author: WILLIAM M. BYRNE, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert Wayne CAMERON, Defendant-Appellant.
    No. 73-1718.
    United States Court of Appeals, Ninth Circuit.
    Sept. 20, 1973.
    Jack McCall (argued), of Mason, McCall & Ross, Phoenix, Ariz., for defendant-appellant.
    Thomas N. Crowe, Asst. U. S. Atty. (argued), William C. Smitherman, U. S. Atty., Phoenix, Ariz., for plaintiff-appel-lee.
    Before GOODWIN and WALLACE, Circuit Judges, and BYRNE, District Judge.

       Honorable William M. Byrne, Sr., United States Senior District Judge, Central District of California, sitting by designation.

   WILLIAM M. BYRNE, District Judge:

Cameron was convicted by jury of passing and uttering a counterfeit twenty dollar federal reserve note with knowledge that it was counterfeit, a violation of 18 U.S.C. § 472.

Although Cameron was indicted for only one incident of passing a counterfeit bill, the government produced evidence pertaining to other similar incidents which occurred on the same date (September 24, 1971) and in the same city (Mesa, Arizona).

Roland Farabee, the person to whom Cameron passed the counterfeit bill, testified that, at 3:30 P.M., Cameron and a female passenger (later identified as Barbara Sue Cowgar) arrived in a 1959 Ford at the gas station where Farabee was employed. Cameron told Farabee that he was there to pick up a tire which he had previously left for repair. When Farabee went to get it, Cameron got out of the Ford, walked to the fear, and opened the trunk. When Farabee returned with the tire, Cameron was holding the counterfeit bill in his hand. After Farabee put the tire in the trunk, Cameron handed him the bill. Since the charge for the tire was only $2.00, Fara-bee took the bill to the cash box to get change. While doing so, he noticed that “it looked funny,” but did not say anything until appellant left, to avoid “any trouble right then.” He brought Cameron his change of $18.00. Farabee did not see what Cameron did with the change. Shortly after the Ford drove away, it was determined that the bill was indeed counterfeit. Consequently, the police were summoned. On cross-examination, Farabee described the quality of the counterfeit bill by saying that, “One side looked pretty good. The other side looked pretty bad.”

Each of three other witnesses (Ronald Cripe, Norma Jean Sharp, and Lorey Egbert) testified that, in separate incidents earlier that day, Miss -Cowgar passed counterfeit twenty dollar bills to them. Each of them also testified that, at the time she made those passes, she was alone and driving a certain 1968 Chevrolet. Each of the victims was suspicious that the bills were counterfeit and turned them over to the authorities.

Marilyn Mills testified that, in a separate incident subsequent to the pass to Farabee, Cameron accompanied Miss Cowgar when she passed a counterfeit twenty dollar bill to her for the purpose of obtaining change for the pop machine. Mrs. Mills testified that Cameron had one hand in his pocket “and I could hear rattling in his pocket, and to me it sounded like change in his pocket and I thought that it was funny that they would ask for change for the pop machine if he already had some.”

Cameron testified that about 3:30 P. M., on September 24, Miss Cowgar had stopped by his residence. Since he was in the process of leaving to pick up his tire at Farabee’s gas station, he took her with him. At the station, she gave him the twenty dollar bill in order to pay for the tire repair. He, in turn, handed it to Farabee. Then, he gave the $18.00 change back to Miss Cowgar. After leaving the gas station, the pair made four other stops and then returned to his residence. The first stop was at a self-service gas station where he put $2.-00 worth of low-priced gasoline into the Ford and Miss Cowgar paid for it with a twenty dollar bill. The second stop was at a souvenir shop where he waited in the car while Miss Cowgar went inside. He did not know whether she passed any money there. The third stop was at a general store where Miss Cowgar obtained change from the clerk (i. e., Mrs. Mills) in order to buy soda pop from a machine. He testified he did not see what she gave the clerk for the change. The fourth stop was at a fruit stand where Miss Cowgar purchased various kinds of fruit and he carried it to the car for her. He said he did not see what Miss Cowgar paid the saleslady with. After returning to Cameron’s house, Miss Cowgar told him that she had been passing counterfeit money.

He further testified he had been present during a conversation occurring two or three weeks before the date of his arrest, when dealings in counterfeit money were discussed. He also testified that he did not know that the bill he gave to Farabee was counterfeit until later that afternoon when Miss Cowgar informed him of that fact. On cross-examination, he admitted that he had previously been convicted for selling heroin.

Cameron rested his case without producing any other evidence. A motion for a judgment of acquittal on the ground the evidence was insufficient to sustain a conviction was denied. Subsequently, the jury returned a guilty verdict and the court sentenced Cameron under the provisions of the Federal Youth Corrections Act.

Cameron asserts that the district court erred in denying his motion for a judgment of acquittal and contends that the evidence was insufficient for the jury to determine that he knew the bill was counterfeit at the time he passed it to Farabee.

When ruling on a motion for judgment of acquittal, the trial court must determine whether or not the evidence is sufficient for the jurors to reasonably arrive at the conclusion that the defendant is guilty. United States v. Nelson, 419 F.2d 1237, 1241-1243 (C.A. 9, 1969).

The district court answered this question in the affirmative by denying Cameron’s motion for a judgment of acquittal. By so ruling, it implicitly found that the evidence was sufficient to enable the jurors to reasonably conclude that Cameron had the requisite guilty knowledge. We agree that the evidence was sufficient to support both the district court’s ruling and the jury’s verdict.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Daniel BARKER, Plaintiff-Appellant, v. Dale JOHNSON, Defendant-Appellee.
    No. 73-1062.
    United States Court of Appeals, Sixth Circuit.
    Argued June 6, 1973.
    Decided Aug. 29, 1973.
    Lawrence S. Katkowsky, Southfield, Mich., for plaintiff-appellant; Schurgin, Katkowsky & Rosenberg, Southfield, Mich., on brief.
    Richard Manning, Detroit, Mich., for defendant-appellee; James Finn, Detroit, Mich., on brief; Donald E. Miller, Alexander, Buchanan & Seavitt, Detroit, Mich., of counsel.
    Before EDWARDS and MILLER, Circuit Judges, and MOYNAHAN, District Judge.

       The Honorable Bernard T. Moynahan, Jr., Chief Judge, United States District Court for the Eastern District of Kentucky, sitting by designation.

   PER CURIAM.

Petitioner-Appellant has appealed from an order of the district court dismissing his civil rights action. Appellant brought this action pursuant to 42 U.S.C. § 1983, alleging that evidence introduced at this state trial for possession of marijuana was obtained in violation of the Fourth Amendment.

In July, 1966, the appellant went to Redford Township Police Headquarters to inquire about the detention of his two nephews who had been arrested and were being held there at Redford Township Jail. While awaiting this information, the Redford Police discovered that the appellant had some $346.00 in parking or traffic violations outstanding in Detroit, as well as a warrant for his arrest concerning these traffic violations. The Redford Police then arrested the appellant. Detroit Police were called and upon their arrival, the appellee, Dale Johnson, of Redford Township Police accompanied by the Detroit policemen left the Redford Police Headquarters to inventory the contents and lock appellant’s car, which was parked in front of the Police Station.

Upon opening the ear door to begin this inventory Appellee Johnson saw, in plain view, two marijuana cigarettes on the floor mat on the driver’s side of appellant’s automobile. Subsequently the plaintiff-appellant was arrested and convicted for possession of marijuana, but his conviction was overturned by the Supreme Court of Michigan on other grounds.

Appellant asserts that the marijuana cigarettes taken from his car were seized as a result of an illegal and unreasonable search, thus rendering the evidence obtained as a result thereof inadmissible. This civil action is bottomed upon that contention.

The evidence herein indicates the appellee went to the car of appellant to inventory the valuables, to roll up the windows and to lock this car for the sole purpose of protecting the car and its contents while the owner was in lawful custody. Under the rationale of Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), this was a proper police function. Once the door had been lawfully opened, the marijuana cigarettes were plainly visible. It has long been settled that objects falling within the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced as evidence. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963).

There being no unlawful search and seizure, there can be no action based upon 42 U.S.C. § 1983, and the judgment of the District Court is affirmed.


author: PER CURIAM:

text:
    Robert Glenn THOMPSON, Appellant, v. UNITED STATES of America, Appellee.
    No. 156, Docket 73-1973.
    United States Court of Appeals, Second Circuit.
    Submitted Sept. 19, 1973.
    Decided Sept. 19, 1973.

      Robert Glenn Thompson, pro se.
    Robert A. Morse, U. S. Atty., E. D. N. Y. (L. Kevin Sheridan and Robert F. Katzberg, Asst. U. S. Attys., Brooklyn, N. Y., of counsel), for appellee.
    Before KAUFMAN, Chief Judge, and SMITH and MULLIGAN, Circuit Judges.
   PER CURIAM:

Thompson appeals from Judge Bruch-hausen's denial of a motion for correction or reduction of sentence (Fed.R. Crim.P. 35) and of his petition for a writ of habeas corpus (28 U.S.C. § 2255). In the instant action, Thompson attacks a sentence imposed in 1965 after he pleaded guilty to conspiring to commit espionage, in violation of 18 U.S.C. § 794(c). He was sentenced in 1965 to thirty years imprisonment, and is currently serving that term. During his incarceration, Thompson apparently has earned a Bachelor of Laws Degree from LaSalle Correspondence University and he brings his newly acquired talents to bear on the present appeal. He claims that his present sentence is illegal because it was imposed for the commission of a crime other than the one to which he pleaded guilty. Our examination of the record impels the conclusion that Thompson’s claims are wholly without merit. The entry of plea and imposition of sentence in 1965 were free of legal or constitutional infirmity. Accordingly, we affirm.

We would be loathe to memorialize the present case in a written opinion but for the need to clarify and correct several statements made in Judge Bruchhau-sen’s opinion below. In ruling on the instant motion, Judge Bruchhausen stated that Thompson pleaded guilty to conspiracy to commit espionage (18 U.S.C. § 794(c)), espionage (18 U.S.C. § 794(a)), conspiracy to commit a crime against the United States (18 U.S.C. § 371), and acting as an agent of a foreign government (18 U.S.C. § 951). This recitation of the record was erroneous. Indeed, it is clear that Thompson pleaded guilty only to conspiracy to commit espionage and was sentenced for that offense only. But, the Judge’s incorrect statement in 1973 of the pellucid record obviously cannot serve to undermine the validity of Thompson’s 1965 plea and sentence.

Judge Bruchhausen also misinterpreted the nature of the instant motion. He regarded the appellant’s application for relief as a motion for reduction of sentence under Fed.R.Crim.P. 35 and accordingly grounded, his denial on untimeliness. Thompson, however, sought relief in the alternative. He not only asked for a reduction of sentence, but, in addition, moved for correction of an allegedly illegal sentence. Since an attack upon the legality of a sentence is not limited by time strictures (Fed.R.Crim.P. 35), the motion was timely. In any event, this ground of attack and Thompson’s other contentions were wholly without merit.

Affirmed.


author: COLEMAN, Circuit Judge:

text:
    Charles Edward HARDIN, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellant.
    No. 73-2521
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 19, 1973.
    John L. Hill, Atty. Gen. of Texas, Lon-ny F. Zwiener, Joe B. Dibrell, Asst. At-tys. Gen., Austin, Tex., Jerry Buckner, Asst. Dist. Atty., James A. Mashburn, Dist. Atty., Midland, Tex., for respondent-appellant.
    William Monroe Kerr, court-appointed, Midland, Tex., for petitioner-appel-lee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   COLEMAN, Circuit Judge:

In September, 1969, a jury in the Texas District Court at Midland convicted Charles Edward Hardin of robbery by assault. As a recidivist he was sentenced to imprisonment for life. The Texas Court of Criminal Appeals affirmed, 471 S.W.2d 60. He sought federal habeas corpus relief on the same grounds asserted in the Texas Courts, i. e., denial of compulsory process for his witnesses and denial of due process by being tried in leg shackles.

The appellate record indicates that Hardin has accomplished a “one man crime wave”. Besides the Midland conviction, now under habeas review, Hardin is presently serving a sixty year term for robbery and a life sentence for theft. Not yet thirty years of age he has either pleaded guilty to or been convicted of about eleven crimes. Such a record is not calculated to inspire an outpouring of post-conviction sympathy. Nevertheless, Hardin is entitled to and, along with the State of Texas, has received an impartial consideration of the merits of this appeal.

On March 29, 1973, after a rather extended evidentiary hearing, United States District Judge D. W. Suttle directed that Hardin’s petition be granted, both for the denial of compulsory process for his witnesses and because the use of leg shackles, while otherwise all right, had tainted an in-eourt identification by the only witness who identified the defendant as the Midland robber.

An appeal was filed. The Attorney General of Texas declined to pursue the appeal; but the District Attorney has done so and the ease has been splendidly briefed for both the prisoner and the State.

Upon a thorough evaluation of the record and briefs we are satisfied that Judge Suttle’s decision on the denial of compulsory process was right. Since the State of Texas has now adopted a rule for compulsory process for witnesses which should prevent any likelihood of a recurrence of the situation now before us we feel that further discussion would be of no precedential value.

Since the District Court was correct as to the denial of compulsory process we need not, and do not, intimate any opinion on the sub-shackles issue as it affected the identification offered by the lone identification witness.

Of course, the State, in its discretion, may try Hardin again, but any such trial should be begun within ninety days of the receipt of our mandate in the District Court if no good cause be shown for additional delay.

The judgment of the District Court is

Affirmed.


text:
    Robert AULDS, Plaintiff-Appellant, v. Lt. Thomas FOSTER et al., Defendants-Appellees.
    No. 73-2375
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 24, 1973.
    James A. Wood, Baton Rouge, La., for plaintiff-appellant.
    S. J. Dileo, Sp. Counsel, Dept, of Justice, State of La., Crim. Div., Baton Rouge, La., for defendants-appellees.
    Before GEWIN, COLEMAN and MORGAN, 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:

Appellant, Robert Aulds, is presently incarcerated in the Louisiana State Penitentiary at Angola, Louisiana. On December 19, 1972, he filed a verified complaint in the United States District Court alleging a violation of the Civil Rights Act, 42 U.S.C. §§ 1981-1983. He contends that during his incarceration he was denied adequate medical treatment and was brutally beaten by prison guards when he requested it. Counsel for the appellant secured affidavits from several inmates supporting these allegations.

The appellees, prison personnel, submitted affidavits contending that the appellant became violent and his own action necessitated the action by the guards. Appellees also contend that appellant refused medication offered by a hospital attendant, demanded other medication, and had to be forcibly returned to his cell. It is the contention of appel-lees that the disturbance created by appellant incited other inmates and required macing him and several other inmates.

The district court found that oral argument or an evidentiary hearing was not required. In referring to the inmate’s affidavits it held “the main gist of these affidavits is simply that the guards handled the plaintiff rougher than the inmates thought they should . ” The court was of the opinion “that the evidence certainly preponderates in favor of the conclusion that this whole incident was a prison disturbance which required action on the part of the penitentiary guards, and that it was the plaintiff himself, rather than the guards, who caused injury to his wrists.” The court concluded, “that this entire matter constituted a matter of internal prison administration, and that there is not sufficient evidence to justify a conclusion that any rights of the plaintiff protected by 42 U.S.C. § 1983 were violated in this case.” Accordingly, upon its evaluation of these affidavits the district court granted the defendants’ motion for summary judgment. We reverse and remand for trial.

A motion for summary judgment should only be granted when there is no genuine issue as to any material fact. The party opposing the motion is to be given the benefit of all reasonable doubt in determining whether a genuine issue exists. Heyward v. Public Housing Administration, 238 F.2d 689, 696 (5th Cir. 1956); Pennsylvania v. Curtiss Nat’l Bank, 427 F.2d 395, 401 (5th Cir. 1970). Although affidavits certainly are useful on a motion for summary judgment, the court may not resolve disputed fact issues by reference to the affidavits. The fact that it may be surmised that the party against whom the motion is made is unlikely to prevail at the trial is not sufficient to authorize summary judgment against him. National Screen Service Corp. v. Poster Exchange, Inc., 305 F.2d 647, 651 (5th Cir. 1962); American Manufacturers Mutual Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir. 1967).

Although similarities did exist between the affidavits of the inmates and those of the guards, important factual distinctions were present. The distinctions concern the degree of brutality, what was said by the guards, and the inmates’ action provoking guard reaction. The truth of this matter should be determined by a trial on the merits.

As a matter of policy federal courts are reluctant to interfere with internal prison discipline, however, “this chariness does not mean that prison officials have unfettered discretion in the treatment of their prisoners.” Anderson v. Nosser, 438 F.2d 183, 189 (5th Cir. 1971), affirmed en banc as modified, 456 F.2d 835 (1972).

An unjustified brutal beating by prison guards is sufficient to state a claim under 42 U.S.C. §§ 1981-1983, Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). We do not make the slightest intimation that such misconduct can be proved at trial. All we hold is that the existence of genuine issues of material fact make summary judgment inappropriate.

Reversed and remanded.


text:
    In the Matter of a Contempt of Court citation against J. Tony SERRA, Attorney for Defendant (Appellant) in Criminal Action. U. S. A. v. Alistair HONEYMAN, DC No. 72-781-RHS.
    No. 73-2021.
    United States Court of Appeals, Ninth Circuit.
    Sept. 18, 1973.
    Dean John Pasvankias, (argued), J. Tony Serra, of Serra, Perelson & Met-calf, San Francisco, Cal., for appellant.
    John C. Emerson, Sp. Atty. (argued) James L. Browning, Jr., U. S. Atty., Edward J. Brzytwa, Sp. Atty., San Francisco, Cal., for appellee.
   OPINION

Before WRIGHT and CHOY, Circuit Judges, and SMITH, District Judge.

PER CURIAM:

Attorney J. Tony Serra, defense counsel in the trial of a criminal cause in the district court, was found in contempt of an order of that court and fined $1,000. On Serra’s appeal, we affirm.

In anticipation that the defendant in the criminal case might assert an insanity defense with supporting medical testimony, the government requested reciprocal discovery seeking “scientific or medical reports * * * which the defendant intends to produce at the trial and which are within the defendant’s possession, custody or control.”

In granting the government’s motion under F.R.Crim.P. 16(c), the district court ordered that reciprocal discovery be granted. Attorney Serra retained Dr. Hoffman as an expert to examine the defendant Honeyman but directed him to make no written report. When the doctor was called as a witness, he testified that his normal procedure, after making psychiatric examinations in criminal cases, was to prepare written reports, and he would have done so in this case had he not been instructed to the contrary by Mr. Serra.

Before the court was an affidavit of government counsel, not countered, to whom Serra had said that he had instructed Dr. Hoffman to write no report and that this was good trial practice to avoid reciprocal discovery.

The district judge considered counsel’s act a clear and deliberate attempt to frustrate the court’s order and cited Serra for contempt. We agree with the district judge that counsel’s conduct was deliberate, that he knew and understood the order, and that his excuse was contrived.

The order and judgment of contempt are affirmed and the mandate will issue at once.

       Honorable Russell B. Smith, District of Montana.

      . 18 U.S.C. § 401 provides:
      A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as.
      (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

      . We have also considered Mr. Serra’s conduct in light of ethical standards which govern the legal profession. Canon 7 of the Code of Professional Responsibility of the American Bar Association deals with the duty of a lawyer to represent his client zealously within the bounds of the law. Certain ethical considerations are appended.
      Ethical Consideration 7-22: “Respect for judicial rulings is essential to the proper administration of justice; however, a litigant or his lawyer may, in good faith and within the framework of the law, take steps to test the correctness of a ruling of a tribunal.”
      Ethical Consideration 7-27: “Because it interferes with the proper administration of justice, a lawyer should not suppress evidence that he or his client has a legal obligation to reveal or produce. . . . ”
      The American Bar Association Standards Relating to The Prosecution Function and The Defense Function provide these guidelines :
      § 7.1(d) The lawyer should comply promptly with all orders and directives of the court, but he has a duty to have the record reflect adverse rulings or judicial conduct which he considers prejudicial to his client’s legitimate interests. He has a right to make respectful requests for reconsideration of adverse rulings. (Emphasis supplied.)


text:
    Keith X. FARRIES, Petitioner-Appellant, v. UNITED STATES BOARD OF PAROLE, Respondent-Appellee.
    No. 72-1311.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 15, 1973.
    Decided Aug. 10, 1973.

      Stanley A. Bass, New York City, for petitioner-appellant.
    Michael L. Levinson, Asst. U. S. Atty., Danville, 111., Henry A. Schwarz, U. S. Atty., E. St. Louis, 111., for respondent-appellee.
    Before PELL and SPRECHER, Circuit Judges, and CAMPBELL, Senior District Judge.

       Senior District Judge William J. Campbell of designation. the Northern District of Illinois is sitting by

   WILLIAM J. CAMPBELL, Senior District Judge.

The plaintiff, an inmate of the United States Penitentiary at Marion, Illinois filed this action pro se, challenging the legality of the Parole Board’s unexplained and allegedly discriminatory denial of plaintiff’s application for parole. A writ of mandamus was sought against the United States Board of Parole. On March 1, 1972, the district court granted leave to file the petition in forma pau-peris, and in the same order, summarily dismissed the petition without having held an evidentiary hearing and without having called for a response from the government. We reverse and remand for further proceedings.

Although inartfully drawn, the complaint or petition charged that the plaintiff’s procedural constitutional rights had been violated when the Parole Board denied his application without a hearing or a statement of reasons for the denial. The complaint also claimed that the Parole Board’s denial was motivated by religious prejudice.

Recent decisions of the Supreme Court of the United States and of this Circuit have greatly restricted the circumstances in which prisoner petitions may be summarily dismissed. See Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) ; Bryant v. Harris, 465 F.2d 365 (7th Cir. 1972). The sufficiency of a pro se prisoner petition is to be judged by a “less stringent” standard, and accordingly such petitions are not subject to summary dismissal unless it appears beyond doubt that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim.

Parole Boards, of course, enjoy a broad range of discretion in determining whether to grant or deny an application for parole, and it has therefore been held that a prisoner need not be accorded a hearing on his application or provided with a statement of reasons for the Board’s actions. See Menechino v. Oswald, 430 F.2d 403 (2d Cir. 1970), cert, denied 400 U.S. 1023, 91 S.Ct. 588, 27 L.Ed.2d 635 (1971). It seems equally true, however, that a prisoner may not discriminatorily be denied parole on account of religious prejudice. Cooper v. Pate, 382 F.2d 518, 521 (7th Cir. 1967). Although the plaintiff may ultimately be unable to prevail on the merits of his claim, Haines and Bryant require that this case be reversed and remanded for further proceedings.

Upon remand, the district court has several alternatives available to it short of granting a full evidentiary hearing. Counsel might be appointed to assist the prisoner in the presentation of his claim. See Smith v. Blackledge, 451 F.2d 1201 (4th Cir. 1971). A dismissal without prejudice would provide a prisoner with an opportunity to correct technical deficiencies in his complaint. See Brown v. Allen, 344 U.S. 443, 502, 73 S.Ct. 397, 97 L.Ed. 469 (1953) (Frankfurter, J., concurring). Too, the court may wish to utilize a Magistrate to screen prisoner petitions. See United States v. Simpson, 141 U.S.App.D.C. 8, 436 F.2d 162, 167 (1970). The court could also request the prisoner to amplify his complaint by providing more specific facts and details. See United States v. Simpson, supra at 166; Raines v. United States, 423 F.2d 526, 529-530 (4th Cir. 1970). Of course, the simple expedient of ordering a response from the government is always available to the district court. Raines v. United States, supra at 529. Our intention in noting these alternatives is not to restrict the discretion of the district court, but only to call attention to procedures that have been employed successfully in other courts. The selection of which procedure best suits a particular case is left to the district court.

For the reasons stated, the district court’s order of summary dismissal is reversed and the cause is remanded for further proceedings consistent herewith.


author: MURRAH, Circuit Judge.

text:
    George P. BAKER et al., Plaintiffs-Appellants, v. GOLD SEAL LIQUORS, INC., Defendant-Appellee.
    No. 72-1386.
    United States Court of Appeals, Seventh Circuit.
    Argued April 20, 1973.
    Decided Aug. 23, 1973.
    Paul R. Duke, Philadelphia, Pa., Edward R. Gustafson, Chicago, III., for plaintiffs-appellants.
    Theodore J. Herst, Max W. Petacque, Chicago, 111., for defendant-appellee.
    Before SWYGERT, Chief Judge, and HASTINGS and MURRAH, Circuit Judges.

       Alfred P. Murrah, of the Tenth Circuit, sitting by designation.

   MURRAH, Circuit Judge.

The trustees of the Penn Central Transportation Company in a Section 77 reorganization proceeding in the District Court for the Eastern District of Pennsylvania brought this plenary suit in the Northern District of Illinois against Gold Seal Liquors, Inc. to recover $6,999.76 for accrued freight charges. Gold Seal Liquors counterclaimed for $18,016.77 for cargo loss and damages. The Illinois court allowed a setoff and rendered judgment against the trustees for the balance in the sum of $11,017.01. The respective accounts are not disputed. The sole question is the propriety of the setoff.

It seems to be agreed that the setoff provisions of Section 68 of the Bankruptcy Act do not necessarily obtain in a reorganization proceeding of this kind. That is, see Susquehanna Chemical Corp. v. Producers Bank & Tr. Co., 174 F.2d 783 (3d Cir. 1949), and Lowden v. N. W. National Bank, 298 U. S. 160, 56 S.Ct. 696, 80 L.Ed. 1114 (1936). Nor do the trustees contend that the Illinois court was not empowered to grant the setoff. The contention is that “considerations of judicial comity should have persuaded” the Illinois court to honor Order No. 571 of the bankruptcy court enjoining all persons, firms and corporations holding credits for the account of the debtor from offsetting them against any obligation of the debt- or.

Giving force and effect to Order No. 571, the bankruptcy court has held in a summary contempt proceeding that Section 77(a) conferred upon it “exclusive jurisdiction of the debtor and its property wherever located”; that choses in action are property of the debtor and in the actual or constructive possession of the debtor; and that it would prejudice the public interest in the continuation of railroad service to allow setoffs to deprive the debtor of sorely needed bank cash. See Penn Cent. Tr. Co. v. National City Bank of Cleveland, Ohio, 315 F. Supp. 1281 (E.D.Pa.1970). The banks in that case were accordingly summarily ordered to restore the bank balances which they had set off against debts owed them by the railroad. 315 F.Supp. at 1285. This order, however, did not undertake to formally adjudicate the rights of the parties, it merely restrained the banks from exercising the remedy of self-help. See 315 F.Supp. at 1284.

In a plenary suit indistinguishably similar to ours, the Indiana court declined to adjudicate the counterclaim or to allow a setoff on the grounds that, inasmuch as Order No. 571 expressly enjoined setoffs, counterclaims must be filed and adjudicated by the bankruptcy court along with the claims of other creditors. See Penn Central Transp. Co. v. March Warehouse Corp., 356 F.Supp. 567 (S.D.Ind.1972).

We cannot agree that “judicial comity” dictates forbearance of the exercise of the jurisdiction of the court in cases of this kind. The trustees having invoked the jurisdiction of the Illinois court for the adjudication of the railroad’s claim, there is nothing in the principles of “judicial comity” to require the Illinois court to withhold the full exercise of its jurisdiction.

After all, plenary actions by trustees in a reorganization proceeding are nothing more than ordinary lawsuits. See, e. g., 5 Moore’s Federal Practice |f 38.-30(4). The power to adjudicate the subject matter is unquestioned and unquestionable. The Federal Rules of Civil Procedure undoubtedly apply (see 7 Moore’s Federal Practice 81.04(1)), and a counterclaim is permissible, even compulsory (see Fed.R.Civ.P. 13(a)-(c), and 3 Moore’s Federal Practice jfH 13.-12(1) and 13.13). Both the claim and the counterclaim are upon stated accounts — equitable principles do not serve to shape or fashion the relative rights and remedies of the parties.

The adjudication of the claims in the Illinois court is a matter of law. The satisfaction of the resulting judgment is subject to the equitable princi-pies generally applicable in a court of bankruptcy. The judgment of the Illinois court must now be submitted to the reorganization court with all other claims, to be satisfied in accordance with the appropriate orders of that court.

The judgment is affirmed.


text:
    Herbert KURSHAN et al., Appellants, v. Harold G. RILEY, Special Agent, Internal Revenue Service, Appellee.
    No. 73-1566.
    United States Court of Appeals, Fourth Circuit.
    Submitted Aug. 23, 1973..
    Decided Sept. 28, 1973.
    John G. Rocovich, Jr., and Gerald A. Dechow, Roanoke, Va. (Martin, Hopkins & Lemon, Roanoke, Va., counsel for appellant), on brief for appellants.
    Leigh B. Hanes, Jr., U. S. Atty., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, John P. Burke, and Charles E. Brookhart, Attys., Tax Div., Dept, of Justice, on brief for appellee.
    Before RUSSELL, FIELD, and WIDENER, Circuit Judges.
   PER CURIAM:

This is an appeal from an order of the district court denying appellants’ motion to enjoin appellee, a Special Agent of the Internal Revenue Service, from taking the testimony of Charles D. Fox III pursuant to a summons issued in a tax investigation. No stay of the order pending appeal was granted below, and none was sought in this Court. During the pendency of this appeal appellee received the testimony of Fox.

Since the testimony of Fox has already been taken, the question of whether the receipt of such testimony should be prevented is now moot. See United States v. Lyons, 442 F.2d 1144 (1st Cir. 1971); Baldridge v. United States, 406 F.2d 526 (5th Cir. 1969). While this Court may grant incidental relief where a party with notice in an injunction proceeding completes the act sought to be enjoined, Industrial Bank v. Tobriner, 132 U.S.App.D.C. 51, 405 F.2d 1321, 1323 (1968), it would be inappropriate for this Court to grant the relief requested by appellant, and enjoin the Internal Revenue Service from utilizing any information derived from the testimony of Fox. See United States v. Lyons, supra, 442 F.2d at 1145-1146. Appellants may adequately protect their asserted interests by seeking to suppress such information in any subsequent proceeding. See Donaldson v. United States, 400 U.S. 517, 531, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971); United States v. Lyons, supra, 442 F.2d at 1145.

The appeal is dismissed. Since the dismissal of the appeal is on account of mootness, and the appellants being otherwise able to assert the merits of their contention, on remand the district court ought to vacate its order and dismiss the action without prejudice.

Remanded.


text:
    Jon F. and Constance M. HARTUNG, Petitioners-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
    No. 71-1611.
    United States Court of Appeals, Ninth Circuit.
    Aug. 17, 1973.
    Rehearing Denied. Oct. 26, 1973.
    Fred B. Ugast, Acting Asst. Atty. Gen. (argued), Scott P. Crampton, Acting Asst. Atty. Gen., Tax Div., Dept, of Justice, K. Martin Worthy, IRS Chief Counsel, Meyer T. Rothwaeks, Harry Baum, William K. Hogan, Tax Div., Dept, of Justice, Washington, D. C., for respondent-appellant.
    Jon F. Hartung, in pro per.
    Joseph H. Guttentag, of Surrey, Kara-sik & Morse, Washington, D. C., for amici curiae.
    Before CHAMBERS and DUNIWAY, Circuit Judges, and SKOPIL, District Judge.

       The Honorable Otto R. Skopil, United States ting by designation. District Judge for the District of Oregon, sit-

   OPINION

PER CURIAM:

The decision of the Tax Court is reversed for the reasons stated in the dissenting opinion of Judge Sterrett, Har-tung v. Commissioner, 1970, 55 T.C. 1, 5.


author: STEVENS, Circuit Judge.

text:
    L. C. THOMSEN & SONS, INC., Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.
    No. 72-1949.
    United States Court of Appeals, Seventh Circuit.
    Argued June 18, 1973.
    Decided Sept. 7, 1973.
    Myron L. Joseph, Milwaukee, Wis., for plaintiff-appellant.
    Fred B. Ugast, Acting Asst. Atty. Gen., Carleton D. Powell, Atty., Tax Div., Dept, of Justice, Washington, D. C., David J. Cannon, U. S. Atty., Milwaukee, Wis., for defendant-appellee.
    Before KILEY, FAIRCHILD and STEVENS, Circuit Judges.
   STEVENS, Circuit Judge.

In 1959 taxpayer, a manufacturer of bottling equipment, purchased insurance on the life of its exclusive distributor in California. He was killed in a fire in 1967, and insurance proceeds, including a regular death benefit, an accidental death benefit, and interest, totaling $50,444.92, were thereafter paid to taxpayer. At the time of his death, distributor owed the taxpayer $48,053.97. Taxpayer’s receipt of the insurance proceeds, all of which it retained, did not liquidate the debt. The question on this appeal is whether it was error for the district court to instruct the jury to “use your own good common sense” in deciding whether the insurance proceeds were “paid by reason of the death of the insured” within the meaning of § 101(a)(1) of the Internal Revenue Code, 26 U.S.C. § 101(a)(1). The jury found that the proceeds were taxable. On the basis of the undisputed facts, we hold that they were not.

With exceptions not relevant to this case, the statute provides that “gross income does not include amounts received (whether in a single sum or otherwise) under a life insurance contract, if such amounts are paid by reason of the death of the insured.” Ibid.

In Landfield Finance Co. v. United States, 418 F.2d 172 (7th Cir. 1969), we held that the word “received” as used in this section refers to the ultimate right to receive the proceeds — in other words, the right to receive and unconditionally to retain them:

“Taxpayer takes an unrealistically narrow view of the meaning of the word ‘received’ as used in Section 101(a)(1). We do not believe Congress intended to use the word to mean merely the physical act of being handed the policy proceeds by the insurance company. Rather we agree with the government that Congress had in mind the ultimate right to receive the proceeds — i. e., the right to receive and to retain the proceeds of a life insurance contract.” Id. at 176.

In this case there is no claim that any condition or limitation restricted the taxpayer’s entitlement to the entire proceeds of this policy. The government emphasizes the fact that the proceeds were approximately equal to the decedent’s indebtedness when the policy was purchased and also at the time of his death. It is clear, however, that the amount of the proceeds which taxpayer received — and ultimately retained — -was unaffected by the size of the decedent’s indebtedness. If the account had been current, taxpayer would still have been entitled to the full $50,444.92; it did not and is not obligated to remit the difference between that amount and the $48,053.97 balance in the distributor’s account either to his estate or to secondary beneficaries. The rationale of Landfield supports taxpayer’s position here.

The government argues, however, that the taxpayer’s motivation in purchasing the insurance in 1959 is relevant and that the jury verdict has resolved the factual issues in its favor. On the question of motive, the government contended at trial that the insurance was intended to guarantee the collectibility of an account receivable; taxpayer contended that it desired indemnity against the injury to a going business which the death of an extremely important distributor of its products — a “key man” so to speak — would probably cause. We must assume that the jury resolved the factual dispute in favor of the government. Nevertheless, we hold that such evidence of motivation for the purchase of an insurance policy does not affect the application of the statute to the facts before us. This policy did not merely insure the indebtedness; its proceeds were entirely and unconditionally payable to the taxpayer.

Finally, the government argues that the statute should not be construed to allow the taxpayer the equivalent of a double benefit — a bad debt deduction for the unsatisfied indebtedness of $48,053.-92 and also exclusion of the insurance proceeds from its gross income. But the propriety of the bad debt deduction is not before us. The jury found that the entire debt was uncollectible and, accordingly, that the deduction was properly taken. The government has not appealed from that determination. Perhaps the jury felt that a rough balancing of the equities made it appropriate to find that the insurance proceeds were taxable. Perhaps, also, if Congress were squarely faced with the policy question whether on facts like these some adjustment — possibly a pro tanto inclusion of a portion of the proceeds in gross income — would be appropriate, it might authorize that result. But on this appeal we may only decide the issue before us on the basis of the statute as now written. On that basis, we hold that appellant was entitled to judgment as a matter of law.

Reversed.

      . The fact that the insurance proceeds approximately equaled the indebtedness is attributable, in part, to the fact that an accidental death benefit was payable. If his death had not been accidental, only $25,000 would have been received and, again, the full indebtedness would have remained.


author: BY THE COURT:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. STATE OF MISSISSIPPI et al. (Smith County School District), Defendants-Appellants, Sylvarena Baptist Academy, Defendant-Appellant.
    No. 72-2521.
    United States Court of Appeals, Fifth Circuit.
    Sept. 20, 1973.
    Heber Ladner, Jr., Sp. Asst. Atty. Gen., A. F. Summer, Atty. Gen. of Miss., Jackson, Miss., for State of Mississippi.
    Marvin Oates, Bay Springs, Miss., M. M. Roberts, Hattiesburg, Miss., for Syl-vania Baptist Academy.
    L. D. Pittman, Raleigh, Miss., for School Board.
    Robert E. Hauberg, U. S. Atty., Jackson, Miss., Daniel F. Rinzel, Richard H. Swan, Andrew J. Ruzicho, Civil Rights Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
   ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion April 11, 1973, 5 Cir. 1973, 476 F.2d 941).

Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

BY THE COURT:

A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the Judges in active service having voted in favor of granting a rehearing en banc,

It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.


text:
    Joseph BONAPARTE, Petitioner-Appellant, v. E. B. CALDWELL, Warden, Georgia State Prison, Reidsville, Ga., Respondent-Appellee.
    No. 73-2167
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 17, 1973.
    Eugene H. Gadsden, court appointed Savannah, Ga., for petitioner-appellant.
    Arthur K. Bolton, Atty. Gen., David L. G. King, Jr., Courtney Wilder Stanton, Atlanta, Ga., for respondent-appel-lee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

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

   PER CURIAM:

This appeal is from the ruling on only one of the nine claims asserted in the district court by a state prisoner ha-beas applicant. This one, that Negroes were systematically excluded from the grand and petit juries at the time of his indictment and trial for robbery and rape, was found to be without merit by the district court after a full evidentiary hearing on the modus operandi employed in constituting the jury lists. The district court found that petitioner made out a prima facie case of racial discrimination, by presumption, but that the state overcame the presumption. Bonaparte v. Caldwell, S.D.Ga., 1973, 362 F. Supp. 1315. That holding turns on facts and the findings of fact are not clearly erroneous.

Affirmed.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. ROGER PECK CHEVROLET, INC., Respondent.
    No. 73-1688.
    United States Court of Appeals, Sixth Circuit.
    Aug. 20, 1973.
    Elliot Moore, N. L. R. B., Washington, D. C., Bernard Gottfried, Regional Director, Region 7, N. L. R. B., Detroit, Mich., for petitioner.
    Edward R. Reagan, Farmington, Mich., for respondent.
    Before WEICK, EDWARDS and LIVELY, Circuit Judges.
   JUDGMENT ENFORCING AN ORDER OF THE LABOR RELATIONS BOARD

This cause was submitted upon • the application of the National Labor Relations Board for summary entry of a judgment against Roger Peck Chevrolet, Inc., its officers, agents, successors, and assigns, enforcing its order dated September 22, 1972, and referred to this panel of the Court pursuant to Rule 3(e), Rules of the Sixth Circuit. This Court has considered the entire transcript of record filed in this cause and being fully advised in the premises, handed down its decision granting the application and enforcing the said order of the Board. In conformity therewith, it is hereby

Ordered and adjudged that Respondent, Roger Peek Chevrolet, Inc., its officers, agents, successors, and assigns, shall:

1. Cease and desist from:

(a) Interfering with, restraining, or coercing employees by discharging or refusing to reinstate employees, or in any other manner discriminating against them, for engaging in lawful concerted activities, including lawful strikes, for the purpose of mutual aid or protection.

(b) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act, hereinafter called the Act.

2. Take the following affirmative action which the Board has found will effectuate the policies of the Act:

(a) Make whole the following individuals for any loss of wages suffered by them in the manner set forth in “The Remedy” section of the Administrative Law Judge’s Decision: Joseph Frenette, Gregory Braasch, Roy Musick, and Ted Schriner.

(b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Judgment.

(c) Post at its business in Farming-ton, Michigan, copies of the attached Notice marked “Appendix.” Copies of said Notice, to be furnished by the Regional Director for Region 7, (Detroit, Michigan), after being duly signed by Respondent’s authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said Notices are not altered, defaced, or covered by any other material.

(d) Notify said Regional Director, in writing, within 20 days from the date of this Judgment, what steps Respondent has taken to comply herewith.

APPENDIX


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Willie James ROBINSON, Defendant-Appellant.
    No. 73-1480.
    United States Court of Appeals, Fifth Circuit.
    Oct. 16, 1973.
    David Cerf, court-appointed, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Michael P. Sullivan, Theodore R. Gibson, II, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   PER CURIAM:

Appellant Robinson was convicted by a jury of assaulting a federal officer in violation of 18 U.S.C. § 111. He attacks his conviction on two grounds: (1) the denial of his right to a speedy trial, and (2) the identification procedures were impermissibly suggestive.

Upon examination of the record we find that neither of appellant’s grounds have merit. His conviction, therefore, is affirmed.


text:
    Appeal of PROFESSIONAL PERSONNEL OF VAN DYKE. Ronald BRADLEY et al. v. William G. MILLIKEN et al.
    No. 72-2008.
    United States Court of Appeals, Sixth Circuit.
    July 2, 1973.
    Ross, Bruff & Henriksen, Mount Clemens, Mich., for appellants.
    Louis R. Lucas, Ratner, Sugarmon & Lucas, Memphis, Tenn., for plaintiffs.
    Frank J. Kelley, Atty. Gen. of Michigan, Lansing, Mich., for defendants.
    Before PHILLIPS, Chief Judge, and EDWARDS and PECK, Circuit Judges.
   ORDER

This is an appeal by Professional Personnel of Van Dyke, which is the exclusive bargaining agent for the teaching personnel of the Van Dyke School District. Appellants undertook to intervene in the District Court in the case of Bradley v. Milliken. On March 15, 1972, the District Court denied the motion of appellants to intervene. On April 11, 1972, appellants filed a petition for rehearing of their motion to intervene. On June 29, 1972, the District Court affirmed its previous denial of the motion.

Upon consideration, it is ordered that the decision of the District Court denying to appellants the right to intervene is vacated and the case is remanded to the District Court with directions to grant the motion to intervene.

Entered by order of the court.


text:
    O. C. ALLEN, Petitioner-Appellee, v. L. S. NELSON, Warden, Respondent-Appellant.
    No. 73-1339.
    United States Court of Appeals, Ninth Circuit.
    Oct. 9, 1973.
    Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Edward P. O’Brien, Asst. Attys. Gen., John T. Murphy, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellant.
    William Mandel, David T. Alexander, Petty, Andrews, Tufts & Jackson, San Francisco, Cal., for petitioner-appellee.
    Before BROWNING, TRASK, and CHOY, Circuit Judges.
   PER CURIAM:

For the reasons stated in the district court’s opinion (see 354 F.Supp. 505), the court’s order is affirmed.


author: LANE, Judge. RICH, Judge

text:
    Application of Karl Heinz FISCHER.
    Patent Appeal No. 8971.
    United States Court of Customs and Patent Appeals.
    Sept. 20, 1973.
    Henry N. Paul, Jr., Philadelphia, Pa. (Paul & Paul, Philadelphia, Pa.) attorney of record, for appellant; John F. McNulty, Philadelphia, Pa., of counsel.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; Fred W. Sherling, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Associate Judges, and ALMOND, Senior Judge.
   LANE, Judge.

This appeal is from the decision of the Patent Office Board of Appeals sustaining the rejection of claims 1-5 of appellant’s application Serial No. 674,617 filed October 11, 1967, entitled “Calcining of Carbon Substances and Carbonaceous Rocks in a Tunnel Kiln.” The claims were rejected under 35 U.S. C. § 103 as unpatentable over Angevine, U. S. Patent No. 3,009,863 issued November 21, 1961. We reverse the board’s decision.

Both the claimed invention and the Angevine disclosure are directed to methods of calcining carbonaceous articles in a tunnel kiln, and both deal with the problem of volatilization of binding agents contained in the articles. During calcination according to the Angevine method, the volatilized binding agents undergo reaction which produces soot and coke on the walls of the calcination apparatus. Angevine disposes of that soot and coke formation by subjecting them to combustion.

Appellant’s method of calcination utilizes an oxygen-free environment in which it is alleged that no soot and coke is formed, the binding agent volatiles being drawn off by use of an oxygen-free scavenging gas. Thus, appellant’s specification states the following.

According to the invention the desired aim is achieved by feeding an oxygen free scavenging gas under a slight excess pressure into the calcining channel and by drawing off the same from the calcining channel particularly in that region of the kiln, where the largest amount of binding agent vapours occurs, together with the latter. * * *
* -x- * * *
Since an oxygen free atmosphere is established in the tunnel kiln undesired combustions of the binding agent vapours within the kiln can no longer occur.

That disclosure is reflected in appellant’s claims, of which claim 1 is representative :

1. Method for calcining carbon substances and carbonaceous rocks in a tunnel kiln which comprises maintaining an oxygen free atmosphere throughout said kiln, while feeding an oxygen free scavenging gas under a slight excess pressure into the calcining channel and withdrawing said gas together with binding agent vapours from the calcining channel, in that region of the kiln where the largest amount of binding agent vapours occur.

The limitations imposed on the method in claims 2-5 are not material under the view we take in this appeal, although we do note that the solicitor has called attention to claim 5 which uses the language "substantially oxygen-free atmosphere * *

Angevine discloses the formation of coke deposits, teaches that they must be removed, and explains the following, with references to drawings omitted, respecting removal:

These coke deposits, much of the soot entrained in the kiln gases, and some of the kiln gases themselves may be disposed of in the practice of the invention by maintaining a condition of higher pressure in the flues * * * in those portions adjacent the kiln tunnel * * '* where the coke deposits occur than the pressure existing within the kiln chamber * * * at substantially the same location. This pressure differential condition causes gaseous products of combustion, containing carbon dioxide, water vapor and excess air, to flow from the flues * * * through the porous walls separating the flues from the kiln tunnel * * * adjacent the coke deposits. * * *
Passage of any additional gaseous products from the flues * * * into the kiln tunnel * * *, greater than that required to consume the coke deposits, will support combustion of the kiln-generated gases, including the aforementiond entrained soot. * •* *
* * * As an alternative to any one or more of the above means for consuming the coke deposits and soot within the kiln tunnel * * *, intermittently operated steam jets * * * may be employed for admitting steam in amount sufficient to support combustion of the coke and soot.

In addition to the quoted disclosure concerning consumption of coke, soot and the like by combustion, the Angevine patent teaches the desirability of reducing the oxygen content of the atmosphere to below about two percent by volume in order to avoid explosion when the system is opened. Flushing with substantially inert gases is likewise taught.

In holding that the claimed subject matter would have been obvious to one of ordinary skill in the art aware of the Angevine disclosure, the examiner and board adopted essentially three rationales. Our overall view is that the methods of Angevine and appellant are markedly distinct, the former requiring combustion and the latter avoiding the presence of oxygen so as to prevent combustion, and we find none of the rationales to be sound.

The examiner noted that the specification discloses that the oxygen-free scavenging gas used by appellant may, like the gas used by Angevine, be a product of combustion, and he postulated that such a gas stream would inherently contain some oxygen. One theory of rejection therefore appears to be that the claims do not contemplate a truly oxygen-free gas or oxygen-free environment.

We are not here confronted with a rejection under 35 USC 112. In the absence of a proper challenge to the operativeness of a claimed method or a challenge to the support of claim language in the specification, we must proceed on the assumption that the method is what it is claimed to be. The method here claimed is clearly one which utilizes an oxygen-free gas and environment. As the specification unequivocally states, an oxygen-free atmosphere precludes combustion in the tunnel kiln, and that is what is desired. We note that appellant responded to the examiner’s allegation that an oxygen-free gas and atmosphere could not be achieved by asserting that they could. In any event, we do not regard operativeness as an issue before us.

From the standpoint of claim interpretation in light of the disclosure, it is certain that the gas and environment are intended to be sufficiently free of oxygen that combustion cannot occur. Hence, whether the claim language is “oxygen free” or “substantially oxygen-free,” as in claim 5, we do not think that the claims can be construed as though the scavenging gas and tunnel kiln atmosphere contain oxygen as they do in the Angevine process where combustion is required.

The examiner and board additionally contended that the Angevine process operates under oxygen-free conditions, particularly when the alternative steam embodiment, described in the quoted portion above, is employed. Appellant has taken the position that that embodiment is not so fully and clearly described as to enable one skilled in the art to use it, or at least to use it in a manner which would correspond to appellant’s oxygen-free method. We agree with that position.

Angevine refers to an intermittent steam process which would admit steam in a manner to support combustion. As indicated above, we view the Angevine disclosure in its entirety as teaching the necessity for combustion to dispose of coke, soot and other condensed products of binding agent volatilization. Angev-ine refers to combustion in connection with the steam embodiment. Therefore, even if the use of steam would stimulate the use of an oxygen-free gas stream, the teaching of the use of such a stream intermittently while supporting combustion would not be a teaching of maintaining an oxygen-free atmosphere. We are unaware of a way in which steam could be used to simultaneously support combustion and maintain an oxygen-free atmosphere, and we find no adequate answer to- appellant’s argument. We conclude that Angevine fails to teach the use of an oxygen-free gas and oxygen-free environment during calcination.

Finally, the examiner held that it would have been obvious from Angevine to use an oxygen-free gas and environment consistent with the teaching of flushing the atmosphere to an oxygen content of less than two percent by volume and the teaching of using a gas which is substantially inert to the carbonaceous articles undergoing calcination. We are convinced that fairly read, Angevine suggests that an environment which supports combustion is essential in order to consume the coke and soot which is taught to always be formed. However small the actual difference between the low oxygen content of the An-gevine tunnel kiln atmosphere and the oxygen-free atmosphere maintained by appellant, we conclude that on this record it must be held to be an unob-vious difference. One skilled in the art would have to discard an essential premise held by Angevine — the need for an atmosphere which can entertain combustion — in order to recognize appellant’s process, and there is plainly no teaching in Angevine suggestive of such a deviation. As noted in appellant’s specification, no combustion can occur under the conditions of the claimed m'ethod. That is the antithesis of the tenor of Angev-ine’s patent specification.

Although the solicitor alluded to the absence of proof of results asserted by appellant to flow from the claimed method, we think appellant need not have proved any unexpected results. We find that the claimed method as a whole would not have been obvious to one of ordinary skill in the art in view of An-gevine, and, therefore, that the Patent Office has failed to make out a prima facie case of obviousness. The board erred in sustaining the § 103 rejection of claims 1-5 as unpatentable over An-gevine, and the board’s decision is accordingly reversed.

Reversed.

RICH, Judge

(concurring).

I concur in a reversal for the reasons which follow.

I agree that the Angevine disclosure, read as a whole, as it must be, wholly fails to suggest the operation of a tunnel kiln in the manner disclosed and claimed by appellant, which is with an oxygen-free atmosphere (claims 1-4) or with a “substantially oxygen-free atmosphere” (claim 5). Angevine’s careful, detailed, and explicit teaching is quite to the contrary. While he sweeps out most of the combustibles without burning (oxidizing) them “under substantially inert atmospheric conditions,” in two of his “four essential thermal steps,” namely steps B and C, baking and soaking, he deliberately operates his kiln, continuously, so as to eliminate soot, coke, and “higher-boiling devolatilization products of the binder and coke aggregate” by introducing enough air through the kiln wall from the burner to assure they are “combustibly consumed.” Angevine is quite specific about this. He says, for example (my emphasis),

Some additional heat is obtained in the soaking zone C by combustion of limited amounts of soot, coke and gas generated within the kiln tunnel 10, the coke, for the most part, being deposited op the inside walls of the ware chamber in the soaking zone, and the soot entrained in the generated kiln gases.

Where the coke deposits on the kiln walls — a situation Angevine does not prevent — he so controls pressures as to cause gases from his combustion chamber, carrying “excess air,” to flow into the kiln ware chamber to contact the coke deposited on the wall and consume it “by combustion.” Nowhere does he suggest that this air supply is so limited that the hot gases contain no more than 2% oxygen. Whatever the oxygen content may be, careful control is exercised so that there is just enough to consume the coke deposits, support combustion of the “kiln-generated gases” and the soot entrained therein, leaving no excess “to support burning of the carbon articles under thermal processing * *

It is clear to me that this carefully planned kiln management is the antithesis of operating a kiln with an oxygen-free or even “substantially” oxygen-free atmosphere and would not suggest appellant’s invention to anyone. It is therefore unobvious on this record.

It also seems to me that Angevine uses the term “inert” in a special sense. True, he says he wants “substantially inert atmospheric conditions” in his kiln but he makes clear that what he is really after is “an environment inert or nonreactive to the carbon articles at all times during their progressive thermal treatment.” (My emphasis.) His is a process involving limited oxygen supply, not an oxygen-free' atmosphere. He is also careful where he introduces oxygen so the atmosphere is “substantially inert to the carbon anodes” (my emphasis). This is not inertness in a general sense at all.

I therefore agree to the reversal.


author: BALDWIN, Judge.

text:
    Application of Samuel G. HARRIS.
    Patent Appeal No. 9037.
    United States Court of Customs and Patent Appeals.
    Sept. 20, 1973.
    Kemon, Palmer & Estabrook, Washington, D. C., attorneys of record, for appellant; Solon B. Kemon, Washington, D. C., of counsel.
    S. Wm. Cochran, Washington, D. C., for the Commissioner of Patents; Raymond E. Martin, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, RICH, BALDWIN and LANE, Associate Judges, and ALMOND, Senior Judge.
   BALDWIN, Judge.

This appeal is from the decision of the Patent Office Board of Appeals, adhered to on reconsideration, sustaining the rejection of claims 5 and 6 of appellant’s application, on the basis of 35 U. S.C. § 103. Claims 1-4 of that application stand allowed.

The Invention

The invention relates to aiming devices for firearms, optical instruments, parabolic microphones and the like. The nature of the basic invention is sufficiently indicated by claim 5:

5. In an optical aiming device of the type which projects a spot of light rearwardly of the device to be aimed and the user aims by keeping both eyes open, one eye seeing the light spot and the other eye seeing the target so that the spot is superimposed on the target, the improvement which comprises:
a light source of a first color embedded in a light gathering filter of a second color whereby under conditions of high ambient lighting intensity a light spot appears as said second color and under conditions of low ambient lighting intensity said light spot appears as said first color.

The specification states that while the human eye is most sensitive to light in the green range, the fact that aiming must often be done against green foliage precludes the use of that color for the light spot during daylight. In appellant’s preferred embodiment, the light gathering filter, and thus the light spot, are red when ambient lighting is high, because red contrasts well with both green and blue backgrounds. Also in said embodiment the “light source of a first color” is green radioluminescent material, so that when ambient lighting is low (e. g., at dusk, or after dark) and that source thus becomes the primary source of light, the light spot appears green. Claim 6 is directed to that preferred embodiment.

The Prior Art

The examiner rejected all of the claims under 35 U.S.C. § 103 as unpatentable over patents to Holme and Rickert et al. (Rickert).2 The board reversed the examiner’s rejection of claims 1-4, stating that “[t]he Rickert et al. apparatus and Holme apparatus operate in entirely different manners.” The board sustained the rejection of claims 5 and 6 without reliance on the Holme patent. Therefore we need describe only the disclosure of Rickert.

Rickert is concerned with luminous ret-icles for rifle telescopes and similar instruments. One embodiment of the invention is shown in Rickert’s Figure 1: Reticle illuminator 6 directs light through reticle 2, which has transparent or translucent lines or other indicia, one example being lines in the form of a sighting cross. The light rays from reticle 2 are reflected through the eyepiece from the semitransparent mirrored surface of beam splitter 80. Thus the viewer simultaneously observes the target image and the illuminated image from the reticle.

The operation of reticle illuminator 6 is described as follows:

An available incident light ray 3 is shown reflecting off of the angled ends 44 and 42 to illuminate the reti-cle 2. Another available incident light ray 5 is shown striking a fluorescent, phosphorescent or other so-called self-light particle 7 which then radiates its light.
Although many rays are given off by such a particle 7, for reasons of clarity, only two rays, 9, 11 of this radiation are shown, which rays are conducted by total internal reflection principles or reflective surfaces to pass through or illuminate reticle 2. Another ray from surface 44 might strike a self-light particle and act as did ray 5.
* #
In general the longer the illuminator the more light it will produce at the reticle end. Near maximum brightness is reached in bars or sheets which are five to seven inches long when commercial Plexiglas fluorescent yellow # 2086 is used. A bar as short as one inch is nearly as bright, however, if an angled end such as 44 is used to help direct the normally available overhead light toward the re-ticle end. * * *
Because of the relatively high brightness produced by the fluorescent plastic called Plexiglas Yellow # 2086 and similar materials, and because of their economy, this type of illuminator material is described in some detail here as a suitable material. It is obvious, however, once our invention is understood, that the fluorescent optical material in the illuminator could be replaced by a different fluorescent color or by phosphorescent, radioactive, glow in the dark, or several other of the self-light materials, or the reti-cle 2 could be simply coated on the rear side with a thin coating of such material to illuminate the reticle indi-cia more directly. Such substitution, however, does not depart from the spirit of the invention. A combination of these self-light materials may be used as or in an illuminator. In some of these materials, intensity is gained when the higher frequency ranges of light strike the particle involved and it gives off a lower frequency range of light of greater intensity.

The board was of the opinion that Rickert suggested “the use of a filter material of a first color such as the ‘Plexiglas Yellow # 2086’ * * * and further the use of a fluorescent or phosphorescent material embedded in the filter material which emits light of a second color.” In the board’s view such a combination would inherently produce different colors under different light intensities as called for by the claims. The board further took the position that “the choice of colors recited by claim 6 would have been obvious to one of ordinary skill in the art at the time of appellant’s invention.”

Opinion

We agree with the board that the Rickert disclosure, particularly the statement that “[a] combination of these self-light materials may be used as or in an illuminator,” suggests the use of illuminating materials having more than one color. While it may be that Rickert does not specifically enunciate the underlying concept of appellant’s invention —different colors under different lighting conditions — the reference strongly suggests an illuminating system which clearly would provide that result. We think that Rickert fairly suggests a combination of “self-light” materials, for example, in which illuminator 6 in Riekert’s Figure 1 would be made of “Plexiglas Yellow # 2086” and contain particles of an additional “self-light” material, such as a radioactive material, which emits light of a color other than yellow. As in appellant’s device, when the intensity of the ambient light decreases, the light emitted by the radioactive “self-light” particles would become a greater part of the total light provided and thus the color of that light would become more dominant. That is certainly consistent with the Rickert disclosure, one of the objects of the invention being to “provide an improved luminous reticle which can be more easily seen in dim light and poor background conditions, and in addition, be easily seen in very bright background conditions.” We further agree with the board that the selection of the particular colors recited in claim 6 would have been obvious to the ordinarily skilled, and we note that appellant does not seriously argue for the patentability of claim 6 apart from claim 5.

The decision of the board is affirmed.

Affirmed.

      . Serial No. 821,177, filed May 2,1969.

      . U.S. Patent No. 2,488,541, issued November 22, 1949.

      . U.S. Patent No. 3,320,671, issued May 23, 1967.


author: MATTHES, Senior Circuit Judge.

text:
    Gordon Lee WILKINS, Appellant, v. Don R. ERICKSON, Warden of the South Dakota State Penitentiary, Appellee.
    No. 73-1260.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 14, 1973.
    Decided Sept. 26, 1973.

      John N. Gridley, III, Sioux Falls, S. D., for appellant.
    Kermit A. Sande, Atty. Gen., and Walter W. Andre, Asst. Atty. Gen., State of South Dakota, Pierre, S. D., and Jonathan Smith, Asst. Atty. Gen., State of Montana, Helena, Mont., for appellee.
    Before MATTHES, Senior Circuit Judge, and HEANEY and STEPHENSON, Circuit Judges.
   MATTHES, Senior Circuit Judge.

This appeal, pursuant to a certificate of probable cause, is from an order of the United States District Court for the District of South Dakota transferring a petition for writ of habeas corpus to the District Court of Montana in accordance with 28 U.S.C. § 1404(a).

In September of 1969, appellant, Gordon Lee Wilkins, stood trial for first degree murder in a state court in Cascade County, Montana. The trial terminated when Wilkins entered a plea of guilty to murder in the second degree. He was sentenced to a term of fifty years in the Montana State Prison.

On September 13, 1972, having served almost three years in the Montana institution, appellant was transferred to the South Dakota State Penitentiary pursuant to a contract between the two states for the implementation of the Western Interstate Corrections Compact.

On November 16, 1972, appellant’s petition for post-conviction relief, addressed to the Supreme Court of Montana, was denied. In re Wilkins, 503 P. 2d 23 (Mont. 1972).

On February 28, 1973, appellant filed a petition for writ of habeas corpus with the United States District Court for the District of South Dakota, Southern Division, on the grounds

“[tjhat Petitioner’s guilty plea was not voluntarily and understandingly given because the record does not disclose that Petitioner was advised and understood that by his plea of guilty he was waiving his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers, the absence of such advice and understanding being inherently prejudicial and contrary to the rights guaranteed by the United States Constitution, amendments V, VI, and XIV.”

On March 22, 1973, the district court held a hearing attended by Assistant Attorneys General of South Dakota and Montana, appellant and his counsel. At the conclusion of the hearing, the court, relying on Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), granted the motion of the Assistant Attorney General of South Dakota to transfer the case to the District of Montana. In so doing, the court stated:

“[Tjhis case could have been brought in either Federal Court, the Federal Court in South Dakota or the Federal Court in Montana, and for that reason, [this] is a case that is subject to transfer and change of venue under subdivision (a) of Section 1404 of Title 28 of the United States Code; and . the convenience of the parties and the witnesses, and the interest of justice, would best be served by transferring this case to the Federal District Court in the State of Montana, where I might say the action took place, namely, where the applicant was orginally prosecuted and pled guilty to the charge of murder in the second degree, and where the highest court of that State made its decision with reference to post-conviction relief.”

The gist of Wilkins’ contention is that a habeas corpus petition can be brought only in the federal judicial district where the official maintaining custody of the petitioner is to be found. Wilkins argues that Montana contractually surrendered all control over him to the South Dakota authorities and consequently only South Dakota possesses jurisdiction.

Neither Wilkins nor the appellee has addressed the propriety of an appeal from an order granting transfer under § 1404(a). Nevertheless, as a threshold matter, this court must satisfy itself as to its jurisdiction to entertain the appeal before proceeding to the merits of the case. Rock Island Millwork Co. v. Hedges-Gough Lumber Co., 337 F.2d 24 (8th Cir. 1964).

It is clearly established, both in this circuit and elsewhere, that an order granting or denying a requested transfer under § 1404(a) is interlocutory in nature and not appealable as of right prior to final judgment. Stelly v. Employers National Ins. Co., 431 F.2d 1251 (5th Cir. 1970), cert, denied, 401 U.S. 908, 91 S.Ct. 866, 27 L.Ed.2d 806 (1971); Kasey v. Molybdenum Corp. of America, 408 F.2d 16 (9th Cir. 1969); Grossman v. Pearlman, 353 F.2d 284 (2d Cir. 1965), cert, denied, 384 U.S. 987, 86 S.Ct. 1887, 16 L.Ed.2d 1004 (1966); Cf. Great Northern Ry. Co. v. Hyde, 238 F. 2d 852 (8th Cir. 1956), overruled on other grounds, McGraw-Edison Co. v. Van Pelt, 350 F.2d 361 (8th Cir. 1965). See also 1 Barron & Holtzoff, Federal Practice and Procedure, § 86.7, pp. 433-35 (Wright ed. 1960); 1 Moore’s Federal Practice ¶ 0.147, p. 1961 et seq. (2d ed. 1972). When the order involves an issue of law pertaining to the power of the district court to transfer, the order may be reviewable by a permissive interlocutory appeal pursuant to 28 U.S.C. § 1292(b), if the trial judge so certifies. Technitrol, Inc. v. McManus, 405 F.2d 84, 86 n.2 (8th Cir. 1968), cert, denied, 394 U.S. 997, 89 S.Ct. 1591, 22 L.Ed.2d 775 (1969); 9 Moore’s Federal Practice ¶ 110.22[5], p. 267 (2d ed. 1972); Annot., 2 A.L.R.Fed. 573 (1969). However, inasmuch as Judge Nichol has not authorized an appeal under § 1292(b), we are forced to the conclusion that this court lacks jurisdiction to review the order on the basis of an appeal, permissive or otherwise.

Although we would thus be justified in refusing to review the action of the district court, we prefer to follow the course taken by the Ninth Circuit in Kasey v. Molybdenum Corp. of America, supra, where the appeal was treated as a petition for the extraordinary writ of mandamus.

The extent to which the writ of mandamus can be used to review an order granting or refusing transfer under § 1404(a) varies widely among the federal appellate courts. See' 1 Barron & Holt-zoff, Federal Practice and Procedure § 86.7, pp. 434-40 (Wright ed. 1960); Annot., 2 A.L.R.Fed. 573 (1969) ; Annot., 93 A.L.R.2d 802 (1969).

Mandamus is available in this circuit for review of a § 1404(a) transfer order when the writ is sought to prevent a district court from transferring a case to a district where it is alleged the action could not have been brought, or when the writ is sought to rectify a clear abuse of discretion. Technitrol, Inc. v. McManus, 405 F.2d 84 (8th Cir. 1968); McGraw-Edison Co. v. Van Pelt, 350 F.2d 361 (8th Cir. 1965).

Having elected to treat the appeal as a petition for writ of mandamus, we proceed to a consideration of the substantive issue, namely, whether a prisoner may bring a petition for habeas corpus in a federal district court sitting in the state in which he was convicted and sentenced, notwithstanding the fact that the prisoner is confined in another state.

Prior to the decision of the Supreme Court in Braden, supra, 28 U.S.C. § 2241(a) was interpreted to limit a district court’s habeas corpus jurisdiction to cases in which the prisoner seeking relief was confined within the district’s territorial boundaries. Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948); Developments — Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1162 (1960).

Relying on Ahrens, at least two courts of appeals have held that a prisoner, confined in a federal penitentiary located in a state other than the sentencing state pursuant to an agreement between the sentencing state and the federal government, may seek federal habeas corpus relief only in a federal district lying within the state of confinement. Mead v. Meier, 449 F.2d 732 (9th Cir. 1971), cert, denied, 406 U.S. 908, 92 S.Ct. 1617, 31 L.Ed.2d 819 (1972) ; Duncan v. Maine, 295 F.2d 528 (1st Cir. 1961), cert, denied, 368 U.S. 998, 82 S.Ct. 624, 7 L.Ed.2d 536 (1962).

In Braden, however, the Court held that a prisoner serving an Alabama sentence in an Alabama prison could attack a Kentucky interstate detainer on federal habeas corpus in a federal court sitting in Kentucky.

In so deciding, Mr. Justice Brennan, writing for the majority, emphasized that the writ does not act upon the prisoner who seeks relief, but upon the person who holds him in what is alleged to be unlawful custody. “Read literally, the language of § 2241(a) requires nothing more than the court issuing the writ have jurisdiction over the custodian.” 410 U.S. at 495, 93 S.Ct. at 1130. Finding that the Alabama warden acted as the agent of the Commonwealth of Kentucky in holding the petitioner pursuant to the Kentucky detainer, Justice Brennan concluded that the petitioner was sufficiently “in custody” of Kentucky authorities. 410 U.S. at 489 n.4, 93 S. Ct. 1123.

Conceding, however, that language in Ahrens indicated that the prisoner’s presence within the judicial district was a jurisdictional prerequisite to habeas corpus, the Court noted a series of post-Ahrens developments which in the Court’s opinion, undercut the continuing vitality of the Ahrens rule. In view of these developments, Justice Brennan concluded that the Court could no longer view Ahrens as establishing an inflexible, jurisdictional rule.

“Here, for example,' the petitioner is confined in Alabama, but his dispute is with the Commonwealth of Kentucky, not the State of Alabama. Under these circumstances it would serve no useful purpose to apply the Ahrens rule and require that the action be brought in Alabama. In fact, a slavish application of the rule would jar with the very purpose underlying the addition of the phrase, ‘within their respective jurisdictions.’ We cannot assume that Congress intended to require the Commonwealth of Kentucky to defend its action in a distant State and to preclude the resolution of the dispute by a federal judge familiar with the laws and practices of Kentucky.”

410 U.S. at 499, 93 S.Ct. at 1132.

We recognize that Braden does not present the precise situation with which we are here concerned. Wilkins is not attacking a detainer lodged by another state; he is attacking his original conviction in the Montana court. Arguably, however, disregard of the Ahrens rule is even more justifiable in our case.

Plainly South Dakota is acting only as an agent for Montana in caring for appellant pursuant to the contract between the two states implementing the Western Interstate Corrections Compact. According to the agreement, South Dakota must furnish annual reports to Montana detailing the inmate’s progress and adjustment. Except where expressly provided otherwise, the laws and administrative rules and regulations of Montana govern. Montana possesses the right to inspect the South Dakota institution. Extraordinary costs are chargeable to Montana. Montana may retake any inmate upon demand and presentation of official written authority. If South Dakota requests Montana to retake its inmate, Montana must comply within thirty days.

The considerations of convenience outlined in Braden apply with equal force here. Montana, the state of conviction and sentencing, is the most convenient forum because of the availability of witnesses and records. It is a Montana judgment that is under attack, and Montana’s Attorney General, not South Dakota’s, must defend it.

In short, there is no reason why Braden should not be applied by analogy, and appellant allowed to seek habeas corpus relief in a district court sitting in the state of his conviction and sentencing. Appellant’s disinclination to seek relief in the District of Montana does not alter the fact that the court is one in which the action “might have been brought” within the meaning of § 1404(a).

The appeal is dismissed. Treating the appeal as a petition for a writ of mandamus to set aside the order of transfer entered by Judge Nichol, it is denied.

      . “§ 1404. Change of venue
      (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”

      . Section 2241(a) provides in pertinent part:
      “Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.”