author: JAMESON, District Judge:

text:
    Alvin SETTLER, Petitioner-Appellant, v. Wilson LAMEER, Chief of Police, and O. N. Olney, Chief Judge, Yakima Tribal Court, Respondents-Appellees. Alvin SETTLER, Petitioner-Appellant, v. Wilson LAMEER, Chief of Police, and William Yallup, Chief Judge, Yakima Tribal Court, Respondents-Appellees. Mary SETTLER, Petitioner-Appellee, v. Wilson LAMEER, Chief of Police, and William Yallup, Chief Judge, Yakima Tribal Court, Respondents-Appellants.
    Nos. 71-2364, 74-1627 and 74-1656.
    United States Court of Appeals, Ninth Circuit.
    Nov. 26, 1974.

      Francis J. Conklin, S. J. of Gonzaga Law School (argued), Spokane, Wash., for appellant (appellee in 74-1656).
    Tim Weaver (argued), of Hovis, Cock-rill & Roy, Yakima, Wash., for appellees (and cross-appellants).
    Before TRASK and SNEED, Circuit Judges, and JAMESON, District Judge.

       Honorable W. J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.

   JAMESON, District Judge:

Three actions involving the validity of fishing regulations promulgated by the Tribal Council of the Yakima Indian Nation are joined in this appeal. In causes Nos. 71-2364 and 74-1627 Alvin Settler appeals the denial of his petitions for habeas corpus following separate convictions for violations of tribal fishing regulations in 1967 and 1968. In cause No. 74-1656, which arises out of the same incident as cause No. 74-1627, the Chief of Police and Chief Judge of the Yakima Tribal Court appeal from a decision of the district court granting the petition of Mary Settler for a writ of habeas corpus following her conviction in Tribal Court for fishing violations.

I. BACKGROUND

The Yakima Reservation was established by the Treaty with the Yakimas, June 9, 1855. Article III of the Treaty states in pertinent part:

“The exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing them; ... 12 Stat. 951, 953.

In 1966, the Yakima Tribal Council enacted regulations deemed necessary to promote the conservation of the fishing resources which were reserved in the Treaty of 1855. Resolution T-90-66 among other things established fishing seasons, prohibited fishing in certain areas, allocated fishing sites, established a tribal identification system, and specified the methods of fishing that were permissible and the type of boats and gear that could be used. In addition it provided methods of enforcement and penalties. Although purporting to regulate fishing activities of tribal members outside of the reservation, the resolution provided for arrest, seizure of equipment and punishment only within the boundaries of the reservation.

Resolution T-90-66 was amended in 1968 by T-48-68. That resolution provided for off-reservation enforcement of tribal fishing regulations in the following language:

“Any Tribal Game Warden or any Tribal Law Enforcement Officer shall be authorized to enforce the provisions of this and any other regulation of the Yakima Tribe governing the exercise of Treaty fishing rights whether on or off the Yakima Reservation and where violations are committed in his presence, he shall arrest the offender, take him into custody, and seize all fishing gear, boats or motors used by said offender.” (emphasis added).

The enforcement of these resolutions with respect to off-reservation tribal fishing is the basis of the three actions.

A. Cause No. 71-2364

Alvin Settler, an enrolled member of the Confederated Tribes and Bands of the Yakima Indian Nation, was convicted on September 29, 1967 by the Yakima Tribal Court of twice violating Tribal Resolution T-90-66 and for disobeying the lawful orders of the Tribal Court. It is conceded that on both occasions, Settler was fishing at “usual and accustomed fishing sites” off the reservation. Although given citations at the site of the violations, Settler was not arrested until he was found within the exterior boundaries of the reservation.

In the habeas corpus proceedings instituted by Settler following his conviction, the district court dismissed the petition for lack of jurisdiction. This court reversed and remanded for a hearing on the merits. Settler v. Yakima Tribal Court, 419 F.2d 486 (9th Cir. 1969).

On remand, the district court held:

(1) “[T]he regulation of the right to fish in the ‘usual and accustomed places’ off of the reservation granted by the Treaty is an internal affair of the Yakima Indian Tribe . . . Such tribal fishing regulations are binding upon tribal members and are enforceable in the Yakima Indian Tribal Court.”

(2) The state has certain limited rights to regulate off-reservation fishing by Indians, but “such regulation must be necessary for the conservation of the fishery resources”.

(3) “Any right the state may have to impose restrictions on off-reservation fishing activities does not preclude the Yakima Indian Tribe from placing restrictions on its own members to control their fishing activities [off reservation] where state regulations are inapplicable, unenforceable, or nonexistent.”

B. Causes Nos. 74-1627 and 74-1656

Mary Settler, also a member of the Yakima Indian Nation, was convicted by the Yakima Tribal Court on August 21, 1968 for a violation of Tribal Resolution T-90-66, as amended, and for resisting lawful arrest and attempting escape. Tribal officers, acting pursuant to Tribal Resolution T-48-68, arrested Mary at a “usual and accustomed” fishing site approximately 56 miles outside the confines of the Yakima Reservation. At the time of Mary’s arrest by Tribal Fish and Game Wardens, her fishing gear was seized and is being held pending the final outcome of this action.

As a result of the same incident, Alvin Settler was convicted of a violation of T-90-66, as amended, for knowingly allowing his fishing crew to fish during the Yakima Tribe’s closed season and to use illegal fishing gear registered in his name. Unlike Mary, Alvin was arrested within the external boundaries of the reservation.

Petitions for writ of habeas corpus filed by both Mary and Alvin were denied for lack of jurisdiction. On appeal, this court reversed (Settler v. Lameer, 419 F.2d 1311 (9th Cir. 1969)) and remanded for proceedings on the merits.

On remand, the district court, ruling on cross motions for summary judgment in the case of Mary Settler, held that:

(1) the arrest of Mary Settler some 56 miles outside of the Reservation was unauthorized and unlawful. The enforcement of Tribal fishing regulations “is limited to arrest and seizure on the reservation, . . • even though the Tribe has the authority to govern the exercise of the Indian’s right to take fish at the ‘usual and accustomed places’ located off of the reservation”.

(2) “ . . . because the Tribal authorities lacked jurisdiction to enforce Tribal Regulations off the reservation, the seizure of petitioner’s personal property incident to petitioner’s arrest was unlawful”.

The court denied Alvin Settler’s petition, noting that the issues were the same as those in No. 71-2364, supra.

Issues on Appeal

The two primary issues presented on appeal are:

(1) Whether the Yakima Indian Nation may enforce its fishing regulations with respect to violations committed by Tribal members outside the reservation by arresting and trying violators upon their return to the reservation;

(2) Whether and under what circumstances the Yakima Indian Nation may enforce tribal fishing regulations by physically arresting violators and seizing their fishing gear at the usual and accustomed fishing places off the Yakima Reservation.

A third issue is raised by Alvin Settler with respect to his conviction by the Tribal Court in 1967. Settler contends that his constitutional rights under the Fifth and Sixth Amendments were violated in that he was tried twice for the same offense and was denied the assistance of professional counsel.

II. APPLICATION OF FISHING REGULATIONS TO OFF RESERVATION FISHING

Mary and Alvin Settler and the State of Washington contend that the Yakima Indian Nation may not regulate off-reservation Tribal fishing activities because (a) in the Yakima Treaty of 1855, the Confederated Tribes of the Yakima Nation did not reserve the right to exercise criminal jurisdiction beyond the territorial confines of the reservation; (b) Congress has not subsequently authorized the Yakima Nation to exercise criminal jurisdiction beyond the territorial confines of the reservation; and (c) any Tribal exercise of criminal jurisdiction outside of the reservation would be in derogation of the sovereignty of the State of Washington.

(a) The Treaty with the Yakimas, June 9. 1855.

As part of a government policy to extinguish Indian title to property in the Western United States (Appropriation Act of March 3, 1853, 10 Stat. 226, 238), Isaac Stevens, the first Governor of the Territory of Washington was appointed in 1854 to negotiate treaties with all of the Indian tribes in the Washington Territory. “Governor Stevens was directed that in making the treaties, he should endeavor to unite the ‘numerous bands and fragments of tribes into tribes . ’ ” United States v. Washington, 384 F.Supp, 312 (W.D.Washington, 1974, appeal pending (C.A. 9, No. 74-2440)). Pursuant to these directives, Governor Stevens negotiated a treaty with fourteen tribes and bands of Indians living in Western Washington who by the terms of the Treaty comprise the Yakima Nation. 12 Stat. 951. By that Treaty, the confederated tribes composing the Yakima Nation “gave up their claim by Indian title to a large expanse of territory over which they roamed in return for the United States’ recognition of a portion of the area claimed under Indian title as a reservation for the Yakima Nation . . . ”. Whitefoot v. United States, 293 F.2d 658, 659, 155 Ct.Cl. 127 (1961), cert. denied 369 U.S. 818, 82 S.Ct. 629, 7 L.Ed.2d 784 (1962).

One of the most important provisions of that Treaty from the standpoint of the tribes and bands of Indians was that preserving the Indians’ right to take fish at “all usual and accustomed places”. As the Supreme Court noted in Tulee v. Washington, 315 U.S. 681, 684, 62 S.Ct. 862, 864, 86 L.Ed. 1115 (1942), “From the report ... of the proceedings in the long council at which the treaty agreement was reached, we are impressed by the strong desire the Indians had to retain the right to hunt and fish in accordance with the immemorial customs of their tribes”. The right to fish was of vital import to the Indians; it was “not much less necessary to the existence of the Indians than the atmosphere they breathed”. United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1904). In Whitefoot, supra, 293 F.2d at 659, Mr. Justice Reed (retired) noted: “Then (when the Treaty was made), as now, fishing was important to the Indians and provided them their food, fresh and dried, and a medium for acquiring other commodities”. In addition, fish also were important in Tribal religious ceremonies.

(b) Extent of Treaty Fishing Rights.

The Settlers and the State of Washington do not question the existence of Tribal fishing rights or the right of the Yakima Nation to regulate fishing activities within the reservation boundaries. The Settlers expressly recognize also that the Tribal Council may “enact regulations concerning the fishing by tribal members at the usual and accustomed off reservation treaty sites”. They contend, however, that the Treaty constituted a relinquishment of all Tribal jurisdiction beyond the confines of the reservation; that Congress has never subsequently authorized the Yakima Nation to exert such jurisdiction; and that the State of Washington has exclusive enforcement powers off the reservation. The State of Washington claims “sole and exclusive authority to regulate fishing activities in off-reservation waters”.

In interpreting the language of treaties with the Indians, the court must consider “[h]ow the words of the treaty were understood by the unlettered people, rather than their critical meaning”. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 582, 8 L.Ed. 483 (1832); Winans, supra, 198 U.S. at 380-381, 25 S.Ct. 662, 49 L.Ed. 1089. Moreover, in interpreting Indian treaties the Supreme Court has consistently followed the general rule that “Doubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith”. Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478 (1930).

The Treaty expressly reserved to the confederated tribes and bands of Indians “the right of taking fish at all usual and accustomed places, in common with citizens of the Territory”. It would be unreasonable to conclude that in reserving these vital rights, the Indians intended to divest themselves of all control over the exercise of those rights. Prior to the Treaty the regulations for fishing had been established by the Tribe through its customs and tradition. The Indians must surely have understood that Tribal control would continue after the Treaty.

In addition, the Treaty of 1855 does not expressly state that the Yakima Nation relinquished its jurisdiction over matters pertaining to fishing rights. As the treaty constitutes a grant of rights from the Indians to the Government, Winans, supra, 198 U.S. at 381, 25 S.Ct. 662, 49 L.Ed. 1089, any rights not granted must be considered retained by the Tribe. Here, the Indians qualified their fishing right only to the extent of permitting citizens of the territory to fish “in common” with them at “usual and accustomed fishing places” off the reservation. Given this fact and the vital role of fishing in the Yakima culture, we conclude that the Yakima Nation did reserve the authority to regulate Tribal fishing at “all usual and accustomed places”, whether on or off the reservation.

This conclusion is supported by the nature of the fishing rights. As set forth in Whitefoot, supra, 293 F.2d at 663, the fishing rights reserved in the Treaty of 1855 are communal rights of the Tribe, even though the individual members benefit from those rights. The determination of when and how the rights may be exercised is an “internal affair” of the Tribe. As the district court correctly pointed out, “one of the last remnants of sovereignty retained by the Yakima Indian Tribe is the power to regulate their internal and social relations”. This was recognized in Williams v. Lee, 358 U.S. 217, 221-222, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959) with reference to the Treaty with the Navajo Tribe:

“implicit in these treaty terms, as it was in the treaties with the Cherokees involved in Worcester v. Georgia, was the understanding that the internal affairs of the Indians remained exclusively within the jurisdiction of whatever tribal government existed.”

The mere fact that the fishing may take place off the reservation does not make the regulation of treaty fishing any less an internal matter. The locus of the act is not conclusive. Littell v. Nakai, 344 F.2d 486, 490 (9 Cir. 1965). The Tribe has the authority to regulate the exercise of the fishing rights it retained at “all usual and accustomed places”, even those off the reservation.

This does not mean that the State of Washington is without any authority to regulate off-reservation fishing. That power has been expressly recognized, but it has been strictly limited.

In Tulee v. Washington, supra, the Court held that the State of Washington could not require Indians fishing under the Treaty of 1855 to obtain a license for fishing at “usual and accustomed places” off the reservation. The Court further stated that any regulations which are imposed by the state on off-reservation fishing by Yakima Indians must be reasonable and “necessary to the conservation of fish”. Id., 315 U.S. at 684, 62 S.Ct. at 864. This position was recently reaffirmed in Puyallup Tribe v. Department of Game, 391 U.S. 392, 398, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968) wherein the Court, in construing a treaty fishing provision identical to that here, stated:

“The right to fish ‘at all usual and accustomed’ places may, of course, not be qualified by the State, even though all Indians born in the United States are now citizens of the United States. But the manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians.” (emphasis added).

We agree with the district court in cause No. 71-2364 that “once the limits of state authority have been reached there remain significant areas of fishing activities which are not necessarily subject to state regulation. Among the fishing activities particularly susceptible to regulation by the Tribe are: (1) the use of accustomed fishing places; (2) the allocation of fishing time among individual members of the Tribe; (3) the type of gear; (4) the time of taking fish; (5) the determination of preference among fishing purposes, i. e. subsistence, commercial, or ceremonial.”

We conclude that the regulation of these activities with respect to off-reservation fishing is within the scope of the rights retained by the Yakima Nation in the Treaty of 1855. Appellees had the authority to arrest and prosecute tribal members for violation of the Tribal fishing regulations. The district court correctly held in 71-2364 and 74-1627 that an arrest on the reservation for violation of fishing regulations off the reservation is valid.

III. OFF-RESERVATION ARREST AND SEIZURE

We turn now to the question presented in the Mary Settler case, No. 74-1656: whether the Yakima Nation has the right under its Tribal Resolution T-48-68 to enforce tribal fishing regulations by arrest and seizure at “usual and accustomed” fishing places off the reservation.

The district court concluded that, “The incidents of sovereignty retained by the Indian tribes on the reservation do not include the authority to make an arrest outside of the territorial limits and confines of the Reservation to enforce an Indian Tribal regulation”. In support of its position, the court cited Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-149, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973); Puyallup Tribe v. Department of Game, supra, 391 U.S. at 398, 399-400, 88 S.Ct. 1725, 20 L.Ed.2d 689; Organized Village of Kake v. Egan, 369 U.S. 60, 67-69, 71-73, 75-76, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962); Tulee v. Washington, supra, 315 U.S. at 684, 62 S.Ct. 862, 86 L.Ed. 1115; Shaw v. Gibson-Zahnisor Oil Corp., 276 U.S. 575, 579-580, 48 S.Ct. 333, 72 L.Ed. 709 (1928); Kennedy v. Becker, 241 U.S. 556, 562-564, 36 S.Ct. 705, 60 L.Ed. 1166 (1916); United States v. Winans, supra, 198 U.S. at 384, 25 S.Ct. 662, 49 L.Ed. 1089; and Wárd v. Race Horse, 163 U.S. 504, 510-511, 513-515, 16 S.Ct. 1076, 41 L.Ed. 244 (1896).

None of those cases, however, involve the precise issue before this court, i. e. whether tribal enforcement powers extend to “usual and accustomed” fishing places beyond the confines of the reservation. Rather, they consider the question of state regulation of off-reservation activities. The only case we have found which discusses the question of off-reservation regulation by a tribe is United States v. Washington, supra. There the court held that, “The Yakima Nation and the Quinault Tribe are presently qualified to self-regulate the off-reservation fishing of their tribal members”. The court, however, did not deal specifically with the question of off-reservation arrest and seizures by tribal law enforcement officers.

In resolving this issue, we must again look to the intention of the Indians at the time of the Treaty. Having determined that the Yakima Nation by the Treaty of 1855 intended to retain not only their ancient fishing rights but also the power to regulate the exercise of those rights regardless of location, it would be inconsistent to narrowly limit the enforcement of those rights to arrest and seizure on the reservation. The power to regulate is only meaningful when combined with the power to enforce.

The district court has suggested two alternative methods of enforcing the tribal regulations: (1) withholding “the rights or benefits of the protection of Treaty created immunities”; and (2) “wait until a transgressor has returned to the reservation and then make an arrest and confine that person or cause him to be present in court”. Either method at best affords only a partial solution to the enforcement problem. For either to be effective, it would be necessary for the Yakima Nation to have its game wardens or other enforcement officers patrol “usual and accustomed” fishing places off the reservation and check licenses, fishing gear, and the quantity and nature of a catch in order to establish violations for which the Tribe may impose criminal penalties.

The second suggested method would of course be available only in the event the violators came voluntarily to the reservation. Many members of the Tribe, including the Settlers, do not reside on the reservation and could easily avoid arrest by staying away from the reservation. Sanctions imposed upon non-reservation members by withholding fishing privileges would also be difficult to enforce in the absence of the power to arrest.

The regulatory authority retained by the Yakima Nation with respect to the exercise of its off-reservation fishing rights can be truly effective only through off-reservation enforcement powers at the “usual and accustomed” fishing places. In United States v. Winans, supra, 198 U.S. at 381, 25 S.Ct. 662, 49 L.Ed. 1089, the Supreme Court characterized the fishing rights secured by the Treaty of 1855 as constituting “a servitude upon every piece of land as though described therein”. Tribal jurisdiction extends to such land for the limited purpose of preserving tribal fishing rights connected therewith.

Throughout their briefs, the Settlers and the State of Washington contend that any recognition of tribal jurisdiction outside the confines of the reservation violates the sovereignty of the State of Washington. In support of this argument reliance is placed on the “equal footing” doctrine enunciated in Ward v. Race Horse, supra. In Race Horse, the Court held that the Enabling Act admitting Wyoming to the Union, 26 Stat. 222 (1890) invalidated certain off-reservation hunting provisions in the Bannock Indian Treaty of 1869. According to the Court, to hold these hunting provisions of the treaty viable would be to deny Wyoming “equal footing” with the other states.

The strict construction and application of the “equal footing” doctrine in Race Horse has been modified by implication. See, Johnson v. Gearlds, 234 U.S. 422, 438-440, 34 S.Ct. 794, 58 L.Ed. 1383 (1914); Donnelly v. United States, 228 U.S. 243, 259-264, 33 S.Ct. 449, 57 L.Ed. 820 (1913); and United States v. Winans, supra, 198 U.S. at 381-384, 25 S.Ct. 662, 49 L.Ed. 1089. Every state entering the Union is admitted subject to all treaties currently in effect. In the event of a conflict between state law and a prior treaty, the prior treaty must take precedence. Only Congress may modify or abrogate a treaty.

We conclude that by the Treaty of 1855 the Yakima Indian Nation retained regulatory and enforcement powers with respect to tribal fishing at all “usual and accustomed places” off the reservation. No act of Congress, including the Washington Enabling Act, 25 Stat. 676 (1889), has qualified these reserved powers. The powers therefore continue to exist.

In so holding, we are not blind to the potential for both regulatory and enforcement problems. Any problems which may arise, however, are a product of the vast changes that have taken place in the almost 120 years since the signing of the Yakima Treaty in 1855. These changed conditions may necessitate a modification of the treaty. Obviously, the courts may not re-write treaties or qualify the Indian rights thereunder. If Treaty changes should be required, that is a matter for Congress.

Our holding that the Yakima Indian Nation may enforce its fishing regulations by making arrests and seizures off the reservation is a very narrow one. Off-reservation enforcement is limited strictly to violations of tribal fishing regulations. The arrest and seizure of fishing gear must be made at “usual and accustomed places” of fishing, and only when violations are committed in the presence of the arresting officer. Tribal officers patrolling off-reservation sites are subject to all reasonable regulations that may be imposed by the State of Washington for the orderly conduct of inspections, arrests and seizures. Cooperation between state, local and Tribal officials is encouraged. Ultimately, effective regulation of the fishing resource is of benefit to both Indian and non-Indian.

VI. VIOLATION OF CONSTITUTIONAL RIGHTS

Finally, Alvin Settler contends in No. 71-2364 that the district court erred in failing to consider his contention that the Tribal Court had violated his constitutional rights by denying him the right to professional counsel and by trying him twice for the same offense. The opinion of the district court noted that the original petition alleged these additional grounds but that they “are not now urged” by reason of provisions of the Indian Civil Rights Act of 1968, 25 U.S.C. § 1301 et seq.

(a) Denial of Right to Professional Counsel

In cause No. 74 — 1627 the parties filed a “Stipulation as to Facts and Issues on Motions for Summary Judgment” which reads in part:

“As stated in the stipulation in No. 2454, (No. 74-1656, the Mary Settler case) the contention as to professional counsel has been withdrawn by counsel for Petitioner and is no longer at issue in this case, because the Yakima Indian Nation now permits tribal members to be represented by professional counsel in tribal court proceedings.”

The file in 74-2364 does not contain a similar stipulation, and in that case Alvin continues to urge this alleged denial of his constitutional rights.

The 1967 Tribal proceedings against Alvin Settler involved misdemeanors. Section 8, Chapter 1 of the Law and Order Code of the Yakima Indian Nation prohibited the appearance of “professional attorneys” in Tribal Court. It did, however, provide for representation by members of the Tribe. Alvin Settler was offered and he rejected this representation.

Counsel have not cited nor have we found any case prior to the enactment of the Indian Civil Rights Act of 1968 which guarantees the Sixth Amendment right of counsel to Indians appearing in tribal courts. As noted in the legislative history of the 1968 Act, “The Federal courts generally have refused to impose constitutional standards on Indian tribal governments, on the theory that such standards apply only to State or Federal governmental action, and that Indian tribes are not States within the meaning of the 14th Amendment”. Senate Report No. 721, 2 U.S.Code Cong. & Admin. News, pp. 1837, 1864 (90th Cong. 2nd Sess. 1968). Senator Ervin, sponsor of the 1968 Act, described the Act in part as follows: “ . . . The reservation Indian now has no Constitutional rights. The purpose of the amendment is to give these Indians constitutional rights which other Americans enjoy.” 14 Cong.Rec. 5836 (1968).

There are many cases supporting .the conclusion that prior to the 1968 Act constitutional rights were not applicable to Indian tribes and Indians living on reservations. The leading case is Talton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896) wherein the Supreme Court held that the Fifth Amendment was not applicable to the Cherokee Nation. The Court stated:

“ . . . the existence of the right in congress to regulate the manner in which the local powers of the Cherokee Nation shall be exercised does not render such local powers Federal powers arising from and created by the constitution of the United States. It follows that as the powers of local self-government enjoyed by the Cherokee Nation existed prior to the constitution, they are not operated upon by the fifth amendment, which, as we have said, had for its sole object to control the powers conferred by the constitution on the national government.” Id. at 384, 16 S.Ct. at 989.

This rationale was followed in subsequent cases involving the application of the Bill of Rights and the Fourteenth Amendment to the Indian Tribes. Barta v. Oglala Sioux Tribe of Pine Ridge Reservation, 259 F.2d 553 (8 Cir. 1958), cert. den., 358 U.S. 932, 79 S.Ct. 320, 3 L.Ed.2d 304 (1959); Martinez v. Southern Ute Tribe of Southern Ute Reservation, 249 F.2d 915 (10 Cir. 1957), cert. den., 356 U.S. 960, 78 S.Ct.. 998, 2 L.Ed.2d 1067 (1958); Native American Church of North America v. Navajo Tribal Council, 272 F.2d 131 (10 Cir. 1959). Felix Cohen concluded in his treatise on Indian law: “Many important prohibitions, including the Bill of Rights of the Federal Constitution, are limitations only on the power of the Federal Government. Other provisions limit the activities of state governments only, or of the federal and state governments, and hence are inapplicable to Indian tribes, which are not creatures of either the federal or state governments.” Cohen, Handbook of Federal Indian Law (1942) p. 181.

Following Taitón v. Mayes and the other cases cited supra, it was held in Glover v. United States, 219 F.Supp. 19, 21 (D.Mont.1963), that “the provisions of the Federal Constitution guaranteeing . the right to counsel do not apply in prosecutions in tribal courts”. As the court stated:

“The right to be represented by counsel is protected by the Sixth and Fourteenth Amendments. These amendments, however, protect these rights only as against action by the United States in the case of the Fifth and Sixth amendments, and as against action by the states in the case of the Fourteenth Amendment. Indian tribes are not states within the meaning of the Fourteenth Amendment.”

Here the proceedings in Tribal Court occurred prior to the enactment of the Indian Civil Rights Act of 1968. Accordingly we find no merit in the contention that the Tribal Court deprived petitioner of his constitutional rights by denying him representation by professional counsel.

(b) Claim of Double Jeopardy

The only reference to the claim of double jeopardy in the record submitted to this court appears in the petition filed on November 6, 1967 in 71 — 2364. As noted supra, Alvin Settler was convicted in Tribal Court of fishing violations on July 14, 1967 and August 8, 1967 and for a third offense of violating lawful orders of the Tribal Court. The petition alleged that in Tribal Cause 11316, involving the offense committed on July 14, 1967, Settler was tried, found guilty, and sentenced to a 30 day suspension (from fishing activities) or $80.00 fine; that the court discovered that the prosecutor had testified to the allegations in case 11538 (the offense committed on August 8) by mistake and to correct the error set aside the conviction in 11316 and “proceeded to retry petitioner upon the same charge but with a corrected recitation of allegations pertinent to July 14, 1967”. Upon completion of the second trial, the same sentence was imposed.

Assuming the correctness of the allegations in the petition, the retrial did not constitute double jeopardy. See Ball v. United States, 163 U.S. 662, 672, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 12 L.Ed.2d 448 (1964); United States v. Ewell, 383 U.S. 116, 124-125, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).

The judgments of dismissal in No. 71-2364 and No. 74-1627 are affirmed. The judgment in No. 74-1656 is reversed, and the cause remanded for dismissal of the petition.

      . The Yakima Indian Nation is not a tribe organized under the Wheeler-Howard Indian Reorganization Act, 48 Stat. 984, 25 U.S.C. § 476, but exists by reason of the Treaty of 1855.

      . The Bureau of Indian Affairs, acting pursuant to 25 CFR 11.1(e), approved Resolution T-90-66 by a letter on April 18, 1966 (revised by letter of May 10, 1966) from the Acting Commissioner to the Tribal Council. The Bureau approved Resolution T-48-68 in letters from the acting Commissioner and the Commissioner dated April 17 and May 17, 1968.

      . Neither Mary nor Alvin Settler resided on the Yakima Reservation.

      . Settler was charged with two separate offenses, committed on July 14, 1967 and August 8, 1967, of fishing for salmon with a gillnet in the Columbia River during the closed season, in violation of Resolution T-90-66 and sub-resolution T-100-67. For the first offense he was fined $80.00 plus $2.50 court costs and given a thirty day suspension from any fishing activities; and for the second offense was fined $120.00 plus $2.50 court costs and given a ninety day suspension.
      At his trial Settler refused to take part in the proceedings. The Tribal Court, in accordance with the Law and Order Code of the Yakima Indian Nation, would not permit him to be represented by professional counsel.

      . On this charge the sentence was a fine of $50.00 and $2.50 court costs or 30 days in jail.

      . Following remand Wilson Lameer, Chief of Police, and O. N. Olney, Chief Judge of the Yakima Nation Tribal Court were added as respondents.

      . At the time of the fishing violation, the Columbia River and its tributaries had been closed by Emergency Order No. 773 of the Director of Fisheries of the State of Washington as well as by Tribal Resolution T-56-68, an emergency measure passed to protect the fishery. For the fishing violation Mary Settler was fined $225.00 and her treaty fishing activities were suspended for 90 days. For resisting arrest and attempted escape she was given fines totalling $100.00 and $2.50 court costs or a total of 30 days in jail.

      . On these charges Alvin was fined a total of $450.00 and $2.50 court costs.

      . The State of Washington filed a brief ami-cus curiae in 71-2364 in support of its position that the “state possesses the sole and exclusive authority to regulate fishing activities in off-reservation waters”. The United States filed amicus curiae briefs in 71-2364 and 74-1656 in support of the position of the Chief of Police and Chief Judge of the Yakima Tribal Court.

      . Under Section 2 of the act creating the Washington Territory, Act of March 2, 1853, 10 Stat. 172, 173, the Governor of the Territory was also to serve as Superintendent of Indian Affairs in the Territory.

      . The importance of fish in the diet of the Indians was set forth in the Findings of Fact in United States v. Washington, supra-.

      “In the main, at the time of the treaty, the Indians who were parties to the Yakima Treaty lived in a food gathering culture. They existed on game, fish, roots, berries and some cultivated vegetables. Of these foods fish was a major food and they landed salmon, steelhead, trout, mussels, eel, and other miscellaneous fish. Salmon, however, both fresh and cured, was a staple in the food supply of these Indians. It was annually consumed by these Indians in the neighborhood of 500 pounds per capita." (emphasis added). Findings of Fact No. 151.
      While the extent of subsistence fishing has decreased since 1855, the Findings of Fact state further:
      “The Yakima Indians have been and continue to be very dependent on anadromous fish to sustain their way of life. They live close to the poverty level and have not reached economic or social parity with non-Indian citizens of the State of Washington. Anadromous fish are vital to the Indians’ diet with approximately 2,000 of the enrolled members fishing for personal consumption.” Findings of Fact No. 163.

      . The difficulty of explaining the Treaty provisions to the Yakima Indians was expressed in the Findings of Fact in United States v. Washington, supra:

      “Since, however, the vast majority of Indians at the treaty councils did not speak or understand English, the treaty provisions and the remarks of the treaty commissioners were interpreted ... to the Indians in the Chinook jargon and then translated into native languages by Indian interpreters. Chinook jargon, a trade medium of limited vocabulary and simple grammar, was inadequate to express precisely the legal effects of the treaties, although the general meaning of treaty language could be explained.” Findings of Fact No. 22.

      . This rule was most recently quoted with approval in McClanahan v. Arizona Tax Commission, 411 U.S. 164, 174, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973).

      . The difficulties of ascertaining “the subjective mental processes” of the Indians in interpreting Article III of the Treaty are well summarized in Whitefoot v. United States, supra, 293 F.2d at 667, n. 15:
      “The treaty was dictated by white conquerors of a subjugated race. It is inconceivable that there was the kind of arms-length bargaining as to terms which would have made relevant as ascertainment of the Indian intention (sic). Naturally the Indians wanted the unattainable — to be left alone. It is doubtful that the untrained Indian mind understood the ambiguities of Article III even though the white representatives went to some pains to explain the provision. A great and unbridgeable void existed between the language and culture of the two races. When one considers that the meaning of Article III was sufficiently in doubt as to require the interpretative services of the Supreme Court and several lesser courts in subsequent years, one can readily forgive the Indians for any lack of perspicacity or, indeed clairvoyance.”

      . As indicative of tribal intent in this regard, it is important to note that in fact tribal custom and tradition did continue to “regulate" the nature of tribal fishing for many years after the Treaty. Whitefoot v. United States, supra, 293 F.2d at 667, n. 15, 668-669.

      . The argument that to permit tribal jurisdiction beyond the boundaries of the reservation is a violation of the sovereignty of the State of Washington is without merit. The various Indian treaties constitute the Supreme Law of the Land. Upon entering the union, the State of Washington and all other states were bound by those treaties. U.S.Const. Art. VI. See also, Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920).

      . The court said further:
      “The uncontradicted evidence shows that for a considerable time the Quinault and Yakima tribes have adopted and effectively enforced tribal fishing regulations which in some material respects are more restrictive than the regulations of Fisheries and Game. To a considerable extent those tribes have consulted and cooperated with Fisheries and Game in matters pertaining to responsible regulation of Indian fishing.”

      . In view of the strict limitation on the power of the state to regulate Indian off-reservation fishing, there would be no effective regulation and enforcement of a broad range of fishing activities if enforcement powers are denied to the Tribe.

      . The contention of the Settlers and the State of Washington that Mescalero v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973) “emphatically reaffirmed” the strict construction of the “equal footing” doctrine in Race Horse is untenable. The only reference to Race Horse was dictum and merely cited the case for the proposition that “Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state law otherwise applicable to all citizens of the State”. Mescalero, supra, 411 U.S. at 148-149, 93 S.Ct. at 1270.

      . As noted supra, Mary Settler was arrested and the fishing gear seized at a “usual and accustomed” fishing site for a violation committed in the presence of the arresting officers.

      . The Yakima Nation may be in a better position than the State of Washington to regulate off-reservation fishing. The Tribe possesses the knowledge of its individual members and their fishing sites, and only the Tribe has the authority to revoke a Tribal member’s fishing privileges.

      . The court quoted the following excerpt from the Act:
      § 1302. Constitutional rights.
      No Indian tribe in exercising powers of self-government shall—
      (3) subject any person for the same offense to be twice put in jeopardy;
      (6) deny to any person in a criminal proceeding . . , and at his own expense to have the assistance of counsel for his own defense; .

      . Similar provisions are found in many tribal law and order codes.

      . As noted supra, the Indian Civil Rights Act of 1968 provides that no Indian tribe shall deny to any person in a criminal proceeding the right “at his own expense to have the assistance of counsel for his defense”. It is unnecessary to decide whether the furnishing of non-professional tribal counsel to indigent defendants would comply with the Act.

      . The certificate of proceedings of the Tribal Judge makes no reference to the facts alleged in the petition on which the claim of double jeopardy is based. These facts were not, however, denied in respondents’ answer.

      . Moreover, as indicated supra, the constitutional prohibition against double jeopardy would not have been applicable since the tribal proceedings occurred prior to the Indian Civil Rights Act of 1968.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    James Walter CHERRY, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 74-3234
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 24, 1975.

      James H. Randals, Staff Counsel for Inmates, Route 3, Ellis Unit, Huntsville, Tex., for petitioner-appellant.
    John L. Hill, Atty. Gen., Ben M. Harrison, Mark Perlmutter, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM:

This habeas case presents the question . of the extent to which the State must provide expert witnesses for indigent criminal defendants. James Walter Cherry, the petitioner, is serving a life sentence for murder of a law enforcement officer in Dallas, Texas. In his petition for habeas relief, he contended that he was denied a fair trial because the Dallas County Commissioners’ Court refused to pay the expenses that would . be incurred in obtaining the testimony of an independent ballistics expert on his behalf. The district court rejected this and other contentions, and denied habeas relief.

The magistrate’s report and recommendations and the order of the district court adopting them show that the state court record was not consulted by the magistrate or the district court. Instead, they appeared to rely only upon the habeas pleadings and the opinion of the Texas Court of Criminal Appeals, Cherry v. State, 1972, 488 S.W.2d 744. On that basis, the magistrate found (1) that the error in not providing an independent ballistics expert to testify for the defendant, if error at all, was harmless in the absence of a showing that such an expert would have testified differently from the experts appearing for the prosecution, and (2) that, even if there were a state statutory or a constitutional right to such assistance, it was waived by the defendant’s counsel at trial.

These conclusions should not have been drawn without an independent examination of the entire state court record. The judgment of the district court is therefore vacated, and the cause remanded with instructions that the contentions regarding the denial of assistance of an independent ballistics expert be reconsidered in light of an examination of the state court record.

Vacated and remanded, with instructions.


text:
    Gary Mark BOOTH, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-3513
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 24, 1975.

      Gary Mark Booth, pro se.
    Frank McCown, U. S. Atty., William F. Sanderson, Jr., Asst. U. S. Atty., Dallas, Tex., for respondent-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

The appellant Booth appeals from an order of the United States District Court denying his 28 U.S.C. § 2255 motion without an evidentiary hearing. We affirm.

The appellant was convicted of conspiracy to transport stolen goods, 18 U.S.C. § 371, and interstate transportation of stolen goods, 18 U.S.C. § 2314. At his trial he was represented by retained counsel. An appeal was perfected, oral argument was heard and while the matter was under submission in this court the appellant dismissed his retained counsel and filed a pro se motion to withdraw his appeal. The panel of this court which had the matter under consideration granted the motion to withdraw and dismissed the appeal. Thereafter, appellant’s counsel moved for a rehearing on the order granting permission to withdraw the appeal, which was denied. Subsequently, appellant filed a motion to vacate withdrawal of appeal and to reinstate the appeal. That motion was also denied.

Appellant then filed a 28 U.S.C. § 2255 motion in the district court contending that the dismissal of his appeal was not voluntary. After reviewing the record, the district court denied the petition without an evidentiary hearing. While we agree that bona fide factual issues in § 2255 cases must be resolved on the basis of an evidentiary hearing, Montgomery v. United States, 469 F.2d 148 (5th Cir. 1972), we hold that in view of all of the circumstances of this case the petitioner is not entitled to an evidentiary hearing on his motion and that the order of dismissal by the district court should be affirmed.

Judgment affirmed.


author: WISDOM, Circuit Judge: GEE, Circuit Judge

text:
    Robert E. ROBISON, Plaintiff-Appellant, v. WICHITA FALLS AND NORTH TEXAS COMMUNITY ACTION CORPORATION et al., etc., Defendants-Appellees.
    No. 73-3466.
    United States Court of Appeals, Fifth Circuit.
    Jan. 15, 1975.

      Larry Watts, Houston, Tex., Tom Huekaby, Wichita Falls, Tex., for plaintiff-appellant.
    Ray Farabee, Roger A. Lee, H. P. Hodge, Jr., Wichita Falls, Tex., for defendants-appellees.
    Before TUTTLE, WISDOM and GEE, Circuit Judges.
   WISDOM, Circuit Judge:

Robert Robison, the plaintiff-appellant in this employment termination case, raises two issues on appeal. First, he challenges the constitutionality of the procedures employed by the Wichita Falls and North Texas Community Action Corporation (“Wichita”) in terminating his employment as a program director because of his having allegedly misappropriated corporate funds. Second, he challenges the refusal of the United States District Court to hear evidence that his termination was in retaliation for the exercise of his First Amendment rights. We find no merit to these arguments. We affirm.

I.

Wichita is a nonprofit corporation organized under Texas law as an anti-poverty organization to qualify for Federal government funding under the Economic Opportunity Act of 1964, 42 U.S.C. § 2781 et seq. It is part of a national network of local community action groups designed by Congress to provide “a better focusing of all available local, State, private, and Federal resources upon the goal of enabling low-income families, and low-income individuals of all ages . to attain the skills, knowledge, and motivations and secure the opportunities needed for them to become fully self-sufficient.” 42 U.S.C. § 2781(a). These local community action groups may take the form of either (1) an agency of a state or political subdivision, administering its program through a community action board or (2) a public or private non-profit agency administered by its own governing board. 42 U.S.C. § 2791(a). See also PAAC v. Rizzo, E.D.Pa.1973, 363 F.Supp. 503, 507.

Wichita is a Texas non-profit corporation governed by a board of directors divided into three classes, each representing an interest group or constituency in the community. One-third of the directors are public officials of the political subdivisions comprising Wichita’s service area. The second third of the directors are chosen from the poor in the group’s service area. The final third represent various interest groups in the community, such as business, labor, education, medicine, and religion,

Robert Robison went to work for Wichita in July 1966. He was the second employee to be hired by the corporation and was initially employed as its field representative in Archer City, one of the towns within its service area. Robison later became project director of Operation Mainstream, a training program supervised by the United States Department of Labor that places the unemployed in training positions with local government agencies and non-profit organizations. As director of Operation Mainstream, Robison travelled extensively through the service area by automobile. He used his own vehicle and was reimbursed by Wichita on the basis of his mileage.

On July 23, 1970, the corporation placed Robison on probation for sixty days because of an alleged lack of leadership and direction in his program. Thereafter, on July 31, Wichita’s executive director notified-Robison in writing that his employment was being terminated because he had submitted fraudulent travel vouchers. The director also informed Robison of his rights, under the Wichita by-laws, to submit a formal written appeal to the corporation’s grievance committee and, if necessary, to make a further formal appeal to its executive committee.

Robison appealed to the grievance committee within the permitted time. On August 6, the executive director transmitted to the grievance committee a detailed written explanation of his reasons for terminating Robison’s employment and statements of witnesses in support of the director’s action. Robi-son was furnished with copies of this material. On August 10 he submitted to the grievance committee a detailed written answer along with statements by his supporting witnesses. The grievance committee affirmed the director’s decision on August 12 and advised Robison of his further right to appeal to the executive committee.

On August 20, eight members of the twelve-member executive committee met to consider Robison’s appeal. Robison presented his side of the dispute at this hearing and he was examined by members of the committee. On August 21 the executive committee affirmed the decisions of the director and the grievance committee and removed Robison from the payroll.

Almost two years later, on July 28, 1972, Robison brought this civil rights action against Wichita and various individual directors and employees of the corporation. He alleges that he was deprived of rights secured by the First and Fourteenth Amendments to the United States Constitution because he was not afforded a trial-type hearing before an impartial panel and because the termination of his employment was in retaliation for the exercise of his right of free speech. Robison’s action is brought under Section One of the Civil Rights Act of 1871, 42 U.S.C. § 1983. Jurisdiction is alleged to exist under 28 U.S.C. §§ 1343(3), 1343(4) and 1331. Robison seeks relief that includes an order of re-instatement in the same or a similar position, compensatory and exemplary damages totalling $150,000, reasonable and necessary attorneys’ fees, and a declaratory judgment under 28 U. S.C. §§ 2201 and 2202 that the acts of the defendants were in violation of the Constitution and laws of the United States.

The cause was tried to the court sitting without a jury and judgment was entered in favor of the defendants.

II.

The first question we must consider is whether Robison has stated a claim over which federal courts have jurisdiction. Although the question was not briefed, counsel for the parties extensively discussed the issue of federal jurisdiction in oral argument.

In considering jurisdiction, we are met at the outset with this Court’s decision in Hines v. Cenia Community Action Committee, Inc., 5 Cir. 1973, 474 F. 2d 1052. In that case, Erma Hines was discharged from her position as Executive Director of the Cenia Community Action Committee. She brought a federal action alleging that she was arbi-' trarily and capriciously terminated without cause in violation of her rights under the Economic Opportunity Act, 42 U.S.C. § 2796(a). She alleged federal jurisdiction under 28 U.S.C. § 1331.

Section 2796(a) of Title 42 requires that each local community action agency observe administrative standards and personnel policies consistent with “the objective of providing assistance effectively, efficiently, and free of any taint of partisan political bias or personal or family favoritism”. Each agency is required to promulgate rules with respect to employee benefits, salaries, and promotion policies.

The purpose of Section 2796(a) is to state uniform standards of administrative practice that must be met by local community action groups in order to qualify for federal support. In Hines, the court held that Section 2796(a) merely outlines the responsibility of local groups to the federal government; it confers no benefits directly on individual employees of local groups. Thus an injury resulting from a local group’s noneompliance with the standards required by Section 2796(a) will not give rise to a cause of action based exclusively on that section.

In order to assert federal jurisdiction under 28 U.S.C. § 1331, the plaintiff’s claim must be founded directly upon federal law. “To bring a case within the statute, a right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action.” Gully v. First National Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70. The Hines Court held that there was no Section 1331 jurisdiction because “the statute which the plaintiff seeks to invoke creates no explicit right of action to enforce her right to employment.” 474 F. 2d 1052, 1056. In light of Hines, Robert Robison’s assertion of federal jurisdiction under 28 U.S.C. § 1331 is misguided.

Unlike Erma Hines, however, Robert Robison does not attempt to extract a cause of action from the Economic Opportunity Act itself and he does not rely solely on Section 1331 as a jurisdictional basis. Robison alleges that his claim states a cause of action under 42 U.S.C. § 1983 and alleges jurisdiction under 28 U.S.C. § 1343(3) and § 1343(4) as well as under § 1331.

Section 1983 provides a cause of action for persons deprived of their federal civil rights.. To state a claim under Section 1983, the deprivation must be accomplished under color of state “statute, ordinance, regulation, custom, or usage”. 42 U.S.C. § 1983. Violations of federal civil rights by federal officers, for instance, will not give rise to a cause of action under Section 1983. See District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed. 2d 613 (1973). An essential element in a section 1983 action is that the injury underlying the claim be the product, in some sense, of activity by state officials.

Nowhere in his complaint does Robert Robison specifically allege that Wichita or its employees or directors acted under color of state law. Indeed, his allegation that Wichita is a “federally financed and funded corporation” would suggest, if anything, that Wichita’s governmental nexus is with the federal government rather than the state. On the other hand, Robison does assert a cause of action under Section 1983, and that cause of action requires state rather than federal action as an essential element. Moreover, the trial court found that Wichita did act under color of state law when it terminated Robison.

Noting that Robison sued under Section 1983, taking the complaint as a whole, and considering the nature of the evidence adduced at trial as well as the trial court’s findings, we construe the complaint as charging that Wichita and its employees and directors deprived him of his civil rights under color of state law. We take Robison’s allegation that Wichita is a “federally financed and funded corporation” to be merely a second and thoroughly useless string to his counsel’s bow.

The standard we must apply is that set out in Robles v. El Paso Community Action Agency, 5 Cir. 1972, 456 F.2d 189. In Robles, a discharged employee of a similar community action group brought suit in federal court to challenge her discharge without a prior hearing. The district court dismissed her complaint for lack of jurisdiction. This Court affirmed the dismissal solely on the ground that Mrs. Robles’s complaint failed to state a claim because she was a temporary, nontenured employee without any statutory right to be employed or continued in employment. On the issue of jurisdiction, however, the Court held that “there was jurisdiction under 28 U.S.C. § 1343(3) because Mrs. Robles did claim a deprivation of a constitutional right under color of state law.” 456 F.2d 189, 191 (1972). For the reasons stated in Robles, we find jurisdiction here under Section 1343.

III.

Robison’s principal arguments are that Wichita’s discharge procedures did not comply with minimum requirements of due process and that the trial court erred in refusing to hear evidence that he was discharged in retaliation for the exercise of his First Amendment rights. Both these arguments have vitality only if Wichita is a public employer.

Wichita argues that Robison’s allegations are without merit because this Court has held that a community action group incorporated under state law as a private non-profit corporation is a private employer. Hines v. Cenia Community Action Committee, Inc., 5 Cir. 1973, 474 F.2d 1052. We do not agree that such a broad proposition may be extracted from Hines.

Only at first blush can Hines be said to dispose of the question whether Wichita is a state agency. In Hines, the plaintiffs did not allege that the defendants acted under color of state law. Although the Court said that Cenia was a “private” corporation, the sole issue in the case was whether there was sufficient federal involvement to make the community action group an arm of the federal government. The court resolved this issue by holding that the corporation “did not become a public corporation merely because it received federal funds”. 474 F.2d 1052, 1057 (emphasis added). Because it “was not a public corporation controlled by the federal government, the plaintiff could not be a federal employee”. 474 F.2d 1052, 1058.

Although Hines attempted to state a claim under the Fourteenth Amendment, it was not seriously argued that the community action group was a state agency; indeed, the whole thrust of the plaintiff’s attack was that the group was an arm of the federal government. Thus the court easily disposed of the Fourteenth Amendment issue on almost the basis of a stipulation;

Since the plaintiff in the present case was not employed by the state and there was no state involvement in her employment, procedural safeguards guaranteed by the Fourteenth Amendment did not apply to her private contractual employment. 474 F.2d 1052, 1058.

Against this background the court's statement that the community action corporation was a private corporation must be considered necessary to the decision only insofar as it means that the agency was not an agency of the federal government.

In any event, it would be wrong to read Hines as holding that the federal courts must consider all community action organizations organized as private non-profit corporations under state law to be private corporations for purposes of determining whether those coi’porations have acted under color of state law. Although a state may authoritatively determine that an association is a private association for purposes of state law, such a determination will not limit the federal courts in determining whether there has been a violation of the Fourteenth Amendment. It is the reality of the association’s purpose, organization and activities and not the appellation the state gives it that determines the applicability of the Fourteenth Amendment. Any alternative standard would eviscerate constitutional protections.

In providing for community action groups, Congress intended to allow maximum organizational flexibility so that local groups could best take advantage of local resources and best fill local needs. The House Report on the 1967 Amendments to the Economic Opportunity Act indicates that Congress intended to provide for a variety of organiza-: tion types:

There is no single entity to which one can refer as the model for a Community Action agency. As the term implies, a Community Action agency is the creature of local invention and innovation. Programs are fashioned to cope with the problems of poverty as they exist locally, and objectives vary from community to community. 1967 U.S.Code, Cong, and Admin.News, p. 2447.

Congress provided that community action programs could take the form of public or private non-profit corporations or agencies of state and local governments. Given this diversity of form, we construe the Court’s holding in Hines to mean that the particular association involved in that case was a private corporation and not that all community action groups are categorically private corporations for purposes of the Fourteenth Amendment and Section 1983.

In this particular ease, we need not reach the issue whether Wichita is in fact a public organization. We hold that even if it is a public corporation acting under color of state law, the procedures it followed in discharging Robison meet the minimum requirements of due process and the trial court did not err in refusing to hear evidence on Robison’s First Amendment claim.

IV.

For purposes of this appeal, we may assume without deciding that Wichita is in fact a public body subject to Fourteenth Amendment standards. We must now decide whether the procedures Wichita employed in discharging Robi-son conform with minimum requirements of due process.

Employees discharged from public employment are not categorically entitled to a pre-termination hearing. A hearing is constitutionally required, however, when the stated reason for a public employee’s discharge is an allegation that he is guilty of immoral or dishonest conduct or other behavior that might tend to stigmatize him or to lower his standing in the eyes of the community. Birnbaum v. Tussell, 2 Cir. 1966, 371 F.2d 672. An employee who is discharged because of allegedly dishonest conduct has an interest in his reputation as well as in continued employment. These two interests must be distinguished for purposes of the hearing requirement. The Supreme Court stated the relevant standard in Board of Regents of State Colleges v. Roth, 1972, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548:

“[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.”

A non-tenured employee who has no expectation of continued employment may not be entitled to a hearing merely for the sake of retaining his employment, but he will be entitled to a hearing for the narrow purpose of vindicating his reputation. As the Supreme Court has said, “The purpose of such notice and hearing is to provide the person with an opportunity to clear his name. Once a person has cleared his name at a hearing, his employer, of course, may remain free to deny him future employment for other purposes”. Board of Regents of State Colleges v. Roth, 1972, 408 U.S. 564, 573, fn 12, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548.

Wichita accused Robison of submitting false travel vouchers for reimbursement of non-existent expenses. This allegation of dishonesty falls squarely within the Court’s language in Roth since it would have an adverse effect both on his reputation and on opportunities for future employment. If Wichita is in fact a public body, Robison was clearly entitled to a hearing for the purpose of rehabilitating his reputation in the face of these allegations of dishonesty.

The type of hearing required to satisfy the standards of due process varies according to the facts of a situation. Due process itself is not a technical conception with a fixed content unrelated to time, place, and circumstances ; it is a general requirement that legal processes follow the forms of law, be appropriate to the case, and be just to the parties affected. Joint Anti-Fascist Refugee Committee v. McGrath, 1951, 341 U.S. 123, 71 S.Ct. 6024, 95 L.Ed. 817. Procedural due process does not require all the safeguards of a criminal trial and it does not require a trial-type hearing in every conceivable case of government impairment of private interests. Cafeteria and Restaurant Workers v. McElroy, 1961, 367 U.S. 886, 894, 81 S.Ct. 1743, 6 L.Ed.2d 1230.

Robison alleges that he was denied due process in that Wichita failed to advise him in sufficient detail of the reasons for his discharge. He alleges no specific insufficiencies. The record demonstrates that Wichita notified Robison on July 31 that he was being discharged specifically because he had submitted fraudulent travel vouchers. In the circumstances of this case, we think that this statement of reasons was sufficient to give Robison adequate notice.

Robison next alleges that he was not advised of the names of adverse witnesses or of the nature of their testimony. This allegation misconceives the character of the proceedings at which Wichita’s grievance committee made its unfavorable determination.

The grievance committee made its determination on the basis of written statements submitted by Robison, by witnesses supporting Robison, by Wichita’s executive director, and by witnesses supporting the executive director. The decision was made on the basis of this paper record. Wichita provided Robison with copies of the adverse statements on August 6 and he replied to them with his own statement and those of his witnesses on August 10. We find no evidence of “faceless informers” in this case and no merit to his claim of inadequate notice as to the identity and the testimony of adverse witnesses. See K. Davis, Administrative Law Treatise § 7.05 (1958).

Robison’s next allegation states that he was not accorded a meaningful opportunity to be heard by a tribunal “that possessed some academic expertise and had an apparent impartiality toward the charges”. The record shows that Wichita provided Robison with ah opportunity to pi’esent his case in writing before two appeals bodies and to state his case orally before one of them. He was given sufficient time to prepare for all of these submissions and we cannot say that such an opportunity to be heard was mere ceremonial compliance with the requirements of the Fourteenth Amendment.

Robison states in his brief that the tribunal must possess “academic expertise”. He does not explain the origin or meaning of this requirement. It appears, however, that he extracts it from Ferguson v. Thomas, 5 Cir. 1970, 430 F. 2d 852. The requirement of “academic expertise” may seem, out-of-context, to suggest a principle that the deciding authority be trained in law or labor relations or some other applicable academic discipline. That is not the case. In Ferguson, a university professor was discharged. He questioned the type of hearing due process requires. The Court declared that he was entitled to a hearing by a tribunal possessing “academic expertise”, meaning, presumably, proficiency in some area or areas of university study. Since Professor Ferguson was discharged because of his alleged academic deficiencies, he was entitled to a hearing by a board suited by training and experience to evaluate his academic performance. Academic expertise is irrelevant in Robison’s case. He was not discharged for deficiency in any academic field; he was not entitled therefore, to be evaluated by a panel of educators with “academic expertise”.

We have carefully reviewed the entire record. Wichita is a small organization and, not unlike other organizations, is subject to personality clashes, disagreements over policy, and factions among the directors and staff. Some of the people connected with Wichita were admirers of Robison, others were not. One of Wichita’s directors had an extremely low opinion of Robison and his work. Corporate officials designated to serve as judges or arbitrators know the parties whose interests are at stake and are bound to form some judgment regarding their character and competence as well as the needs and policies of the organization. Just as a determination of bias does not follow from the fact that a hearing examiner or trial judge may entertain an unfavorable opinion of a party as a result of evidence received in a prior or connected hearing, a determination of bias will not follow from the mere fact that an arbitrator or deciding authority has prior and independent knowledge of the dispute. See McKay v. McAlexander, 9 Cir. 1959, 268 F.2d 35, 39. See also K. Davis, Administrative Law Treatise § 12.01 (1970 Supp.). Absent some showing of actual interest or partiality, we must find no denial of due process. If the courts were to find otherwise, no small public agency would be able to settle its own disputes.

Robison alleged that he was denied due process because he was not given sufficient details of the reasons for his termination and of the testimony against him and that he was not accorded a meaningful opportunity to be heard before “a tribunal that both possessed some academic expertise and had an apparent impartiality toward the charges”. These allegations merely track a statement of due process requirements applicable to disputes involving university professors, as set out in Ferguson v. Thomas, 5 Cir. 1970, 430 F.2d 852. Ro-bison makes no effort to relate those standards to the facts of his case.

The process sufficient to satisfy the due process requirement depends on the facts and circumstances of an individual case and not on figures of speech imported from other cases. Robison makes no attempt at relating the facts of his case to the statement in Ferguson but merely asserts that he was denied due process. We find that Wichita’s procedures conformed to the applicable requirements of due process.

V.

We turn now to whether the district court erred in refusing to consider evidence offered to prove that Robison’s discharge was in retaliation for his exercise of First Amendment rights. The trial court refused to hear evidence on the First Amendment issue, but found that Robison’s termination “was based solely on his submission of fraudulent travel vouchers and was not violative of his First Amendment rights”. Although this finding might have been stated more elegantly in light of the court’s narrowing of the issues, we take it to mean only that there was sufficient evidence of Robison’s submission of fraudulent travel vouchers to justify his discharge.

Robison contends that he is entitled to relief because a discharge is invalid if it is based even partially on constitutionally protected activities. Apparently he believes that even an undisputed embezzler would be entitled to damages and re-instatement if any link whatsoever could be established between his exercise of First Amendment rights and the discharge. As authority for that proposition, he cites Langford v. City of Texar-kana, 8 Cir. 1973, 478 F.2d 262. In Langford, three public employees were discharged without a statement of reasons, notice, or hearing. The two employees who challenged the dismissals alleged that their dismissals resulted from the city’s disapproval of their associations with persons of other races. The court held that if the district court “finds that the associations were a factor, it must reinstate the person discriminated against to the position formerly held by that person or to a position that is comparable in terms of duties, responsibilities and salaries.” 478 F.2d 262, 268 (emphasis supplied).

The discharge in Langford presents a different ease from Robison’s because it was accomplished without a statement of reasons, notice, or hearing. Moreover, we do not find support for Robison’s position in the court’s language in Lang-ford since we understand the expression “a factor” to mean “a necessary factor” or a factor without which the discharge decision may not be justified. When constitutionally neutral reasons are themselves sufficient to uphold the deciding authority’s judgment and there is no allegation of discrimination in the sense of holding a discharged employee to a tougher standard than that used to measure the performance of his peers, we see no benefit to be gained from hearing evidence on the constitutional claim. Otherwise we would be placed in the anomalous position of ordering the reinstatement of an unsuitable employee merely because he has exercised his freedom of speech.

We have previously considered this problem in Fluker v. Alabama State Board of Education, 5 Cir. 1971, 441 F. 2d 201. In Fluker, the employment of two non-tenured faculty members at Alabama State University was terminated when their teaching contracts were not renewed. The University explained that the contracts were not renewed because the two faculty members did not have doctorates and the University had embarked on a policy directed at increasing the number of faculty members holding that qualification. The University had also decided to make room for candidates with doctoral degrees by terminating the most junior members of the faculty. The plaintiffs were junior members of their respective departments.

The plaintiffs in Fluker maintained that the University had terminated their employment because they had criticized the University administration and had been actively involved in an episode of campus unrest and agitation in May 1969. As the district court observed, “[t]hey seem to contend that this gives them some insulation from being selected for termination”. (Cited in 441 F.2d 201, 205). The relevant principle, as stated by Judge Thornberry in Fluker, is as follows:

When the violation of substantive constitutional rights has been charged, however, to the extent that the absence of factual support for the stated reasons for the University’s action tends to prove that some other constitutionally impermissible reason underlies the action, the courts should examine the credibility of the University’s stated reasons . . . Thus, in the instant case, if the appellants could demonstrate that there was no factual basis for the University’s action, this would tend to prove that other, constitutionally impermissible reasons motivated the University’s action. On the other hand, even if the facts do support the stated reason for the University’s action, the appellant would still not be precluded from demonstrating that constitutionally impermissible purposes were also involved. 441 F.2d 201, 209.

Section 1983 plaintiffs do not have carte blanche rights to present evidence of a First Amendment violation in every employment discharge case. The first step in such a case must be an inquiry into the sufficiency of the employer’s stated reasons for terminating the employee. Three different situations may exist. First, no reasons may be stated or the stated reasons for terminating the employee may be clearly insubstantial. In that case, the absence or insub-stantiality of the stated reasons adds weight to the allegation that the discharge resulted from constitutionally impermissible reasons and the court must reach the constitutional claims. Second, where the facts do tend to support the employer’s stated reasons, the plaintiffs would not necessarily be precluded from demonstrating that constitutionally impermissible purposes were also a necessary factor in the termination decision. In such a case, ”[w]e recognize that a justifiable ground of discharge is not a defense when that ground is a mere pretext and not the moving cause of the discharge”. Cook County College Teachers Union, Local. 1600 v. Byrd, 7 Cir. 1972, 456 F.2d 882, 888. Where the stated reasons are substantial but not sufficient by themselves to justify the discharge, the constitutionally impermissible reason would be a necessary factor on which the court must hear evidence. The third possible situation is where the organization’s stated reasons constitute a sufficient as well as a substantial basis for the decision. Where there is no allegation of unequal treatment or selective enforcement and where the stated reason is itself sufficient to justify the discharge, we see nothing to be gained from hearing evidence on the First Amendment claim. Robison’s case falls squarely within this final category.

Robison directs our attention to a number of cases in which courts have held that evidence must be heard on the First Amendment claim in an employment discharge case. These cases are not in point, because they are cases where the stated reasons for the discharge were either insubstantial or substantial but insufficient by themselves to support the discharge. With Robison we do not have a case where the employee had a clean record apart from the disputed exercise of his First Amendment rights. Gierginer v. Center School District No. 58, 8 Cir. 1973, 477 F.2d 1164. Nor do we have a case that comes to us from summary judgment. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1970). In Robi-son’s case, the district court heard evidence on allegations that were both substantial and sufficient by themselves barring discriminatory enforcement of standards, to justify Robison’s discharge. We cannot say that the district court erred in limiting the proof as it did.

Just as the First Amendment cannot limit the public’s power to dismiss the inept, it also cannot limit the public’s power to dismiss the corrupt. As the Second Circuit has said, “Public employment is not a sinecure to be retained regardless of merit simply by shouting loudly that any threat of dismissal is motivated by an anti-First Amendment animus”. Russo v. Central School District No. 1, 2 Cir. 1972, 469 F.2d 623.

The decision of the district court is affirmed.

GEE, Circuit Judge

(specially concurring).

Being in less than entire agreement with the Court’s treatment of the decision in Hines, I find myself unable to join in Parts II and III of the majority opinion. I concur, however, in Parts I, IV and V thereof and in the result.

      . Hines v. Cenia Community Action Committee, Inc., 474 F.2d 1052, 5 Cir. 1973.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellee, v. John R. MOSELEY, Appellant.
    No. 73-1903.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 15, 1974.
    Decided Nov. 7, 1974.
    Rehearing Denied Nov. 27, 1974.
    Certiorari Denied March 24, 1975.
    See 95 S.Ct. 1426.
    James R. Howard, Little Rock, Ark., for appellant.
    O. H. Storey, Asst. U. S. Atty., Little Rock, Ark., for appellee.
    Before VOGEL, Senior Circuit Judge, and LAY and STEPHENSON, Circuit Judges.
   PER CURIAM.

John R. Moseley was convicted of embezzling government property in violation of 18 U.S.C. § 641. On appeal he challenges the sufficiency of the evidence to sustain the conviction. We affirm.

From August 1970 through September 1972 Moseley was employed as the Chief of Pharmacy Services at the Veterans Administration Hospital in Little Rock, Arkansas. The alleged embezzlements occurred during that time period and involved several narcotic drugs, including morphine sulfate, Dilaudid and codeine phosphate. The defendant pled not guilty and the matter was tried to the court, the Honorable J. Smith Henley presiding, on partially stipulated facts. The stipulated facts were:

(1) The defendant was Chief of Pharmacy Services at the Little Rock Veterans Administration Hospital during the time period in question;
(2) The pharmacy records had been inventoried subsequent to his departure from that position at which time they indicated the following drugs were missing and unaccounted for:
(a) 10,825 tablets of Dilaudid (.002 grams);
(b) 10,080 tablets of Dilaudid (.004 grams);
(c) 500 tablets of morphine sulfate (% grain); and
(d) 1,051 tablets of morphine sulfate (.010 grams);
(3) Several irregularities were present in the VA records; and
(4) The defendant had signed nine receiving forms.

At trial the government produced several pharmacy employees who testified to the defendant’s access to the drugs in question and to their approximate value. At least one witness testified that he had seen the defendant take drugs from the shelf and place them in a paper sack. There was evidence concerning the relative infrequency with which these drugs were used because of their narcotic nature. The government also called Albert Morgan, who testified to purchasing large quantities of Dilaudid from the defendant, and H. L. Walters, an undercover policeman who testified to a purchase of an amphetamine drug (apparently not one of those allegedly taken by the defendant) from the defendant. The defendant’s case consisted of cross-examination intended to demonstrate the poor record-keeping practices at the VA hospitals, the accessibility of the drug safe to others and the practice of destroying certain drugs at certain intervals. He also called a member of the VA staff who testified on these same general topics.

The defendant’s basic argument is that he had a right as Chief of Pharmacy Services to possess and control these drugs and therefore the government must also prove that he sold the drugs to establish a violation of § 641. He argues that the government failed to prove a sale of government property since that fact may only be inferred after first inferring his wrongful conversion of the drugs. We disagree. This argument conveniently misconstrues the statute as well as the evidence before us.

The indictment charged in the language of the statute that the defendant “willfully and knowingly did embezzle and convert to his own use” certain specified government property in violation of 18 U.S.C. § 641. The defendant’s challenge is mistakenly based upon a belief that the government was required to demonstrate a sale to prove embezzlement and conversion. This is not the cáse. See Morissette v. United States, 342 U.S. 246, 271-272, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

In Hawkins v. United States, 458 F.2d 1153 (5th Cir. 1972), the court relied upon Morissette in observing that the crime of conversion contained in § 641 did not require a sale. It said:

It is clear that conversion does not require a sale, inasmuch as the gist of the offense of conversion is wrongfully depriving an owner of his property whether or not it is sold. Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Having once been converted however, the property is then subject to an entirely separate offense when it is sold, requiring a separate order of proof from that required in conversion. Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505 (1927); Thomas v. United States, 249 F.2d 429 (9th Cir. 1957). Therefore, as a matter of law, the offense of conversion and the offense of sale can be two separate and distinct offenses under 18 U.S.C. § 641.

Id. 458 F.2d at 1155.

Similarly, the crime of embezzlement requires only proof of the wrongful taking. There was sufficient evidence of this culpable fact. Where, as here, there is a substantial shortage in property committed to the possession of the defendant, and in fact acquired in the first instance at his request, and no plausible explanation of the shortage is tendered by the defendant, the trier of fact may reasonably infer from the circumstances that the custodian of the property has embezzled or converted it. See United States v. Powell, 413 F.2d 1037 (4th Cir. 1969); O’Malley v. United States, 378 F.2d 401 (1st Cir.), cert. denied, 389 U.S. 1008, 88 S.Ct. 571, 19 L.Ed.2d 606 (1967).

However, assuming that evidence of a sale was essential to the government’s case, the proof of this fact rests upon evidence independent of the wrongful taking. Morgan’s testimony established a direct sale of a large quantity of Dilaudid. The court could infer from this testimony, along with all the other facts and attendant circumstances, that Moseley was wrongfully converting the drugs through unauthorized sales.

Judgment affirmed.


author: COFFIN, Chief Judge.

text:
    Chris CALABRESE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-1262.
    United States Court of Appeals, First Circuit.
    Argued Nov. 6, 1974.
    Decided Nov. 29, 1974.

      J. Joseph Maloney Jr., Boston, Mass., for appellant.
    Edward J. Lee, 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.
   COFFIN, Chief Judge.

This is an appeal from the district court’s dismissal of appellant’s motion to vacate a sentence of twenty years’ imprisonment imposed after his plea of guilty to a federal bank robbery charge. Appellant contends before us that his plea was induced because he was “led to believe” that a fifteen year sentence would be imposed, as it had been upon his pleas of guilty to four other similar charges. Appellant does not now challenge the district court’s finding, adverse to his contentions below, that neither his trial counsel, nor the Assistant U. S. Attorney responsible for handling the case against him promised appellant that a particular sentence would be imposed, or misled him as to the advisory nature of the prosecutor’s recommendation for sentencing.

The crux of appellant’s argument is that having four times within a short span of time pleaded guilty and on each occasion having seen the prosecutor’s recommendation of a sentence of fifteen years accepted by a different judge, he was convinced that he was assured of the same sentence, upon his fifth guilty plea. Since that belief was erroneous, appellant maintains that his plea was not “voluntary”. Generally the imposition of a sentence greater than that expected by a defendant, or predicted by his counsel is not adequate grounds for vacating the sentence under 28 U.S.C.A. § 2255. Domenica v. United States, 292 F.2d 483, 485 (1st Cir. 1961); United States v. Pallotta, 433 F.2d 594, 595 (1st Cir. 1970). Only if a defendant can show that his plea was coerced, Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), or induced by false promises, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), or made without comprehension of the charge against him, Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956), is he later permitted to argue that his plea was not “voluntary”.

Fed.R.Crim.Proc. 11 is intended to assure that guilty pleas are voluntarily entered, requiring that the court address the defendant personally and determine “. . . that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.” The district court in this case fully complied with the rule. The colloquy revealed straightforward answers to all the pertinent questions as to waiver of rights, maximum penalties, lack of inducement, etc. While defendant and his counsel were upset at the action of the judge in effectively negating the actions of four other judges, there was no intimation at the time to court, prosecutor, or defense counsel or in a subsequent motion to reduce sentence that a foul had occurred.

In the absence of any indication that appellant was misled by the prosecutor, or that the sentencing court failed adequately to probe appellant’s state of mind, we cannot look into the subjective mental set of appellant to see to what extent misconceptions played a part in his guilty plea. We know of no standards which could prevent such an approach from becoming an unmanageable ad hoc probing of defendant’s psyche at the time he pleaded guilty. Indeed, such a rule would virtually give a defendant an argument for a veto every time he received a sentence not to his liking.

The order of the District Court is affirmed.


text:
    RHONE-POULENC S.A. et al., Appellants, v. C. Marshall DANN, Commissioner of Patents, Appellee.
    No. 74-1136.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 2, 1974.
    Decided Dec. 3, 1974.
    See also U.S.Cust. & Pat.App., 499 F.2d 1289.
    Ellsworth H. Mosher, Arlington, Va. (Charles A. Wendel, Arlington, Va., on brief), for appellants.
    Fred W. McKelvey, Associate Sol. (Joseph F. Nakamura, Sol., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and RUSSELL and FIELD, Circuit Judges.
   PER CURIAM:

Rhone-Poulenc is a French corporation which, along with several scientists, is seeking to patent a new process for preparing a known antibiotic drug, dau-norubicin. The Primary Examiner determined that all claims in the application, Serial No. 775,904, are allowable but objected to the application because of the presence of certain words in the specification. The paragraph containing the disputed phrase reads as follows:

S. griseus, var. rubidofaciens, strain DS 32,041 differs from the species distinguished by S. A. Waksman within the series of the strains of S. gri-seus, of which none of those hitherto described gives a soluble red pigment comparable to that produced by the strain DS 32,041 nor gives any production of antibiotic and anti-tumour substance identical to daunorubicin * * ■»

Specifically, the Primary Examiner objected to the words “and anti-tumour” and required either “cancellation of said term or proof that the instant compound is safe, reliable and effective for the utility set forth * * *.” Considerable evidence was adduced, which the Commissioner concedes is sufficient to support a conclusion that daunorubicin has an anti-tumour effect in treating certain tumors, namely lymphosarcoma, nephroblastoma, neuroblastoma, acute lymphoblastic leukemia, and acute mye-loblastic leukemia. The Primary Examiner adhered to his requirement that the phrase be stricken because it was broader than the proof offered in support. The applicants sought review in the Patent Office and ultimately in the District Court, which sustained the cancellation requirement.

The Commissioner is granted authority to restrict the specification so that it is not overbroad. Indeed,

[t]he specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.

35 -U.S.C.A. § 112. The Commissioner has gone beyond his interpretation of the disputed words, however, to reject amending language that would restrict the assertion to those uses supported by the proof. It is suggested that such an amendment would be “new matter,” the introduction of which is precluded by 35 U.S.C.A. § 132. We do not view such words of limitation as new matter. “Amendments to specifications for the purpose of clarity and definiteness are permissible.” Helms Products, Inc. v. Lake Shore Manufacturing Co., 7 Cir., 227 F.2d 677, 679. See also Aerosol Research Co. v. Scovill Manufacturing Co., 7 Cir., 334 F.2d 751.

We therefore conclude that the cancellation of the words “and anti-tum-our” by the Patent Office was arbitrary and capricious and reverse the decision of the District Court. The cancellation cants could refile their application with an requirement is set aside with leave to the Commissioner to allow an amendment restricting the specification to assertions that are supported by the applicants’ proof.

Reversed and remanded.

      . We note, and counsel for the appellee acknowledged at oral argument, that the appliamended specification, thereby retaining their filing date and accomplishing the same result.