author: LEWIS R. MORGAN, Circuit Judge: BY THE COURT:

text:
    Eugene M. BAZAAR et al., Plaintiffs-Appellees, v. Porter FORTUNE et al., Defendants-Appellants.
    No. 72-2175.
    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 1973.
    Rehearing and Rehearing En Banc Granted May 9, 1973.

      Heber Ladner, Jr., Sp. Asst. Atty. Gen. of Miss., A. F. Summer, Atty. Gen., Jackson, Miss., for defendants-appellants.
    William P. Joyner, Alix H. Sanders, Oxford, Miss., for plaintiffs-appellees.
    Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.
   LEWIS R. MORGAN, Circuit Judge:

This appeal grows out of a confrontation between students and officials at the University of Mississippi over the content of a certain issue of the student literary publication Images. The District Court for the Northern District of Mississippi entered a temporary restraining order prohibiting the University from interfering with the publication and distribution of this magazine. This court, to avoid publication which would moot the serious legal issue involved, issued a stay of that temporary restraining order pending review of the case on the merits. After careful consideration, we affirm the decision of the district court ordering the University of Mississippi not to interfere with the publication and distribution of this magazine.

I.

The magazine in question, Images, is a University chartered and recognized student publication at the University of Mississippi. Since its conception in 1969, Images has published several issues on a more or less irregular basis. The magazine was designed for presentation of student-written and student-edited literary compositions.

The relationship of the University of Mississippi to this student publication has been gleaned by this court after careful examination of the record. Interdepartmental communications between officials ,of the University establish that Images was to be a student literary journal published with the advice of the English department. The publication was to be reproduced at the University’s central duplicating facility, with an anticipated press run of 500 copies. The 1969 costs for this service was set at approximately $300.00. From the outset it was understood by all that the amounts collected from sales of the magazine would be used to offset, hopefully in toto, this printing cost. Student editors and faculty members would, of course, contribute their time and effort without remuneration. There was a further provision that in the event the sales of the magazine fell short of recouping the total publication cost, the English department would underwrite any loss from its current activities budget. There is also evidence that the magazine, at least for this past academic year, received a $400.00 grant from the Associated Student Body Activities Fund, which is, in turn, collected from student fees.

In actual operation, the magazine was staffed and run by students with editorial advice from an English department appointed adviser, Dr. Evans Harrington, Professor of English at the University. The magazine was closely connected with a course in creative writing maintained as a regular portion of the English department’s curriculum and taught by Professor Harrington. It was intended that the core of student materials for publication in Images come from student efforts in this creative writing course with the possible use of other student submitted materials. The magazine was apparently not designed for widespread circulation, but rather was to be limited to approximately 500 copies per issue and to be offered for sale primarily to students at the University through University bookstore facilities.

II.

Until the issue of Images set for publication in the spring of 1972, there had apparently been no conflict between University officials and the magazine’s editorial board and no attempts of censorship or control by the University’s hierarchy. After the spring issue had been edited into final form and sent to central duplicating, however, a dispute arose. The superintendent of the University’s printing facilities informed Chancellor Porter Fortune that the University should take a close look at the stories to be published. The Chancellor then acted to hold up binding and distribution of the spring issue. He formed a committee consisting of the deans of the various University departments which was to determine if the material in the magazine was suitable for publication. It is not very clear in the record what types of hearings or evaluation this committee gave the magazine. There are allegations that it consistently refused to receive statements from the students or from their adviser, Professor Harrington. This panel of deans decided that publication would be “inappropriate”, apparently basing its decision on matters of “taste”. The University then refused to finish binding the journal or allow its distribution.

The reluctance of the University to allow the publication and distribution of this magazine centers on two short stories which are contained in the issue. Both stories were originally written by a student in the creative writing course for presentation and criticism by the class. The themes of the two stories are interracial love and black pride. The author of the stories is an 18-year-old regularly-enrolled black student at the University of Mississippi. In framing its objections to the stories, the University was careful to disclaim any unhappiness with the presented themes. Rather, the University based its entire objection to both stories solely upon the grounds of the inclusion therein of what must be termed some quite “earthy” language. It appears to be the University’s position that because of its connection with this magazine it has the right to prevent publication and distribution solely because it has determined that this language is inappropriate and in bad taste.

III.

It is necessary to have a clear grasp of the nature of the stories, their characters, and the manner in which the language found objectionable by the University is used. The objectionable portions consist of what are commonly known as “four-letter words”, often colloquially referred to as “obscenities”. They include use of “that four-letter word” generally felt to be the most offensive in polite conversation. While the University does not specify which words it most objects to, we assume that this epithet and its derivatives are high on the list. We feel that it is imperative, however, to stress the manner in which these words are used and the alleged literary justification for their use.

The protagonist of each story is a black male growing up in and confronted by a basically white society. Each of the two “heroes” is suggestive of a latter-day, black Holden Caulfield, struggling to find himself in the world. As what could be termed a natural and necessary phase of character development, the “heroes” of these stories occasionally talk and think in a vernacular which is definitely not suited for parlor conversation.

It must be realized that these characters are young blacks who often express themselves by using somewhat crude epithets of the street. The language, while admittedly unacceptable in some quarters, is readily recognized as commonplace in various strata of society, both black and white. The tendency to use such language would seem more prevalent among young males in less-favored social groups of all races. In short, it could well be considered strained and artificial for these characters to speak and think in proper prep school diction.

We also note that the language is not used in a manner which would be termed “pandering”. The words are not used in a sexual sense nor are there vulgar passages describing such activities. Throughout the work, the “offensive” words are usually used as modifiers strictly included for their effect and to convey a mood. They are not used in any literal sense. While some may feel that they are used a bit too often, this is a difficult matter to judge and rests largely with individual taste. Certainly, it seems an unsuitable standard for governmental censorship.

Thus, the sole question presented in this case is whether or not a university, under these circumstances, may prevent publication and distribution of a student publication solely on grounds of “taste” and “appropriateness” merely because certain words appear therein, no matter in what context and for what reasons the words are used.

IV.

It is well established that not all rights to freedom of speech and the press are lost by those who attend state-supported colleges and universities. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). In this case it has become incumbent on the University of Mississippi to justify the censorship it has sought to exercise herein. Despite several rather ingenious arguments put forth by the University, we feel their efforts have failed. We find it necessary to address only two specific issues in this opinion. First, does the University here have the status of a private publisher with the right to choose what it will or will not publish. Secondly, if this special status cannot be afforded the University, has the University demonstrated sufficient “special circumstances” to justify censorship.

The University as Publisher

The facts before us in this case do not establish the University’s claim that it here stands in the shoes of a private publisher. The evidence shows that the University’s financial connection with this endeavor was somewhat tenuous. There was no special appropriation for this magazine. Rather, as envisioned from the outset, it was intended to be self-supporting, with the University supplying printing facilities, more or less on open account, with the costs for such services to be repaid from sale proceeds. The English department, it is true, agreed to underwrite any loss out of current funds, but this was expected to be irregular, small, and indeed hopefully never necessary. Furthermore, part of the financing for this current year came as a separate grant from the student activity funds of the Associated Student Body. As to considerations other than monetary, the University points to the fact that this publication will bear a statement saying that it is published by students at the University with the advice of the English department. We do not feel that this simple statement, even if joined with the somewhat speculative financial connection, is enough to equate the University with a private publisher and endow it with absolute arbitrary powers to decide what can be printed.

Moreover, there is a more basic reason why the University cannot be accorded the omnipotent position it seeks. The University here is clearly an arm of the state and this single fact will always distinguish it from the purely private publisher as far as censorship rights are concerned. It seems a well-established rule that once a University recognizes a student activity which has elements of free expression, it can act to censor that expression only if it acts consistent with First Amendment constitutional guarantees. As was stated in American Civil Liberties Union of Virginia v. Radford College, 315 F.Supp. 893 (W.D.Va., 1970):

There have been a number of cases in the last several years involving Constitutional challenges on first amendment grounds to the actions of college administrators. A perusal of these cases makes clear a recurring theme that once a public school makes an activity available to its students, faculty, or even the general public, it must operate the activity in accord with first amendment principles Neither can a state university support a campus newspaper and then try to restrict arbitrarily what it may publish, even if only to require that material be submitted to a faculty board to determine whether it complies with “responsible freedom of the press”. Id. at 896-897.

Antonelli v. Hammond, 308 F.Supp 1329 (Mass.1970), involved issues strik ingly similar to the ones, present in thi, case. Students at Fitchburg State College, a state-supported institution of high learning in Massachusetts, published, with University support, a campus newspaper, The Cycle. In that case, the student newspaper published a story, “Black Mooehie”, written by Eldridge Cleaver. The paper’s usual printer, whose daughter was a student at the college, read the article prior to printing and objected strenuously to its content. He brought this matter to the attention of the President of the University who held up this issue of The Cycle. The primary reason for objection to the article given by the University was that it contained “obscene” language. In addition to preventing publication of this issue of The Cycle, the President of the University set up an advisory board which would have to give its prior approval to all articles and materials intended for publication in the newspaper.

The court in Antonelli expressly considered the claim of the University that it had the power to censor because it paid the funds for publication of The Cycle:

We are well beyond the belief that any manner of state regulation is permissible simply because it involves an activity which is part of the university structure and is financed with funds controlled by the administration. The state is not necessarily the unrestrained master of what it creates and fosters. Thus in cases concerning school-supported publications or the use of school facilities, the courts have refused to recognize as permissible any regulations infringing free speech when not shown to be necessarily re- ' lated to the maintenance of order and discipline within the educational process. See, e. g. Dickey v. Alabama State Board of Education, 1967, N.D. Ala., 273 F.Supp. 613; Snyder v. Board of Trustees of University of Illinois, 1968, N.D.Ill., 286 F.Supp. 927; Brooks v. Auburn University, 1969, N.D.Ala., 296 F.Supp. 188; Zucker v. Panitz, 1969, S.D.N.Y., 299 F.Supp. 102; Smith v. University of Tennessee, 1969, E.D.Tenn., 300 F.Supp. 777; Close v. Lederle, 1969, D.Mass., 303 F.Supp. 1109. Id. at 1337.

The principles enunciated in these two cases have been derived from a long line of legal opinions dealing with the struggle between college students and university administrators over matters involving freedom of speech and expression. The cases involving student publications are quite similar to, and owe> much of their rationale to, those cases which have been characterized as “open forum” cases. This circuit has recognized the strong constitutional guarantees where an attempt was made by a university to prevent an invited speaker from giving an address by simply refusing to pay for his appearance. Brooks v. Auburn University, 5 Cir. 1969, 412 F.2d 1171.

The University has apparently conceded that the above rule is indeed the governing standard. The University, however, seeks to distinguish this literary publication, Images, from a campus newspaper or campus annual. The counsel for the University admitted at oral argument that it was the University’s position that they could not censor either the campus newspaper, The Daily Mississippian, or the campus annual, The Ole Miss. In light of this frank admission, we are somewhat at a loss to see the distinction between the magazine Images and either of these publications. Both the newspaper and annual are paid for through University administered funds. In fact, it is our understanding that both these other publications, while paid for by students, are in reality financed by a non-waivable fee which is paid by every student as part of his regular tuition fees at the time of his enrollment for the current term. Both of those publications are clearly, on their face, identified with the University.

The University attempts a distinction by pointing out that here Images was to be published with the “advice” of the English department, although it does not show any evidence that the other publications are not similarly subject to “advice”. They go so far as to suggest that this means it will be identified as speaking for the English department and thus the University. We do not feel this factor is very relevant. The advice contemplated was directed at helping the students in choosing material of literary merit for publication and, indeed, in this case the material objected to was approved by the English department’s appointed adviser for the magazine, who testified in this case on behalf of the student editors, author and magazine. Thus, we see no difference between this and other University publications which the University concedes, quite correctly in our opinion, that it cannot censor except within constitutional limitations. The literary magazine, Images, is certainly within the broad class of publications to which the broad rule enunciated in Antonelli was designed to apply.

Special Circumstances

Having disposed of any claim by the University that it has an arbitrary power because of its relationship with Images to censor its content, we now turn to the issue of whether the censorship imposed in this case was justified under the rationale of “special circumstances” permitting the state to circumscribe certain activity which would otherwise fall within the generally protected area. We are convinced that no such special circumstances exist in this case.

There has been no claim that publication of this magazine containing these short stories would or could lead to any significant disruption on the University campus. Basically, the special- circumstances which the University seeks to have this court recognize consist of matters of taste and the right of the University to prevent activities which it would feel would lead to criticism of it from outside sources. There was also, at one time, a claim by the University that publishing these articles might subject it to state prosecution under the state obscenity laws.

The University apparently never attempted to show that the materials herein were legally obscene and it appears now that they have dropped this contention altogether on appeal. The court is satisfied that these stories as written do not meet the standard of legal obscenity. We do not, however, automatically say that the University is in all cases forbidden from interference in First Amendment cases unless it can show that a legal definition of obscenity is satisfied. We simply do not have to reach that issue in the disposition of this case. Assuming arguendo that the University does indeed have a power to impose some restrictions on language which does not measure up to legal obscenity, we do not feel that the language objected to in this case, used as it is, would give sufficient grounds for interference. This analysis will also be sufficient to dismiss the “taste” and “appropriatenéss” arguments of the University.

We have previously pointed out the nature of the words involved in these short stories and the manner in which they are used by the author. We feel that we are past the point in this country today where the mere use of any single word in a public arena can be immediately branded as so tasteless or inappropriate that its use is subject to unbridled censorship or restriction by government authority. The short stories involved in this case, as noted contain the word which has historically been viewed as the “worst” obscenity. With regard to this very four-letter word, the Supreme Court has stated that:

While the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because government officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual. Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971).

In that same opinion, the Court noted another factor which is relevant in this case. The Court refused to sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.

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Finally, and in the same vein, we cannot indulge in the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results. Id. at 26, 91 S.Ct. at 1788.

As we have previously noted in this opinion, much of the literary justification for the use of these words in the short stories rests on the emotive feeling and mood they are designed to create. They bear both on the development of the central characters and also may be read to serve as part of the comment which this author intends to make to his reader through these stories. Thus, we feel it would be extremely difficult to censor these words merely for their presence in the story because of their possible relation to the themes which the author strives to present.

Furthermore, we cannot help but take note that these words have been recognized as not that unusual when found in connection with college students and use on college campuses. In fact, at the hearing below, one of the witnesses, a student at the University of Mississippi, stated that he had heard all of the words contained in these short stories spoken on' campus by University of Mississippi students, and that, indeed, he believed he had heard them spoken by faculty members. The University also admits that commercial publications are sold on the University campus which contain these words and other words which it would classify as “distasteful”. For instance, the evidence establishes that the magazine Playboy is sold on campus at various bookstore facilities. Furthermore, the University admits that the Kudzu, an “underground” newspaper which admittedly contains “ragged” language similar to that found objectionable in these stories, had been previously sold without interference on the University campus. The only attempted distinction by the University is that here they are more connected with this magazine since it is published by students and with the advice of the English department. As noted, we do not feel that that mere distinction waives all constitutional privileges of the students involved.

Finally, the court feels that it is extremely significant that the University admits that works in its library and, indeed, works that are assigned to students as required reading for courses contain the same words, used in much the same way, as are found in these stories to which the University now objects. It is also admitted that these same words objected to by the University here appear frequently in well-respected literature, especially that of the twentieth century. These words are often found in the works of such accepted literary figures as J. D. Salinger, James Baldwin, Norman Mailer, Bernard Malamud, and Truman Capote, to name but a few. Similar language is also abundant in many recent best-sellers, including Love Story, The Godfather, Portnoy’s Complaint, The Adventurers, and Valley of the Dolls. Even the works of William Faulkner, an author indelibly associated with Oxford and the University of Mississippi, contain a high number of “obscenities” much like the words under attack here. Thus, here the University is seeking to restrain the use of certain words which it acknowledges are often used in literary compositions and words which are found in the books it offers for student reading through its library.

Finally, we note that the testimony established that the University goes so far as to prescribe as required reading at least one work which includes most, if not all, of the words found in these short stories. It also contains the word to which the University, we would surmise, most strenuously objects. Professor Harrington testified that as part of his course in the twentieth century novel, he assigned as required reading the recognized literary masterpiece Ulysses, written by James Joyce. We note that once, years ago, that work was also subject to attempts at censorship by governmental authorities in this country. See United States of America v. One Book Called “Ulysses”, 5 F.Supp. 182 (S.D.N. Y., 1933), aff’d. United States v. One Book Entitled Ulysses by James Joyce, 2 Cir. 1934, 72 F.2d 705. Anyone familiar with the soliloquy of Molly Bloom will recall that her statement includes many of the same words found objectionable here. Thus, students who take this course in modern novels are required to read at least one work which includes the same or very similar words to the ones here condemned. This, indeed, begins to become a strange double standard.

Since the University is relying primarily on a claim that these stories are too tasteless and inappropriate to be connected with the University, merely because of the words which appear in the stories, we find that justification particularly hard to accept as compelling because of the admitted facts we have set out above. There has been testimony by a literary expert that these stories have literary merit and that was also the collective judgment of the student editorial board. The University has not really attacked literary merit, but has instead focused its argument on the mere presence in the story of these words. Yet these words appear and are more or less forced upon any student who takes certain courses at the University. It does not seem necessary to get into a discussion of whether or not the stories of this author have as much literary merit as a novel by James Joyce. That is irrelevant to the consideration of the issue as it has been framed by the University itself. We do not see how the University can draw a line, based on the grounds it asserts, between these short stories, which are intended only for those persons, mostly students and under five hundred in number, who pay one dollar for the issue, and a novel which students are required to buy and read in order to receive course credit. While the anomaly present in this factual situation is not really necessary for the legal opinion we render in this case, we think it should be pointed out because it illustrates the folly in making matters of free speech and word usage turn on a state’s interpretation. As far as the words are concerned, the words themselves, their mere presence can be no less offensive because they appear in a recognized literary triumph rather than in the first attempts by one who 6ould be characterized a budding young author, out to “forge in the smithy of [his] soul the uncreated conscience of his] race”.

Finally, the University attempts to invoke the special consideration that publication of this story, as long as it acknowledged any recognized connection with the University of Mississippi, would endanger the current public confidence and good will which the University of Mississippi now enjoys. See Duke v. North Texas State University, 5 Cir. 1972, 469 F.2d 829. While we recognize that such considerations can go into the determination of whether a given interference with freedom of speech is justified, we feel it is also very clear that use of such a rationale should be handled gingerly and applied only in what can be characterized as most extreme eases.

We do not read Duke as saying that a university has the right to restrict any activity involving free speech or expression merely because it might cause adverse reaction in the newspapers or because some segment of the state’s population might be unhappy with the university’s actions. Duke was itself a very close case, and we feel it should be read restrictively to apply only where the actions involved are quite extreme in light of the educational purposes of a university. We see no such factors here.

As a final word, we can only reiterate that speech cannot be stifled by the state merely because it would perhaps draw an adverse reaction from the majority of people, be they politicians or ordinary citizens, and newspapers. To come forth with such a rule would be to virtually read the First Amendment out of the Constitution and, thus, cost this nation one of its strongest tenets. It would be unthinkable to say that the University of Mississippi could censor and forbid publication of an article in its law school journal on the grounds that the article concerned some sensitive issue, such as forced busing or abortion, which, because of the resolution reached in the article, the University determined would create an overwhelmingly adverse reaction among members of the bar and the public. The First Amendment simply took the power to make such judgment out of the hands of the state.

The University alleges that it here is acting to preserve what it considers an acceptable level of decency in this publication. That statement, however, illustrates the core issue of this problem — what level of “decency” and who should decide when it has been reached. As previously noted, the use of the language is, at the very least, arguably justified in a literary context. It is not used suggestively nor does it approach pandering. The words are not being forced on an unwilling audience through public display. There is no chance of violent disruption from their use. The nature of the language is no longer really that unusual in current literature, films, and conversation — especially among the young. The trend to its use, both in spoken and written, arts, while not to be commended, certainly must be recognized. “An acceptable level of decency” is obviously not a static proposition nor one easily determined. One needs only look around to see that things considered horribly “indecent” a few years ago are quite commonplace today. It is for this reason that, where modes of expression are involved, the First Amendment casts a heavy burden on any governmental body which seeks to censor on the grounds of “public decency”. As the Supreme Court stated in Cohen v. California, supra:

Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. 403 U.S. 15 at 25, 91 S.Ct. 1780, at 1788.

Thus, we conclude here that the University has not shown sufficient special circumstances to justify the interference it is attempting to impose on the full exercise of First Amendment freedoms. As previously noted, we do not in this opinion mean to say that no language or conduct short of legal obscenity can be regulated by a college or university when a student literary publication is involved. We do not have to reach that issue here. We are satisfied that on the facts of this case the University has not demonstrated that the language used in parts of these stories is so unusual, so condemnatory, that the requisite special circumstances have been achieved.

In closing, we must take note of the historical role of the University in expressing opinions which may well not make favor with the majority of society and in serving in the vanguard in the fight for freedom of expression and opinion. As the United States Supreme Court has recently reaffirmed:

The precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools”. Shelton v. Tucker, 364 U.S. 479, 487 [81 S.Ct. 247, 5 L.Ed.2d 231] (1960). The college classroom with its surrounding environs is peculiarly the “market place of ideas” and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom. Keyishian v. Board of Regents, 385 U.S. 589, 603 [87 S.Ct. 675, 17 L.Ed.2d 629] (1967); Sweezy v. New Hampshire, 354 U.S. 234, 249-250 [77 S.Ct. 1203, 1211, 1 L.Ed.2d 1311] (plurality opinion of Mr. Chief Justice Warren), 262 [77 S.Ct. 1217] (1957)
(Mr. Justice Frankfurter’s concurring opinion).
Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 2346, 33 L.Ed.2d 266, 279 (1972).

Therefore, we feel it is incumbent on this court to deny the University the power to restrict what must be recognized as a legitimate manner of expression on the basis of the justifications it seeks to assert in this case.

From our careful consideration of this case, we note with some sadness an undercurrent which permeates this whole controversy. We see no real spirit of compromise or accommodation on the part of either side. Throughout the record in this case we sense an air of confrontation, derived both from the actions of the students and the adminis-. tration. The students are accused of deliberately taunting the University, throwing down a gauntlet which they knew the University must accept. For its part, there are numerous allegations, generally admitted, that the University and its chosen committee repeatedly refused to hear the students or their advisers, and to consider their points of view. It would seem to this court that perhaps a greater spirit of accommodation could have avoided the necessity of a costly and time-consuming resort to the federal courts. Perhaps some mutual editing could have removed much of the offensiveness which the University objected to. Perhaps the well-known practice of initial letters followed by blanks or dashes could have conveyed the meaning without unduly upsetting the University officials or the author. Perhaps a stated disclaimer as to content on the part of the University would have been sufficient. But from the record before us, neither side really made an attempt at compromise. This is an unfortunate situation, especially where the conflict is between a University and its students and between censorship and expression.

For the reasons stated in this opinion, we hold that the district court was correct in granting the order restraining the University from further interference with the printing of the Magazine Images and that order is hereby

Affirmed.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC.

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

      . There was evidence that there was a mailing list of about 25 subscribers with the rest of the magazines to be sold on campus. It was admitted that commercial success was not an aim of the publication.

      . Evidence at the hearing below established that the University had no rules or regulations on the content of student publications, and that the University had never in the past attempted to prevent publication of a student periodical.

      . In addition to these stories, the issue contained several poems and illustrations.

      . Although only eighteen, the author was classified as a first semester junior.

      . Salinger, J. D., The Catcher in the Rye.

      . The only viable difference between the Antonelli case and the one at bar is related to this advisory board. We feel that difference is not relevant to the legal issues involved. One other factual difference which bears on the legal issue is that in Antonelli the article and issue of The Oyele in dispute was, indeed, published by another printer at the expense of private individuals and then distributed on the campus. Here the restraints imposed by the University have continued to hold publication of this issue of Images in abeyance.

      . Professor Harrington, author of one novel and several shorter works of fiction, testified as to literary merit and style at the hearing below.

      . We note that at least one Circuit Court of Appeals has suggested that one of the objectionable terms present in the stories, literally referring to an incestuous son but more commonly used as an abusive epithet, is not that unusual or condemnatory when it reaches the tender young ears of high school seniors. Judge Bailey Aldrich, writing for the First Circuit in Keefe v. Geanakos, 1969, 418 F.2d 359, addressed a situation involving the possible punishment of a high school teacher who read an article to a senior class which repeatedly used the epithet referred to above. In speaking directly to the school board’s alleged fear of adverse parental reaction, the learned jurist stated :
      With regard to the word itself, we cannot think that it is unknown to many students in the last year of high school, and we might well take judicial notice of its use by young radicals and protesters from coast to coast. No doubt its use genuinely offends the parents of some of the students — therein, in part, lay its relevancy to the article.
      Hence, the question in this case is whether a teacher may, for demonstrated educational purposes, quote a “dirty” word currently used in order to give special offense, or whether the shock is too great for high school seniors to stand. If the answer were that the students must be protected from such exposure, wo would fear for their future. We do not question the good faith of the defendants in believing that some parents have been offended. With the greatest of respect to such parents, their sensibilities are not the full measure of what is proper education. [Footnotes omitted]. Id. at 361-362.

      . See, e. g., The Catcher in the Rye.

      . See, e. g., Another Country.

      . See, e. g., Prisoner of Sex.

      . See, e. g., The Tenants.

      . See, e. g., In Cold Blood.

      . Again we refer to the opinion of Judge Aldrich in Keefe v. Geanakos, supra, note 8, for in that case he was confronted with a situation where the high school library contained at least five separate works by five separate authors which contained the word used in class by the teacher under attack. We can only restate his salient comment:
      Such inconsistency on the part of the school has been regarded as fatal. [Citation omitted]. We, too, would probably so regard it. At the same time, we prefer not to place our decision on this ground alono, lest our doing so diminish our principal holding, or lead to a bowdlerization of the school library. 418 F.2d at 362-363.

      . As to literary merit, Professor Harrington testified for plaintiffs that he felt the stories had literary merit. Chancellor Fortune did not address literary merit directly but did state that he felt any literary merit was offset by the use of the objectionable language.

      . See Joyce, James, A Portrait of the Artist as a Young Man, Viking Press, Ellmann ed., 1964, page 253.

      . For instance, we find the Duke ease easily distinguishable. First, we were there dealing with somewhat different principles of law since it involved an employer-employee relationship. Furthermore, that case involved quite vitriolic and vulgar personal attacks on the administration of the university made by a teacher who had not yet achieved tenure. They were certainly not made in the relatively sterile context of a literary composition. The statements and the way they were presented were, in the opinion of the court, enough to cast considerable doubt on whether the person making those statements could effectively continue ns an instructor, working with an administration she had so crudely attacked. Finally, the procedural devices present in the Duke case, at least as the procedures followed have been outlined to us, are significantly different from those in this case.

      . Under questioning at the hearing, Chancellor Fortune did testify that he felt such a statement would not have been enough for the university.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Leslie Hugh OUTLAND, Defendant-Appellee.
    No. 72-1930.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 15, 1973.
    Decided April 12, 1973.

      Robert P. Hurlbert, Asst. U. S. Atty., for plaintiff-appellant; Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief.
    Richard M. Lustig (Court appointed), Zemke & Lustig, P. C., Southfield, Mich., for defendant-appellee.
    Before PHILLIPS, Chief Judge, MILLER, Circuit Judge, and McALLISTER, Senior Circuit Judge.
   PER CURIAM.

The Government appeals from the District Court’s suppression of evidence seized under two search warrants. The facts of the case are detailed in the District Court’s opinion. 345 F.Supp. 1250 (E.D.Mich.1972). For the herein stated reasons, we reverse and remand for an evidentiary hearing.

The District Court suppressed the evidence for two reasons: (1) postal and customs authorities waited 85 days after seizing the contraband in a Customs inspection of two mailed packages before seeking search warrants the day before delivering the packages; (2) the affidavits upon which the warrants were based were insufficient because they did not establish a chain of custody of the contraband during the 85 days and did not indicate how the Customs agent knew the packages were to be delivered the following day.

This court holds that the affidavits were sufficient under the Supreme Court’s mandate in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1964), to test affidavits for warrants “in a commonsense and realistic fashion.” The underlying circumstances were sufficiently presented to the magistrate to justify the issuance of the warrants. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The chain of custody of the contraband would possibly be necessary to show guilt beyond a reasonable doubt at trial, but was not necessary for the finding of probable cause for the issuance of the warrant. Cf. United States v. Harris, 403 U.S. 573, 584, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1970).

When the magistrate was told by the Customs official in his affidavit that the packages, then in the hands of a postal inspector, would be delivered by the United States Postal Service, there was probable cause to believe such packages would be so delivered.

As for the delay between the seizure of the contraband and the seeking of the warrants, we find nothing in the record to show that this delay was unreasonable. We remand this case for an evidentiary hearing at which the District Court will adduce the reasons for delay and any possible prejudice to the defendant caused by the delay. The mere showing of delay does not per se transform the legal seizure, United States v. Beckley, 335 F.2d 86 (6th Cir.), cert. denied, Stone v. United States, 380 U.S. 922, 85 S.Ct. 921, 13 L.Ed.2d 807 (1964), into a violation of the Fourth Amendment.

The District Court’s use of United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), to support its holding on the delay is erroneous. That case concerned domestic mail not international mail, as in the case at bar. As this court stated in Beckley, supra: “Fourth Amendment standards applicable to mail matter moving entirely within the country are not applicable to mail matter coming in from outside the country. . . . ” 335 F.2d at 88.

Reversed and remanded.

      . Both affidavits read, in part, as follows:
      “Information was furnished to Gary Wade, Special Agent, Bureau of Customs, Detroit, Michigan, from George Murto, Supervisor of the International Mail Division, Detroit, Michigan, on September 8, 1971, that a package addressed to: (here addresses were inserted in each affidavit) had been subjected to a routine Customs examination on September 8, 1971 by George Murto and found to contain approximately two pounds of suspected hashish concealed in a candle. That on December 3, 1971 it is suspected that the above described package will be in said residence after 9:00 o’clock A.M. by reason of its delivery in the ordinary course of mail delivered by the United States Postal Service, and said package is now in the custody of Postal Inspector Russel B. Mabry, Detroit, Michigan. Further, that Special Agent Gary Wade performed a field test on the suspected hashish and received positive results. An inquiry directed to Postal authorities indicated that the addressee is residing at and receiving mail at the above address, /s/ Gary E. Wade, Special Agent, Bureau of Customs.”


author: ALBERT V. BRYAN, Jr., District Judge:

text:
    ST. PAUL FIRE AND MARINE INSURANCE COMPANY, v. Herbert Phillip LACK, Appellant, v. Charles M. IVEY, Jr., Administrator of the Estate of Mary Carolyn Lack, Appellee. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Appellant, v. Herbert Phillip LACK, Appellee, and Charles M. Ivey, Jr., Administrator of the Estate of Mary Carolyn Lack, Appellee.
    Nos. 72-2294, 72-2295.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 5, 1973.
    Decided March 29, 1973.

      Joseph E. Elrod, III, Greensboro, N. C. (Perry C. Henson and Joseph E. Elrod, III, Greensboro, N. C., on brief), for appellant in No. 72-2294.
    William D. Caffrey, Greensboro, N. C. (Eugene W. Purdom and Jordan, Wright, Nichols, Caffrey & Hill, Greensboro, N. C., on brief), for appellant in No. 72-2295.
    Martin W. Erwin, Greensboro, N. C. (Jack W. Floyd, Smith, Moore, Schell & Hunter, Greensboro, N. C., on brief), for appellee Charles M. Ivey, Jr., in No. 72-2294 and for appellees in No. 72-2295.
    Before RUSSELL and FIELD, Circuit Judges, and BRYAN, District Judge.
   ALBERT V. BRYAN, Jr., District Judge:

Herbert Phillip Lack (Lack), after fatally shooting his wife during a marital dispute, pled guilty to the charge of “voluntary manslaughter.” Charles M. Ivey, Jr., the Administrator of the Estate of Mary Carolyn Lack (Administrator), then instituted in a North Carolina state court a civil suit for wrongful death against Lack alleging negligence. The St. Paul Fire and Marine Insurance Company (St. Paul) had previously issued an insurance policy to the.decedent, agreeing to pay on her behalf, all amounts which she, or her spouse, should become legally obligated to pay in a personal injury action. The policy relieved the company of the duty to defend or pay if the act giving rise to the action was intentional.

Contending that it was not obligated under this exclusionary clause to defend or cover any judgment against Lack since he had “intentionally” killed his wife, St. Paul sought a declaratory judgment against Lack in the District Court to this effect. The District Court stayed the state court proceedings, and allowed the Administrator to intervene and assert a cross-claim against Lack for wrongful death. In a bifurcated procedure, a jury found that Lack unintentionally killed his wife and therefore St. Paul was obligated to extend coverage and to defend him. A second jury then held Lack, and consequently St. Paul, liable in 'damages to the Administrator for the decedent’s wrongful death.

I.

The first issue presented is whether the District Court erred in instructing the jury that “voluntary manslaughter” could be interpreted as an admission to either the intentional or culpably negligent killing of a person without malice. Under North Carolina law it appears that voluntary manslaughter is the intentional unlawful killing of a human being and therefore an instruction incorporating culpable negligence as an alternative finding is improper since it does not require intent as a necessary element. See State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971); State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971).

Although this instruction may have been improper it does not constitute reversible error. It is apparent by a reading of the charge in its entirety that the jury was explicitly told to base its verdict, when weighing the admission of guilt, on what Lack “intended at the time he pled guilty to voluntary manslaughter” rather than upon ■ definitional distinctions; and that the issue upon which the case turned, namely, Lack’s intent or absence of it at the time of the killing, was adequately put to the jury.

II.

The jury was also instructed to construe any exclusion under the terms of the policy in favor of the insured and against St. Paul. Even if this was error because no ambiguity existed in the policy, it is harmless when the charge is considered as a whole. The jury was adequately charged that the quantum of proof to be met by the plaintiff, St. Paul, was no more than a preponderance of the evidence.

III.

St. Paul contends that Lack’s guilty plea should have been conclusive as to his intent and binding in a subsequent civil suit. Since jurisdiction here is based on diversity, the law of the state where the District Court sits, North Carolina, controls questions of res judicata and collateral estoppel. Graves v. Associated Transport, Inc., 344 F.2d 894 (4th Cir. 1965).

Taylor v. Taylor, 257 N.C. 130, 125 S. E.2d 373 (1962), establishes that a criminal conviction precludes relitigation of the same issue in a civil suit where one stands to profit from his own wrong. This, however, is distinguishable from the circumstances at bar. Here we have the product of a plea bargaining arrangement rather than a result of litigation of the issues which determine guilt. Consequently, application of the doctrine of res judicata or collateral estoppel would serve only to frustrate the expeditious administration of criminal justice accomplished through the plea bargaining process. Stout v. Grain Dealers Mutual Insurance Co., 307 F.2d 521 (4th Cir. 1962), is not to the contrary. There, the court’s holding was limited to a factual determination on the record that the explanation of the admission of guilt was, as a matter of fact, inadequate to rebut the case made out by the plea.

Accordingly, a plea of guilty is to be considered as no more than an admission which may be explained rather than a conclusive statement which is binding when there has been no initial litigation of the issues.

IY.

The District Court entered an Order on September 1, 1971, assessing travel and subsistence expenses of Lack as part of the taxable costs of the suit for wrongful death. This being a matter solely within the discretion of the trial judge it will not be reversed. 28 U.S.C. §§ 1821 and 1920.

V.

The final question is whether the verdict should be reduced under the Wrongful Death Act. N.C.Gen.Stat. § 28-173. At common law one responsible for the death of another cannot profit by his own wrongdoing and share in the wrongful death award. Therefore, under the controlling cases of Cox v. Shaw, 263 N.C. 361, 139 S.E.2d 676 (1965), and Cummings v. Locklear, 12 N.C.App. 572, 183 S.E.2d 832, cert. denied 279 N. C. 726, 184 S.E.2d 883 (1971), the award must be reduced by the statutory share of the wrongdoer.

The Administrator argues that this result is precluded by the “slayer statute” which excludes the wrongdoer from taking by declaring him to have constructively died prior to the deceased. N.C.Gen.Stat. §§ 31A-3 & 31A-4. It would not reduce the award but would enable the other beneficiaries, in this ■ case two children of the deceased, to share Lack’s statutory interest in the deceased’s estate. The first jury, however, at the urging of Lack and the Administrator, has by its verdict eliminated Lack as a slayer, since the statute defines a slayer as a person who wilfully and unlawfully kills another. Moreover, the slayers’ exclusion appears to apply only to inheritance from the decedent’s “estate,” while wrongful death awards have consistently been deemed not to pass through the personal estate of the deceased but rather • to arise out of a right of action belonging peculiarly to the personal representative for the benefit of the intestate successors. See Broadnax v. Broadnax, 160 N.C. 432, 76 S.E. 216 (1912); Hoke v. Atlantic Greyhound Corporation, 226 N.C. 332, 38 S.E.2d 105 (1946); Stetson v. Easterling, 274 N.C. 152, 161 S.E.2d 531 (1968).

The ease is remanded to the District Court for entry of an order reducing the award by one-third.

Affirmed in part; reversed in part and remanded.


author: ALDRICH, Senior Judge.

text:
    UNITED STATES of America, Appellee, v. Rudolph A. TROPEANO, Defendant, Appellant.
    No. 72-1337.
    United States Court of Appeals, First Circuit.
    Argued March 6, 1973.
    Decided April 10, 1973.

      Lawrence F. O’Donnell, Boston, Mass., with whom Francis X. Aylward, Boston, Mass., was on brief, for appellant.
    Michael J. Madigan, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and McENTEE, Circuit Judges.
   ALDRICH, Senior Judge.

Defendant, a government meat inspector, convicted of violations of 21 U.S.C. § 622 (“Bribery of or gifts to inspectors or other officers and acceptance of gifts”) by the receipt of money and meat products, from a processor, lists fifteen points on his appeal. A number are answered by our recent decision in United States v. Seuss, 1 Cir., 1973, 474 F.2d 385. A larger number need no discussion, either because they do not possibly involve plain error, or because they do not possibly involve error of any sort. Two matters remain.

Defendant’s trial took place after the conviction of some other defendants on similar charges. After testimony had started, defendant’s counsel learned that some of the jurors had sat in a previous case. Defendant moved for a mistrial. The court denied the motion, on the ground that the objection came too late and because the jurors were not disqualified as a matter of law.

The second portion of this ruling was clearly correct. United States v. Ragland, 2 Cir., 1967, 375 F.2d 471, cert. denied 390 U.S. 925, 88 S.Ct. 860, 19 L. Ed.2d 987, and cases cited at 476 n. 2. On the record, the first was, also. Defendant knew there had been previous trials. Although it would have been a simple matter to request the court to inquire of prospective jurors at the time of impanelling whether they had sat before, defendant did not do so. Had he done so the court should probably have regarded the disclosure as a ground for challenge for cause. Indeed, defendant had not even consumed his peremptory challenges.

Defendant’s counsel offers as excuse a conversation with a deputy clerk which led him to believe he was going to get “fresh” jurors. This circumstance does not appear of record with any clarity. Even if we were to assume it did, it would not constitute an adequate excuse. A trial is a serious matter. It is not within the scope of the duties of a deputy clerk to supply such information. The clerk’s office is often helpful and, from experience, parties may find the advice of a clerk on all sorts of matters to be valuable. Counsel must, however, take their own chances on such informal instruction, particularly in a situation like the present, where first hand information and the ability to protect oneself is readily available. The government is rarely if ever estopped by a statement of an official outside his authority. Cf. United States v. Rossi, 9 Cir., 1965, 342 F.2d 505.

If the rule were otherwise, courts would be obliged to forbid their clerks to have any contact with counsel except in the rigid performance of their statutory duties. The bar would be the first to object to such a rule. The alternative is that counsel must make their own decision whether to trust such informal information, or, as we have sometimes found the problem to be, and would seem here, to trust their own understanding of what the clerk may have said. In this case, if in fact counsel correctly understood the clerk and the clerk was mistaken, it is the defendant who properly must bear the consequences. In fact, in much clearer cases, as where the clerk’s office fails to send out a notice, the loss falls on the party who relied on the clerk’s office instead of checking the record. See, e. g., Buckley v. United States, 10 Cir., 1967, 382 F.2d 611, cert. denied 390 U.S. 997, 88 S.Ct. 1202, 20 L.Ed.2d 97.

Secondly, defendant complains that the prosecutor violated the rule forbidding his stating in argument his personal belief in defendant’s guilt. The now objected-to statement was as follows.

“Do you recall that I said in my opening statement perhaps improperly, it is not a very nice story, because I believe that is true, it is not a very nice story. It is a story that happened.”

We consider that a listener would take the first part of this statement as the prosecutor’s concurrence in the sorry nature of the tale told by the government’s witnesses. It would have been better had he made the second sentence less direct: “I ask you to find that it happened.” “I submit that it happened.” “The government witnesses were clear in their testimony . . .” etc. But while we regret the form, we do not find it so positive that we must reverse. Nonetheless, the lesson to the prosecutor should be obvious; “I believe” is a dirty verb.

Affirmed.

      . All that appears is that counsel informed the clerk that he wanted a fresh jury. It does not appear now, nor was the claim made to the district court, that the clerk informed him that, without more, he was going to get one.

      . We cannot forbear remarking, from viewing the record, that the same sauce should be applied to the gander.


text:
    Robert N. WORTHINGTON and Svaja V. Worthington, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, RespondentAppellee.
    No. 72-1808.
    United States Court of Appeals, Tenth Circuit.
    April 10, 1973.
    Scott P. Crampton, Asst. Atty. Gen., and Thomas L. Stapleton and Charles R. Burnett, Attys., Tax Div., Dept, of Justice, have filed a memorandum in support of summary affirmance on behalf of appellee.
    Before LEWIS, Chief Judge, and PICKETT and McWILLIAMS, Circuit Judges.
   PER CURIAM.

Appellants appeal from an adverse decision of the Tax Court sustaining the Commissioner of Internal Revenue’s assessment of a tax deficiency for the year 1968 in the amount of $552.38. The issue before the Tax Court was whether $2,700.00 received by appellant during the taxable year 1968 as a teaching assistant in the English Department of the University of New Mexico was excludable from gross income for that year under the provisions of Section 117 of the Int.Rev.Code of 1954. The Tax Court found that it was not. We agree.

The facts are not in dispute. In the fall of 1967, appellant was hired by the University as a teaching assistant in the Department of English at a remuneration of $270.00 per month. She had successfully completed work on her masters degree and was working toward her doctorate. As a teaching assistant, she taught four sections of freshman English. She taught two sections per semester during the school years 1967/1968 and 1968/1969. She had complete control of her own classes and was not directly under the supervision of the English Department other than being provided with information or a syllabus covering the subject matter to be taught.

The funds which.were used to pay teaching assistants at the University, and appellant in particular, were allocated from the instructional segment of the University’s budget. Loans, scholarships, and fellowships were allocated from the student aid segment • of the University's budget. The primary criteria used by the state Board of Educational Finance in determining the number of teaching assistants to be included in the instructional segment of the University’s budget in a given year is the projected enrollment at the University for the year for which the budget is being prepared. During the year in issue, the University would have had to hire additional instructors to teach freshman English had the budget not allowed for the hiring of teaching assistants.

Appellants excluded from their gross income for the taxable year 1968 the $2,700.00 received by appellant for teaching freshman English. This amount was disallowed by the Commissioner who was of the opinion that the amount represented compensation for services rendered and thus was not within the provisions of Section 117, or, alternatively, if it were considered as a scholarship or fellowship, that it fell within the proviso of Section 117(b)(1). The Tax Court conducted a two-day hearing following which it sustained the assessment. The Court concluded, “In the instant case the record amply shows that petitioner [appellant] was paid to work rather than paid to study.” The court found it unnecessary to consider the applicability of Section 117(b)(1) in view of its conclusion that the payment to appellant in 1968 represented payment for services rendered and that such payment did not constitute a scholarship or fellowship.

We have carefully reviewed the proceedings in the Tax Court, the Tax Court’s opinion and cases cited therein, as well as those cited by appellants, and conclude that the decision of the Tax Court was correct.

Upon docketing, the parties were notified that we were considering summary affirmance, and of their right to file a memorandum in support of their respective positions. Appellee took advantage of such opportunity, and we now have before us appellee’s memorandum in support of summary action. Appellants did not file a memorandum in opposition to summary action. Nevertheless, after a careful and thorough review of the records and files in this case, we are convinced that the judgment of the Tax Court was correct.

Affirmed.

      . Mr. Robert Worthington joined - in his wife’s petition in the Tax Court since they filed a joint return for the year 1968. Our references to appellant refer to Mrs. AVorthington only.

      . “Sec. 117. Scholarships and fellowship grants.
      “(a) General Rule. — In the case of an individual, gross income does not include—
      “(1) any amount received—
      “(A) as a scholarship at an educational institution (as defined in section 151(e) (4)), or
      “(B) as a fellowship grant, including the value of contributed services and accommodations ; and
      “(2) any amount received to cover expenses for — •
      “ (A) travel,
      “ (B) research,
      ‘‘(C) clerical help, or
      “ (D) equipment,
      which are incident to such scholarship or to a fellowship grant, but only to the extent that the amount is so expended by the recipient.
      “(b) Limitations.—
      “(1) Individuals who are candidates for degrees. — In the case of an individual who is a candidate for a degree at an educational institution (as defined in section 151(e)(4)), subsection (a) shall not apply to that portion of any amount received which represents payment for teaching, research, or other services in the nature of part-time employment required as a condition to receiving the scholarship or the fellowship grant. If teaching, research, or other services are required of all candidates (whether or not recipients of scholarships or fellowship grants) for a particular degree as a condition to receiving such degree, such teaching, research, or other services shall not be regarded as part-time employment within the meaning of this paragraph.”

      . The Board serves essentially as a coordinator of the various budget requests presented by state operated schools. It analyzes the requests and forwards them to the state legislature which usually adopts the Board’s recommendations.


author: PER CURIAM:

text:
    Dr. William BOOTH, Plaintiff-Appellant, v. GARAN, INCORPORATED, Defendant-Appellee.
    No. 72-2975.
    United States Court of Appeals, Fifth Circuit.
    April 6, 1973.
    William Liston, Winona, Miss., Harvey T. Ross, Clarksdale, Miss., James E. Upshaw, James Y. Dale, Greenwood, Miss., for plaintiff-appellant.
    Hassell H. Whitworth, Jackson, Miss., for defendant-appellee.
    Before BELL, INGRAHAM and RONEY, Circuit Judges.
   PER CURIAM:

Plaintiff brought this Mississippi diversity action in nuisance against a manufacturer who dumped allegedly harmful chemical wastes into a ditch adjoining plaintiff’s property. Plaintiff contended that the odors and vapors created by defendant’s effluent discharges injured his respiratory and ventilatory systems, but the jury found for the defendant on the ground that the discharges were not harmful. On appeal, plaintiff argues, first, that the District Court erred when it refused to grant his motion for a judgment notwithstanding the verdict, and second, that the Court erred when it refused to grant his motion for a new trial. We affirm.

As to the motion for judgment notwithstanding the verdict, a review of the trial testimony convinces us that “the evidence [was] of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions . . . ” Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969). Hence, the case was properly submitted to the jury.

As to the motion for a new trial, plaintiff contends that erroneous instructions of the District Court “hopelessly confused” the jury. Additionally, plaintiff contends that the District Court erred when it permitted the defendant to introduce experimental evidence.

Special interrogatory number one reads:

Do you find from a preponderance of the evidence in this action that the waste material discharged from defendant’s . . . plant into the open ditch in question from November 1968 to the present created noxious or toxic vapors or fumes in the area of plaintiff’s residence?

The District Court instructed that the terms “toxic” and “noxious” meant “something poisonous” and “something harmful or destructive to man or other organisms,” respectively. The jury answered “No” to the interrogatory, thereby finding that plaintiff had failed to prove that the discharge from defendant’s plant actually carried with it fumes or vapors that could have damaged plaintiff.

After thoroughly examining the Court’s instructions, we are persuaded that the jury was not confused or misled, nor was the admission of the experimental evidence reversible error. A District Court has wide discretion to admit evidence of experiments conducted under substantially similar conditions, Ramseyer v. General Motors Corp., 417 F.2d 859 (8th Cir. 1969), and plaintiff here has failed to establish an abuse of that discretion.

It should be noted that this case involves no property nuisance claim. Plaintiff’s action for interference with the use and- enjoyment of his property is the subject of another suit, and defendant concedes that, in that case, at least nominal damages might be required even if the vapors and fumes were merely obnoxious and not physically injurious.

A review of the evidence, however, convinces us that the negative answer to the controlling special interrogatory resulted not from error of the Court but from the plaintiff’s failure of proof.

Affirmed.


author: COLEMAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Curtis G. STILLS, Defendant-Appellant.
    No. 72-2959.
    United States Court of Appeals, Fifth Circuit.
    April 3, 1973.
    Paul Carmouche, Shreveport, La., for defendant-appellant.
    Donald E. Walter, U. S. Atty., David R. Lestage, Asst. U. S. Atty., Shreveport, La., for plaintiff-appellee.
    Before COLEMAN, MORGAN and RONEY, Circuit Judges.
   COLEMAN, Circuit Judge:

Curtis C. Stills was charged with the distribution of approximately 0.502 grams of heroin in violation of 21 U.S.C. § 841(a)(1). He was found guilty after a jury trial and at sentencing was found to be eligible for treatment under the Narcotics Rehabilitation Act, 18 U.S.C. 4254.

The appellant raises two contentions of error: first, the District Court should have granted the motion for judgment of acquittal because entrapment was shown as a matter of law; second, the District Court should have sustained the objection to testimony of a government witness as to what he had heard about defendant’s reputation for selling narcotics. We affirm.

Entrapment as a Matter of Law

The facts surrounding the alleged sale of the heroin are in dispute. The testimony of two government agents was that the defendant instigated the sale of the heroin; the defendant claims that the government agents asked him to purchase the heroin. The “resolution of conflicting testimony and the inferences to be drawn from it in assessing the defense of entrapment must be left to the jury”, United States v. Villafana, 5 Cir, 1972, 455 F.2d 478, 479.

Testimony of Defendant’s Reputation as a Narcotics Peddler

Joe King, a cooperating individual, testified in rebuttal as follows:

Q. All right. Have you heard that the defendant has, in fact, dealt in heroin?
A. Yes, sir, I have heard it.
MR. CARMOUCHE: [Defendant’s attorney] That’s hearsay evidence, Your Honor.
'X* -Jf -X- * *X- -X*
Q. Have you heard the reputation of the defendant, Curtis Stills, either to sell or not to sell heroin, discussed?
A. Yes, sir, I have heard that he was.
Q. You have heard it discussed? [Objection]
A. Yes, sir, I have.
Q. All right. And what was the discussion to what effect? That he sold or did not sell heroin ?
A. That he sold.

Defendant contends that such testimony was hearsay. The District Court allowed the testimony on the basis of the decisions in United States v. Robinson, 5 Cir, 1971, 446 F.2d 562, cert. denied, 404 U.S. 959, 92 S.Ct. 323, 30 L.Ed.2d 277, and Thompson v. United States, 5 Cir., 1968, 403 F.2d 209. This action was not error.

In United States v. Robinson, supra, we said:

“Appellant’s argument disregards the law of this circuit. We have repeatedly held that once the defense of entrapment is raised the government may introduce hearsay testimony concerning the defendant’s past reputation as bearing upon the defendant’s predisposition to commit the crime and the reasonableness of the conduct by the government agents. Washington v. United States, 5 Cir., 1960, 275 F.2d 687; Rocha v. United States, 5 Cir., 1968, 401 F.2d 529; Thompson v. United States, 5 Cir., 1968, 403 F.2d 209. Moreover, in the case of Thompson v. United States, supra, this court specifically approved the use of reputation evidence in the form of testimony which the witness gleaned from the reports of a local police department. The district court was therefore correct in admitting the testimony concerning Robinson’s past reputation for illegally selling drugs.”

The judgment of the District Court is

Affirmed.

      . Section 841(a)(1) provides as follows: Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.

      . The government offered this testimony as to the defendant’s reputation in order to rebut entrapment.


text:
    Learness MELANCON, Plaintiff, v. INSURANCE COMPANY OF NORTH AMERICA and Automobile and Casualty Underwriters, DefendantsAppellees, v. COATING SPECIALISTS, INC., Defendant-Appellant.
    No. 72-3309
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 30, 1973.
    Rudolph R. Schoemann, New Orleans, La., for defendant-appellant.
    Thomas M. Bergstedt, Lake Charles, La., John Rixie Mouton, Lafayette, La., Donald V. Organ, Donald M. Pierce, New Orleans, La., for defendants-appellees.
    Before THORNBERRY, GOLDBERG and RONEY, 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:

Alleging that his work aboard the M/V SNIPE aggravated or caused his silicosis or pneumonoconiosis condition, plaintiff sued Insurance Company of North America, State Automobile and Casualty Underwriters, and Coating Specialists, Inc. for damages under the Jones Act and maintenance under the General Maritime Law. The district court granted summary judgment for the Insurance Company only and declared in its judgment “This is a final judgment within the meaning of Rule 54(a) of the Federal Rules of Civil Procedure.” Defendant Coating Specialists, which had purchased Jones Act liability coverage from the Insurance Company, appeals from this summary judgment. We dismiss this appeal for lack of jurisdiction.

In a multiple party suit, such as this one, a summary judgment adjudicating the claims or rights and liabilities of fewer than all the parties. is not a final appealable judgment within the meaning of 28 U.S.C. § 1291 unless the district court makes (1) an “express determination that there is no just reason for delay” and (2) “an express direction for the entry of judgment.” Fed.R.Civ. P. 54(b). Since the district court did not make the requisite “express determination,” this court is without jurisdiction to entertain the appeal. Bailey v. Rowan Drilling Company, 5th Cir. 1971, 441 F.2d 57; United States v. Crow, Pope and Land Enterprises, Inc., 5th Cir. 1973, 474 F.2d 200; see 6 J. Moore, Federal Practice, ¶ 54.34 [2.2] n. 10 (2d Ed. 1972).

After .summary judgment for the Insurance Company was granted, Coating Specialists moved for leave to file a third party complaint against the Insurance Company, and the district court denied this motion without any reference to the final judgment status of its order or to the question whether any just reason for delaying an appeal from the order existed. Coating Specialists appeals from the denial of the motion, and this appeal has been consolidated with the summary judgment appeal for consideration by this court. This second appeal must also be dismissed. Even if, as we assume here without deciding, the denial of Coating Specialists’ motion to file a third party complaint might be appealable if certified by the district court under Rule 54(b), see 6 J. Moore, Federal Practice, ¶ 54.36 (2d Ed. 1972), it is clear that the denial of the motion is not appealable without the requisite Rule 54(b) certification.

If the trial court enters a new judgment and accompanies it with .a proper Rule 54(b) certificate, the second appeal may be submitted on the record and briefs prepared for this appeal as supplemented by the new judgment and certificate. See 3 Barron and Holtzoff, Federal Practice and Procedure § 1193 at 26 (Wright Ed. 1958).

Dismissed.


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    Josephine PARKER and Judi Greenlee, Plaintiffs-Appellants, v. GENERAL TELEPHONE COMPANY OF the NORTHWEST, INC., DefendantAppellee.
    No. 71-1547.
    United States Court of Appeals, Ninth Circuit.
    April 11, 1973.

      Rembert Ryals (argued), David E. Williams, Critchlow, Williams, Ryals & Schuster, Richland, Wash., for plaintiffs-appellants.
    George J. Tichy (argued), Spokane, Wash., for defendant-appellee.
    Before KOELSCH and WRIGHT, Circuit Judges, and BELLONI, District Judge.

       Honorable Robert C. Belloni, United States District Judge, District of Oregon, sitting by designation.

   PER CURIAM:

Josephine Parker and Judi Greenlee were employed by General Telephone Company. Plaintiffs alleged that they were discriminated against in the course of employment because of their sex. Charges were filed by plaintiffs with the Equal Employment Opportunity Commission (EEOC), pursuant to Section 706(a) of Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(a). Plaintiffs made no filing with the state. The EEOC concluded that reasonable cause existed to -believe the truth of plaintiffs’ charges. Plaintiffs filed their complaint in district court after informal efforts to resolve the dispute proved unsuccessful.

The district court dismissed the action on the grounds that plaintiffs had failed to notify the state of their claims, and that such notice was necessary, under 42 U.S.C. § 2000e-5(b), as a preliminary to federal jurisdiction. We find that the dismissal of plaintiffs’ complaint was in error.

“The district court shall retain jurisdiction for a time sufficient to allow the EEOC to notify [the appropriate state commission] and to allow that commission the statutory deferral period in which to act upon it. If the [Washington] commission elects not to act, the district court may then proceed as the rights of the parties may then appear.” Motorola, Inc. v. Equal Employment Opportunity Commission, 460 F.2d 1245, 1246 (9th Cir. 1972), citing Crosslin v. Mountain States Telephone and Telegraph Co., 400 U.S. 1004, 91 S.Ct. 562, 27 L.Ed.2d 618 (1971).

Defendant, in its answer, maintained that the conditions for venue enumerated in Section 706(f) of Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000e-5 (f), were not satisfied with respect to Plaintiff Greenlee. While this issue was neither briefed nor argued by the attorneys on appeal, the record does indicate that the practices complained of by Plaintiff Greenlee occurred in the State of Idaho. Nonetheless, venue may rest on some other basis set forth in the statute. The trial judge addressed himself to the problem, however, the issue remains unresolved. Oii remand, the trial judge is directed to consider and determine the matter of venue with respect to Plaintiff Greenlee.

Remanded.


text:
    Paul DUHART, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 72-1505.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 1, 1973.
    Decided April 18, 1973.
    Cary Rodman Cooper (court apptd.), Hayward, Cooper, Straub, Walinski, Cramer & Co., Toledo, Ohio, for petitioner-appellant.
    Erie D. Chapman III, Asst. U. S. Atty., Toledo, Ohio, for respondent-appellee; Frederick M. Coleman, U. S. Atty., on brief.
    Before PHILLIPS, Chief Judge, and PECK and LIVELY, Circuit Judges.
   PER CURIAM.

In July 1965, a jury verdict was returned against appellant finding him guilty of bank robbery and assault in violation of 18 U.S.C. § 2113(d). A motion for new trial was denied and appellant was sentenced to 25 years imprisonment. There was no appeal. In January 1969, appellant filed a petition for a writ of habeas corpus which was treated as a motion to vacate sentence pursuant to 28 U.S.C. § 2255. The motion was denied by the District Court in March 1972 without an evidentiary hearing. This appeal followed. Appellant has specified a number of grounds in his appeal and we view two of those as having substance.

In denying appellant’s petition, the District Court held that a question as to the legality of an arrest could not properly be a subject of a motion to vacate sentence. Appellant argues that he was illegally arrested and, as a result, the subsequent search and seizure of evidence in his car was illegal. He claims he is entitled to a hearing by virtue of Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).

Kaufman established that search and seizure issues could be properly raised on § 2255 motions. Some courts, e. g., Hayes v. United States, 419 F.2d 1363 (10th Cir. 1969), cert. denied, 398 U.S. 941, 90 S.Ct. 1856, 26 L.Ed.2d 276 (1970), are reported to have limited Kaufman to search and seizure situations. Our reading of those cases indicates that they merely affirm the principle that an arrest alone, without more, is not ground for a collateral attack in a proceeding to vacate sentence. But cf., Eagleston v. United States, 448 F.2d 1389, 1390 (10th Cir. 1971).

Of course, it is settled that to justify a search incident to arrest, the arrest must be valid. See, Henry v. United States, 361 U.S. 98, 102, 80 S. Ct. 168, 14 L.Ed.2d 134 (1959); see, also, Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), where it was held that a search incident to an arrest which was based on an illegally issued warrant may not be sustained. Since search and seizure issues can now be properly raised on motions to vacate, it follows that where such motions allege an illegal search and seizure based on and incident to an illegal arrest, consideration of the illegal arrest is within the ambit of Kaufman. Such a conclusion is implicit in the Kaufman decision and is not an extension thereof. Thus we conclude that the District Court erred in not considering the allegation.

Appellant also claims that he was deprived of the effective right to appeal. It appears that appellant’s retained trial attorney had timely moved for a new trial but upon the denial of the motion, the attorney ceased his efforts on appellant’s behalf. Appellant alleges that his counsel deceived him into thinking that an appeal was being taken and that he did not find otherwise until one year after his trial. The appellant was sent to prison within ten days after sentencing and there is some correspondence in the record which indicates he thought an appeal was being prosecuted. The District Judge did not advise appellant of his right to appeal at the time of sen-fencing, or at any other time. In dismissing the petition, the District Court relied on dicta in Desmond v. United States, 333 F.2d 378 (1st Cir. 1964). There the petitioner argued his attorney deceived him regarding his right to appeal. The Court of Appeals remanded the case for an evidentiary hearing on the matter. The Court then intimated that a less than prompt motion might preclude a hearing.

Here, the District Court observed that the three year delay from the time appellant was aware that his attorney would not prosecute an appeal for him precluded him from raising it on the motion to vacate. That conclusion is in apparent conflict with our decision in Davis v. United States, 464 F.2d 1009 (6th Cir. 1972). There, this Court reversed the District Court’s findings of fact, after an evidentiary hearing upon a § 2255 motion, and found that appellant had not been advised of his right to appeal by his attorney or the court following his 1959 conviction. The Court held that this was a denial of the effective assistance of counsel and ordered resentencing. See, also, Powers v. United States, 446 F.2d 22 (5th Cir. 1971).

The standard for determining the necessity of holding an evidentiary hearing on motions to vacate is found at 28 U.S.C. § 2255. The statute requires a hearing “. . . unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Here, we can not reach that conclusion regarding either issue discussed above. We intimate no view as to the merits but merely hold that the record before us does not conclusively show that the appellant is entitled to no relief.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

      . Rule 37(a)(2), F.R.Crim.P., was in effect in 1965 and required a court to advise a defendant of his right to appeal after imposition of sentence if defendant was not represented by counsel. This rule was amended in 1966. See, Rule 32(a) (2), F.R.Crim.P.


text:
    Mary TAYLOR et al., Plaintiffs-Appellants, v. The CITY OF MILLINGTON, a municipal corporation formed under the laws of the State of Tennessee, et al., Defendants-Appellees.
    No. 72-1817.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 15, 1973.
    Decided April 18, 1973.
    David Lambert, Memphis, Tenn., for plaintiff s-appellants.
    James W. Watson, Memphis, Tenn., for defendants-appellees; Watson, Lewis & Knolton, Memphis, Tenn., of counsel.
    Before WEICK, CELEBREZZE and PECK, Circuit Judges.
   PER CURIAM.

The suit in the District Court was a class action to desegregate two public housing projects operated by the Millington Housing Authority of Millington, Tennessee [MHA], one of which projects, known as the Bill Knight Road project, was located within the city limits, near a school attended by all white pupils, and was occupied entirely by white tenants. The other project was located outside the city limits, near an elementary school whose pupils were all Negroes, and was occupied entirely by Negro tenants. Both schools have since been desegregated.

The District Court found that MHA had initially assigned tenants to the two projects based entirely on race and that it continued to do so until the adoption of the Civil Rights Act of 1964. After passage of that statute MHA instituted a “Freedom of Choice” policy whereby white and Negro applicants were permitted to select the particular project in which they desired to live. Under this policy white applicants continued to select the all-white project, while Negro applicants continued to select the all-Negro project, and both applicants were encouraged to do so by MHA.

HUD adopted a regulation for the assignment of eligible applicants to dwelling units on a community-wide basis, and implemented it by a circular dated July 10, 1967, requiring MHA within ninety days to adopt a plan setting forth assignment policies which would require selection of tenants on a non-discriminatory basis.

MHA, by resolution, adopted such a plan on October 10, 1968, but has done very little to implement such plan until the present suit was filed.

The District Court found that the policies of MHA operated to segregate the races and were in violation of law. The Court said, however,—

“. . . that there has been no malevolent intent or even intentional discrimination practiced by the defendants before us in the sense of invidious, active and willful acts directed against these plaintiffs by reason of their race.”

The Court also found there had been some discrimination in the all-Negro project, which discrimination was not racial but it delayed acceptance of applications of some of the plaintiffs.

The Court, relying on Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and the Civil Rights Act, entered an injunction enjoining the defendants from maintaining a policy of segregation in the two housing projects and mandatorily ordering it to treat all applications of black applicants in equal fashion with those of white applicants, having due regard for lawful preferences and priority considerations allowable under HUD guidelines with regard to space in the Bill Knight Road project.

The Court, although finding that there was no evidence of damage, awarded $50-damages to Novella Taylor, and $50-damages to Rosa Cobbs. It also assessed an attorney’s fee of $400 and costs against the defendants. By order subsequently entered, the Court ordered $50 to Mary Emma Taylor instead of Novella Taylor.

Significantly, the Court did not find that any of the plaintiffs had ever specifically requested assignment to the all-white project.

Plaintiffs filed a motion to amend and clarify the findings of the District Court. The District Court, in its order acting thereon, reiterated that—

“. . . defendants must adhere to applicable, proper and legal H.U.D. regulations and requirements relative to its further course of rental units and they must treat all black applicants equally with white.”

The Court did not order the defendants to place any particular plaintiff in any particular unit, but retained jurisdiction for a period of one year in order to insure that the intendment of its order would be carried out. The Court suggested to the defendants and their counsel, the following:

“(1) [that] they review existing applications promptly and place them in order of preference, priority, and time of filing and that they make the result of such review available to plaintiffs’ attorney and to the Court.
“(2) that they furnish a copy of their review to the Housing and Urban Development office having jurisdiction over compliance to the guidelines of Millington Housing Authority for its approval and/or suggestions together with a copy of this order and the Court’s Memorandum Opinion.”

This request was complied with and the defendants so reported to the Court. Since the community-wide list was prepared, a total of nine vacancies occurred in the projects; six were filled with black applicants, and three with white applicants. Of the six black applicants, three were rented units in the formerly all-white project and the other three went to the all-black project. No white applicants have as yet expressed willingness to be assigned to the all-black project.

In their appeal, the plaintiffs do not complain about the injunction and mandatory order entered by the District Court; their complaint is that the orders do not go far enough to integrate the races in both projects. We would question the authority of the District Court to uproot the present tenants living in both projects, and because of their race, to assign them to different projects in order to effect a racial balance or quota. We think the District Court has chosen the right course to retain jurisdiction and to compel compliance with HUD regulations and policies, which should ultimately operate to further integrate the races.

The judgment of the District Court is affirmed except as to the award of $50-damages to each of two plaintiffs, which awards are vacated.


text:
    Floyd C. GREEN, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 72-2589
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 6, 1973.
    Harry H. Walsh, Staff Counsel for Inmates, Texas Dept, of Corrections, Huntsville, Tex., for petitioner-appellant.
    Crawford C. Martin, Atty. Gen., Robert Darden, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and GOLDBERG 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.

   PER CURIAM:

In this, his second round of federal habeas corpus petition, Petitioner challenges his conviction for robbery on the basis that the use of his sworn testimonies in a previous trial against a co-defendant violated his Fifth and Sixth Amendment rights under Miranda. The able trial judge found Petitioner’s contentions to be without merit and declined to issue the writ. We agree.

It is elementary that the stringent requirements of Miranda apply only when the Defendant is in custody. United States v. Montos, 5 Cir., 1970, 421 F.2d 215; Archer v. United States, 5 Cir., 1968, 393 F.2d 124; Evans v. United States, 5 Cir., 1967, 377 F.2d 535; United States v. Akin, 5 Cir., 1970, 435 F.2d 1011. Petitioner’s alleged inculpatory statements were given during the course of a judicial proceeding and after the Petitioner had been informed of his Fifth Amendment right to remain silent by the state trial judge. This is not the invidious subterfuge which the Court faced in Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.

Likewise, the mere absence of petitioner’s counsel at the co-Defendant’s trial does not impugn his testimony. United States v. DeLoy, 5 Cir., 1970, 421 F.2d 900; United States v. White, 5 Cir., 1971, 451 F.2d 696. The Petitioner had ample opportunity to refuse to testify or to request the advice of counsel. See United States v. Priest, 5 Cir., 1969, 409 F.2d 491.

The judgment will be

Affirmed.


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    George Clary NEAL, Petitioner-Appellant, v. UNITED STATES MARSHAL AT SOUTHERN DISTRICT OF GEORGIA et al., Respondents-Appellees.
    No. 72-3495
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 16, 1973.
    John J. Sullivan, Savannah, Ga., for petitioner-appellant.
    R. Jackson B. Smith, Jr., U. S. Atty., Augusta, Ga., Murray R. Stein, John L. Murphy, Chief, U. S. Dept. of Justice, Washington, D. C., for respondentsappellees.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, 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.

   PER CURIAM:

In his habeas corpus petition, Neal seeks review of the district court’s determination that he is extraditable to Canada. Neal admits that he is the same person against whom the Government of Canada has pending criminal charges for obtaining money by false pretenses and for possession of stolen property. Moreover, it is uncontroverted that these charges are enumerated extraditable offenses within the extradition treaties between the United States and Canada; that these offenses are felonies under the criminal laws generally in force within the United States; and that the applicable statutes of limitations have not expired. Accordingly, the only issue that we need decide on appeal is whether the district court erred in holding that there was probable cause to believe that the crimes charged were committed in Canada and that Neal may have committed them.

A careful review of the record convinces us that there was sufficient evidence to establish the requisite probable cause and, therefore, the judgment of the district court is

Affirmed.