author: THORNBERRY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Paul Merville PREJEAN, Defendant-Appellant.
    No. 73-2988.
    United States Court of Appeals, Fifth Circuit.
    May 23, 1974.
    Jones, Circuit Judge, concurred in the result.

      Anthony C. Aguilar, Dick Stengel, El Paso, Tex., for defendant-appellant.
    William Sessions, U. S. Atty., San Antonio, Tex., Edward S. Marquez, Ronald F. Ederer, William B. Hardie, Jr., Asst. U. S. Attys., El Paso, Tex., for plaintiff-appellee.
    Before JONES, THORNBERRY and COLEMAN, Circuit Judges.
   THORNBERRY, Circuit Judge:

In this direct criminal appeal Prejean challenges his conviction for burglarizing a house on a military reservation in violation of the Assimilative Crimes Act. After careful examination of the case, we conclude that the evidence fails to substantiate the indictment’s burglary accusation, and we reverse.

I.

Viewing the evidence in the light most favorable to the Government, the operative facts are as follows. Michael O’Toole, age fifteen, lived with his parents in a house located on the grounds of Fort Bliss, near El Paso, Texas. Michael and his friend P. H. Smith desired to travel to Port Arthur, Texas, but lacked funds for the trip. Appellant Prejean was planning a trip to the Port Arthur area and would take the boys along if they would share expenses. O’Toole decided to obtain the needed money by taking his mother’s cash box while she slept.

With full knowledge of O’Toole’s mission, Prejean drove the two boys to O’Toole’s house in the wee hours of the morning of September 13, 1972. He waited in the car while O’Toole unsuccessfully tried the front door, crawled through a bedroom window, stole his mother’s cash box and returned to the car. The trio then drove to a local restaurant where police apprehended them.

II.

The Assimilative Crimes Act, 18 U.S.C.A. § 13, adopts for each federal enclave the penal laws of the state where it is located. It is a shorthand method of providing a set of criminal laws on federal reservations by using local law to fill the gaps in federal criminal law.

In this case the indictment charged Prejean with burglarizing the O’Toole house in violation of the Assimilative Crimes Act and the adopted state statute, Article 1389 of the Texas Penal Code. While Prejean never entered the house, as an accomplice he is vicariously liable for O’Toole’s acts. Thus the issue is whether O’Toole’s actions constitute burglary under Article 1389 of the Texas Penal Code.

The parties have argued at considerable length over the sufficiency of the indictment. We think it clear that the indictment states an offense, violating Article 1389. The difficulty is that the indictment charges the wrong offense.

The Fifth Amendment gives every indicted defendant the right to be tried only on the charges made by the grand jury that indicted him. If he is to be convicted, the conviction must rest solely on the charges made by the indictment. Neither the prosecution nor the trial judge can alter the charge to fit the proof; to do so would be usurping the function of the grand jury. Stirone v. United States, 1960, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252; United States v. Beard, 5th Cir. 1971, 436 F.2d 1084. See Ex parte Bain, 1887, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849.

In this case the Assimilative Crimes Act adopts for Fort Bliss the Texas law of burglary. See United States v. Frazier, 5th Cir. 1971, 444 F.2d 235; United States v. Beard, 5th Cir. 1971, 436 F.2d 1084; United States v. Evans, 5th Cir. 1969, 415 F.2d 340. Texas burglary law distinguishes between ordinary burglary and burglary of a private residence at night. Article 1389 defines ordinary burglary, whose elements include entering a house in either day or night with the intent of committing theft. It carries a penalty of two to twelve years in prison. Texas Penal Code Ann. art. 1397 (1953). Article 1391 defines a different burglary offense, burglary of a private residence at night. As the title implies, the offense can be committed only at nighttime, and the structure burglarized must be “any building or room occupied and actually used at the time of the offense by any person as a place of residence.” The punishment is substantially harsher than the penalty for violating Article 1389; the minimum sentence is five years, and no maximum is provided. To illustrate the difference between the two types of burglary, burglarizing a vacant house would be a violation of Article 1389 and would not be punishable under Article 1391.

Article 1391 specifically states that burglary of a private residence at night is a “separate offense.” That it is separate and distinct from Article 1389 burglary is emphasized by a line of cases from the Texas Court of Criminal Appeals, the state’s highest criminal tribunal. E. g., Bowie v. State, 401 S.W.2d 829 (Tex.Cr.App.1966); Litchfield v. State, 159 Tex.Cr.R. 5, 259 S.W.2d 228 (1953); Shaffer v. State, 137 Tex.Cr.R. 476, 132 S.W.2d 263 (1939); Crawford v. State, 127 Tex.Cr.R. 550, 78 S.W.2d 623 (1935); Martinus v. State, 47 Tex. Cr.R. 528, 84 S.W. 831 (1905). These cases hold that Articles 1389 and 1391 state separate and distinct offenses. They are so separate and distinct that the Texas Court of Criminal Appeals on occasion has reversed convictions under indictments charging a violation of Article 1389 when the proof showed burglary of a private residence at night. Litch-field v. State, Crawford v. State, and Martinus v. State, supra. See also Bowie v. State and Shaffer v. State, supra.

The indictment in the instant case charged burglary of the O’Toole house in violation of Article 1389. But the proof adduced showed that the structure entered was an occupied private residence, and the entry occurred at night. Therefore the Government proved a violation of Article 1391, if it proved burglary at all. Since Prejean was convicted for an offense not alleged in the grand jury’s indictment, the conviction is invalid.

III.

Reversal is required for yet another reason. Under Texas law the general rule is that one cannot be convicted of burglary unless he entered the premises without the owner’s consent. Even if he commits theft once inside, if the owner consented to his entry, he cannot be convicted of burglary. Stallworth v. State, 167 Tex.Cr.R. 19, 316 S.W.2d 417 (1958); Jones v. State, 155 Tex.Cr.R. 481, 236 S.W.2d 805 (1951); Shaffer v. State, 137 Tex.Cr.R. 476, 132 S.W.2d 263 (1939) (dicta); Texas Penal Code Ann. art. 1392 (1953); 10 Tex.Jur.2d Burglary § 80 (1959, Supp.1973).

The Government did not adequately prove lack of consent. On direct examination the prosecutor asked Michael’s father, SFC O’Toole:

Did you at any time give any consent to your son ... to break into your home and remove any of the property therein?

The father replied, “No, sir, I did not.” establishing that he did not consent to his son’s alleged acts of breaking and theft. But entry is an element of burglary separate from breaking, and the prosecution did not ask SFC O’Toole whether Michael had his permission to enter the house. It seems inconceivable, moreover, that SFC O’Toole would deny his son permission to enter the family home, where the boy was living at the time. Michael had merely gone out for the evening and stayed past the 10:00 p. m. curfew imposed by his parents. Without direct proof of lack of consent to enter, the conviction for burglary cannot stand.

IV.

To summarize, Prejean’s conviction must be reversed because the Government’s evidence fails to support the grand jury indictment. In the first place, the Government selected the wrong burglary statute from the Texas Penal Code. The evidence showed a theft from a private residence; therefore if a burglary occurred, it was a violation of Article 1391, not Article 1389. A conviction for violating Article 1389. violates Prejean’s right to be tried on the same offense for which he was in-dieted. Furthermore, the evidence does not negate the possibility that Michael had consent to enter his family’s house; therefore it fails to show burglary. Thus the Government erred first by charging Prejean with burglary and then compounded its error by charging the wrong type of burglary. Consequently the conviction must be

Reversed.

JONES, Circuit Judge, concurs in the result.

      . Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a
      like offense and subject to a like punishment. Assimilative Crimes Act, 18 U.S.C.A. § 13 (1969).

      . FIRST COUNT
      (18 U.S.C. § 13)
      (Article 1389 Penal Code of Texas)
      That on or about September 12, 1972, in the Western District of Texas, PAUL MERVILLE PREJEAN, with intent to steal, did break and enter a building, that is, the residence of SFC Charles L. O’Toole, located on a Military Reservation, to wit: Fort Bliss, Texas, a place under the exclusive jurisdiction of the United States.

      . Article 1389 provides :
      The offense of burglary is constituted by entering a house by force, threats or fraud, at night, or in like maimer by entering a house at any time, either day or night, and remaining concealed therein, with the intent in either case of committing a felony or the crime of theft.
      Texas Penal Code Ann. art. 1389 (1953).

      . Article 1391 provides:
      The offense of burglary of a private residence at night is constituted by entering a private residence by force, threats or fraud, at night, or in any manner by entering a private residence at any time, either day or night, and remaining concealed therein until night, with the intent, in either case, of committing a felony, or the crime of theft. The term “private residence,” as used herein, means any building or room occupied and actually used at the time of the offense by any person as a place of residence. One guilty of burglary of a private residence at night shall be confined in the penitentiary for any term not less than five years. Such burglary is a distinct offense, and nothing making it such shall alter or repeal the two preceding articles.
      Texas Penal Code Ann. art. 1391 (1953).

      . But of. Trevino v. State, 158 Tex.Cr.R. 255, 254 S.W.2d 786 (1953). There the court held that implied consent to enter was no defense to a charge of burglarizing a church if the consent was limited and the entry fell outside the limitation. The public was invited to enter the church solely for the purpose of meditation and prayer, but Trevino did not enter for that reason. A boy’s home, by contrast, is not a special purpose institution extending a limited implied consent to his entry. See Jones v. State, 155 Tex.Cr.R. 481, 236 S.W.2d 805 (1951). See generally Annot., 93 A.L.R.2d 531 (1964).

      . Michael O’Toole entered through a bedroom window. The record does not indicate whether he had to open the window, or whether it was already open. If the latter was the case, then there would have been no breaking.

      . In Randall v. State, 436 S.W.2d .157 (Tex. Cr.App.1969) a burglary victim was asked:
      Did you give this defendant or anyone else your consent and permission to break and enter that store and take whatever was taken from the store?
      The victim responded, “No,” and the court held that the State adequately negated the possibility that the victim had consented. In that case, however, the victim was asked if he consented to defendant’s entry. Furthermore, the defendant did not live on the burglarized premises, and there was no showing of a familial relationship between defendant and the victim. In other words, very little was required to negate the possibility of consent. The case at bar presents an entirely different situation.

      . Michael O’Toole tried first to enter through the front door, but was unable to open it. We infer from that that the door was locked. A locked door would give rise to the inference that his father did not consent to his entry, but the Texas Court of Criminal Appeals has held that if the owner of the burglarized premises testified, lack of consent may not be proven by circumstantial evidence. Stallworth v. State, 167 Tex.Cr.R. 19, 316 S.W.2d 417 (1958).


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William GRONER, d/b/a Lucky Distributors, Defendant-Appellant.
    No. 71-1091
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 24, 1974.

      Will Gray, Michael Anthony Maness, Houston, Tex., Robert Eugene Smith, Atlanta, Ga., for defendant-appellant.
    Wm. F. Sanderson, Jr., Asst. U. S. Atty., Frank D. McCown, U. S. Atty., Fort Worth, Tex., Larry E. Butcher, Atty., Crim. Div., Administrative Reg. Sec., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

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

   THORNBERRY, Circuit Judge:

For the third time, William Groner’s convictions on two counts of knowingly using a common carrier in interstate commerce to transport a quantity of obscene books, in violation of 18 U.S.C. § 1462, are before this court. The case is before us pursuant to an order of the Supreme Court vacating our en banc judgment and remanding the cause for further consideration in light of Miller v. California, 1973, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Paris Adult Theatre I v. Slaton, 1973, 413 U.S. 49, 93 S. Ct. 2628, 37 L.Ed.2d 446; Kaplan v. California, 1973, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492; United States v. 12 200-ft. Reels of Super 8 mm. Film, 1973, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500; United States v. Orito, 1973, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513; Heller v. New York, 1973, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745; Roaden v. Kentucky, 1973, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757; and Alexander v. Virginia, 1973, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993, all decided June 25, 1973.

Groner now contends (1) that the convictions cannot stand because the Roth-Memoirs test is now constitutionally inapplicable and because the Miller test cannot be constitutionally applied retroactively, (2) that in any case the evidence was insufficient to support the jury’s conclusion that the books were obscene, (3) that 18 U.S.C. § 1462 does not define proscribed conduct with sufficient particularity to satisfy Miller and is thus unconstitutionally vague and overbroad, (4) that under 18 U.S.C. § 1462 it is constitutionally necessary for the government to prove not merely that the defendant had knowledge of the nature of the materials placed in interstate commerce, but also that he was aware that the materials were legally obscene, and (5) that the F.B.I’s acquisition and retention of the books constituted an unconstitutional search and seizure in light of Roaden v. Kentucky, supra.

We rejected Groner’s first contention in United States v. Thevis, 5th Cir. 1973, 484 F.2d 1149. As that case demands, the proper review proee-dure for determining whether pre-Miller material is obscene is to test the material under both the Roth-Memoirs standard and the Miller standard. This procedure avoids an ex post facto application of Miller and keeps the old standard intact for the purpose of judging offenses committed prior to the Supreme Court decision in Miller. Unless the material is judged to be obscene under both the old and the new standards, there can be no conviction. United States v. Millican, 5th Cir. 1973, 487 F. 2d 331. We need not remand for a new trial because it is our duty to make an “independent constitutional judgment on the facts of the ease as to whether the material is constitutionally protected.” Jacobellis v. Ohio, 1964, 378 U.S. 184, 190, 84 S.Ct. 1676, 1679, 12 L.Ed.2d 793. Having done so, we reject appellant’s second contention and conclude that under each of the two tests the books are indeed obscene. See United States v. Cote, 5th Cir. 1973, 485 F.2d 574; United States v. New Orleans Book Mart, Inc., 5th Cir. 1974, 490 F.2d 73; United States v. Sulaiman, 5th Cir. 1974, 490 F.2d 78; United States v. Thevis, 5th Cir. 1974, 490 F.2d 76.

We have also recently rejected appellant’s third contention by concluding that 18 U.S.C. § 1462 has been the subject of authoritative judicial construction which renders its application constitutionally proper. United States v. Thevis, supra, 490 F.2d 76; see also United States v. Orito, supra. In similar fashion, we have foreclosed appellant’s fourth contention with our holding that the government has met its burden of proving scienter under this statute if it proves that the appellant knew the nature of the materials he put in interstate commerce. United States v. Thevis, supra, 484 F.2d 1149.

Appellant’s final contention can be disposed of summarily. The record shows that at the American Airlines Freight Terminal a security employee discovered that the box containing the books had somehow been opened and pilfered. American Airlines contacted the F.B.I. and placed the pilfered carton in their hands for investigation of an apparent theft. A subsequent search of the carton convinced the F.B.I. that the material was “contraband,” and the agency thus retained the materials until the time of trial when, for the first time, the appellant questioned the propriety of the F.B.I.’s actions. We expressly do not reach the merits of Groner’s contention that the F.B.I.’s conduct was violative of the principles enunciated in Roaden v. Kentucky, supra, because the appellant lacks standing to challenge the action. There is no standing to contest a search and seizure where, as here, the defendant was not on the premises at the time of the contested search and seizure; had no proprietary or possessory interest in the premises; and was not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. Brown v. United States, 1973, 411 U.S. 223, 229, 93 S.Ct. 1565,1569, 36 L.Ed.2d 208.

Affirmed.

      . For the history and background of the case, see the panel opinion reported at 475 F.2d 550, and the en banc opinion reported at 479 F.2d 577.


author: SIMPSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Vasco Lee JOYNER, Defendant-Appellant.
    No. 72-3538.
    United States Court of Appeals, Fifth Circuit.
    May 23, 1974.

      .William F. Beemer, Orlando, Fla. (Court-appointed), for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Robert A. Leventhal, Harrison T. Slaughter, Asst. U. S. Attys., Orlando, Fla., for plaintiff-appellee.
    Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.
   SIMPSON, Circuit Judge:

Vasco Lee Joyner was convicted under two counts of a four count indictment for conspiracy to violate Title 18, U.S.C. Sec. 2115 burglary of a post office, Title 18, U.S.C. Section 371, (Count One) and for violation of Title 18, U.S.C. Sections 2 and 641, theft of government property, consisting of postal stamps, savings stamps and money, valued at more than $100, or aiding and abetting the same, (Count Four). We are urged to reverse his conviction upon grounds of (1) violation of Title 28, U.S.C. Sec. 1861, in the composition of the grand jury which indicted him, (2) denial of his Sixth Amendment right to a speedy trial, (3) denial of his Sixth Amendment right to subpoena witnesses at government expense, (4) improper introduction at his trial of prejudicial evidence, and (5) improper jury instructions contained in the trial court’s charge. We find no merit in the assertions of error and affirm the conviction.

Joyner was indicted with Donald Chapman and Richard Scott on September 10, 1970, by a Middle District of Florida grand jury sitting in Orlando, Florida. Arraignment was set for October 7, 1970, but was cancelled and never rescheduled. This indictment was ultimately dismissed on February 19, 1971, a superseding indictment for the same offense having been returned by another Middle District of Florida grand jury at Tampa, Florida on November 18, 1970. The charges in the two indictments were identical except for a change in the name and location of the post office charged to have been burglarized.

This appeal is from Joyner’s conviction under the Tampa indictment. On February 2, 1971, Joyner entered a plea of not guilty to all charges, and on February 10, 1971, moved to dismiss the indictment because of denial of his right to speedy trial, violation of Title 28, U. S.C. Sec. 1861, in the composition of the grand jury and violation of his right against double jeopardy. The motion to dismiss was denied and trial for all three defendants was set for March 8, 1971. The government was unable to arrange for the presence of the defendant Richard Scott on March 8 and the trial date was reset for June 22, 1971. On that date after the jury was impaneled and the trial was about to commence, it was brought to the court’s attention that the defendants on trial while chained and handcuffed had been, led into the courtroom in the jury’s presence. A mistrial was granted at the request of defendants Scott and Chapman and over the objection of Joyner, who wished trial to commence at that time. On September 15, 1971, Joyner again moved to dismiss based upon a denial of his right to speedy trial, which was denied. Joyner’s trial was set for November 1971, jointly with Scott and Chapman, but illness prevented his appearance. Scott and Chapman were tried as scheduled after Joyner’s case was severed. Following several additional settings and continuances due to Joyner’s illness, he was brought to trial alone in November, 1972. Conviction and this appeal followed. Joyner was acquitted as to Count Two, a substantive charge of burglary of the Fern Park, Florida, post office, Title 18 U.S.C. Sec. 2115 and as to Count Three, which charged damage to government property. Title 18 U.S.C. Sec. 1361.

THE TAMPA GRAND JURY AND TITLE 28 U.S.C. SEC. 1861

As noted Joyner was originally indicted by a Middle District grand jury sitting in Orlando. That indictment was dismissed after a superseding indictment charging the same offense, but at a different post office, was handed down by a grand jury empanelled and sitting at Tampa in the same district. Joyner argues that the Tampa indictment was invalid because obtained in violation of Title 28, U.S.C. Sec. 1861, and that his case should be reversed with instructions to dismiss that Indictment. Title 28, U.S.C. Sec. 1861 provides:

“It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes.”

Joyner’s theory is that the court convened, for purposes of Sec. 1861, in Orlando, where the trial took place, therefore the indictment coming from the Tampa Division grand jury was defective because that grand jury was not selected from a cross section of Orlando or the Orlando Division of the district. The several divisions of the Middle District of Florida exist under the Local Rules of that district, not under an Act of Congress. Accepting arguendo the proposition that “division” in Sec. 1861 includes both the statutory and non-statutory types, we are still unpersuaded by Joyner’s argument. Though perhaps supported by a narrow and literal reading of the statute this interpretation flies in the face of overwhelming evidence to the contrary.

Judicial interpretation of rules and statutes is consistently used to lend flexibility to the prosecution of criminal acts. Former Title 28, U.S.C, .Sec. 114 required that “prosecutions” be had in the division in which the offense was committed, but the term “prosecution” was held not to include the bringing of the indictment. Salinger v. Loisel, 1923, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989. In 1966 F.R.Crim.P. Rule 18 was amended to delete the requirement that trial be held in the division in which the crime was committed. Yet appellant argues that Congress intended to limit such flexibility by requiring that a grand jury be selected from the same community from which the petit jury trying the case was selected.

Nothing in the legislative history of Title 28, U.S.C. Sec. 1861 suggests such an intent. See H.R.Rep. 1076, 90th Cong., 2d Sess., 1968; 1968 U.S.Code Cong, and Admin.News, p. 1792. The emphasis there is clearly on guaranteeing randomness of selection from a cross section of the community, and we find no implication that significance should be attached to whatever community is involved. There is no mention of a distinction between grand and petit juries, nor a desire to draw each from the same community. In fact, the entire thrust of the bill which became P.L. 90-274, Title 28, U.S.C. Sec. 1861, is directed toward the procedures for guaranteeing fairness in jury selection, which has nothing to do with requiring that all juries be taken from the same community.

Under Rule 1(B) of the Rules of the District Court of the United States for the Middle District of Florida it is provided that “an indictment procured in any Division of the District shall be valid, regardless of where in the District the offense was committed.” Local Rule 1(B) was adopted April 16, 1968 (effective May 1, 1968), but was the successor to similar local rule provisions going back to the district’s creation from the Southern District by Pub.L. 87-562, 76 Stat. 247, and prior thereto for many years in the Southern District. Pub.L. 90-274’s amendment to Title 28, U.S.C. Sec. 1861 became effective 270 days after the date- of enactment (March 27, 1968), approximately December 22, 1968, yet the legislative history contains not the slightest indication of an intent to overrule this or any similar local rule. It seems doubtful actually, that the Middle District of Florida district judges would have re-adopted their long-standing rule on April 16, 1968 if they considered it likely to be invalidated by the Jury Selection and Service Act, then long contemplated and widely discussed and enacted less than three weeks earlier, March 27.

No cases are cited by Joyner in support of his interpretation, and we are not aware of any that deal specifically with this issue. But this court has had occasion to deal with similar issues which have arisen in the past. In United States v. Grayson, 5 Cir. 1969, 416 F.2d 1073, the defendant was indicted in a statutory division other than that in which the offense had been committed. He argued that the indictment was defective as not having been procured by a grand jury from the division in which the crime occurred.

“Predictably this argument does not find support in the decided cases, in view of the widely differing functions of grand and petit juries. The right to be tried before a jury from the vic-inage is not impinged upon in the slightest by a finding of probable cause by an otherwise duly and legally constituted grand jury in another division of the same judicial district.”

United States v. Grayson, supra, 416 F. 2d at 1076. We reaffirm our belief in that principle and do not find that Congress intended to depart from it in amending Section 1861 by the passage of Pub.L. 90-274.

RIGHT TO SPEEDY TRIAL

Joyner further argues that government caused delay prior to his actually being tried amounted to a deprivation of his right to a speedy trial under the Sixth Amendment and Rule 48(b), F.R. Crim.P. In computing the length of the delay, we begin with the date the indictment was filed, so long as it was timely with respect to the applicable statute of limitations, United States v. Grayson, supra, 416 F.2d at 1076-1077. Inasmuch as the Orlando indictment was dismissed without appellant ever having been called upon to plead to it, the critical time period commences with the return of the Tampa indictment, November 18, 1970. The government, because of its failure to arrange for the presence of all three defendants, must be held responsible for the March, 1971 postponement of trial. The June, 1971 postponement is likewise chargeable to the government for exposing the shackled defendants to the view of the empanelled jury, precipitating a mistrial. The government was prepared to try Joyner in November, 1971 together with Scott and Chapman but for his poor health. All later continuances were likewise because of Joyner’s illness. The right to speedy trial then is to be tested for the period of about one year elapsing between the return of the indictment on November 18, 1970 and the trial of Scott and Chapman which commenced at Orlando on November 15,1971.

That no absolute time period can be used to determine violation vel non of the right to a speedy trial was settled by Mr. Justice Powell’s definitive opinion for the Supreme Court in Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. In Barker the Court held that such a determination must be made on a case by case basis with focus upon four factors listed as (1) length of delay, (2) the reason for delay, (3) whether the defendant asserted his right to a speedy trial, and (4) whether the delay prejudiced the defendant’s defense. The delay below of a year was not unusual, and certainly was not inordinate under the circumstances. Contributing significantly to the delay was a lack of foresight by the United State’s Attorney’s office in failing' to have issued timely Writs of Habeas Corpus ad prosequendum on one occasion, and the thoughtlessness of the United States Marshals in exposing the shackled defendants to the jury’s view on the other occasion. Joyner unquestionably as serted his right to speedy trial by his motion to dismiss filed September 15, 1971. But an opportunity for trial, abortive as to Joyner because of his illness, was provided November 15, two months later. The unfortunate but clearly inadvertent and unintentional (from the government’s standpoint) chain of events causing delay did not amount in our judgment to the deprivation of appellant’s right to speedy trial unless there was a showing of prejudice to Joyner’s defense. Joyner urges that such prejudice is evident from the faded memory at trial of defense witness Louis Moore, and from the fact that the government secured additional evidence in aid of conviction after the June 22, 1971 declaration of mistrial.

Enhancement of the government’s ease during pre-trial delay is not relevant to the question of prejudice to the defendant’s case by that delay, as declared by this court in United States v. Rosson, 5 Cir. 1971, 441 F.2d 242. Speedy trial is to be afforded in order to prevent impairment of the defendant’s ability to defend himself. Its purpose is not to limit the ongoing accumulation of evidence by the prosecution.

Fading memory of witnesses, along with death, disappearance and defection of witnesses and loss of evidence are all recognized causes of prejudice that may develop during unnecessary pre-trial delay. See, e. g., Smith v. Hooey, 1969, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607. But in this instance we do not discern that the witness Moore experienced an impairment of memory because of the delay. The question is largely speculative, because the impairment must be pleasured as of the time that Joyner would have been tried but for his illness, November, 1971. That was only a few months after the government caused delays, and there is no way to judge the quality of Moore’s memory at that time. We know only how much he could remember in June of 1971 when interviewed by a postal inspector and at the time of actual trial in November of 1972. Appellant points to certain specific instances in Moore’s trial testimony indicative of a lack of memory, but the issue actually is whether any impaired memory on his part was caused by the government’s delay. On this point, government counsel asked Moore on cross-examination why his memory was better at the time of trial than when he had been interviewed by the postal inspector more than a year earlier in June, 1971. The response, interestingly enough, was that his memory had been “jogged” by' the defendant Joyner. We think that the delay was more likely beneficial than prejudicial to Joyner’s case. At any rate, prejudice to his defense is not demonstrated.

DISCRETIONARY MATTERS

Appellant also seeks review of three procedural decisions of the trial court, each of which was within a discretionary setting, subject to correction on appeal only for abuse of such discretion.

First, Joyner attacks the denial of his request to subpoena at government expense a witness, who it was alleged, would have been able to impeach ' the testimony and destroy the credibility of the government’s key witness, Leroy Johnson, a co-conspirator with Joyner. The right of a criminal defendant to call witnesses at government expense is declared by the Sixth Amendment to the United States Constitution and implemented by Rule 17, F.R.Crim.P. The right is by no means absolute. We have held that trial courts exercise broad discretion in this area, but that if a defendant alleges facts to be within the witness’ knowledge which, if true, would be relevant to an issue in the case, then his request must be granted. Welsh v. United States, 5 Cir. 1968, 404 F.2d 414, 417. Joyner’s witness, according to the affidavit filed in support of the request for subpoena, would have testified that Johnson had a reputation for lying and untrustworthiness. However, neither the affidavit nor the discussion at the time the subpoena request was denied reveals the origin of this reputation or the locale in which it existed. Assuming without deciding that reputation witnesses come under the rule, the impeachment of a witness by impugning his reputation for truth and veracity must relate to the community in which he lives. Wharton’s Criminal Evidence, Section 471; (13th ed.) Wigmore on Evidence, Section 1615. With no indication that the impeaching witness had such knowledge, it was well within the trial judge’s discretion to deny the request to subpoena the witness at government expense.

Joyner alleges abuse of discretion in the admission into evidence of the lower portion of a social security card bearing Joyner’s name. Initially, in April of 1971, an order was-entered requiring disclosure by the government of all evidence it intended to introduce at trial, pursuant to a F.R.Crim.P. Rule 16 motion by the defendant. The social security card was not disclosed to Joyner’s counsel until the day it was to be introduced, the government attorney trying the case stating that that was the first time he became aware of its existence. An F.B.I. agent had confiscated the card along with other materials at the time of Joyner’s arrest, but no report of it was ever sent to postal authorities or to the United States Attorney’s office. Its existence came to the prosecuting attorney’s knowledge during his questioning of the witness prior to calling him as a witness. Rule 16(g), F.R. Crim.P., deals with the continuing duty to disclose newly discovered evidence under a prior order and provides that in the event of a violation of such duty the trial court may permit discovery, grant a continuance, prohibit introduction of the evidence, or enter whatever order it deems just under the circumstances. That discretion was exercised to permit use of the evidence by the United States in this instance, and prejudice to the defendant is not shown to have resulted. Abuse of the court’s discretion is not made out in this particular.

It is urged lastly that reversal is compelled because of the trial court’s response to a question from the jury during their deliberation concerning conversion ' of government property. The jury specifically inquired whether the acceptance of money from one who steals it amounts to stealing it, and the court informed them that it did not, unless the acceptance aided and abetted the crime charged. Appellant argues that it was error to explain in that fashion, and that the court’s response should have been confined to an unqualified “no”. The comment is hardly a misstatement of the law, and we can see no prejudice which might have attended it. Under the circumstances the answer given was not an abuse of discretion. See, e. g., United States v. Gordon, 8 Cir. 1972, 455 F.2d 398.

CONCLUSION

Prejudicial error is not shown to have occurred in any of the particulars relied upon by Joyner on this appeal. The judgment below was right.

Affirmed.

      . Additional pre-trial motions, for discovery, bill of particulars and the like, not pertinent to this discussion, were filed at the same time.

      . “If there is unnecessary delay in . . . bringing a defendant to trial, the court may dismiss the indictment, information or complaint”.

      . During all periods pertinent to our inquiry Joyner was confined under sentences received in unrelated proceedings, so that no loss of liberty was occasioned by any delay involved.

      . We note additionally that Count Four, the substantive charge of theft under Sec. 2115, also charged violation of Title 18, U.S.O. Sec. 2, the “aider and abettor” statute.


author: PER CURIAM:

text:
    Lawrence O. BAKER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-1203.
    United States Court of Appeals, Fifth Circuit.
    May 20, 1974.
    Lawrence O. Baker, pro se.
    Wayman G. Sherrer, U. S. Atty., Albert C. Bowen, Jr., Asst. U. S. Atty., Birmingham, Ala., for respondent-appel-lee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.
   PER CURIAM:

Appellant, Lawrence O. Baker, plead guilty and was sentenced to four years in prison for interstate transportation of a stolen automobile in violation of 18 U.S.C.A. § 2312. His sole contention on appeal is that his sentence should be set aside because the District Judge incorrectly enhanced his punishment by considering three prior convictions obtained without the benefit of counsel. United States v. Tucker, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592. Finding merit in a portion of this contention, we vacate and remand the case.

At the time of his sentencing, appellant had a long list of prior State and Federal convictions dating back to 1942. Among these were:

(i) A 1943 Federal conviction in Kansas City,

(ii) A 1946 Federal Oklahoma City, conviction in

(iii) A 1950 State conviction in Baton Rouge,

(iv) A 1952 Federal conviction in Springfield, Mo.,

(v) A 1959 Federal conviction in Los Angeles, and

(vi) A 1965 Federal conviction.

All six of these convictions were found to have been listed in the pre-sentence report upon which the District Judge relied in assessing appellant’s punishment for his most recent offense.

Appellant does not seek to challenge the propriety of the District Judge’s consideration of convictions (i), (iv), (v), or (vi). He does, however, challenge conviction (ii), the 1946 Federal conviction in Oklahoma City, and conviction (iii), the 1950 State conviction in Baton Rouge, as being illegally considered for punishment enhancement purposes because they were obtained without benefit of counsel.

In his denial of habeas relief, the District Judge found that the only prior convictions he as the sentencing Judge specifically considered for punishment enhancement purposes were appellant’s Federal convictions, i. e., convictions (i), (iii)) (iy), (y), and (vi). He also stated heJassumed since these were Federal convictions they must have occurred “during proceedings where [appellant] was either represented by counsel or waived counsel.”

The District Judge’s finding that he relied solely upon appellant’s Federal convictions in assessing punishment would sufficiently foreclose the appellant from challenging his sentence on the basis of conviction (iii), the 1950 State conviction in Baton Rouge. We cannot, however, dismiss the remainder of appellant’s contentions so easily. A careful reading of the record of the sentencing proceedings reveals no basis for the District Judge’s summary assumption that appellant was represented by counsel or waived to this right in regard to conviction (ii), the 1946 Federal conviction in Oklahoma City. The District Judge was presumably not the presiding Judge in 1946 when appellant was convicted and thus does not have an independent recollection of appellant being represented by counsel at that time. Nor is there any indication from the record on appeal that the District Judge, either when he sentenced appellant for his most recent offense or when he reviewed appellant’s habeas motion, had before him the records of conviction (ii).

In accordance with Russo v. United States, 5 Cir., 1972, 470 F.2d 1357, and Lipscomb v. Clark, 5 Cir., 1972, 468 F.2d 1321, we vacate the judgment below insofar as it relates to conviction (ii), the 1946 Federal conviction in Oklahoma City. The District Court shall determine on remand if treating conviction (ii) as void the four year sentence would still be appropriate. If the Court finds the sentence to be inappropriate, the records of the challenged conviction should be reviewed and evidence taken by whatever means appropriate in accord with Mitchell v. United States, 5 Cir., 1973, 482 F.2d 289 and Lipscomb v. Clark, supra.

Vacated and remanded.

      . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s Local Rule 9(e)(2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5 Cir., 1969, 412 F.2d 981.

      . Appellant also challenges a 1952 Federal conviction in Atlanta on the same basis but both the magistrate and the District Judge in reviewing appellant’s habeas motion found no such conviction listed in the pre-sentence report. On appeal, we are bound by such a finding.


text:
    Kenneth J. SIEBERT et al., Plaintiffs-Appellants, v. GREAT NORTHERN DEVELOPMENT COMPANY et. al., Defendants-Appellees.
    No. 74-1962.
    United States Court of Appeals, Fifth Circuit.
    May 23, 1974.
    William Lewis Spearman, Atlanta, Ga., for plaintiffs-appellants.
    Harold N. Hill, Jr., Jack S. Schroder, Jr., Atlanta, Ga., Buchanan, Ingersoll, Rodewald, Kyle & Buerger, Pittsburgh, Pa., W. Rhett Tanner, Hurt, Hill & Richardson, Edward T. M. Garland, Atlanta, Ga., for defendants-appellees.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.
   PER CURIAM:

Appellants instituted this suit on behalf of themselves and approximately 2300 other persons seeking damages for alleged fraud in the sale of land in a recreational subdivision. The complaint asserted, inter alia, violations of the Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1701 et seq, and the anti-fraud provisions of the Securities Exchange Act of 1934, 15 U.S.C. § 78j, as well as common law fraud. In response to appellants’ request to maintain the suit as a class action on behalf of all lot purchasers, the district court ruled that the allegations- did not present questions of law or fact common to the asserted class as required by Fed.R.Civ.P. 23, and denied the motion. The court also denied as moot appellants’ request for a preliminary injunction restraining ap-pellees from contacting purchasers regarding forfeiture of their investment, and refused to order that notification of the dismissal of the class action be given to absent class members. Appellee now moves to dismiss the appeal of those orders.

To be appealable, an order of a district court either must be final, 28 U.S.C. § 1291; or it must fall into one of a series of specific classes of interlocutory orders, 28 U.S.C. § 1292. ' The refusal to allow a suit to be maintained as a class action does not normally constitute a final judgment. Appellants have not shown their appeal to lie within either of the two narrow exceptions to the general rule. The dismissal will not ring the “death knell” for the appellants’ individual case, see Gosa v. Securities, Investment Company, 449 F.2d 1330 (5th Cir. 1971), nor does it finally de-.S termine collateral rights “too important to be denied review and too independent of the cause itself” to postpone appellate review, see Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Appellants have not obtained the trial court certificate required by Fed.R.Civ.P. 54(b) to permit the interlocutory appeal of a controlling question.

Appellants suggest that the district court’s denial of the preliminary injunction renders the order appealable under 28 U.S.C. § 1292(a)(1). The requested injunction would only have served to maintain the status quo between the appellees and members of the prospective class during the pendency of the litigation. Section 1292(a) does not encompass such protective orders unrelated to the substantive issues of the litigation. Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., 455 F.2d 770 (2d Cir. 1972); International Products Corporation v. Koons, 325 F.2d 403 (2d Cir. 1963); Time, Inc. v. Ragano, 427 F.2d 219 (5th Cir. 1970). Because this injunction did not pertain to the merits of the appellants’ suit, its denial does not constitute an appealable order of the sort contemplated by Section 1292(a).

The appeal is

Dismissed.


author: GODBOLD, Circuit Judge:

text:
    CITY OF NAPLES, Plaintiff-Appellee, v. The PREPAKT CONCRETE COMPANY and American Employers’ Insurance Company, Defendants-Appellants.
    No. 73-1367.
    United States Court of Appeals, Fifth Circuit.
    May 23, 1974.

      Mark Hicks, Miami, Fla., for American Employers’ Ins. Co.
    John C. Ausley, Tallahassee, Fla., Leslie A. Hynes, New York City, for Pre-pakt Concrete Co.
    Carl R. Pennington, Jr., Tallahassee, Fla., Charles K. Allan, Naples, Fla., for plaintiff-appellee.
    ON PETITION FOR REHEARING
    (Opinion February 22, 1974, 5 Cir., 1974, 490 F.2d 182).
    Before THORNBERRY, GODBOLD and CLARK, Circuit Judges.
   GODBOLD, Circuit Judge:

The City’s petition for rehearing questions the correctness of the holding that the arbitration order of the District Court for the Southern District of Florida was appealable and that the City is time-barred from now appealing therefrom. The petition relies upon Schoen-amsgruber v. Hamburg American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989 (1934), for the proposition that an order granting arbitration is interlocutory and reviewable only upon appeal from final decree. Two years after Schoenams-gruber was decided this circuit noted that that decision was in an admiralty case and held that an order denying a § 4 petition to compel arbitration, entered in a suit at law claiming damages for breach of contract, was a final judgment and appealable. La Nacional Platanera v. North American Fruit & Steamship Corp., 84 F.2d 881 (CA5, 1936). For a statement of reasons supporting the correctness of our analysis of Schoenams-gruber see The Sydfold, 25 F.Supp. 662 (S.D.N.Y.1938). In La Nacional the order denied arbitration while in the instant case it granted arbitration. The latter is an a fortiori situation — the court by deliberative act has set in motion the arbitration, and the arbitrators take over the controversy and dispose of it subject only to possible application to a court to vacate or to enforce the award. For a discussion of the “functional” finality of an arbitration-compelling order see Krauss Bros. Lumber Co. v. Louis Bossert & Sons, 62 F.2d 1004 (CA2, 1933).

There are policy reasons pro and con in holding for appealability of orders entered under § 4, and at least one other circuit has held them appealable under neither 28 U.S.C. § 1291 nor id. § 1292(a)(1). Blount Bros. Construction Co. v. Troitino, 127 U.S.App.D.C. 99, 381 F.2d 267 (1967). But in this area of the law where there are “medieval if not Byzantine peculiarities,” New England Power Co. v. Asiatic Petroleum Corp., 456 F.2d 183 at 189 (CA1, 1972), this circuit has spoken.

We, therefore, amend the third from the last paragraph of our opinion [490 F.2d 182] so as to read as follows:

We are not persuaded by the City’s insistence that it will have to appeal in two circuits in order to secure review of all the issues in the case. The arbitration order was an appealable final order within the meaning of 28 U.S.C. § 1291. See La Nacional Pla-tanera v. North American Fruit & Steamship Corp., 84 F.2d 881 (CA5, 1936). Since the time for appealing it has long since run out, the City has lost its right to have it reviewed. The denial of the motion to remand, although it would not have been immediately appealable standing alone, merged with the final arbitration order and became reviewable. Thus time has run out on it, too.

Also we delete footnote 7 [p. 184].

On the basis of our opinion as amended and as supplemented by this order, the petition for rehearing is denied.

      . Shanferoke Coal & Supply Corp. v. West-chester Service Corp., 293 U.S. 449, 55 S.Ct. 78, 79 L.Ed. 583 (1935), is not contrary to our holding. There an order denying a stay pending arbitration was held not final, although it was deemed appealable as an interlocutory injunction within the meaning of 28 U.S.C. § 1292(a)(1). The present case concerns not a 9 U.S.C. § 3 stay order alone, but a § 4 arbitration order, which stands on a different footing. See The Syd-fold, 25 F.Supp. at 663; New England Power Co. v. Asiatic Petroleum Co., 456 E.2d 183, 188 (CA1, 1972). Since the arbitration-compelling order was final, all that had gone before, including the stay order and the denial of the motion to remand, merged with it and became mandatorily appealable. See 9 Moore’s Federal Practice If 110.07 at 109, text accompanying note 13.

      . See also Standard Chlorine of Delaware v. Leonard, 384 F.2d 304 (CA2, 1967), in which the Second Circuit rationalized its previously inconsistent decisions by distinguishing between the case where the § 4 order is entered in an independent proceeding and that where entered as a collateral matter in a pending case. And see Goodall-Sanford, Inc. v. United Textile Workers, 353 U. S. 550, 77 S.Ct. 920, 1 L.Ed.2d 1031 (1953) (order directing arbitration under § 301(a) of the Taft-Hartley Act held appealable as final order).


text:
    Roger B. JACOBS et al., Plaintiffs-Appellants, v. Carl R. GROMATSKY, District Director, Internal Revenue Service, Defendant-Appellee.
    No. 74-1171
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 20, 1974.

      Craig R. Nelson, New Orleans, La., for plaintiffs-appellants.
    Scott P. Crampton, Asst. Atty. Gen., Tax Div., Dept, of Justice, Meyer Roth-wacks, Chief, Appellate Sec., Washington, D.G., Gerald J. Gallinghouse, U. S. Atty., Michaelle F. Pitard, Asst. U. S. Atty., New Orleans, La., William W. Guild, Atty., Tax Div., Dept, of Justice, Dallas, Tex., Bennet N. Hollander, Carle-ton D. Powell, Attys., Tax Div., Dept, of Justice, Washington, D.C., for defendant-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

The basic claim advanced by appellant is that the tax collection scheme embodied in certain sections of the Internal Revenue Code [i. e,, 26 U.S.C. §§ 6015, 6511 & 6513] relating to withholding taxes and quarterly declarations of estimated income tax is unconstitutional because of its failure to provide for the payment of interest on all amounts of such withholding and estimated tax payments which are later refunded as over-payments. As adjuncts of this claim, he asserts that the court below erred in refusing to request the convening of a three-judge court pursuant to 28 U.S.C. §§ 2282 & 2284 and to determine appellants’ right to maintain this action as a class action under Fed.R.Civ.P. 23 with provisions for allotment of costs and attorneys’ fees from any recovered “fund.” This court has previously denied injunc-tive relief pending the disposition of this appeal.

Appellant, while not directly contesting the validity of withholding and quarterly declarations as a means of collecting taxes, insists that the government must pay for the privilege of using its- citizens’ funds. Consequently, he contends that the failure of these tax statutes to provide for such interest makes them so arbitrary as to amount to a taking of property — a substantive violation of the fifth amendment. The government replies by pointing out that appellant cannot claim entitlement to interest because interest does not run against the government in the absence of an express contractual or statutory provision. However, this autocratic response begs the constitutional issue. The complete answer lies instead in the powers vested in the Congress to lay and collect taxes on incomes, under the sixteenth amendment. This power not only includes prescribing the basic rates of taxation, the time and manner in which taxes are to be paid; but also includes the means and methods for making refunds — with or without interest, which must be viewed realistically as no more than one function of the overall rate of such exaction.

Since appellants’ basic claim is clearly without merit, the court below did not err in declining to request the convening of a three-judge tribunal. Of course, the failure of the entire claim moots the class action issue.

Affirmed.


text:
    Martha Jane NELSON, Administratrix, Plaintiff-Appellee-Cross Appellant, v. Thomas S. KLEPPE, Administrator, Small Business Administration, et al., Defendants-Appellants-Cross Appellees.
    No. 73-3337.
    United States Court of Appeals, Fifth Circuit.
    May 28, 1974.

      Martha Joe Stroud, Asst. U. S. Atty., Frank D. McCown, U. S. Atty., Dallas, Tex., William Kanter, Dept, of Justice, Washington, D. C., for defendants-appellants.
    John A. Pace, Dallas, Tex., for plaintiff-appellee.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   PER CURIAM:

In this case suit was brought seeking to reverse a decision of the Small Business Administration (SBA) removing Charles Nelson from his employment. The district court held that the SBA had violated Mr. Nelson’s due process rights because the same individual who instituted the removal charges rendered the initial decision in the matter. A request for back pay was denied, however.

While this action was pending on appeal the Supreme Court decided Arnett v. Kennedy,-U.S.-, 94 S.Ct. 1633, 40 L.Ed.2d 15, which the parties and this court agree dispose adversely of Nelson’s constitutional contentions. The district court’s resolution of the constitutional due process issue made it unnecessary to decide whether the administrative action was arbitrary or capricious. It is now alleged that the removal was indeed arbitrary and capricious because it was based upon political affiliation. It is appropriate, therefore, to remand this cause to the district court for an initial determination of the substantive merits of this allegation. We intimate no opinion as to the merits.

Vacated and remanded.

      . Although the initial decision to remove Mr. Nelson was made by the SBA’s Regional Director, the administrative process provided several opportunities for Nelson’s grievance to be heard by conceivably more neutral decision makers. A “trial type” hearing was held before a SBA hearing examiner, and he recommended that the removal be sustained. This recommendation was accepted by the Administrator of the SBA. On appeal to the Civil Service Commission another “trial type” hearing was held. The removal decision was again sustained by the Civil Service Commission’s Board of Appeals and Review.

      . Mr. Nelson died during the pendency of the district court action, and his wife, as admin-istratrix, has prosecuted the case since his death. While the Government appeals from the district court’s decision finding a due process violation, Mrs. Nelson cross-appeals from the court’s denial of back pay and other employment benefits.

      . Judicial review here would be limited to whether the agency action was arbitrary or capricious. E.g., Dozier v. United States, 473 F.2d 866, 868 (5th Cir. 1973) ; Chiriaco v. United States, 339 F.2d 588, 590 (5th Cir. 1964).


text:
    George H. BEASON, Plaintiff-Appellee, v. BROCK AND BLEVINS, INC., Defendant-Appellant.
    No. 73-3803
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 24, 1974.
    Charles E. Sharp, Birmingham, Ala., for defendant-appellant.
    George C. Longshore, Birmingham, Ala., for plaintiff-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   PER CURIAM:

We find no abuse of discretion by the trial court in permitting counsel for plaintiff to make a “unit of time” argument in the final portion of his closing argument. All of the protective features required by Baron Tube Co. v. Transport Insurance Co., 5 Cir., 1966, 365 F. 2d 858 (en banc), were employed.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carles Oliver WISENER, Defendant-Appellant.
    No. 74-1353
    Summary Calendar.*
    United States Court of Appeals, Fifth Circuit.
    May 28, 1974.

      James T. Gullage, Opelika, Ala. (Court-appointed), for defendant-appellant.
    Ira DeMent, U. S. Atty., David B. Byrne, Jr., Wade B. Perry, Jr., Asst. U. S. Attys., Montgomery, Ala., for plaintiff-appellee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.
   PER CURIAM:

The question posed on appeal is whether defense counsel should have been allowed to see and examine a file held by an FBI agent witness and referred to during his testimony.

The only point in the trial where this question was raised and the only reference to the matter in the record is reflected in the following colloquy:

CROSS EXAMINATION
BY MR. GULLAGE:
Q. Mr. Roth, I noticed while you were testifying you were referring to a file, is that correct?
A. Yes.
Q. I believe that you have the file in your possession?
A. Yes, sir.
Q. Could I see that, please ?
MR. BYRNE: Your Honor, we will allow him to observe the page that he read the vehicle identification number off of, but we would object to him having to turn over his entire investigative file.
MR. GULLAGE: I don’t know what he has got in his possession. THE COURT: You can look at what he was looking at but not everything he has got with him. MR. GULLAGE: He simply had the file, of course, Your Honor, while he was testifying, referring to it.
THE COURT: I won’t let him show you anything unless you show what he was. looking at.
But if you want to shorten it you can ask him what he is looking at, and you can see what he was looking at.
MR. GULLAGE: Of course, my motion, Your Honor, requests just to see the file itself.
THE COURT: Well, I overrule that motion.

It is apparent from this record that Witness Roth, the FBI agent, refreshed his recollection from file material and the Court ruled the defense attorney could look at the material so used. Defense counsel neither renewed his request fo.r inspection, nor propounded any questions to Roth on voir dire, nor asked the Court to make an in camera inspection of Roth’s file. There is nothing in the record to indicate the existence of a statement within the meaning of the Jencks Act, 18 U.S.C.A. § 3500, which might require an in camera inspection.

On this state of the record, the defense attorney was entitled to look at “the notes, papers and memoranda which were used by the witness for the purpose of refreshing his memory.” Montgomery v. United States, 203 F.2d 887, 894 (5th Cir. 1953). See Marcus v. United States, 422 F.2d 752 (5th Cir. 1970); Jackson v. United States, 250 F.2d 897 (5th Cir. 1958). The Court correctly granted this right.

The Jencks Act affords no ground for reversal because there is no evidence to indicate the existence of Jencks Act material, although the defense was given the opportunity by the trial court to develop the record on this point. We perceive no ground for a determination that defense counsel was entitled to review the entire file of the witness.

Affirmed.


text:
    McELRATH POULTRY COMPANY, INC., Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
    No. 73-3430
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 23, 1974.
    J. Roy Weathersby, William B. Paul, Atlanta, Ga., for petitioner Elliott Moore, Asst. Gen. Counsel, N. L. R. B., Washington, D. C., Walter C. Phillips, Reg. Director, N. L. R. B., Region 10, Atlanta, Ga., for respondent.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

       Rule 38, 5th Cir.; Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et . al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

In this enforcement proceeding, with cross-petition for review, the NLRB acknowledges “. . . that disposition of the jurisdictional issue in the present case is controlled by this Court’s decision in Abbott Farms, Inc. v. N. L. R. B., 487 F.2d 904 (1973), in which, on similar facts, this Court found that the Board’s bargaining order was not entitled to enforcement because the employees in the certified unit were agricultural laborers.”

It nevertheless “. . . adheres to its position that employees like those in the present case are employees covered by the National Labor Relations Act ., and are not exempted from that coverage as agricultural laborers under Section 3(f) of the Fair Labor Standards Act . . . and Section 2(3) of the Act.”

The Board lacks jurisdiction. Enforcement denied.

      . Two of the employees involved were primarily truck drivers, as in Abbott. One was a full-time mechanic who maintained the trucks. “By a parity of reasoning, those employees who repair the mechanical imx>lements used in farming are also included within the agricultural exemption.” Maneja v. Waialua Agricultural Co., 349 U.S. 254, 263, 75 S.Ct. 719, 725, 99 L.Ed. 1040 (1955).

      . Abbott Farms, Inc. v. N. L. R. B., 487 F. 2d 904 (5th Cir. 1973) ; N. L. R. B. v. Victor Ryckebosch, Inc., 471 F.2d 20 (9th Cir. 1972) ; N. L. R. B. v. Strain Poultry Farms, Inc., 405 F.2d 1025 (5th Cir. 1969) ; Mitchell v. Georgia Broiler Supply, Inc., 186 F. Supp. 341 (N.D.Ga.1960).


text:
    Arthur N. ECONOMOU and Arthur N. Economou & Co., Inc., Petitioners, v. UNITED STATES DEPARTMENT OF AGRICULTURE, Respondent.
    No. 759, Docket 73-1221.
    United States Court of Appeals, Second Circuit.
    Argued March 28, 1974.
    Decided March 28, 1974.
    Arthur N. Economou, petitioner pro se.
    Jackson & Kupperman, Brooklyn, N. Y., on the brief for petitioner Corp.
    Irving Jaffe, Acting Asst. Atty. Gen., Civil Div., Dept, of Justice (Morton Hollander and Michael H. Stein, Attys., Civil Div., Dept, of Justice, Washington, D. C., of counsel), on the brief for respondent.
    Before KAUFMAN, Chief Judge, and SMITH and ANDERSON, Circuit Judges.
   PER CURIAM:

Petitioners, who are no longer in business as futures commission merchants under the Commodity Exchange Act seek review of a 90-day suspension order, advancing numerous grounds, including estoppel, lack of evidence of violation and of willfulness. We need not address most of these, since it appears that the essential finding of willfulness, now passionately protested, was made in a proceeding instituted without the customary warning letter, which the Judicial Officer conceded might well have resulted in prompt correction of the claimed insuffi-ciencies. Under these circumstances, the finding of willfulness appears erroneous on the record taken as a whole, and the sanctions imposed unwarranted.

The petition for review is granted and the order set aside.


author: ROBERT P. ANDERSON, Circuit Judge:

text:
    NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.
    Nos. 320, 321, Dockets 72-1728, 72-2165.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 15, 1974.
    Decided March 13, 1974.

      Richard E. Ayres, Washington, D. C., for petitioners.
    Henry J. Bourguignon, Dept, of Justice, Washington D. C. (Wallace H. Johnson, Asst. Atty. Gen., Edmund B. Clark, and Martin Green, Dept, of Justice, Washington, D. C., on the brief), for respondent.
    Louis J. Lefkowitz, Atty. Gen., of the State of New York, Samuel A. Hirshow-itz, First Asst. Atty. Gen. and Judith A. Gordon, Asst. Atty. Gen., State of New York, for amicus curiae, State Commissioner, on the brief.
    Before MOORE, FRIENDLY and ANDERSON, Circuit Judges.
   ROBERT P. ANDERSON, Circuit Judge:

The petitioners seek a review of the approval given by the Administrator of the Environmental Protection Agency (EPA), to seven of the provisions of the New York air pollution implementation plan. These will be considered seri-atim. Since many of the same issues have already been discussed in comprehensive and well reasoned opinions by other circuits in similar suits, see Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 478 F.2d 875 (1 Cir. 1973); Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 483 F.2d 690 (8 Cir. 1973), an extended discussion of them by this court is not called for.

Public Access to Emission Data

The petitioners object that the New York plan does not adequately provide for the public availability of emission data. The statute, as amended, requires that a plan provide “for periodic reports on the nature and amount of [stationary source] emissions” and for “availability of such reports] at reasonable times for public inspection,” 42 U.S.C. § 1857c-5(a) (2) (F) (iii) and (iv).

The New York statute provides that “[a]ny information relating to secret processes, or methods of manufacture, or production obtained in the course of the inspection or investigation [of air pollution sources] shall be kept confidential.” Apparently conceding that the statute, without more, would violate the public availability requirement, EPA relies primarily on two letters from the New York Attorney General and a State regulation to demonstrate that the statute will be enforced in a manner not infringing public access to emission data, Yet beyond the obvious questions of the relative force of statute versus regulation and the State’s Attorney General’s construction of them, the additional gloss provided by these materials is still ambiguous on the critical issue of conflict between demands of confidentiality and public access. The regulation relied on, 6 N.Y.C.R.R. § 200.2, is open to an interpretation that would make public access predominant, because, although on the one hand it preserved confidentiality for “[Information pertaining to manufacture, production or secret processes,” it also provides on the other hand that emission data “shall be considered public information.” But the New York Attorney General does not come down on the side of public access to the data. The construction of the regulation given in his letter of August 1, 1973, is based on the concept that emission reports and “processes and production technology” are “entirely separate and distinct.” Were that always the case, a conflict between the demands of confidentiality and disclosure would, of course, never arise. But there are bound to be overlapping or unclear areas in some eases and, where that occurs, the Attorney General’s interpretation in his earlier letter of September 13, 1971, also relied on by EPA, says that where the necessity of confidentiality is deemed “overriding,” public inspection of emission data will be forfeit. It is our opinion, however, that Congress contemplated that cases of potential overlap might in fact arise, and that in all such cases public disclosure would prevail. 42 U.S. C. § 1857c-9(c); Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 478 F.2d at 893. Cf. 42 U.S.C. § 1857f-6.

The ambiguity here is an unnecessary one, and creates an opportunity for polluters to frustrate public disclosure. The EPA should have insisted that New York include, in the portion of the plan dealing with confidentiality, an explicit exception for emission data.

This portion of the plan is remanded to the Administrator for further consideration and revision.

Variances

Petitioners also advance the objection that the federal postponement procedures of 42 U.S.C. § 1857c-5(f) were intended to be exclusive, and that, therefore, the Administrator erred in approving that portion of the New York plan which permits the State to grant variances on the ground of practicability.

This question has already been decided by the First Circuit in Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 478 F.2d 875, 884-888 (1 Cir. 1973), by the Eighth Circuit in Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 483 F.2d 690, 693-694 (8 Cir. 1973), and by the Fifth Circuit in Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 489 F.2d 390 (1974). The federal statute, § 1857c-5(a) (2) (A) and (B) contemplates that the implementation plans for separate states, in support of the federal laws for air pollution prevention and control, must go through two stages or periods of time, described by the First Circuit, in the Rhode Island case, as: “an earlier period during which attainment of primary standards is to be achieved as expeditiously as practicable, but in no case later than three years; and a later period after which standards, having been attained, are to be maintained.” In brief, they are referred to in chronological sequence, as the attainment or preliminary period and the post-attainment or maintenance period. The attainment period ends at the appropriate mandatory deadline, which for the present case is May 31, 1975. We agree with the holdings in the First and Eighth Circuits that the Administrator has the discretionary power to approve state plans which contained their own deferral mechanism to deal with variances during the preliminary or attainment period, which were not inconsistent with national objectives. We do not agree with the contrary Fifth Circuit holding on this issue. After the mandatory deadlines, however, “. the only recourse provided those seeking postponements of a state’s emission limitations is the restricted provisions of § 1857c-5(f),” except for such unforeseeable occurrences as mechanical breakdowns and acts of God for which minor state and local deferral procedures could be used, “limited to specific time periods measured in weeks or a few months” and “contain[ing] standards and controls precluding abuse.”

The EPA is ordered, as it has conceded it should be, to modify its approval of the New York plan to make it comply.

Particulate Matter Extension

NRDC urges reversal of the two-year extension obtained from EPA for achieving the national primary standard for particulate matter in the New York Metropolitan Air Quality Control Region. The real objection of substance is that the plan on its face used the wrong standard in assessing possible strategy alternatives. The Amendments require that before the Administrator grant an extension he must determine that “the State has considered and applied as part of its plan reasonably available alternative means of attaining such primary standard and has justifiably concluded that attainment of such primary standard within the three years cannot be achieved,” 42 U.S.C. § 1857c-5(e)(1)(B). Read in conjunction with the requirements of a plan, it is clear that among the “reasonably available alternative means” requiring consideration are “land-use and transportation controls,” 42 U.S.C. § 1857c-5(a) (2) (B).

New York considered a wide range of such strategies and controls, unnecessary to catalogue here. But it divided the group of recognized possibilities into two categories, primary and secondary. The former were incorporated into its plan, but the latter were characterized as “strategies that must be further investigated or which require local action now beyond the control of the state.” The plan states these are “not strategies which are uneconomical or impractical,” but that “they may be socially unacceptable.” Petitioners contend that, although New York considered these strategies, it erred in not applying them as part of its plan, and used a wrong standard of possible social resistance to support its rejection instead of the correct test of reasonable availability.

_ As an abstract proposition, there is some merit to petitioners’ argument. While social unacceptability may be a factor to consider in determining practicality, it cannot out-weigh or negate the reasonable availability of otherwise practical and economically feasible strategies. In this particular case, however, the facts do not justify reversal of the extension grant.

In the first place, it is for the Administrator to determine whether a state has “applied as part of its plan reasonably available alternative means of attaining” the primary standard.

While EPA does not argue that the Administrator gave an explanation why none of the secondary strategies, as well as other options not expressly considered by New York, was a “reasonably available alternative means of attaining” the primary standard at issue, we are convinced that a remand for that purpose would be a futile exercise. Given the nature of the determination — that no other reasonably available means exist — petitioners’ argument might ultimately lead to insistence that the Administrator busy himself disproving a thousand negatives to prove a single positive. There is no reason to make a distinction between explanations for negative exclusions and an affirmative choice. In circumstances of this kind, the petitioners must carry the burden of going forward with a reasonable claim of something important overlooked instead of placing on the Administrator the burden of knocking down all possible objections in advance. If nothing can be done until everything is explained, the mandate of the statute will never be translated into accomplishment.

Petitioners have not met the preliminary burden .to make further explanation necessary. Most of the alternatives which they assert should have been included are of potential value in improving air quality in the long-run, but they would foreclose the possibility of achieving the May 31, 1975 deadline. That is the sole narrow criterion in judging extensions. For example, the gradual elimination of steam power plants from polluted areas of the city, and requiring new construction to meet energy efficiency standards, do not present reasonably available or timely means. Even conceding some marginal impact of such proposals on the 1975 target, the concept of reasonableness contemplates a weighing of slight impact against probable costs. One of the proposals urged by the petitioners, altering the electric rate structure to reduce power demands, might conceivably have a significant impact in meeting the deadline, but the petitioners have not even attempted a preliminary showing that this would be the case, such as evidence that the power demand is sufficiently elastic, or the overall particulate pollution adequately sensitive. Further, we note that rate structure changes are often time-consuming and themselves replete with reasonableness considerations. We, therefore, hold that the mere conclusory assertions presented here are not sufficient.

EPA’s action in granting an extension of two years is affirmed.

Primary Standard for Sulphur Oxides

NRDC argues that the New York plan does not insure that air over New York City, which, at times of prevailing westerly winds, is affected by unclean air which had been over New Jersey, will attain the national primary standard for sulfur oxides, as required by 42 U.S.C. § 1857e-5(a) (2) (A), because the plan is based upon certain incorrect factual assumptions related to the New Jersey plan.

New Jersey limits the sulphur content of commercial fuel oil, depending on its grade, to .2% or .3% by weight. New York’s plan limits the sulphur content to .1% by weight; this New York restriction applies both to fuel oil and coal. New Jersey’s plan, however, limits the sulphur content of coal to 2% but provides for liberal exceptions with higher percentages. New York takes the position that unless New Jersey imposes restrictions as stringent as its own, New York will not be able to meet the national primary standards. EPA has assumed that the restriction on coal would bring about a. discontinuance in its use and that coal burning power plants would convert to oil-fired boilers. EPA rejected the simple rollback calculations relied on by New York in favor of those resulting from its own more sophisticated and presumably more accurate computer diffusion models, but its conclusions, particularly under circumstances of petroleum shortages, are unpersuasive and unrealistic. The assumption that all power plants would convert to oil has been demonstrated by NRDC to be invalid, and we do not understand EPA to deny it, although the agency does minimize its importance. Upon such a showing by petitioners and the failure of EPA to provide an adequate explanation, remand for further consideration by EPA is required. Without anticipating its actual response, EPA should, through reference to valid and persuasive supporting evidence at least: (1) explain why, despite present appearances, the original assumptions were valid; or (2) show how the particular change in assumptions necessary to make the model valid cannot be significant enough to alter its substantive results; or (3) re-do a full-scale diffusion model analysis on a valid range of assumptions demonstrating that the plan would succeed. If a satisfactory response cannot be made to at least one of the foregoing, EPA should disapprove this aspect of the plan.

This point is remanded to EPA for further consideration.

Intergovernmental Cooperation

Petitioners argue that the requirement for “adequate provisions for intergovernmental cooperation,” 42 U.S. C. § 1857c-5(a) (2)(E), was not met by the New York plan, even though it has provided for exchange of information with other states and has designated an official coordinating agency (Interstate Sanitation Commission) for the New York-New Jersey-Connecticut Air Quality Region. Petitioners evidently feel that only “binding and enforceable agreements” between states would provide the requisite assurances. We reject this contention, as did the Eighth Circuit in Natural Resources Defense Council, Inc. v. United States Environmental Protection Agency, 483 F.2d at 692-693, and find sufficient compliance. Beyond the Eighth Circuit’s discussion we add only that the retention in 1970 of Congress’ consent to interstate compacts and a direction that the Administrator encourage such agreements, 42 U.S.C. § 1857a(a) and (c), indicate that such arrangements are intended to be voluntary. Thé exchange of information provision and EPA’s own revision power provide adequate coordination measures for meeting, as they may arise, the interstate controversies petitioners fear.

EPA’s ruling on this issue is affirmed.

Source Permits

The petitioners object to that portion of the New York plan which allows construction without prior review of a project’s potential interference with State implementation plan requirements and attainment or maintenance of national air quality standards. The Administrator agrees that a revision of this portion is called for; otherwise the New York procedure would violate the timing requirements of 42 U.S.C. § 1857c-5(a)(2)(D) and § 1857c-5(a)(4). The revision must insure that any source to which 42 U.S.C. § 1857c-5(a) (4) applies will be subject to review prior to construction, so that any provisional arrangements, which would temporarily or permanently circumvent such review, may be eliminated.

New York is also agreeable to amending the plan in this regard, and the issue is remanded in order that the appropriate changes can be made.

NRDC in its brief also raised two other objections to the New York source permit scheme, apart from its allowance of provisional permits, these two relating to possibly inadequate provision of information on construction to public officials, and to certain very narrow exemptions from permit requirements; at argument, however, we understood NRDC, in light of the cooperative attitude of EPA and the State with respect to source permits, not to be pressing these additional objections, which in any event we did not find persuasive.

Personnel and Funding

NRDC further claims that the New York plan does not provide “necessary assurances that the state will have adequate personnel, funding, and authority to carry out such implementation plan,” 42 U.S.C. § 1857c-5(a)(2) (F) (i). This brings to the surface the troublesome question of whether the principal financial burden of achieving clean air will rest upon the several states or upon the federal government. This section assumes that each state will furnish the organization and provide the space and equipment to effectuate its plan. As is likely in the cases of other states, New York candidly says, “ [c] urrently, both the state and local agencies are under tight budgetary restrictions, and support for further staff and services at this time is unlikely. Increased federal support to the state’s program is essential.” The only steps outlined to' bridge the admitted fiscal gap are plans to use “the present work force” more efficiently “to compensate for the shortage of staff,” but there are no assurances, or even expressions of hope that such actions will be sufficient to eliminate the discrepancy between resources and needs.

The present posture of this as1 pect of the plan is thus identical to that confronting the First Circuit with regard to the Massachusetts plan, 478 F.2d at 890-891. Along with that Circuit, we recognize the practical side of this issue, including “the difficulties faced by the Administrator were a state adamantly to refuse to provide for sufficient personnel and funding,” id., at 891. We also agree “that Congress left to the Administrator’s sound discretion determination of what assurances are ‘necessary’, ” id., at 890, and that the Administrator was realistic in concluding that an inventory of s+nte resources constitutes “the best practical ‘assurances’ he can obtain,” id., at 884. Finally, we are in full accord with the comment that “[t]he ‘necessary assurances’ clause seems ... to call less for rhetoric than for the Administrator’s reasoned judgment as to the adequacy of resources,” id., at 884. But while an affirmative statement that a state will use its best efforts is not required, a plan which provides only a negative statement that resources are inadequate cannot be approved. A further exploration, with the appropriate officials, of the State’s resources and a study of their availability in implementation of the State’s plan may be needed.

Accordingly, we direct the Administrator to provide this court with a detailed statement of his rationale for the conclusion he reached from information at hand or gained from such a restudy of state resources that New York has provided the necessary assurances that it has adequate personnel, funding and authority to carry out its implementation plan.

      . Petitioners include individuals and associations representing individuals all of whom are concerned with air quality and all of whom are residents of the New York Metropolitan Air Quality Control Region and are affected by unclean air of the area. Among the associations is the Natural Resources Defense Council, Inc. “NRDC” is arbitrarily used hereinafter to refer to petitioners collectively as a group.

      . The plan was adopted pursuant to § 110(a)(1) of the Clean Air Act Amendments (“Amendments”) of 1970, 42 U.S.C. § 1857c-5 (a) (1), and submitted to the Administrator on January 31, 1972. The Administrator’s approval pursuant to § 110(a)(2) of the Amendments, 42 U.S.C. § 1857c-5(a) (2), appears at 37 F.R. 10882-4 (May 31, 1972), 40 C.F.R. § 52.1670, et seq. Jurisdiction for review in this court is conferred by § 307(b)(1), 42 U.S.C. § 1857h-5(b) (1). To the extent revisions are required in the plan, the Administrator is empowered to make them under § 110(c), 42 U.S.C. § 1857c-5(c). Hereinafter references to sections of the 1970 Amendments are made by U.S.C. citation only.

      . Originally N. Y. Public Health Law § 1277.2(a) (McKinney’s Consol.Laws, c. 45, 1971), the provision now appeal’s at N.Y.E. C.L. § 19-0305.2 (a) (McKinney’s Consol. Laws, c. 43-B, 1973).

      . The extension was granted by EPA on May 31, 1972, 37 E.R. 10883, 40 O.F.R. § 52.-1672(b)(1). Extensions may be granted for up to two years if the Governor of the State requests it and the requirements of 42 U.8. G. § 1857o-5 (e) are met.

      . Petitioners also claim that the extension should not have been granted because New York did not submit a plan that, would “actually result” in attainment of the national primary standard within the unextended period. If XRDO means this literally, its contention is clearly without merit; extensions are only needed if, under certain conditions, a plan that will actually achieve the national standard by the May 31, 1975 deadline is, due to a specified outside cause, made temporarily impossible of immediate fulfillment. 42 U.S.C. § 1857e-5(e). The statement in Natural Res. Def. Counc., Inc. v. Environmental Pro. Agcy., 154 U.S.App.D.C. 384, 475 F.2d 968, 971 (1973) that, to obtain an extension, a state must first submit “a plan which provides for the attainment of the national ambient air quality primary standard by May 31, 1975” is plainly to be followed by the implied caveat: “were it not for the fact that the conditions expressed in 42 U. 8.0. § 1857c-5(e) prevent actual compliance.” Tlie recitation of these conditions in the subsequent paragraphs of the D.O. Circuit’s opinion illustrates what would be manifest in any event. If NRDC means that the workable plan must be capable of attaining national standards by the end of the extension period, it is correct, but in that event it is difficult to understand the relevance of the criticism based on the impracti-eality of the natural gas strategy. The implementation plan as extended does not rely on a natural gas strategy but. rather on boiler and incinerator upgrading to achieve the national standard.

      . We note also that ordering a full explanation of why various possible strategies were not applied in this plan would create a substantial burden not only in this case but in a multitude of other extensions under review. Petitions to review plans in all fifty states, we are told, have been filed in all eleven circuits. Many of these will undoubtedly urge reversals of extension grants. The approach taken as to this issue is simply an application of the general approach to the subjects under review here: further explanation is called for only when the petitioner has shown the existence of a substantial question about the Administrator’s actions. This is the procedure adopted by the First Circuit as well. 478 F.2d at 879 n. 2.

      . To the extent that the petitioners are concerned with the effect of polluted air over New Jersey moving over to and merging with New York air, it is New Jersey’s plan and its requirements that should be the target of petitioners’ attack rather than New York’s, insofar as the results of the prevailing west to east movement of air are involved. The plan requirements should impose “[m]easures necessary to insure that emissions of air pollutants from sources located in any air quality control region will not interfere with the attainment or maintenance of such primary or secondary standard in any portion of such region outside of such State . . . ,” 42 U.S.C. § 1857c-5(a) (2) (E).