). *Viewing the evidence in a light most favorable to verdict and Taxpayer, Boeing Co. v. Shipman, 5 Cir., 1969, 411 F.2d 365, we are nevertheless compelled to hold that the District Court erred in not granting the government’s motion for J.N.O.V. We therefore reverse.

This suit originated as an action by Taxpayer to recover $18,105.56 he had made in partial payment of a $254,361.-26 assessment for the calendar years 1955-1961 under 26 U.S.C. § 4231 (6). After a jury verdict in favor of Taxpayer for the last two quarters of 1955 through 1961, the government took its first appeal asserting insufficiency of the evidence and that an erroneous jury charge had been given by the trial judge. This Court reversed the verdict finding the charge to be incorrect and remanded the case for a second trial. See note 2, supra. The able trial judge, faithful to our opinion, correctly instructed a second jury and again Taxpayer won the verdict. Undaunted, the government again appeals resting its hopes solely on lack of sufficient evidence to support the verdict.

The facts of this case, although well detailed in our first opinion, warrant further elaboration. Taxpayer started in the restaurant business in 1948 when he opened a small drive-in restaurant known as Joe’s Ranch House south of the town of Vestavia Hills, Alabama, a nearby suburb of metropolitan Birmingham. In 1953, the land on which the restaurant was situated was condemned and the restaurant torn down. On that portion of the land which was not condemned, a larger building was erected and opened for business in October of 1954 under the old name of Joe’s Ranch House. The new building had two separate dining rooms. Refreshments were served in both rooms but only the larger of the rooms had facilities for dancing. The seating capacity of the larger room ran from between 250 to 300 persons, but an area with a seating capacity of 80 or 90 persons could be screened off by a folding partition from the section of the room where the dance floor was located. The smaller of the rooms had a seating capacity of approximately 90 persons.

In 1951, during the time of the original Joe’s Ranch House restaurant, patrons of that establishment decided to form a club ostensibly to secure and maintain “facilities and means for the mutual entertainment, recreation and amusement of the membership.” A constitution was written and the Club was incorporated under the laws of Alabama under the name of the Ranch House Club, Inc. The constitution provided for the election of officers and directors, an executive committee and a membership committee. Nominal dues were also required. Taxpayer had no part in organizing the Club and was never a formal member, although at one time he was the Club’s treasurer. The Club remained generally inactive until 1954.

Sometime in 1954, after the new Joe’s Ranch House had been constructed, members of the Ranch House Club decided to activate their dormant organization and got together to informally select Club officers. Taxpayer was present at this meeting but did not participate in the proceedings.

The newly-elected Board of Directors then entered into an agreement with Taxpayer whereby the Club was to continue to use Joe’s Ranch House as its place of business and recreation and Taxpayer was to continue to own and operate the Ranch House as long as he retained the building and made certain the patronage was acceptable. Taxpayer was to keep all profits and absorb all losses. In short, the Club had no financial stake in the operation of the faeility. This arrangement could be cancelled by either party upon 30 days notice.

Selection of members for the Club was accomplished by various methods during the tax years in question. There was apparently a vague membership body of small dimension between 1951 and 1954. Beginning with the designation of officers, a membership committee was constituted which theoretically handled membership applications and approval. As with many organizations, approval by the committee was not always expeditious nor given at the exact moment when needed. Many persons desiring admittance into Joe’s Ranch House would present themselves at the door lacking a membership card. Therefore, at some point in time the Board delegated its membership selection authority and approval to Taxpayer. Taxpayer would then issue membership cards at the door, theoretically relying on recommendations of current members on hand at the time.

The qualifications for membership in the Club were vague. One need only apply, be recommended by a member, and be of “good character.” The lack of particularity with which the selection for membership was made is further evidenced by the application form required to be completed by all prospective applicants. The sole information required was the applicant’s name, address, date of birth, home telephone number, occupation, business address and signature. Nearly every person that applied for membership was accepted. Only one person, a real “rabble rouser” was ever rejected. The sole limit on the size of the membership was the capacity of the facilities, the restaurant being able to accommodate approximately 250 persons at one time.

No initiation fee for new members was ever charged but dues of between $1.00 and $3.00 per year were assessed by the Club. Taxpayer controlled the money collected and annually donated the majority of it to a charity of his choice, later informing the Board of his selection. In 1957, he even reported $1,480.00 of the dues in his own personal income tax return, taking a corresponding $1,500.00 charitable deduction. Prior to 1958, Taxpayer deposited the dues in his own bank account but after that date he opened a checking account in the Club’s name where he kept the funds.

The membership and the Board of Directors had little control, and exercised even less, over the management of their Club facilities. Although Taxpayer claimed that the Board met and discussed various items such as the price and quality of the food and the type of music that should be played, there is no evidence Taxpayer exercised anything but unbridled discretion as to the running of the Club with respect to these items. There is no evidence that the Board or any of the members ever required improvements in the food or sanctioned increases in food prices, or any other change in services or charges.

The organization of the Club was of the loosest nature. No meetings were ever held formally after the initial meeting in 1954 during which the Board was elected, and no financial reports were ever issued. No profits were shared among members, and no stock was issued to the membership. The Club owned or rented no property and made no formal rules or regulations. The most that can be said about the active participation of the Club in the Ranch House’s affairs is that on occasion the Board would, when together and dining at the Club, compliment Taxpayer on his management of the facilities and agree to any price increase requests.

Until 1955, the front portion of the Club was open to non-members. After that date, the entire restaurant was deemed private and accessible to Club members only. During the years in question, however, Joe’s Ranch House continued to be listed in the Birmingham telephone classified directory under the heading “night clubs” thus advertising itself as being ostensibly open to the public at large.

I

Sufficiency Of The Evidence

With these facts in mind we must determine if viewed in a light most favorable to the taxpayer they support a jury verdict that Joe’s Ranch House was a private club within the meaning of 26 U.S.C. § 4231. Boeing Co. v. Shipman, 5 Cir., 1969, 411 F.2d 365, 374. A mere scintilla of evidence is not sufficient to present a jury question. Id.

To qualify as a private club under 26 U.S.C. § 4231 we stated on first hearing of this case that “a club may be either a public or private facility, depending upon the use that is made of the facility and the restrictions imposed for admission thereto.” 381 F.2d at 988. The main factor to be considered is whether the club has any “meaningful membership” requirements that cull out the club members from the public at large. Other factors are to what degree the members control the operations of the club, share in the profits, and have a voice in the selection of other members.

These standards were clearly enunciated in our first opinion in this case in reliance upon the Fourth Circuit’s decision in Club Ramon, Inc. v. United States, 1961, 296 F.2d 837, cert. denied, 369 U.S. 818, 82 S.Ct. 829, 7 L.Ed. 784, and Lerner v. Schechtman, D.C.Minn., 1964, 228 F.Supp. 354. Both of these cases held a so-called private club to be a place of public entertainment. In each case the President or so-called Board of Directors of the club acted unilaterally and informally, appointing themselves to their positions with little or no real selection by the membership. The only distinction between these cases and the case at bar is that in the present case the so-called Board of Directors has no real financial interest in the club, whereas in Club Ramon and Lerner, the owners of the club composed the Board, a factor which is in our opinion a distinction without a difference.

A more recent case considered by our Court between the first and second appeals of the present case is as pertinent. Chickasaw Club v. United States, 5 Cir., 1972, 466 F.2d 1354. The Chickasaw Club was originally incorporated as a non-profit, non-stock operation conducted nominally as a “private club” in order to circumvent Georgia law prohibiting the sale of liquor by the drink in “public” places. In 1963, several investors desiring to obtain control over the Club’s private charter purchased the Club’s assets at minimal cost. They then met and appointed themselves as permanent Club officers. Other Club members, if any existed at the time, were not present nor consulted as to the selection. No further meetings were ever held.

Membership under the investors’ control was originally solicited by holding an open house with invitations to the general public to attend. After obtaining the figure of 600 members, prospective members were thereafter admitted on a regular basis on approval by the Club’s president. There were no specific qualifications for membership — and few if any persons were denied admittance. To become a member, one could either be referred by an investor, referred by a current member, or by filling out a membership application. There was no limit on the maximum number of members. .

The Club never met as a general body, never received a financial report, never established any rules or regulations, and never approved the Club’s by-laws. All profits and losses were sustained by the individual investors, and claimed on their individual income tax returns. In sum, the Club was nothing more than a public place of entertainment catering to the public at large. This Court, in reviewing in detail the particular facts of the case, held that [i] there were no meaningful restrictions on membership “more than those imposed by respectable places of entertainment or restaurants,” [ii] there were no meaningful privileges of membership, [iii] and members had no control over the operation of the Club.

The three findings by this court in Chickasaw apply equally well to the present situation. Being of “good character” in the sense of not being a “rabble rouser” is certainly not an any more stringent restriction than is imposed by respectable public places of entertainment or restaurants. Lack of meaningful membership requirements is further evidenced in this case by Taxpayer being delegated the duty to issue membership cards at the door of his restaurant at his own discretion.

There were also no meaningful privileges of membership that accorded members any different status other than enjoyed by patrons of any restaurant or night club. Members were only allowed to enter the restaurant, purchase food and drink, listen to music, and dance— the same privileges they had before the club was formed. Nor did the members exercise any control over the management of the Club. They were never consulted as to any managerial decisions that Taxpayer made.

The most that can be said for the amount of control exercised by the Board is that they would on occasion meet and informally discuss the quality of the food being served and whether or not prices should be raised. No formal approval procedure was ever established and there is no evidence that the Board did anything but agree to what Taxpayer was doing. Taxpayer arranged for the liquor license, Taxpayer collected and disbursed the funds collected as dues, and Taxpayer had sole control over his restaurant. In sum, it defies economic reality that the Club would get the exclusive use of the premises free of rent or other charges for upkeep and maintenance and, on the other hand, have absolutely no participation in the gains or profits from its operation. There is therefore no evidence of any substantive value to support a jury verdict that the Club in question was private.

II

The Law Of The Case Doctrine

Although not confronted with the issue by either Taxpayer or the government, we feel compelled to discuss one procedural point which, if decided adversely to the government, would preclude us from even considering this second appeal. On both appeals of this case we were asked to reverse Taxpayer’s verdict on the basis of insufficiency of the evidence. On the first occasion, a panel of our Court made no ruling on the issue instead reversing the case because of an erroneous jury charge. This time we are squarely confronted with the matter, sufficiency of the evidence being the only substantial point of error raised by the government.

This Circuit in following the Law of the Case Doctrine has held that we will not reconsider sufficiency of the evidence at a second appeal if the evidence passed muster the first time around. Lincoln National Ins. Co. v. Roosth, 5 Cir., 1962, 306 F.2d 110. It is a principle not to be taken lightly for to do so would not only encourage judicial inefficiency but also “panel shopping” at the circuit level. We are not, however, confronted with this laudable and self-imposed restriction since the Court on the first appeal did not decide this issue and there was no explicit indication as to whether or not there was sufficient evidence to support Taxpayer’s verdict. The only issue discussed in the opinion was whether or not the trial courts charge was incorrect. It could of course be argued that in order to even reach the question of an erroneous jury charge there has to exist enough factual evidence to submit to a second jury. But the Court was not .necessarily so restricted by its evident determination that the interests of justice presumably called for a new trial, 28 U.S.C.A. § 2106, and we ought not to foreclose inquiry into the sufficiency of the evidence on this appeal on nothing more than a possible supposition that it was —although silently — ruled on before.

Ill

Is Taxpayer, As A Concessionaire, Liable For The Tax?

As a final argument, Taxpayer suggests that should the Club be determined of a private nature and its profits thereby taxable, he, as a concessionaire, should not be held liable for the tax. This is a novel argument which Taxpayer can put forward because of the 1958 amendment to § 4231(6) which, in effect, required a concessionaire of a private club to pay an amount equal to the tax to the proprietor who in turn paid the government. Prior to this amendment the,person receiving payments for “admission, refreshments, service, or merchandise” was solely responsible for the tax.

Even assuming the jury determined Taxpayer to be a concessionaire in terms of § 4231 (6), this status would not serve to permit Taxpayer to avoid the tax. The person actually receiving the payments was liable for the tax before the amendment as well as after, regardless of his status. Congress in explaining the purpose of the amendment has made this matter very plain. Here, Taxpayer was the one person receiving the payments from his public patrons. If he were a concessionaire, he had to pay the tax over to himself as operator of the establishment, and in that status he had to pay the tax to the government.

Reversed and remanded with directions for the trial court to enter judgment for the government.

      . The cabaret tax was repealed by § 301 of the Excise Tax Reduction Act of 1965, P.L. 89-44, 79 Stat. 136 (sec. 701(b)(1)) as of December 31,1965.

      . United States v. Zarzaur, 5 Cir., 1967, 381 F.2d 981.

      . SEC. 4231: Imposition of Tax. There is hereby imposed:
      (6) Cabarets. — -A tax equivalent to 20 percent of all amounts paid for admission, refreshment, service, or merchandise, at any roof garden, cabaret, or other similar place furnishing a public performance for profit, by or for any patron or guest who is entitled to be present during any portion of such performance. The tax imposed under this paragraph shall be returned and paid by the person receiving such payments. . . .
      SEC. 4232: Definitions.
      (b) Roof garden, cabaret or other similar place. — Tlie term “roof garden, cabaret, or other similar place,” as used in this chapter [§§ 4231-4294 of this title], shall include any room in any hotel, restaurant, hall, or other public place where music and dancing privileges or any other entertainment, except instrumental or mechanical music alone, are afforded the patrons in connection with the serving or selling of food, refreshment, or merchandise. In no case shall such term include any ballroom, dance hall, or other similar place where the serving or selling of food, refreshment, or merchandise is merely incidental, unless such place would be considered, without the application of the preceding sentence, as a “roof garden, cabaret, or other similar place.”

      . See note 3, supra.

      . See note 2, supra.

      . The reason for activating the Club at this time was given by one witness and Vice-President of the Club as keeping out the “riff-raff”. Organizing a private club under Alabama law also permitted the establishment to serve liquor by the drink whereas public restaurants could not.

      . It is unclear from the record whether this was an informal, oral agreement or whether it was committed to paper. In any event, no copies were kept by Taxpayer nor produced at trial.

      . In an answer to an interrogatory propounded by the Government, the Taxpayer stated he believed being of “good character” meant among other things being of the white race, although such a qualification was not required by the Club’s constitution. As this interrogatory was not introduced into evidence, we need not decide, therefore, whether being of a particular race could constitute a membership restriction meaningful enough to give a club a private status. Cf. Moose Lodge v. Irvis, 1972, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627.

      . The actual size of the membership during the years in question, however, varied between 2,500 and 3,000 according to one witness.

      . According to one witness, James White, Vice-President of Joe’s Ranch House, dues were not charged to raise revenue but because “. . . you have to have dues to belong to a club.”

      . At trial Taxpayer stated that to the best of his recollection he was the only person permitted to write checks on the Ranch House Club account. The president of the Club, Mr. Vaiden, testified that after the account was set up he counter-signed the checks written. It is clear, however, that whether Mr. Vaiden counter-signed the checks or not is of little importance since Taxpayer in most cases used his own discretion without prior consultation with the Board as to the disposition of the majority of the Club’s dues.

      . It is not certain whether the jury’s finding that Taxpayer was not liable for the tax was because the Club in question was private or because Taxpayer was determined to be a concessionaire. The form of the charge given the jury was as follows :
      “. . . . should you find from the evidence that the Ranch House Club, Incorporated was operated continuously as a private club, or if you find from the evidence that Mr. Zarzaur operated as a concessionaire from July of 1955 through and including 1961, you would then bring in a verdict which reads as follows: We, the jury, find for the Plaintiff, J. B. Zarzaur, and against the Defendant, The United States of America.”
      For our purposes we assume both issues were decided in favor of Taxpayer.

      . At issue in Club Ramon was whether in terms of 26 U.S.C.A. § 4231(6) — the same statute that is involved in the present appeal —the owner of the club was providing a public performance for profit. At issue in Lerner, however, was whether the defendant had permitted certain copyrighted musical compositions to be publicly performed for profit in violation of 17 U.S.C.A. §§ 1(e) and 101(a), (b). In both cases the same standards for determining public vs. private clubs were found to apply.

      . Of course the investors were in a sense “members” of the Club and essentially controlled the Club’s operation. They controlled the Club, however, in their capacity as investors not as members as illustrated by the fact that they themselves treated the profits and losses as their own personal gain or loss.

      . “In more tranquil days and times, an appeal from a second trial would be heard by the same Court as the first appeal. Now, that is highly unlikely, and where it occurs, it is — at least in this Court— due entirely to the laws of chance. That puts a premium on multiple appeals. That is so because, without implying any improper purpose to litigants or their counsel, or acknowledging anything more than, as human beings, Judges will unavoidably have differences in emphasis, approach, or views on close questions in given areas, if the practice is followed for each succeeding panel to arrive at its own decisions, the losing party on the first appeal will naturally strive to bring it back a second, or a third, or a fourth time until all are exhausted. This possibility involves something other than simply more grist for our mill and as to which we should be indifferent. One of the vices is that whether a litigant gets a second, or a third time at bat likewise depends so much on chance, or at least on factors making it most unfair that in one situation a second trial and appeal is available while in another one it is lacking. A variety of possibilities will illustrate these unpredicta-bles: the trial Court enters judgment for a plaintiff on a jury verdict, and we reverse for failure to grant an instructed verdict, but send it back for a new trial because no proper motion for j. n. o. v. has been made, see Yorkshire Indemnity Co. v. Roosth & Genecov Production Co., 5 Cir., 1958, 252 F.2d 650, 657-658. Another trial Judge, in substantially the same kind of case, takes a bolder course, grants the motion for directed verdict and enters judgment for a defendant which on appeal we affirm. In the former situation, the parties will have a second chance and a second appeal. In the latter, it will be a one-shot affair. Countless other variations may readily be envisoned.”
      306 F.2d at 114.

      . See note 12, supra.

        . (c) Collection of Cabaret Tax on Payments to Concessionaires
      “. . . . Since liability for tax is on the person receiving the designated payments, more than one person may be liable for tax and the filing of returns for a single establishment. This arises because it is common, practice for a cabaret proprietor to sell or lease certain portions of his business as a concession. . . .
      “To provide a more uniform and adequate system of reporting for individual cabarets, the bill, as passed by the House and agreed to by your committee, provides that all of the tax for 1 establishment is to be returned by 1 person. . . .

        “Although the proprietor will not be personally liable for the tax, he will be responsible for the collection and return of the tax in the same manner as a person receiving taxable payments is responsible for collection and return of other collectible taxes. The concessionaire will remain responsible for the tax until paid to the Government.”
      Senate Report No. 2090, 85th Cong., 2d Sess., pp. 37-42, 1958 U.S.Code Cong. & Admin.News pp. 4395, 4432 — 4433.


author: LEWIS R. MORGAN, Circuit Judge:

text:
    Ronnie Earl FINCH, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-1230
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 2, 1974.
    James F. Howell, Shreveport, La. (court-appointed), for petitioner-appellant.
    Donald E. Walter, U. S. Atty., L. Edwin Greer, Asst. U. S. Atty., Shreveport, La., for respondent-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

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

   LEWIS R. MORGAN, Circuit Judge:

Appellant Finch on February 16, 1973, represented by court-appointed counsel, entered a plea of guilty to an indictment charging him with distribution of 81 tablets of Demerol, a Schedule II controlled substance. On April 6, 1973, appellant appeared before the District Court for sentencing and was sentenced to a 14-year term of imprisonment which was to be followed by a 3-year period of probation and parole. Subsequent to the sentencing, Finch’s then court-appointed counsel, Mr. Burnett, filed a motion under F.R.Cr.P. 35 for a reduction of sentence by . the District Court. This motion was denied by the District Judge. Subsequently, on July 25, 1973, the District Judge, after receiving a letter from appellant, appointed the United States Magistrate to act as a Special Master to conduct an evi-dentiary hearing concerning Finch’s guilty plea and another attorney was appointed to represent Finch at the eviden-tiary hearing held on August 28, 1973. On October 4, 1973, the Special Master denied the 28 U.S.C.A. § 2255 relief to appellant, and on the same date, October 4, 1973, the District Court adopted the findings and conclusions of the Special Master.

At the 2255 hearing appellant Finch asserted: (1) that his guilty plea was not freely and voluntarily made in that said plea was entered by him under duress and on the basis of promises and inducements, and (2) that the sentence imposed was excessive, and that he was sentenced on the basis of assumptions concerning his past criminal record which were untrue.

A study of the record of the arraignment and sentencing convinces us that appellant’s contention that he entered his plea under duress or because of promises or inducements is without merit.

The appellant’s second contention is more difficult. A trial judge in the federal judicial system has wide discretion in determining what sentence to impose, and if the sentence is within statutory limits, it is generally not subject to review. Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1284-1285, 2 L.Ed.2d 1405, 1410. Here we must now consider whether the appellant’s rights were prejudiced by his sentence being imposed by the District Judge on the basis of assumptions concerning his criminal record which were materially untrue. The paucity of the transcript of the sentencing gives little aid as to what transpired at the sentencing on April 6, 1973. However, Mr. Burnett, the then court-appointed counsel for petitioner Finch, testified at the 28 U.S.C.A. § 2255 evidentiary hearing on August 28, 1973, and when questioned by Mr. Howell testified as follows :

Let me back up and be completely candid with you and the Court.

At the time Mr. Finch was sentenced there were in the courtroom the usual court personnel. This was the first offense insofar as I was aware. He was charged with some drug related offenses and this was his first serious conviction.

The Judge sentenced him to fourteen years and I must say at that point I was shocked, to say the least. Mr. Finch was shocked. I did not expect such a large sentence for this offense and taking into account his statements requesting a voluntary type of plea for help for himself.

He was led from the courtroom and in all candor I must relate what happened. Judge Dawkins was on the bench presiding and to the best of my recollection he stated something to the effect that “some people never learn. This boy broke probation or parole in Ohio”.

When he said that, the United States Attorney, who was present, — it appeared Judge Dawkins confused this boy’s background with another prisoner and someone else in the courtroom, Mr. Lynch or myself, pointed out this Ohio business applied to another person.

I conferred with Mr. Lynch in the hall and I expressed my surprise and he suggested at that time the appropriate thing to do would be to file a motion for reduction of sentence. I immediately discussed the matter with Mr. Finch. I do not think I related this incident to him which appeared to be a confusion in the courtroom. Nevertheless, I went straight to my office and dictated a Motion for Reduction of Sentence and filed it the same day or the day after that. That motion is in the record.

In that motion I set out, not in detail, the incident which occurred in the courtroom, but I did set out the defendant had only one conviction and received six months in Henderson, Texas, for property damage.

I stated he was a drug dependent person and he was not charged with a drug related crime.

I stated Mr. Finch stated to myself he was willing to undergo some kind of voluntary treatment if any was available and I asked that be done and I asked the Court to reconsider the sentence and reduce it.

That motion was filed promptly on April 9,1 believe.

There is a notation on my motion in longhand: “Ruling, Motion denied— 4/9/73”.

From what we can glean from the record, the District Court was either given misinformation as to petitioner’s criminal record or the Court misread Finch’s pre-sentence report. We are not at liberty to assume that “alleged parole violations in Ohio”, emphasized by the sentencing court, did not influence the sentence which the prisoner is now serving. See Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690; also, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592.

The case is vacated and remanded to the District Court for reconsideration of the sentence imposed upon defendant.

Vacated and remanded.

      . Attorney James A. Burnett was counsel who represented appellant Finch, but the original judgment and commitment on the sentencing date of April 6, 1973, erroneously listed William O. Clark as Finch’s attorney. This error was corrected by an amended judgment executed on July 26, 1973.

      . This evidence of attorney Burnett is unchallenged although Mr. Lynch, Assistant District Attorney, was present representing the Government at the sentencing.

      . Mr. James F. Howell was appointed to represent Finch on August 3, 1973, at the 28 U.S.C.A. § 2255 hearing.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Vestol Vernon RAMSEY, Defendant-Appellant.
    No. 73-2484.
    United States Court of Appeals, Fifth Circuit.
    May 2, 1974.
    Rehearing and Rehearing En Banc Denied June 12, 1974.

      Richard Haynes, W. James Kronzer, Houston, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., George A. Kelt, Jr., James R. Gough, Asst. U. S. Attys., Houston, Tex., Victor D. Stone, Jerome Feit, Justice Dept., Crim. Div., Appellate Sec., Washington, D. C., for plaintiff-appellee.
    Before RIVES, WISDOM and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

Ramsey was indicted by a federal grand jury for (1) using the mail to carry on an illegal activity (bribery), in violation of the Travel Act; (2) devising a scheme to defraud and for the purpose of executing it, violating the Federal Mail Fraud Statute; and (3) conspiring to violate both the Travel Act and the Mail Fraud Statute. He. was found guilty under all counts. We affirm.

Ramsey, a county commissioner in Harris County, Texas, was responsible for supervising the county voting machine department. At trial the government introduced evidence tending to prove that Ramsey obtained kickbacks from the Shoup Voting Machine Company in the following manner: Ramsey recommended to Shoup that they retain an attorney, Chandler, to act as Shoup’s lobbyist in Harris County. Ramsey had Chandler send Shoup bills for fictious services. Shoup, the government contends, paid the bills, feeling that pleasing Ramsey was important to continuation of its approximately $200,000 a year business with the county. The payoffs were accomplished in the following manner: Ramsey would ask Chandler to send a bill to Shoup’s representative in Tennessee. That representative would then forward the request for payment to Pennsylvania, where a check would be issued and sent to Chandler. When the check arrived, Chandler would cash it and Ramsey would take the cash.

Ramsey, on appeal, has presented nine issues for review. We find that only one issue need be discussed by the court, the others being without merit.

Ramsey urges that the trial court persistently made unfair, improper and repressive remarks to the defense attorney which prejudiced Ramsey’s case before the jury. The passages cited by Ramsey from the trial record, however, do not support these allegations. Furthermore, this court, after having carefully reviewed the entire record, finds no conduct by the trial court which, when considered separately or in the context of the entire trial, could have affected the jury’s verdict.

Of the 12 instances where appellant urges prejudicial remarks were made, 11 were rulings on government objections to defense counsel’s overly long, repetitious and irrelevant questions, and in all 11 instances the court ruled in favor of appellant Ramsey. The only inquiry not part of a ruling was the trial judge asking how much longer it would be until the relevance of a certain line of questioning would become apparent, as the witness had been on the stand for over an hour. When defense counsel assured the judge he would tie it together eventually, he was allowed to continue.

Ramsey indicates that the most severe of the alleged prejudicial remarks was a reply by the trial court to an objection made by the government, “ . The defense attorney has a right to be repetitive. He has a right to try to trick this witness.” In Zebouni v. United States, 226 F.2d 826 (5th Cir. 1955), cited by Ramsey, the trial court referred to a defense tactic as “foolish,” and characterized an attempt to put a certain statement into the record as “self-serving.” Yet, that was not enough to necessitate reversal. In this court’s opinion, Judge Rives stated:

In fairness to the able district judge, we must say that, while the record discloses some irritation and impatience on his part ... a careful reading of the record as a whole leaves us reluctant to hold that, prior to the close of the evidence, the district judge had so abused his discretion as to necessitate reversal. Id. at 828. [Footnote ours],

The law of all the circuits is replete with instances where the equally severe remarks of a trial court were held insufficient for reversal. In United States v. Porter, 441 F.2d 1204 (8th Cir. 1971), the trial court admonished defense counsel for “deliberate tactics,” and for “blowing smoke rings” to confuse the jury. In United States v. Chikata, 427 F.2d 385 (9th Cir. 1970), the trial court referred to defense counsel’s repetitious interrogation as “just ridiculous.” In Cooper v. United States, 403 F.2d 71 (10th Cir. 1968), the court responded to a comment by the defense counsel with “that’s ridiculous.” In United States v. Penner, 425 F.2d 729 (5th Cir. 1970), a case similar to appellant’s, this court held:

Although the isolated portions of the record quoted on brief might indicate an undue interference by the trial judge with the trial, we think that the first contention is refuted by a perusal of the record as a whole. From such examination it is clear that the main purpose of the trial judge’s intervention was to assist the jury and to discourage efforts by defense counsel to explore irrelevant issues and to make premature jury arguments. The comments of the court were not argumentative and did not indicate his views as to guilt or innocence. [Emphasis added]. Id. at 730.

This court, after reviewing the entire record below, finds no single instance nor a totality of action justifying a reversal. Ramsey’s conviction in all respects must be

Affirmed.

      . (1) 18 U.S.C. § 1952 states in part, “Whoever . . . uses any facility in interstate . . . commerce, including the mail, with intent to . . . otherwise carry on ... any unlawful activity . . . shall be fined ... or imprisoned ... or both.” See, Article 159, Title 5, Vernon’s Penal Code of the State of Texas Annotated. (2) 18 U.S.C. § 1341. (3) 18 U.S.C. § 371.

      . The issues Ramsey presented were these: 1) Was the evidence sufficient to prove a violation of the Travel Act; 2) Was the evidence sufficient to prove bribery under Article 159 of the Texas Penal Code; 3) Was the evidence sufficient as to whether Ramsey “knowingly caused use of the mails to perpetrate a scheme to defraud the taxpayers of Harris County in violation of 18 U.S. C. § 1341;” 4) Was the evidence sufficient to xjrove a conspiracy between Ramsey, Chandler, Shoup Voting Machine Corporation, and Schote, an officer of Shoup; 5) Were the remarks and rulings by the trial judge improper; 6) Were the limitations on the examination of witness Chandler and witness Slaughter by the court improper; 7) Did the trial court erroneously quash a subpoena to Chandler; 8) Did the trial court properly instruct the jury, and 9) Did the court properly refuse Ramsey’s requested instructions concerning the Mail Fraud Statute.

      . It is not apparent from the record of this case that the defense attorney was able to tie up any of these lines of questioning. The judge’s inquiries were apparently well-founded.

      . The added fact that the trial judge, on his own motion, interrupted the defense attorney during his closing argument to the jury caused this court to grant a new trial.

      . See, Walker v. Bishop, 408 F.2d 1378 (8th Cir. 1969) ; United States v. Caracci, 446 F.2d 173 (5th Cir. 1971) ; United States v. Carrion, 463 F.2d 704 (9th Cir. 1972) ; United States v. Cruz, 455 F.2d 184 (2nd Cir. 1972) ; United States v. Middleton, 458 F.2d 482 (5th Cir. 1972) ; Duran v. United States, 413 F.2d 596 (9th Cir. 1969).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Gary WHITTINGTON, Defendant-Appellant.
    No. 74-1019
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 3, 1974.
    Jack A. Kanz, Dallas, Tex. (Court-appointed), for defendant-appellant.
    Frank McCown, U. S. Atty., Fort Worth, Tex., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

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

   PER CURIAM:

James Gary Whittington was indicted and convicted for possession of marihuaná, a controlled substance, in violation of § 844(a), Title 21, U.S.C. On this appeal Whittington asserts error by the district court in (1) admitting into evidence at the jury trial two metal stubs found at the scene of the offense; (2) permitting the United States Attorney to make improper argument to the jury, and (3) denial of a motion for a mistrial after the jury indicated its inability to reach a verdict.

We have carefully reviewed the record of the trial below and conclude that the assertions of error by appellant are without merit and that the judgment of conviction should be

Affirmed.


text:
    Velma CARTER, Plaintiff-Appellant, v. NEW ORLEANS AVIATION BOARD, etc., et al., Defendants-Third-Party Plaintiffs-Appellees, PROFESSIONAL MAINTENANCE OF NEW ORLEANS, INC., et al., Third-Party-Defendants.
    No. 74-1167
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 3, 1974.

      Bruce W. Dinwiddie, Edward J. Bran-dao, Kenneth W. Manuel, New Orleans, La., William F. Dukes, Gulfport, Miss., for plaintiff-appellant.
    A. Remy Fransen, Jr., New Orleans, La., for defendants-appellees.
    Francis G. Weller, New Orleans, La., for other interested parties.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

The District Judge dismissed this personal injury case for want of jurisdictional amount after having examined medical reports submitted by plaintiff’s treating physician and a physician who examined her at the request of the defendants. In his oral findings delivered from the bench following a hearing, the District Judge based his dismissal on the predicate that all the medical history revealed severe preexisting degenerative arthritis which condition did not change after the accident, and, more specifically, that both medical reports showed there had been no aggravation of the preexisting condition.

The predicate was erroneous, and the defendants do not contend otherwise. Rather they urge that a district judge is not precluded by conflicting medical evidence from eváluating all the evidence and deciding under appropriate standards that jurisdictional amount is not present. The short answer is that that is not what the District Judge did in this case, and the dismissal must be and is reversed and the cause remanded.

      . They also urge various reasons why certain of the conclusions set out by plaintiff’s own doctor in his report should be ignored or minimized.


text:
    Jesus Armando GONZALEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 73-2427.
    United States Court of Appeals, Fifth Circuit.
    May 3, 1974.

      Albert Armendariz, Sr., Albert Ar-mendariz, Jr., El Paso, Tex., for petitioner.
    Troy A. Adams, Jr., Dist. Director, I. N. S., New Orleans, Elliot L. Richardson, Atty. Gen., U. S. Dept, of Justice, Washington, D. C., William S. Session, U. S. Atty., San Antonio, Tex., Ralph E. Harris, Asst. U. S. Atty., William E. Weinert, District Director, U. S. I. N. S., El Paso, Tex., John L. Murphy, Robert P. Trout, Atty., Chief, Gov. Regulations Sec., Crim. Div., Washington, D. C., James W. Kerr, Jr., San Antonio, Tex., for respondent.
    Before BELL, THORNBERRY and DYER, Circuit Judges.
   PER CURIAM:

Gonzalez is an alien who entered this country by misrepresenting himself as an American citizen. He is resisting INS’s deportation efforts by seeking relief under section 241(f) of the Immigration and Nationality Act. That section shields from deportation aliens who entered by fraud or misrepresentation, but were “otherwise admissible at the time of entry” and now are the spouse, parent or child of a U. S. citizen.

It is agreed that Gonzalez entered by misrepresentation but is now the son of an American citizen stepfather. The only issue is whether he was “otherwise admissible at the time of entry.” INS would have us hold that an alien must have applied for a visa in order to be “otherwise admissible.” A panel of this Circuit recently has rejected that contention and held that “otherwise admissible” means that the alien must meet the physical, mental, and moral standards for admission set out in 8 U.S.C.A. § 1182. Gonzalez de Moreno v. Immigration and Naturalization Service, 5th Cir. 1974, 492 F.2d 217. Accord, Lee Fook Chuey v. Immigration and Naturalization Service, 9th Cir. 1971, 439 F. 2d 244. Contra, Reid v. Immigration and Naturalization Service, 2d Cir. 1974, 492 F.2d 251. Therefore we remand this case for a hearing to apply the criteria set out in 8 U.S.C.A. § 1182 and determine whether Gonzalez was qualitatively acceptable at the time of entry.

The order is reversed, and the cause is remanded to the Board of Immigration Appeals.

      . Section 241(f) provides: ■
      (f) The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the tim^ of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence.
      8 U.S.C.A. § 1251(f) (1970)


text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Farley OWEN, Defendant-Appellant.
    No. 73-2554
    Summary Calendar

    United States Court of Appeals, Fifth Circuit.
    April 29, 1974.
    Dick DeGuerin, Houston, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Daniel Y. Alfaro, James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

John Farley Owen appeals his conviction for conspiracy to import, importation, and possession with intent to distribute 232 pounds of marijuana. Stopping defendant Owen’s car for a “routine immigration inspection” in search of aliens who were in the country illegally, Border Patrol Agents subsequently discovered the marijuana in plain view in the trunk of his car. In light of the validity of the search under this Court’s prior decisions, see United States v. Thompson, 475 F.2d 1359 (5th Cir. 1973), the sole issue presented by Owen on appeal concerns the constitutionality of the search and seizure of contraband in light of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). In Miller v. United States, 492 F.2d 37 (5th Cir. 1974) [April 8, 1974, No. 73-1083], however, this Court has held that the Almeida-Sanchez principle is to be applied prospectively only. Since the search sub judice occurred prior to the date of the Almeida-Sanchez decision, we affirm defendant’s convictions.

Affirmed.


text:
    In the Matter of McBRAYER ENTERPRISES, INC., Bankrupt. Ann P. McBRAYER, Appellant, v. NATIONAL CITY BANK OF ROME, Appellee.
    No. 74-1063
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 29, 1974.

      Dudley B. Magruder, Jr., Rome, Ga., for appellant.
    Clinton J. Morgan, Rome, Ga., for ap-pellee.
    James S. Kilpatrick, Rome, Ga., for Trustee.
    Karl M. Kothe, Rome, Ga., for Mc-Brayer, Bankrupt.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM:

When McBrayer Enterprises, Inc. borrowed $39,500 from the National City Bank of Rome, Georgia, a promissory note for the loan was secured by “assigned various stocks” registered in the name of Ann P. McBrayer, the appellant. Mrs. McBrayer assigned each stock certificate in blank. The note, representing that McBrayer Enterprises owned and had “full power and authority” to pledge the collateral, was endorsed by Mrs. McBrayer and her husband. He was the president of Mc-Brayer Enterprises, and she was the secretary-treasurer; they were the principal stockholders. Before the note became due, McBrayer Enterprises initiated bankruptcy proceedings. The bank then filed a petition in the bankruptcy court for leave to sell the stocks and to apply the proceeds against the corpora- tion’s note. The appellant argued in response to the petition that the bank was not a secured creditor, because the stocks were owned personally by her and title had never passed to the corporation. The court held that Mrs. McBrayer would not be permitted to introduce pa-rol evidence concerning matters surrounding the execution of the promissory note pledging the stocks as collateral, and ruled that the bank could sell the securities. We affirm.

The only question we address is whether under Georgia law the parol evidence rule must, in this case, give way before one of its exceptions — that parol evidence is “admissible to explain all ambiguities, both latent and patent”. Ga.Code Ann. § 38-502. The appellant argues that the phrase “various stocks” is patently ambiguous. She contends that reference must be made to evidence outside the note to determine exactly what stocks are meant to be included. We agree that the phrase is ambiguous; but that ambiguity is not relevant here. There is no issue in this case concerning what securities are involved. The appellant may not force her way past the pa-rol evidence rule by seizing upon a minor and immaterial ambiguity and extending it to other non-ambiguous provisions of the note. We find no ambiguity in the relevant provision of the note, that McBrayer Enterprises was pledging the stock as collateral.

Affirmed.

      . “Parol contemporaneous evidence is inadmissible generally to contradict or vary the terms of a valid written instrument.” Ga. Code Ann. § 38-501. See Dixie Belle Mills, Inc. v. Specialty Machine Co., 1961, 217 Ga. 104, 120 S.E.2d 771; Cleghorn v. Shields, 1927, 165 Ga. 362, 141 S.E. 55.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Edward KIRSCH, III, Defendant-Appellant.
    No. 73-2910.
    United States Court of Appeals, Fifth Circuit.
    May 3, 1974.
    Rehearing and Rehearing En Banc Denied July 12, 1974.
    Carl J. Barbier, New Orleans, La. (Court-appointed), for defendant-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Stephen A. Mayo, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.
    Before GOLDBERG and AINS-WORTH, Circuit Judges, and LYNNE, District Judge.
   PER CURIAM:

Appellant Kirsch seeks reversal of his conviction for, violation of 18 U.S.C. Appendix § 1202(a), which prohibits receipt, possession, or transportation of a firearm by one having been convicted of a felony. Finding that the trial court erred in admitting into evidence the incriminating pistol, holster, and bullets, seized as the result of a constitutionally impermissible frisk, we reverse

At approximately 2:00 a. m. on the morning of February 6, 1973, Kirsch was stopped by two officers of the New Orleans police department because they found his manner of driving suspicious. After the stop Kirsch, who was riding with three women, got out of the car and walked back to talk to the officers. Apparently on the basis of appellant’s inarticulate and confused responses to questioning, Officer Magee patted him down. This frisk led ultimately to the discovery of the firearm and accompanying paraphernalia. At oral argument counsel for both appellant and the Government agreed that the admissibility of each of these items turned on the constitutional validity of the frisk.

The constitutional prerequisites for a frisk of the person following an investigative stop appear in the Supreme Court’s opinion in Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. Noting that “even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security,” the Court established a limiting standard.

“Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. . . . And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.”

392 U.S. at 27, 88 S.Ct. at 1883. The Court emphasized that in order to satisfy constitutional scrutiny, all inferences must be based on “specific and articula-ble facts.” 392 U.S. at 21, 88 S.Ct. 1868.

In this case the only specific, articula-ble facts that might conceivably have prompted a fear for personal safety or a suspicion of the presence of an armed man were Kirsch’s actions in getting out of the car, standing around nervously, and giving confused explanations for his presence in the neighborhood. However, Officer Magee, who made the original stop, conducted the frisk, and observed these occurrences first hand, testified at trial that at no time was he in fear of life or limb, that he had no basis for a belief that Kirsch was armed or dangerous, and that he did not believe appellant to be armed at the time of the frisk. This Court has in the past attached considerable significance to the on-the-scene evaluation of an experienced policeman when his judgment argued in support of the search. We find that seasoned judgment no less persuasive in our determinations when the officer candidly admits that he acted in the absence of any reasonable suspicion. What emerges from the testimony is the description of a frisk undertaken as a purely routine matter and not in response to any suspicious or unnerving conduct on the part of the “suspect.” It is precisely this reflexive police activity that the Terry standards quoted above were designed to curb. The pistol, holster, and bullets— all the fruits of an unlawful search-ought to have been suppressed.

Reversed and remanded.

      . Appellant raises five contentions of error in addition to the claim that the district court wrongfully refused to suppress. Our disposition on that point, however, makes it unnecessary to consider the others.

      . 392 U.S. at 24-25, 88 S.Ct. at 1881.


text:
    Robert L. DIXON, Petitioner-Appellant, v. J. D. HENDERSON, Warden, United States Penitentiary, et al., Respondents-Appellees.
    No. 73-3994
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 1, 1974.
    Robert L. Dixon, pro se.
    Anthony M. Arnold, Asst. U. S. Atty., Atlanta, Ga., for respondents-appellees.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM:

Petitioner Dixon brought the present action in the nature of a mandamus under 2'8 U.S.C. § 1361 to compel the warden of the Atlanta Federal Penitentiary to restore to his credit 440 days of earned good time authorized by 18 U.S. C. § 4161. The district court denied the requested relief and petitioner seeks reversal of that decision on two grounds: (1) that the revocation procedures employed by prison officials did not comport with the requirements of due process, and (2) that the punishment meted out was both unconscionably and unconstitutionally harsh. Finding no merit in this attack, we affirm.

18 U.S.C. § 4165 specifically permits the revocation of good time for violation of prison rules; and the federal Bureau of Prisons has promulgated a series of “Policy Statements” containing the procedures to be followed in order to effect such a forfeiture. On three occasions between September 1970 and July 1972 petitioner suffered a reduction in his good time allowance. In all three instances the prison authorities scrupulously adhered to the applicable regulations.* Petitioner’s good time was revoked pursuant to the written recommendation of a neutral board before which he had been permitted to appear. More than a week prior to each hearing prison officials had informed Dixon of the nature of the charges against him and of the impending board meeting. Though entitled under the regulations to call witnesses in his own behalf, petitioner declined to do so in each case ; and, upon hearing the formal charges against him read at the board meetings, Dixon admitted the violations — after which he was afforded the opportunity to make any explanatory or mitigating statements. The board recommendations of forfeiture were transmitted to the warden for final approval; and petitioner was notified in writing of both the warden’s decision and the availability of staff assistance in the preparation of an appeal to the Office of General Counsel and Review.

We find that this scenario, repeated three times in less than two years, was sufficient under the due process clause of the Fifth Amendment to sustain the revocation of good time. Petitioner, who at no point sought seriously to contest the underlying factual basis for the disciplinary proceedings, received in ample measure both notice and the opportunity to be heard.

Given the adequacy of revocation procedures, the decision to withdraw good time and the number of days forfeited are within the province of prison officials, subject only to court review for arbitrary, capricious, or fraudulent action. Theriault v. Blackwell, 5 Cir. 1971, 437 F.2d 76, cert. denied, 402 U.S. 953, 91 S.Ct. 1637, 29 L.Ed.2d 122. The revocation of 440 days good time on the basis' of petitioner’s admitted violations of regulations governing contraband does not support a claim of such reprehensible official conduct.

Affirmed.

      . This Court has explicitly recognized tbe availability of an action under § 1361 to a federal prisoner seeking tbe restoration of statutory good time. Taylor v. Blackwell, 5 Cir. 1969, 418 F.2d 199.

      . At the time of the first forfeiture in September 1970, Policy Statement No. 7400.6 controlled official action. The two subsequent proceedings in March and July 1972, however, were governed by the presently effective Statement No. 7400.6A. The differences between those regulations are not relevant to this appeal.

      . At the March 1972 hearing, however, petitioner was represented by a prison staff member whose aid he had requested. A prisoner is entitled to such representation at a forfeiture hearing under paragraph 4e of Policy Statement No. 7400.6A.

      . Plaintiff avers that he has exhausted the available administrative remedies, and the Government does not argue for dismissal for any failure to exhaust.


author: ELY, Circuit Judge:

text:
    George FAJERIAK et al., Appellants, v. Frederick P. McGINNIS et al., Appellees.
    No. 73-1038.
    United States Court of Appeals, Ninth Circuit.
    Feb. 11, 1974.

      George Fajeriak, in pro. per.
    John E. Havelock, Atty. Gen., and Ivan Lawner, Asst. Atty. Gen., Juneau, Alaska, for appellees.
    Before ELY, HUFSTEDLER and SNEED, Circuit Judges.
   OPINION

ELY, Circuit Judge:

This appeal is from the District Court’s Order dismissing a complaint on the ground that it failed to state a claim for which relief could be granted. The appellants sued as a class for declaratory and injunctive relief under 42 U.S.C. § 1983, 28 U.S.C. §§ 1343, 2201-2202. They alleged that they were all prisoners of the State of Alaska, who had been transferred without their consent, without a hearing, and without notice, to prisons outside the state. The prisoners argued that such interstate noncon-sensual transfers violated due process of law. Two of the prisoners specifically alleged that they were transferred because of their religious activities. The plaintiff Gamble alleged that prison officials suspected him of teaching the Black Muslim religion to fellow prisoners, and the plaintiff Rondini alleged that he believed his activities with the Christian Science religion had led to his transfer.

The standard to be applied in determining the propriety of a complaint’s dismissal is whether “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed. 80 (1957). See also Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); Cruz v. Beto, 405 U.S. 319, 321-322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). Furthermore, the allegations of a pro se complaint must be measured by a less stringent standard than a formal pleading drafted by an attorney. Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1971). Nevertheless, even under the lenient criterion applied to pro se complaints, the appellant’s allegation that the nonconsensual transfers were per se violative of their due process rights did not state a claim for relief. This court has previously held that such a transfer, of itself, does not present a constitutional issue. Hillen v. Director of Department of Social Services and Housing, 455 F.2d 510 (9th Cir. 1972), cert. den., 409 U.S. 989, 93 S.Ct. 331, 34 L.Ed.2d 256 (1972); Duncan v. Madigan, 278 F.2d 695 (9th Cir. I960).

However, as to the two prisoners who alleged that their transfers were ordered only so as to penalize them for their religious activities, a claim for relief has been stated. Their claims are analogous to that in Cruz v. Beto, supra, where Cruz alleged he had been placed in an isolation unit in retaliation for his passing out Buddhist religious material. While the prison administrators in Cruz had the constitutional authority to order prisoners into solitary confinement units at their discretion, imposing solitary confinement as a penalty to discourage certain religious beliefs was clearly unconstitutional. The Supreme Court held that “reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments without fear of penalty.” Id. 405 U.S. at 322, 92 S.Ct. at 1081. Here, the routine, interstate transfers could probably be made at the discretion of the prison authorities, but transfers for the sole purpose of penalizing the two prisoners for certain religious beliefs, if such occured, was unconstitutional. Despite the fact that the complaint is inartfully framed, if the belief of Gamble and Rondini that they were transferred only because of actual or suspected religious activities on their part is taken as true, they have stated a claim for relief. See Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1971).

The District Court’s dismissal Order as to Gamble and Rondini is reversed. As to all other appellants, the Order of the District Court is affirmed.

Reversed m part; affirmed in part.

      . See Gomes v. Travisono, 353 F.Supp. 457 (D.R.I.1973), rev’cl in part on other grounds, 490 F.2d 1209 (1st Cir. 1973), wherein the District Court, in a similar case involving out-of-state transfers, noted that while it could properly exercise jurisdiction under 28 U.S.C. § 1343, the court could not issue injunctions against receiving institutions outside the state. Since, however, the prisoners were still in the technical custody of the transferring state, the District Court could order the transferring institution to request the return of the prisoners.

      . The nonconsensual transfer procedure is no longer operative in Alaska, and Alaska’s state prisoners are now afforded both a hearing and a right to appeal in respect to their threatened transfer.

      . In the present case, it is unnecessary for us to enunciate any broad procedural rule for general application in all eases involving the nonconsensual transfer of a prisoner from one institution to another. We therefore express no opinion in respect to such a rule.


text:
    Tommy Ray LENZ, etc., et al., Plaintiffs-Appellees, v. SOUTHERN PACIFIC COMPANY, Defendant-Appellant.
    No. 73-3861
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 29, 1974.
    F. W. Baker, San Antonio, Tex., for defendant-appellant.
    William H. Price, Pat Maloney, San Antonio, Tex., for plaintiffs-appellees.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

On December 24, 1971, Joseph A. Lenz, Jr., was killed when' the truck he was driving collided with a Southern Pacific train in Macdona, Texas. A wrongful death action based upon diversity jurisdiction was filed in federal court by the decedent’s former wife on behalf of his minor son, Tommy Ray Lenz, and by the decedent’s parents. After a jury verdict in their favor a judgment was entered awarding the deceased’s parents $15,000 and his minor son $50,000. Southern Pacific’s motion for a new trial was denied and it has appealed.

The appellant makes four basic contentions: (1) “Insurance” was inappropriately injected into the case by the appellees’ counsel and the court. (2) Hearsay evidence was admitted which created reversible error. (3) The damage awards are excessive. (4) There was cumulative error.

The injection of “insurance” arose when the appellees’ counsel inappropriately referred to a railroad investigator as an “insurance investigator.” The district court rejected the appellant’s motion for a mistrial and instructed the jury that there was no insurance involved in the case and to disregard the reference to insurance. The appellees’ counsel apologized to the court and agreed that there was no question of insurance. In his order overruling the appellant’s motion for a new trial the trial judge found that the insurance reference had been inadvertent.

The appellant contends that a single inadvertent reference to insurance is prejudicial error when caused by the court or when caused by a plaintiff’s counsel in a case in which liability is strongly and closely contested or the verdict is substantial. Initially we note that the court did not cause the reference to insurance. By its instructions the court merely attempted to cure the error. The appellant intimates that it was harmed by the court’s instruction that there is no insurance in this case. It alleges that it would have been preferable for the court merely to instruct the jury to disregard the statement and give it no effect whatsoever. We can perceive of no harm to appellant arising from the court’s choice of instructions. Indeed, it may have been more favorable to appellant.

As to the injection of the insurance issue by the appellees’ counsel it takes no citation of authority to note that courts disapprove of such actions. Not every mention of insurance, however, is prejudicial. This single inadvertent reference was properly corrected by the trial court’s instructions and did not prejudice the appellant’s interest.

The hearsay statement of which the appellant complains occurred when the deceased’s former wife testified that he told her that he made at least $26,000 in 1969. The appellant objected to the statement as hearsay, and the objection was erroneously overruled. Upon reconsideration the district court found that in light of the entire record the statement was not of such nature as to affect the jury verdict. The jury’s verdict should be disturbed by this court only if we find that the inadmissible matter affected the substantial rights of the parties. Upon a review of the record we agree that the hearsay statement did not affect the outcome of the trial or the substantial rights of the appellant.

Furthermore, we are convinced that the size of the verdicts are within the zone designated as the jury’s province. Finally, we conclude that the cumulative effect of the alleged errors was not calculated to and did not cause the rendition of an improper judgment.

The decision of the district court is, therefore, affirmed.

Affirmed.

      . In Socony Mobil Oil Co. v. Taylor, 388 F. 2d 586 (5th Cir. 1967) this court reversed when the trial court injected the insurance issue on its own voir dire examination. It was undisputed that there was no insurance coverage. The court noted that under some circumstances a cautionary instruction might be sufficient as a curative matter. In the present case the district court’s only participation was of a curative nature.

      . See Sears, Roebuck & Co. v. Wedgeworth, 252 F.2d 759, 764 (5th Cir. 1958) ; Pasotex Pipeline Co. v. Murray, 168 F.2d 661, 662 (5th Cir. 1948) ; St. Louis Southwestern Ry. Co. v. Gregory, 387 S.W.2d 27 (Tex.1965) ; Dennis v. Hulse, 362 S.W.2d 308 (Tex. 1962).

      . F.R.Civ.P. 61.

      . The power of an appellate court to review the excessiveness of a verdict is extremely limited. Ross v. Newsome, 289 F.2d 209, 210-211 (5th Cir. 1961). Great caution should be exercised before the appellate courts interfere. St. Louis Southwestern Ry Co. v. Williams, 397 F.2d 147, 152 (5th Cir. 1968).