author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Anthony Joseph GARGOTTO, Defendant-Appellant.
    No. 74-1041.
    United States Court of Appeals, Sixth Circuit.
    Nov. 19, 1974.
    Certiorari Denied May 27, 1975.
    See 95 S.Ct. 1990.

      Frank E. Haddad, Jr., Louisville, Ky., for defendant-appellant.
    George J. Long, U. S. Atty., James H. Barr, Louisville, Ky., for plaintiff-appellee.
    Before PECK, McCREE and ENGEL, Circuit Judges.
   PER CURIAM.

This is an appeal from an order of the district court, entered following an evidentiary hearing held pursuant to a remand of the case by this court. United States v. Gargotto, 476 F.2d 1009 (1973).

Gargotto was convicted in district court of fifteen counts of filing false monthly wagering returns. He appealed that conviction to this court, claiming, inter alia, that the warrantless search of his building and the seizure of papers and documents therefrom following a fire, violated his Fourth Amendment rights. In that appeal, all issues raised by Gargotto were resolved against him, except the validity of the search as it was extended to the drawers of certain cabinets and desks, and the subsequent seizure of their contents. United States v. Gargotto, supra. This court was of the opinion that there was insufficient evidence on the record to determine whether the warrantless search was justified by the exigent circumstances exception to the Fourth Amendment warrant requirement, Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The ease was therefore remanded to the district court for an evidentiary hearing to determine:

“(1) whether the exigencies of the situation were such at the time the search was extended to the drawers of the desks and cabinets to justify such search, and seizure of the contents, without a warrant, and, if no such justification is found,
(2) whether the papers found in plain view can be identified and segregated from those that were removed from drawers.” United States v. Gargotto, supra, 476 F.2d at 1014-1015.

In remanding the case, this court stated that “[t]he results of the hearing will determine whether or not a new trial is required.”

Upon remand, a hearing was held, following which an order was entered, accompanied by findings of fact, in which it was determined that the requisite exigent circumstances were present to justify the warrantless search. Gargotto appeals from that order. We affirm.

Because the facts were fully set forth in the earlier appeal, we recite them only briefly here. A fire occurred in a building owned by Gargotto, and arson was suspected. Two officers, one a captain of the Arson Squad and one a detective on the police force, came upon the scene and entered the building. The fire was under control, but firefighters were still present in substantial numbers and were working to prevent further outbreak of the fire. The officers viewed certain papers and documents on the floor in plain view and seized them, suspecting that they might provide evidence of motive in the arson. The papers appeared to be gambling documents. The officers thereupon continued their search to areas not in plain view, drawers of cabinets and desks, in which they found and removed more papers. The papers were taken to police headquarters. That afternoon a suspect was apprehended and charged with the arson, and the papers were no longer needed in that investigation. They were, however turned over to federal agents who examined them, conducted an investigation, and eventually charged appellant with the offenses of which he was convicted in this case.

In this appeal, we are not concerned with the seizure of documents in plain view, nor the release of documents to federal agents. Nor are we faced with the question of whether there existed probable cause to search for the seized evidence at the premises. These questions were resolved by the earlier appeal. We are here concerned only with whether the officers were faced with such circumstances, amounting to an emergency, which made the seeking and obtaining of a warrant unfeasible, and hence unnecessary.

The district judge, as directed by this court, made findings in this regard. His findings must be accepted by this court unless they are clearly erroneous. See Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946). Appellant claims that certain of the trial judge’s findings were clearly erroneous and that his conclusion was therefore improper and should be reversed. We disagree. The material facts as found by the trial judge are supported by the evidence and are not clearly erroneous. We conclude on those findings, that exigent circumstances were present and the search and seizure were justified. Coolidge, supra.

The court found that at the time of the search, firemen were in the process of chopping walls, hosing the area with water and discarding flammable materials. The court determined that there would be a real danger of water damage and possible loss or destruction of the desired evidence were the officers to take the time to obtain a warrant. These findings are not clearly erroneous. In our view, they are sufficient to justify the warrantless search and seizure. We reject appellant’s claim that the captain could have ordered firemen to maintain the status quo while they sought a warrant, in light of his expert testimony that the actions of the firemen were necessary to prevent further outbreak of the fire. We do not believe that the Fourth Amendment requires that good firefighting techniques necessary for the protection of person and property must be sacrificed in order that the premises of the fire may be searched for evidence relating to arson, where probable cause exists. The exceptions to the Fourth Amendment warrant requirements attempt to strike a balance between the competing needs of society, and we agree with the trial court that the government succeeded in showing here that the balance was struck in favor of a warrantless search.

While appellant contends that the trial court erred in finding that the firemen were in the process of “actively extinguishing the flames,” and erred in finding that the officers believed that the papers might have provided evidence of how the fire started, we conclude that these findings, even if erroneous, do not compel reversal. The crucial issue was whether the situation as a whole was such that an emergency existed. Any finding with regard to the intended use of the papers goes to probable cause, previously held to exist by this court, and is hence irrelevant. Moreover, in our judgment an emergency existed with respect to the preservation of the needed evidence, regardless of whether the flames were still live or had been extinguished, in light of the fact that active and necessary firefighting procedures continued to take place which could reasonably have been found to threaten destruction of the evidence. If the trial judge’s finding that flames were still present was erroneous, we conclude that it was not a necessary finding to the determination of the issue remanded by this court, and hence, was harmless. Federal Rules of Crim.Procedure, rule 52. See also, J. P. Gibbins, Inc. v. Utah Home Fire Insurance Co., 202 F.2d 469 (10th Cir. 1953). In view of the concurring threat of water damage and loss due to the discarding of flammable materials, it is irrelevant whether there was in addition a threat of destruction due to fire itself. It is sufficient if facts material to a finding of exigent circumstances are found by the trial court and are supported by the evidence. We conclude that such was the case here, and that the conclusion of the district judge was correct.

In light of the fact that exigent circumstances were found, the trial judge was not required by the order of remand to decide the contingent question of whether the documents could be segregated, and he did not do so. Likewise, we need not reach it here, since we conclude that the seizure of all documents involved was valid.

Appellant also attempts, through his brief, to re-raise issues previously decided by this court in United States v. Gargotto, supra. No petition for rehearing was filed with this court following the judgment entered on April 24, 1973. In the absence of such a petition, those issues cannot be re-considered. Federal Rules of Appellate Procedure, rule 40. This appeal is from an order of the district court directed to a single issue. Our review here must be limited to the errors assigned with respect to the order appealed from.

Affirmed.

      . In that case the Supreme Court upheld a finding that a search had been consented to, holding that the finding was not erroneous. The courts have consistently applied a clearly erroneous test to factual findings of district courts in criminal cases. See Campbell v. United States, 373 U.S. 487, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963) [factual finding under Jencks Act]; United States v. Page, 302 F.2d 81 (9th Cir. 1962); Jackson v. United States, 122 U.S.App.D.C. 324, 353 F.2d 862 (1965), and United States v. Hoffa, 349 F.2d 20, 48 (6th Cir. 1965). This same standard of review obtains in civil cases by court rule, F.R. Civ.P. 52(a).


source: Caselaw Access Project

author: PER CURIAM

license: Public Domain

text:
    Ruben ORTEGA, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-1653.
    United States Court of Appeals, Tenth Circuit.
    Feb. 11, 1975.

      Winston Roberts-Hohl, Asst. Federal Public Defender, Albuquerque, N. M., for petitioner-appellant.
    Before SETH, McWILLIAMS and BARRETT, Circuit Judges.
   PER CURIAM

Appellant Ortega pleaded guilty to violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 on March 12, 1973. Sentence was to three years imprisonment to be followed by the special three year parole term provided for in 21 U.S.C. § 841(c). Ortega initiated the instant proceedings when he filed a motion pursuant to 28 U.S.C. § 2255 in the sentencing court claiming that he should have been granted credit toward sentence for the period of time that he was released on personal recognizance bond between the date of his initial pre-trial arrest and the date he actually began to serve the sentence imposed. The district court found this contention to be without merit, denied relief and dismissed the action. We affirm.

Appellant is represented on this appeal by the federal public defender who cites no authority in direct support of Ortega’s contentions. His reliance upon Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) is misplaced. That case stands only for the proposition that a person released on personal recognizance is “in custody” within the meaning of the habeas corpus statute. Such a proposition furnishes no support for the argument advanced here.

18 U.S.C. § 3568 does provide that a federal prisoner will receive credit toward sentence for “any days spent in custody in connection with the offense or acts for which the sentence was imposed.” Bruss v. Harris, 479 F.2d 392 (10th Cir. 1973). However, the “custody” contemplated by § 3568 relates to actual custodial incarceration. Such “custody” does not include the time a criminal defendant is free on bond, either before or after conviction. Polakoff v. United States, 489 F.2d 727 (5th Cir. 1974); Cochran v. United States, 489 F.2d 691 (5th Cir. 1974); Bandy v. Willingham, 398 F.2d 333 (10th Cir. 1968), cert. denied 393 U.S. 1006, 89 S.Ct. 497, 21 L.Ed.2d 470. We accordingly find no merit to Ortega’s contentions that he should have been granted credit towards sentence for the period of time that he was released on personal recognizance bond.

Upon docketing, the parties were notified that we were considering summary affirmance and of their rights to furnish memoranda in support of their respective positions. Ortega has filed a memorandum in opposition to summary affirmance. Nevertheless, after carefully and thoroughly reviewing the files and records of this case, we are convinced that the order of the district court is correct.

Affirmed.


text:
    Alice L. NELSON et al., Appellees, Winnifred Brown et al., Appellees, v. Vera J. LIKINS et al., Appellant.
    No. 74-1900.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 10, 1975.
    Decided Jan. 10, 1975.
    Thomas L. Fable, Deputy Atty. Gen., Dept, of Public Welfare, St. Paul, Minn., for appellant.
    Luther A. Granquist, Legal Aid of Minneapolis, Inc., Minneapolis, Minn., for appellees.
    Before GIBSON, Chief Judge, and HEANEY and ROSS, Circuit Judges.
   PER CURIAM.

Upon a careful consideration of the record, the briefs and oral arguments, the Court has concluded that the order of the District Court is based upon a correct interpretation of the law as applied to the pleadings and that an opinion would have no precedential value. For these reasons the order granting plaintiff’s motion for a preliminary injunction is hereby affirmed on the basis of Judge Lord’s well reasoned opinion, 389 F.Supp. 1234. See Rule 14 of the Rules of this Court.

This Court recognizes that the action of the appellant in this case was an effort to correct inequities in the administration of the A.F.D.C. program. But in view of the plain language of 42 U.S.C. § 602(a)(24) this should be the subject of congressional rather than administrative corrective action.


author: LAY, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Berentje C. M. POHLMAN, Appellant.
    No. 74-1759.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 11, 1974.
    Decided Feb. 11, 1975.
    Rehearing and Rehearing En Banc Denied April 4, 1975.

      Berentje C. M. Pohlman, Enderlin, N. D., pro se.
    Harold O. Bullís, U. S. Atty., Fargo, N. D., for appellee.
    Before LAY and BRIGHT, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   LAY, Circuit Judge.

Berentje C. M. Pohlman, a practicing attorney in Enderlin, North Dakota, was convicted by a jury of willfully failing to file her individual income tax returns for the years 1968, 1969 and 1970 in violation of 26 U.S.C. § 7203. Ms. Pohlman’s basic defense was that she served as City Attorney of Enderlin in 1969 and as Mayor in 1970, and that she was so involved and busy in these positions, as well as with certain personal problems, that she did not realize until late in 1970 that she had earned income sufficient to require filing. She maintained all her files and records and when visited by a field auditor of the Internal Revenue Service in early October 1972, she prepared returns for each of the years in question and filed them. On appeal she appears pro se, as she did in the trial court, raising several errors. We need only discuss her attack on the instruction given by the trial court concerning the element of willfulness. We find this to have been reversible error and vacate the judgment of conviction and remand for a new trial.

Title 26 U.S.C. § 7203 makes it a misdemeanor when a person “ willfully fails to make such return [as required by law] ... at the time or times required by law . . . ” (emphasis added). The' court declined to give defendant’s requested instruction on the meaning of willfulness and, over her specific objection, gave the following:

The specific intent of willfulness is an essential element of the crime of failure to file an income tax return. The word “willfully” used in connection with this offense means deliberately, and intentionally, and without justifiable excuse, or with the wrongful purpose of deliberately intending not to file a return which defendant knew she should have filed, in order to prevent the Government, from knowing the extent of, and knowing the facts material to, the determination of her tax liability.
Defendant’s conduct is not “willful” if she acted through negligence, inadvertence, or mistake, or due to her good faith misunderstanding of the requirements of the law. It should be pointed out, however, that disagreement with the law is not a defense. It is the duty of all citizens to obey the law whether they agree with it or not.

She contends that the court’s instruction did not adequately define “willfully” as that word is used in § 7203. We agree. The controlling authorities are United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973), and United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933).

In Murdock, the defendant had refused to supply information to the Internal Revenue Service concerning deductions claimed in his 1927 and 1928 income tax returns. He insisted that the Fifth Amendment permitted him to refuse the information since it would incriminate him under state law. He was charged with and convicted of willfully failing to supply the information. In upholding the reversal of his conviction, the Court discussed the meaning to be given the word “willfully” in tax crime statutes:

The word often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But, when used in a criminal statute, it generally means an act done with a bad purpose

290 U.S. at 394, 54 S.Ct. at 225.

Here we are concerned with a statute which denounces a willful failure to do various things thought to be requisite to a proper administration of the income tax law, and the government in the trial below, we think correctly, assumed that it carried the burden of showing more than a mere voluntary failure to supply information, with intent, in good faith, to exercise a privilege granted the witness by the Constitution. The respondent’s refusal to answer was intentional and without legal justification, but the jury might nevertheless find that it was not prompted by bad faith or evil intent, which the statute makes an element of the offense.

Id. at 397 — 98, 54 S.Ct. at 226 (emphasis added).

In Bishop, the Court was faced with the question of whether the word “willfully,” as used in those several statutes defining misdemeanor tax crimes, had the same stringent meaning it had been accorded when used in the definition of a felony tax crime. The Court not only found that it did but went on to emphasize the necessity for determining the “bad purpose” articulated in Murdock:

The Court’s consistent interpretation of the word “willfully” to require an element of mens rea implements the pervasive intent of Congress to construct penalties that separate the purposeful tax violator from the well-meaning, but easily confused, mass of taxpayers.
Until Congress speaks otherwise, we therefore shall continue to require, in both tax felonies and tax misdemeanors that must be done “willfully,” the bad purpose or evil motive described in Murdock, supra.

412 U.S. at 361, 93 S.Ct. at 2017.

Defendant’s basic contention is that the court’s instruction failed to sufficiently describe the requirement of wrongful intent and evil motive required under the law. Several cases have held both before and after Bishop that the specific words “bad purpose” or “evil motive” need not be used by the courts in defining the element of willfulness. See cases collected in Cooley v. United States, 501 F.2d 1249 (9th Cir. 1974), and United States v. Hawk, 497 F.2d 365 (9th Cir.), cert. denied, 419 U.S. 838, 95 S.Ct. 67, 42 L.Ed.2d 65 (1974). What is required, however, is that the instruction convey “the proper notion of specific intent in understandable terms.” United States v. Hawk, supra at 369. As the Seventh Circuit observed in United States v. Matosky, 421 F.2d 410, 412 (7th Cir.), cert. denied, 398 U.S. 904, 90 S.Ct. 1691, 26 L.Ed.2d 62 (1970), “the only bad purpose or bad motive necessary for the government to prove is a deliberate in-, tention not to file returns which the defendant knew ought to be filed.” This court approved such an instruction under § 7203 in Lumetta v. United States, 362 F.2d 644 (8th Cir. 1966).

The basic question in the present case is whether the trial court sufficiently and accurately defined the specific intent required. Concededly there is no mention of “bad purpose” as used in Lumetta and other cases decided previously by this court. See also United States v. MacLeod, 436 F.2d 947, 950 (8th Cir.), cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647 (1971).

The art of instructing a jury in plain and understandable terms requires, on the part of the trial judge, an acute awareness of the extraordinary demands made upon him in the skill of communication. In many trial courts the practice varies as to whether or not the jury charge goes to the jury room, but where under either procedure there lurk shortcomings or dangers in effectively communicating to the jury, the charge should always seek out explicit and clear language in layman’s terms. Unfortunately, as has often been said, the trial court writes. instructions in terms more for the benefit of the appellate court than for the lay jury.

The questioned instruction does attempt to imply that “bad purpose” may be an element of the crime by excluding from the meaning of “willful” “negligence, inadvertence or mistake or . good faith misunderstanding of the requirements of the law.” The instruction mentions that willful does include the wrongful purpose of deliberately intending not to file a return when the defendant knew she should file. However, the court prefaces this meaning by saying that “willfully” also means doing something “deliberately and intentionally, and without justifiable excuse.” Yet early in Murdock the Supreme Court observed that one who acts deliberately and intentionally and without legal justification must still be found not guilty if he did not possess, in addition, a state of mind which manifested a bad purpose or evil motive to violate the law. Murdock, 290 U.S. at 397-98, 54 S.Ct. 223.

Here the defendant attempted to justify her failure to file her returns because of the pressing demands of her public and private life. There is no doubt that she did not have a legal justification for failing to comply with the law. The jury was told that if it found the defendant did not have a justifiable excuse for failing to file this alone would be sufficient to convict her. Herein lies the prejudice. Under the charge the jury could have believed the reason Ms. Pohlman gave for failing to file, a reason which negates mens rea if believed, and yet have found her guilty. Their verdict could have resulted from a belief that, although this was the reason, it was not justifiable under the law. As discussed, more is required to be culpable under the statute. The jury must find that her failure to file arose from a bad motjve and evil intent to commit an illegal act, fully aware of her legal obligation to do otherwise.

Since bad purpose and evil motive are essential elements of willfulness under § 7203, we see no reason that the jury should be afforded the ambiguity of an instruction which possibly denotes otherwise. If these are essential elements of the misdemeanor the jury should be told so in plain and unambiguous terms. As this court reaffirmed in United States v. Achtenberg, 459 F.2d 91 (8th Cir.), cert. denied, 409 U.S. 932, 93 S.Ct. 229, 34 L.Ed.2d 187 (1972):

“Obviously, if the jury is to function effectively, it must be given a clear statement of each element which the Government must prove. The elements, as expressed in the statute, are hardly set forth with sufficient clarity to permit the jury to perform its duty intelligently. . . . ”

Id. at 97, quoting from Jackson v. United States, 121 U.S.App.D.C. 160, 348 F.2d 772, 774 (1965).

Judgment reversed and remanded for a new trial.

      . Ms. Pohlman contends the trial court erred in permitting Agent Engelmann to relate the conversation which occurred in her office on October 3, 1972, during which she admitted not having filed the returns since she was not informed of her constitutional right to remain silent prior to the conversation. She was not in custody, however, at the time of the conversation and we have frequently held that no warning need be given during a noncustodial investigation. See United States v. MacLeod, 436 F.2d 947, 950 (8th Cir.), cert. denied, 402 U.S. 907, 91 S.Ct. 1378, 28 L.Ed.2d 647, rehearing denied, 402 U.S. 990, 91 S.Ct. 1659, 29 L.Ed.2d 157 (1971); United States v. Brevik, 422 F.2d 449, 450 (8th Cir.), cert. denied, 398 U.S. 943, 90 S.Ct. 1861, 26 L.Ed.2d 279 (1970); Ping v. United States, 407 F.2d 157 (8th Cir. 1969); Muse v. United States, 405 F.2d 40, 41 (8th Cir. 1968), cert. denied, 393 U.S. 1117, 89 S.Ct. 992, 22 L.Ed.2d 122 (1969); Cohen v. United States, 405 F.2d 34, 35-40 (8th Cir. 1968), cert. denied, 394 U.S. 943, 89 S.Ct. 1274, 22 L.Ed.2d 478 (1969). See also cases cited at 405 F.2d 37 n. 7.

      . The defendant was fined a total of $1500.00 and placed .on probation for two years.

      . The requested instruction was:
      2. Willfulness is an essential element of the crime of which defendant is charged in the indictment. An act is done “willfully” if done purposely with the specific intent to disregard the law, or to do that which the law forbids, and further means an act done with a bad purpose, the existence of specific wrongful intent, and evil motive at the time the crime charged was committed; mere laxity, careless disregard of duty imposed by law, or even gross negligence, unattended by “evil motive,” is not probative of willfulness.

      . This instruction is taken, with minor changes, from 2 Devitt & Blackmar, Federal Jury Practice and Instruction § 52.31 (1970).

      . The full instruction in Lumetta, however, was later disapproved in a post-Bishop case since it erroneously embodied Murdock language which allowed a definition of willfulness to include “careless or reckless disregard.” See United States v. Bengimina, 499 F.2d 117 (8th Cir. 1974).

      . In this circuit, we have recently held that furnishing written instructions to the jury lies within the discretion of the trial court. See, United States v. Johnson, 466 F.2d 537 (8th Cir. 1972), cert. denied, 409 U.S. 1111, 93 S.Ct. 921, 34 L.Ed.2d 693 (1973).

      . In setting this meaning off from the rest of the instruction the court uses the disjunctive “or”.

      . A much preferable instruction is found in another recent Ninth Circuit case, United States v. Klee, 494 F.2d 394 (9th Cir. 1974):
      The term willfully used in the statute which I have read to you, that is, referring to one who willfully fails to make such a return, means voluntary, purposeful, deliberate and intentionally [sic], as distinguished from accidental, inadvertent, or negligent.
      Mere negligence, even gross negligence, is not sufficient to constitute willfulness under the criminal law.
      The failure to make a timely return is willful if the defendant’s failure to act was voluntary and purposeful, and with the specific intent to fail to do what he knew the law requires to be done; that is to say, with a bad purpose or evil motive to disobey or disregard the law which requires to (sic) file a timely return which discloses to the government facts material to the determination of his tax liability.
      There is no necessity that the government prove that the defendant had an intention to defraud it, or to evade the payment of any taxes, for the defendant’s failure to file to be willful under this provision of the law.
      On the other hand, the defendant’s conduct is not willful if you find that he failed to file a return because of negligence, inadvertence, accident or reckless disregard for the requirements of the law, or due to his good faith misunderstanding of the requirements of the law.
      494 F.2d at 395.

      . Although the defendant represented herself at the trial and in this court and was successful here, we strongly urge her to retain independent counsel in the event this matter is to be retried. The degree of personal involvement by a defendant-lawyer in a criminal proceeding makes it extremely difficult for that person to fairly and objectively evaluate the facts and legal issues. We are confident from the record presented that the defendant’s attempt to represent herself before the jury materially prejudiced her case. The written briefs and oral presentation made by the defendant in the present case were disorganized, confusing and difficult for this court to follow. In the event the defendant is without funds, she should investigate with the trial court the possible appointment of counsel under the Criminal Justice Act.


text:
    Raymond G. DeCHAMPLAIN, Appellant, v. Col. Hewitt E. LOVELACE, Jr., et al., Appellees.
    No. 74-1766.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 13, 1974.
    Decided Feb. 3, 1975.
    Rehearing and Rehearing En Banc Denied Feb. 14, 1975.
    Certiorari Granted June 2, 1975.
    See 95 S.Ct. 2392.

      Eric M. Lieberman, New York City, for appellant.
    Major Franklin A. Luna, Office of the Air Force Judge, Advocate Gen., United States Air Force, Washington, D. C., for appellees.
    Before LAY and BRIGHT, Circuit Judges, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   LAY, Circuit Judge.

The petitioner DeChamplain, an Air Force master sergeant, appeals from the denial of a writ of habeas corpus (alternatively designated as a writ of mandamus) in which he sought release from confinement pending retrial by court-martial on charges of espionage. The United States District Court for the Western District of Missouri, the Hon. William H. Becker presiding, denied the petition in an unreported opinion holding that neither the Eighth Amendment nor the Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 801 et seq., provide for release on bail of a serviceman pending court-martial, that a hearing on pretrial release was not required, and that confinement was reasonable in any event.

We find it unnecessary to pass on the Eighth Amendment challenge to the unavailability of bail under the UCMJ; we reverse the denial of the writ and remand to the district court for a hearing on pretrial release to be held before a neutral military officer or military judge.

DeChamplain has been deprived of his liberty since his arrest on July 2, 1971. Prior to his first trial, he was only restricted to the confines of Anderson Air Force Base on Guam. Since then, he has been held in prison-type cells, most recently at Richards-Gebaur Air Force Base in Missouri. He was ordered into confinement under Article 9 of the UCMJ, 10 U.S.C. § 809, which permits any commissioned officer to order an enlisted man arrested or confined on probable cause. The UCMJ does not provide any system of bail or a hearing on the possibility of pretrial release. The decision on whether and under what conditions to confine the accused pending court-martial in the Air Force is presently made ex parte by his commanding officer and, in eases of extended confinement, by the officer with authority to convene a general court-martial for that jurisdiction as well. The decision may be reviewed for abuse of discretion by the Court of Military Appeals.

Petitioner urges that this is a hollow procedure in most instances. He asserts that at no point is the accused afforded an opportunity to appear and present evidence on his behalf; he is limited to challenge by written petition after the initial decision has been made. Further, he states that the Court of Military Appeals has never found any confinement decision to be an abuse of discretion.

The threshold question we must resolve is the reach of the writ of habeas corpus over the proceedings of a court-martial. The UCMJ, promulgated in 1950 and amended in 1968 by the Military Justice Act, Pub.L.No. 90-632 (October 24, 1968), is a code governing all branches of the armed services. It defines offenses triable by courts-martial and the procedures to be followed by those courts. The jurisdictional base is not Article III of the Constitution but rather the Article I power of Congress to regulate the land and naval' forces.

Military law has been described by the Supreme Court as “a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.” Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 2556 (1974), quoting from Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953). In Burns, Chief Justice Vinson, in a plurality opinion (joined by Justices Reed, Burton and Clark), said:

The statute which vests federal courts with jurisdiction over applications for habeas corpus from persons confined by the military courts is the same statute which vests them with jurisdiction over the applications of persons confined by the civil courts. But in military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases. Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691 (1950). Thus the law which governs a civil court in the exercise of its jurisdiction over military habeas corpus applications cannot simply be assimilated to the law which governs the exercise of that power in other instances. It is sui generis; it must be so, because of the peculiar relationship between the civil and military law. 346 U.S. at 139-140, 73 S.Ct. at 1047.

However, Chief Justice Vinson then observed:

The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights. . . . [Wjhen a military decision has dealt fully and fairly with [a serviceman’s constitutional claim,] it is not open to a federal civil court to grant the writ simply to reevaluate the evidence. 346 U.S. at 142, 73 S.Ct. at 1048 (emphasis added).

Although there has been considerable academic debate about whether all, some or none of the Bill of Rights was originally intended to apply to armed forces personnel, there is almost no disagreement that the Due Process Clause binds the military, Burns v. Wilson, supra at 142—143, 73 S.Ct. 1045, and that through it, if not directly, other constitutional provisions apply. Daigle v. Warner, 490 F.2d 358, 364 (9th Cir. 1974). The highest military court, the Court of Military Appeals, has held that constitutional safeguards apply to courts-martial except where expressly or by necessary iim plication made inapplicable. United States v. Jacoby, 11 U.S.C.M.A. 428, 430-31, 29 CMR 244, 246-47 (1960).

The process of defining the constitutional protections afforded in the military is far from complete, and this past year’s Supreme Court decisions in Parker v. Levy, supra, and Secretary of the Navy v. Avrech, supra, shed little guidance on the matter other than reaffirming what was common ground in Burns v. Wilson, that while the Due Process Clause does protect soldiers, its content is different than in civilian life due to the institutional need for discipline. Thus, while entry into the service does not entail forfeiture of all the protections of the Bill of Rights, “the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty . ..” Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1048 (1953); accord, Parker v. Levy, supra; Kauffman v. Secretary of the Air Force, 135 U.S.App.D.C. 1, 415 F.2d 991, 997 (1969), cert. denied, 396 U.S. 1013, 90 S.Ct. 572, 24 L.Ed.2d 505 (1970); Gallagher v. Quinn, 124 U.S.App.D.C. 172, 363 F.2d 301, 304, cert. denied, 385 U.S. 881, 87 S.Ct. 107, 17 L.Ed.2d 108 (1966).

Adopting the recognition by the Military Court of Appeals in United States v. Jacoby, supra, of the military’s constitutional obligations, the District of Columbia Circuit Court of Appeals recently stated:

We hold that the test of fairness [a reference to the Burns v. Wilson “full and fair consideration” test] requires that military rulings on constitutional issues conform to Supreme Court standards, unless it is shown-that conditions peculiar to military life require a different rule. . . . Kauffman v. Secretary of the Air Force, supra, 415 F.2d at 997.

Under this principle, with which we are in accord, we deem servicemen to enjoy the same rights of due process as civilians unless the government demonstrates a need for a different rule in the military. •

We then move to the question of whether DeChamplain is entitled to a hearing on pretrial release before a neutral officer or military judge.

First, a fundamental component of due process is the presumption of innocence accorded the criminal defendant. In re Winship, 397 U.S. 358, 362, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Pretrial release has long been recognized as a vital concomitant of that presumption. If a person may arbitrarily be confined before his trial, then in truth punishment precedes conviction and the presumption of innocence avails defendant little. Stack v. Boyle, 342 U.S. 1, 4, 72 S.Ct. 1, 96 L.Ed. 3 (1951). Furthermore, the “traditional right to freedom before conviction permits the unhampered preparation of a defense . . ..” Id., see Hudson v. Parker, 156 U.S. 277, 285, 15 S.Ct. 450, 453, 39 L.Ed. 424 (1895); Kinney v. Lenon, 425 F.2d 209, 210 (9th Cir. 1970).

Whether the right to pretrial release is based on the Fifth Amendment guarantee of no deprivation of liberty without due process of law or on the Eighth Amendment’s prohibition of excessive bail, it clearly is not absolute in either the civil or military spheres. The government’s legitimate interest that those arrested on probable cause give reasonable assurance that they will appear for trial and submit to sentence if convicted must be weighed in the balanee. Stack v. Boyle, supra at 4, 72 S.Ct. 1; Ex Parte Milburn, 34 U.S. (9 Pet.) 704, 709, 9 L.Ed. 280 (1835). In Stack v. Boyle, the Court held that bail should be no higher than that necessary to reasonably assure the presence of the defendant, considered as an individual, at trial. 342 U.S. at 5-6, 72 S.Ct. 1. The UCMJ, while not providing a bail system, adopts a similar test for conditions of pretrial release. UCMJ Article 13 provides:

[N]o person, while being held for trial . may be subjected to punishment . . . other than arrest or confinement . . ., nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances require to insure his presence .

UCMJ Art. 13, 10 U.S.C. § 813. See also United States v. Blackwell, 19 U.S.C.M.A. 196, 41 CMR 196 (1970); United States v. Bayhand, 6 U.S.C.M.A. 762, 21 CMR 84 (1956).

While pretrial release is authorized by the UCMJ under apparently proper standards, the procedures for requesting release fail to comport with the minimum requirements of due process in three ways. First, the decision as to whether confinement is necessary is often made not by a neutral officer or judge but rather by the same officer who institutes the investigation and urges that the accused should be prosecuted. Only when confinement will last more than 30 days is the approval of the Convening Authority required. Second, the accused is not afforded a hearing at any time; his only recourse is a written challenge addressed to a superior of the officer ordering his confinement or the Convening Authority. Third, the burden of proof is placed on the accused; he is required to show why he should not be confined.

In civilian courts, it has long been the rule that neither an active participant in the prosecution nor the grand jury may be permitted to determine the availability of pretrial release. The Supreme Court noted with reference to parole revocations that “[t]he officer directly involved in making recommendations cannot always have complete objectivity in evaluating them.” Morrissey v. Brewer, 408 U.S. 471, 486, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484 (1972). In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), the Supreme Court voided a search warrant because it was signed by New Hampshire’s Attorney General who was actively involved in the investigation and was later the chief prosecutor at the trial. Id. at 450, 453, 91 S.Ct. 2022. The Court held that one so attached to the prosecution was per se disqualified from acting as the necessary “neutral and detached magistrate,” because “prosecutors and policemen simply cannot be asked to maintain the requisite neutrality with regard to their own investigations — the ‘competitive enterprise’ that must rightly engage their single-minded attention.” Id. at 450, 91 S.Ct. at 2030.

In prison disciplinary proceedings, where, as in the military, how much process is due depends upon special institutional needs for discipline and order, see Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the courts have universally condemned the practice of permitting the official who invokes the charges to sit on the reviewing committee. Finney v. Arkansas Board of Correction, 505 F.2d 194 (8th Cir. 1974); United States ex rel. Miller v. Twomey, 479 F.2d 701, 715-716 (7th Cir. 1973); Sands v. Wainwright, 357 F.Supp. 1062, 1084-1085 (M.D.Fla.), vacated, 491 F.2d 417 (5th Cir. 1973), cert. denied, Guajardo v. Estelle, 416 U.S. 992, 94 S.Ct. 2403, 40 L.Ed.2d 771 (1974); United States ex rel. Neal v. Wolfe, 346 F.Supp. 569, 574 — 575 (E.D.Pa.1972); Landman v. Royster, 333 F.Supp. 621, 653 (E.D.Va. 1971).

The danger that the “competitive enterprise” of law enforcement will make impartial evaluation of the evidence impossible and so deprive the accused of his liberty on arbitrary and improper grounds is just as great in the military. We conclude that the initial decision to confine pending trial must be made by an officer or military judge who is neutral and detached from the prosecution of the case.

Petitioner suggests that the Convening Authority should be disqualified from any part in this decision because it is he who determines whether or not a court-martial will be convened after the charges have been investigated. It is suggested that in this his. position is analogous to the grand jury in civilian courts. However, the grand jury, unlike the prosecutor, is barred from determining pretrial release because it is not permitted to hear evidence presented by the defense. Where that defect has been remedied, as it will be in the case of the Convening Authority under our holding today, a different rule is appropriate. We do not think that the responsibility of referring a case for trial to a court-martial in itself deprives the Convening Authority of the neutrality required by the Due Process Clause. Cf. Wallis v. O’Kier, 491 F.2d 1323, 1325 (10th Cir.), cert. denied, 419 U.S. 901, 95 S.Ct. 185, 42 L.Ed.2d 147 (1974).

However, the facts of a particular case may so actively involve an officer in the investigation and prosecution that his participation in the confinement decision would be improper. This would be the case, for example, whenever that person was the “accuser” in the case. The accuser is defined in the UCMJ as

a person who signs and swears to the charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused. UCMJ Art. 1(9), 10 U.S.C. § 801(9).

The UCMJ currently bars an accuser from serving as Convening Authority in that case, UCMJ Arts. 22(b), 23(b), and it prohibits any person from serving on a court-martial if he is the accuser, a witness for the prosecution, investigating officer,' or counsel in the same case. UCMJ Art. 25(d)(2), 10 U.S.C. § 825(d)(2). In the instant case the dismissal of the habeas petition was without an evidentiary hearing, so we do not have a sufficient record before us to permit determination of whether the Convening Authority here may be permitted to rule on pretrial detention.

Second, we conclude that the accused serviceman must be afforded an opportunity, before or within a reasonable time after he is ordered into confinement, to appear before a neutral officer or judge and present evidence relevant to the necessity for confinement before trial. The right to be heard is fundamental to due process. Morrissey v. Brewer, supra; Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). While “it is true that the Due Process Clause does not require a hearing ‘in every conceivable case of government impairment of private interest,’ ” Wolff v. McDonnell, supra at 557, 94 S.Ct. at 2975, quoting Cafeteria & Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 894, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), it cannot be denied where the interest involved is the severe deprivation of pretrial liberty. Cf. Hagopian v. Knowlton, 470 F.2d 201 (2d Cir. 1972) (cadet must have due process hearing before Army can expel him from West Point); Committee for G.I. Rights v. Callaway, 370 F.Supp. 934, 941 (D.D.C.1974) (hearing required before soldiers can be deprived of liberty or otherwise administratively sanctioned). At least one circuit has held that civilians are constitutionally entitled to a hearing on pretrial release in bailable cases. Heikkinen v. United States, 208 F.2d 738, 742 (7th Cir. 1953); see also United States v. Gilbert, 425 F.2d 490 (D.C.Cir. 1969); cf. Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974) (three-judge) (due process hearing required before involuntary civil commitment); Moss v. Weaver, 383 F.Supp. 130 (S.D.Fla.1974) (in non-bailable juvenile cases, no detention without probable cause hearing).

And finally, we conclude that due process requires the government to bear the burden of proving the necessity for confinement or lesser restrictions pending trial. While the appellant properly bears the burden of proof on appeal, before the initial decision is made the government should have to justify-any curtailment of liberty since the accused is presumed innocent. See Stack v. Boyle, supra at 5-6, 72 S.Ct. 1; Tot v. United States, 319 U.S. 463, 469, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). If release is not granted, the decision-maker should provide the accused with a short statement in writing of the basis for the decision. Cf. Wolff v. McDonnell, 94 S.Ct. at 2963; Morrissey v. Brewer, supra at 489, 95 S.Ct. 2593.

The Air Force has not demonstrated that “conditions peculiar to military life require a different rule” or that the military will be prejudiced by granting a prompt hearing on pretrial release to the accused.

The denial of the writ of habeas corpus is vacated and the proceedings are remanded to the district court with directions to enter an order within five days of the issuance of this court’s mandate directing defendant Lovelace, DeChamplain’s Convening Authority, to produce petitioner before a neutral officer or military judge within 15 days of the district court’s order; at that time petitioner is to be granted an evidentiary hearing under UCMJ Art. 13 relevant to whether or not petitioner is entitled to pretrial release under appropriate conditions. Upon failure of the military authority to follow the district court’s directive, the district court shall issue the writ of habeas corpus granting petitioner pretrial release.

It is so ordered. The mandate shall issue forthwith.

      . The history of DeChamplain’s arrest and prosecution presents an interesting chapter in the annals of military justice. DeChamplain was arrested by the Air Force on July 2, 1971, for allegedly attempting to deliver classified defense documents to Soviet agents in Thailand. In November 1971, a general court-martial convicted him of violating three sections of the UCMJ: (1) UCMJ Art. 81, 10 U.S.C. § 881, conspiring to communicate classified information to an agent of a foreign government; (2) UCMJ Art. 92, failing to obey an Air Force regulation; and (3) UCMJ Art. 134, copying and attempting to deliver classified documents affecting national defense to unauthorized persons. Those convictions were reversed, however, by the Air Force Court of Military Review on October 5, 1972. That court found, and the Court of Military Appeals affirmed the ruling, that DeChamplain’s purported confession had been coerced and should have been suppressed. United States v. DeChamplain, ACM 21034, 46 CMR 784 (1972), aff’d, 22 U.S.C.M.A. 150, 46 CMR 150 (1973).
      In May 1973, the Air Force decided to retry DeChamplain. The new trial has not yet been held, however. On November 13, 1973, the District Court for the District of Columbia enjoined further prosecution of DeChamplain on some of the charges because UCMJ Art. 134 had recently been declared unconstitutional by two United States Court of Appeals. See DeChamplain v. McLucas, 367 F.Supp. 1291 (D.D.C.1973). The decisions holding Art. 134 unconstitutional, both of which have been reversed, are Levy v. Parker, 478 F.2d 772 (3d Cir. 1973), rev’d, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), and Avrech v. Secretary of the Navy, 155 U.S.App.D.C. 352, 477 F.2d 1237 (1973), rev’d, 418 U.S. 676, 94 S.Ct. 3039, 41 L.Ed.2d 1033 (1974). Although the United States Supreme Court has reaffirmed the constitutionality of Article 134, prosecution is still barred by another provision of the district court’s order which enjoins the Air Force from proceeding on any of the charges until it grants DeChamplain and his civilian defense counsel discovery of all documents material and relevant to the case. The government appealed this order on the ground that, due to the nature of the documents, discovery would pose a danger to national security. The appeal from this portion of the injunction was argued before the Supreme Court on December 9, 1974, but no decision has yet been announced.

      . The term “bail” is used herein to denote release conditioned on the defendant posting financial security which will be forfeited if he fails to appear for trial. Pretrial release can, of course, be permitted on the defendant’s personal recognizance or on other non-financial conditions as well.

      . Under the UCMJ, any officer may order an enlisted man into arrest or confinement upon probable cause, although persons charged with minor offenses to be tried by summary court-martial are normally not confined. UCMJ Arts. 9, 10, 10 U.S.C. §§ 809, 810. No provision is made for a hearing on the question of pretrial' release, but the approval of the Convening Authority, that is, the officer with power to convene a general court-martial for the jurisdiction under UCMJ Art. 22, 10 U.S.C. § 822, must be secured if confinement is to exceed 30 days. Department of Defense Instr. 1325.4 (October 7, 1968). Thus, confinement is ordered initially by the officer determining the need to investigate the charges and is subject to review by the officer whose duty it will be to refer the case to the court-martial for trial. See Manual for Courts-Martial, United States, Ch. V, fl 21(b), (c) (Rev. ed. 1969).

      . DeChamplain did file a written challenge to the confinement decision, and since that decision was affirmed, he has filed four petitions for relief before the United States Court of Military Appeals, all of which have been denied. In addition, he has filed several admin-petitions, known as “complaints of wrongs,” pursuant to UCMJ Article 138. See note 10, infra. In each case, the requested relief was ultimately denied chiefly on the ground that the seriousness of the offense sufficed to show that confinement was necessary to assure his presence at trial. DeChamplain also applied under UCMJ Article 39(a), 10 U.S.C. § 839(a), to the military judge before whom his charges are pending, but the judge refused a hearing on the ground that he lacked power to review a confinement decision. The Court of Military Appeals affirmed the dismissal of his petition on the ground that the Convening Authority had not abused his discretion in refusing pretrial release. Chief Judge Duncan concurred in the result, but he did state that he disagreed with the military judge’s ruling that he lacked the authority to order the accused released from confinement. DeChamplain v. Lovelace, 23 U.S.C.M.A. 35, 48 CMR 506 (1974).
      DeChamplain then sought release outside of military channels. Pursuant to a suggestion in Chief Judge Duncan’s concurring opinion that the appropriate course would be to apply to the civil court having jurisdiction of DeChamplain’s action for an injunction, he filed a habeas petition with the United States Court of Appeals for the District of Columbia Circuit. This was denied without prejudice for failure to proceed first in the district court. When the petition was filed in the district court, it was denied without opinion on the ground that the District Court for the Western District of Missouri, the district in which DeChamplain was confined, was the only one having jurisdiction. DeChamplain v. Secretary of the Air Force, Civ.No. 1863-73 (D.D.C. May 6, 1974).

      . Justice Frankfurter dissented from the result in Burns, wanting reargument. He did, however, concur in the reasoning of the plurality that civilian federal courts could examine constitutional issues in military habeas cases:
      The right to invoke habeas corpus to secure freedom is not to be confined by any a priori or technical notions of “jurisdiction.” See my dissent in Sunal v. Large, 332 U.S. 174, 184, 67 S.Ct. 1588, 1593, 91 L.Ed. 1982. And so, if imprisonment is the result of a denial of due process, it may be chai

        lenged no matter under what authority of Government it was brought about. Congress itself in the exercise of the war power “is subject to applicable constitutional limitations.” Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194. It is therefore not freed from the requirements of due process of the Fifth Amendment. . . . 346 U.S. at 148-149, 73 S.Ct. at 1052 (emphasis added).

      . See, e. g., Henderson, Courts-Martial and the Constitution: The Original Understanding, 71 Harv.L.Rev. 293 (1957) (arguing that several provisions were intended to protect soldiers); contra Wiener, Courts-Martial and the Bill of Rights: The Original Practice, 72 Harv. L.Rev. 1, 266 (1958).

      . Chief Justice Warren has written:
      I suppose it cannot be said that the courts of today are more knowledgeable about the requirements of military discipline than the courts in the early days of the Republic. Nevertheless, events quite unrelated to the expertise of the judiciary have required a modification in the traditional theory of the autonomy of military authority.
      These events can be expressed very simply in numerical terms. A few months after Washington’s first inauguration, our army numbered a mere 672 of the 840 authorized by Congress. Today, in dramatic contrast, the situation is this: Our armed forces number two and a half million; every resident male is a potential member of the peacetime armed forces; such service may occupy a minumum of four per cent of the adult life of the average American male reaching draft age; reserve obligations extend over ten per cent of such a person’s life; and veterans are numbered in excess of twenty-two and a half million. When the authority of the military has such a sweeping capacity for affecting the lives of our citizenry, the wisdom of treating the military establishment as an enclave beyond the reach of the civilian courts almost inevitably is drawn into question.
      Warren, The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181, 187-88 (1962) (footnotes omitted).

      . Since the petitioner could be ordered released on his own recognizance or subject to various non-financial restrictions, it is not necessary to decide whether the Eighth Amendment requires consideration of release conditioned on the posting of monetary security.

      . See note 3 supra.

      . The accused may challenge the decision to confine him by filing a written petition under UCMJ Article 138, which provides:
      Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings had thereon. 10 U.S.C. § 938.
      Confinement decisions are reviewed only to determine if there has been an abuse of discretion. See DeChamplain v. Lovelace, 23 U.S.C.M.A. 35, 37, 48 CMR 506, 508 (1974); Catlow v. Cooksey, 21 U.S.C.M.A. 106, 108, 44 CMR 160 (1971). If the Article 138 peti-
      tion is denied, the accused may address a petition for extraordinary relief to the Court of Military Appeals, under the All Writs Act, 28 U.S.C. § 1651. See Catlow v. Cooksey, supra at 108.

      . As Justice Jackson observed in his concurring opinion in Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1 (1951):
      It is not the function of the grand jury to fix bail . .. Since the grand jury is a secret body, hearing no evidence but the prosecution’s, attended by no counsel except the prosecuting attorneys, it is obvious that it is not in a position to make an impartial recommendation.

        Id. at 9-10, 72 S.Ct. at 6 (emphasis added).

      . Since the Bail Reform Act of 1966, 18 U.S.C. § 3146 et seq., provides for such hearings in federal cases, there has been little litigation of the constitutional requirements. Offenses triable by court-martial are expressly not subject to the Act, however. 18 U.S.C. § 3152(2).

      . The Supreme Court has recognized that the Due Process Clause requires the government to bear this burden in a criminal trial:
      In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome. . . . There is always in litigation a margin of error, representing error in factfinding. Where one party has at stake an interest of transcending value — as a criminal defendant his liberty — this margin of error is reduced as to him by . placing on the other party the burden of producing a sufficiency of proof in the first instance .. Due process commands that no man shall lose his liberty unless the Government has borne the burden of producing the evidence .

      Speiser v. Randall, 357 U.S. 513, 525-526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958) (emphasis added).

      . It is noteworthy in this regard that the Army has voluntarily adopted a program whereby pretrial detainees are brought before Military Magistrates within seven days of their initial confinement. The magistrate may order the prisoner released and if he does so, the prisoner may not be returned to confinement before trial except for a new offense or on the basis of newly discovered evidence. If the magistrate refuses release, then he must review the need for confinement of each prisoner not less than every two weeks until pretrial confinement is terminated. The magistrate must also prepare a written checklist of the reasons why he refused release and the alternatives to confinement that he considered and found inadequate. While the program is currently mandatory only at Army installations with more than 50 pretrial detainees, other installations are required to review their procedures with a view to adopting the program. See Military Magistrate Program, Army Regulation 27-10, Change 13 (September 9, 1974); id. Message Change (October 17, 1974); Letter from Department of the Army, Office of the Judge Advocate General to All Army Staff Judge Advocates, August 5, 1974.
      We of course express no opinion on the adequacy of the Army’s program to fulfill the requirements of the Due Process Clause. However, we find its voluntary adoption to be persuasive evidence that no undue interference with the legitimate institutional needs of the military will result from our holding.
      Further evidence that we impose no improper burden is the relatively small number of pretrial detainees in the armed forces. We are informed that the total number of pretrial detainees in all commands of the Army and Air Force was recently:
      Month Air Force Army
      August 1974 97 1989
      September 1974 89 1752
      October 1974 88 1202
      Letter from Franklin A. Luna, Major, USAF, to Robert C. Tucker, Clerk, United States Court of Appeals for the Eighth Circuit, January 17, 1975.


author: PER CURIAM:

text:
    David O’REILLY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and International Association of Machinists and Aerospace Workers, AFL—CIO, Local Lodge No. 504, Intervenor. MORTON SALT COMPANY, a division of Morton International, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, and International Association of Machinists, Oakland Lodge No. 284, International Association of Machinists and Aerospace Workers, AFL-CIO, Intervenor.
    Nos. 26892, 71-1853.
    United States Court of Appeals, Ninth Circuit.
    Jan. 17, 1975.
    J. Richard Thesing (argued), Littler, Mendelson & Fastiff, San Francisco, Cal., for petitioner in 26892.
    Robert M. Lieber (argued), Littler, Mendelson & Fastiff, San Francisco, Cal., for petitioner in 71 — 1853.
    Joseph E. Mayer, Atty., NLRB (argued), Washington, D. C., for respondent in 26892 and 71-1853.
    Bernard Dunau (argued), Washington, D. C., for intervenor in 26892 and 71— 1853.
    Before CHAMBERS and BROWNING, Circuit Judges, and SHARP, District Judge.

       The Honorable Morell E. Sharp, United States District Judge for the Western District of Washington, sitting by designation.

   OPINION

PER CURIAM:

The Supreme Court vacated the judgments in these cases and remanded them for reconsideration in light of N.L.R.B. v. Boeing Company, 412 U.S. 67, 93 S.Ct. 1952, 36 L.Ed.2d 752 (1973). Machinists and Aerospace Workers Local 504 v. O’Reilly, 414 U.S. 807, 94 S.Ct. 36, 38 L.Ed.2d 43 (1973).

In No. 71 — 1853, we continue to adhere to those portions of our opinion, reported at 472 F.2d 416 (9th Cir. 1972), holding that the Board properly defined the issues before it and that the “no-strike” provision of the collective bargaining agreement had no application to the honoring of a sister union’s lawful picket line.

As for the other issue in the case, the Supreme Court has settled that it is not within the purview of the Board’s responsibility to review the reasonableness of disciplinary fines imposed by unions upon their members. N.L.R.B. v. Boeing Company, supra.

Accordingly, the petition to review the order of the National Labor Relations Board is denied.

In No. 26,892, the single issue presented is that which is now concluded by Boeing. Therefore, the petition to review the order of the National Labor Relations Board is denied.


author: GURFEIN, Circuit Judge:

text:
    Ralph LASH and Betty A. Lash, Plaintiffs-Appellees, v. J. J. NEWBERRY COMPANY, Defendant-Appellant.
    No. 77, Docket 73-2117.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 14, 1974.
    Decided Jan. 10, 1975.

      R. Joseph O’Rourke, Rutland, Vt. (Ryan, Smith & Carbine, Rutland, Vt., on the brief), for defendant-appellant.
    David L. Cleary, Barre, Vt. (Richard E. Davis Associates, Inc., Barre, Vt., on the brief), for plaintiffs-appellees.
    Before MEDINA, FRIENDLY and GURFEIN, Circuit Judges.
   GURFEIN, Circuit Judge:

Appellant J.J. Newberry Co. appeals from a jury verdict awarding damages to appellees Betty and Ralph Lash for injuries sustained when Mrs. Lash slipped and fell on ice on the public sidewalk abutting appellant’s property in Barre, Vermont. Since appellees are citizens of Vermont and appellant is a citizen of Delaware, the case was properly within the diversity jurisdiction of the District Court under 28 U.S.C. § 1332. Vermont’ law governs the questions on appeal.

Appellant maintains a store on one of the main streets of Barre. A broad sidewalk slopes gently down from appellant’s store; it is owned by appellant to a point halfway between the store and the curb, and by the City between that point and the curb. Several years ago, the sidewalk was repaved by the City, with costs shared equally between the City and appellant.

The public portion of the sidewalk has been maintained by the City alone, but both owners have cooperated in the past to keep the entire sidewalk unobstructed in bad weather. Thus, by custom, when it snowed, the City would plow both portions of the sidewalk and sometimes salt it. Appellant would shovel the entire sidewalk, piling snow into a low “dike” near the curb, and salt it when the City failed to do so. Sometimes, salt applied by either the City or appellant would melt the snow on the sidewalk, so that water would run down from the portion of the sidewalk owned by appellant onto that portion owned by the City. The evidence showed that appellant was aware that depressions existed in the public portion of the sidewalk in which water would occasionally collect and freeze.

Two days before Mrs. Lash’s fall, it had rained and then become very cold. Snow began to fall on the evening preceding the accident and continued into the early morning hours. Later that morning, the City plowed the sidewalk. Still later, around 8:00 A.M., appellant’s store manager arrived at work and shoveled off the excess snow left behind by the snowplow. No salt was applied. Sometime thereafter, there may have been a rather light snow fall, but there was a conflict of testimony on this.

In the early afternoon, appellee Mrs. Lash crossed the street in the middle of the block, arriving at a point nearly opposite the entrance to appellant’s store. Piled on the curb was a “dike” of snow about eight inches high and eight wide. Stepping over this low impediment, appellee placed her foot on what appeared to be snow but was in fact a patch of ice covered by a thin layer of snow. She slipped, fell and sustained the injuries complained of in this case. Her fall occurred on the municipal portion of the sidewalk.

At trial, the district judge charged the jury that they could find appellant liable if they determined that appellant had breached its duty of care owed as “a reasonably prudent man” to Mrs. Lash and that the breach of care proximately caused her injury. He then charged more specifically that in determining whether appellant had exercised reasonable care, the jury could consider appellant’s conduct under two alternative theories of negligence: 1) breach of an abutter’s duty to keep his property from becoming a source of danger to users of the public way, or 2) violation of a local ordinance forbidding private property owners from depositing snow or ice on public sidewalks, which violation would be prima facie evidence of negligence. After the charge on negligence was limited to these two theories, there was no further charge that the jury could find the defendant liable if its agent had piled snow over an ice pocket already formed in a manner that the jury could find to have been negligent. This alternative theory was simply never put to the jury, and we must assume that their verdict rested on either of the two theories on which they were instructed. We hold that the judge’s charge contained reversible error and we remand for a new trial.

In charging the jury on the first theory of liability, the court stated that one whose land abuts on a public way owes a duty to users of that way to keep his property from becoming a source of danger to them. Specifically, an abutter must “keep it from becoming a source of danger through any defect, either in the construction, use, or maintenance of his rented property, so far as the exercise of the care of a prudent person can guard against such danger.” The court charged that an abutter must guard against the possibility that water running off his property could cause danger to the public. An abutter is bound to acknowledge the severity of Vermont winters and thus to realize that water running off his property might pool in sidewalk depressions, freeze, and thereby endanger the safety of passers-by.

Counsel for appellant objected to this charge, on the ground that there was no evidence to indicate that the ice upon which Mrs. Lash had fallen resulted from a discharge of water from appellant’s property. In his objection, counsel specifically called to the attention of the court that there was no evidence that the piece of ice on which the appellee claimed to have fallen was the result of “improper discharge” of water from the appellant’s property. The court then recharged the jury, acknowledging the lack of evidence as to discharge of water, but allowing the jury “to determine whether the evidence permits the inference that the snow melted or ran off from the slope from the entranceway to the Newbury [sic] Company and collected in puddles of the water [sic].” He concluded this additional charge by saying, “It is for you to say if there is water which collected in pools and if so, where it came from.” By posing the question, the court was telling the jury that if they found the “pools” were formed by water that “came from” the appellant’s sidewalk, they could find liability.

Still later, in response to a question from the jury, the court once again described to them the nature of the abutter’s duty: “He must exercise due care to prevent snow either in an actual state of snow or as melted snow, from running off store property and collecting on the public way, in such a manner as to cause danger to public users of the sidewalk.” Once again, appellant’s counsel objected to the charge.

The court’s theory of negligence as expressed in his charge was apparently based on the leading Vermont case, Murray v. Nelson, 97 Vt. 101, 122 A. 519 (1923). In Murray, defendant maintained a water pipe which, being improperly insulated, burst and discharged water onto a public sidewalk. Plaintiff slipped on the resulting ice patch and was allowed to recover from defendant. The Murray court used the broad language used by the district court below, stating that an abutter must maintain his property so that it does not become a source of danger to users of the public way. But it added “[i]f he artificially collects upon his own premises a substance which, from its nature, is liable to escape and do damage to others, he must use due care to restrain it, and is liable for damages resulting from his failure to do so.” 122 A. at 520-521.

Appellant contends that the crucial word in that passage is “artificially” and that the district court erred in failing to distinguish a case in which the dangerous condition is created by “artificial” use of the land, causing discharge onto a public way, from a case in which the flow of water is the result of a natural configuration of the property. Although we have been able to find no Vermont case denying an abutter’s liability on the ground that danger on adjoining public land was created by a “natural” condition on the abutter’s land, we believe that a Vermont court, reasoning from the language in Murray quoted above, would distinguish between “artificial” and “natural” conditions and hold an abutter responsible only for the former.

We base this holding in part on the law of other jurisdictions. The predominant rule is that an abutter is found liable only if he maintains an artificial structure, such as a drainpipe, that channels water onto public land in an uneven fashion so that it is more likely to pool and to freeze. That is, the effect of his action must be to alter natural runoff so as to create a new sort of danger. Annot., 18 A.L.R.3d 428, 432-36, 441-45, 463 — 69 (1968). Man-made structures such as an embankment or driveway are considered to be natural conditions so long as they allow a more or less even runoff and do not create an unusually large channel for water discharge. Id. at 463-64, 466-67.

The judge’s failure to instruct the jury on the difference between a natural and an artificial condition maintained on an abutter’s land cannot be termed harmless error. Testimonial and photographic evidence suggests that the slight slope of the sidewalk in front of appellant’s store does not constitute a channel through which an unusual amount of water from rain or melted snow might run down onto the public portion of the sidewalk. The jury might well have found that the private portion of the sidewalk, although man-made, is a natural feature of appellant’s property. In that case, appellant would have no duty as an abutter on a public way to see that water running off this part of his land did not collect and freeze in depressions on the City’s half of the sidewalk.

The difficulty is that the jury was allowed to find that if water ran down from the abutter’s land due to perfectly natural cause to form ice, and the plaintiff slipped, the defendant is liable. We see no escape from the conclusion that this is precisely what the jury could have found upon the instructions given. If this be so, we have no choice but to send the case back for a new trial under proper instructions.

The second theory on which the court charged was based on the existence of a Barre city ordinance, which forbids a private landowner from shoveling or depositing snow or ice from his property onto public sidewalks. The ordinance does not provide explicitly that civil liability may be premised on its violation. Nevertheless, appellees contended below that under applicable principles of Vermont law they could establish appellant’s negligence by showing that appellant had violated the ordinance. Specifically, appellees attempted to prove that appellant’s store manager had, in fact, shoveled snow from appellant’s portion of the sidewalk onto the patch of ice on the City’s portion, in violation of the ordinance, thus creating the danger that resulted in Mrs. Lash’s fall.

Appellant argues that prima facie negligence results from violation of an ordinance only if it is what is called a “safety ordinance,” and that this ordinance is not of that kind, but rather was enacted to save the City the added expense of clearing snow which originally fell on private grounds but was subsequently shoveled on to public sidewalks or streets. We think the ordinance was for the benefit of the public as well as for the purpose of saving money for the City. We accordingly reject appellant’s argument.

It is true that most of the Vermont cases in which civil plaintiffs have been allowed to prove negligence by showing a defendant’s violation of a statute or ordinance have involved traffic regulations. Larmay v. Van Etten, 129 Vt. 368, 278 A.2d 736 (1971); Smith v. Grove, 119 Vt. 106, 119 A.2d 880 (1956); Shea v. Pilette, 108 Vt. 446, 189 A. 154 (1937). And some language in those opinions may be read to imply that civil liability may be premised only on the violation of “safety” rules such as those involved in such cases. See Larmay v. Van Etten, supra, 278 A.2d at 738-739; Smith v. Grove, supra, 119 A.2d at 883, 884. However, no attempt has been made to define the meaning of “safety” in contexts other than traffic ordinances.

On the other hand, in Stark v. First National Stores, 117 Vt. 231, 88 A.2d 831 (1952), plaintiff asserted the right to prove defendant negligent based on his violation of an ordinance very similar to that involved in this case. The ordinance required a property owner whose land abutted a public sidewalk to maintain a guard on his roof to prevent ice and snow from falling on the sidewalk. As in this case, the ordinance did not explicitly provide that its violation would result in civil liability to those injured thereby. Without mentioning the term “safety,” the court held that plaintiff had stated a valid cause of action. We hold that whether the Vermont court intended in Stark to expand the concept of “safety” or to create a new category of enactment on which civil liability might be premised, the holding is controlling in this case. The trial judge was correct in instructing the jury that violation of the ordinance may properly be used to establish a prima facie case of negligence.

The effect of such violation is not as radical, however, as the Judge’s charge stated it to be. He said:

“If you find that the defendant did violate [the ordinance], it becomes prima facie evidence of negligence and if you so find, then the burden shifts to the defendant, that is, the burden of proof shifts to the defendant, to persuade you, by a preponderance of the evidence, that the violation of the ordinance was not an important factor, was not a proximate cause of the fall which the plaintiff, Betty Lash, sustained.”

The court’s statement was inadvertently deficient in two respects, probably because of the failure of the parties to submit written requests to charge. First, it neglected to point out that under Vermont law, a defendant has the right to introduce evidence to rebut the presumption of negligence established by proof that he has violated an enactment. Second, it misstated Vermont law by saying that after the plaintiff has shown a violation, the burden of proof on the issue of proximate cause shifts to the defendant. We believe that on these two issues, the court misapplied the law of Vermont.

Under the Vermont cases, the effect of proof of violation of an ordinance .is limited. Such proof establishes defendant’s negligence only prima facie, shifting the burden of going forward on the issue of negligence to the defendant. Larmay v. Van Etten, supra, 278 A.2d at 738-739; Smith v. Grove, supra, 119 A.2d at 883-884; Stark v. First National Stores, supra, 88 A.2d at 833; Shea v. Pilette, supra, 189 A. at 155-156; Landry v. Hubert, 101 Vt. 111, 113, 141 A. 593, 594 (1928). The defendant may thus introduce evidence to prove either that he did not in fact violate the ordinance or that his violation was not in fact negligent under the circumstances of the case (as here, where, according to appellant, the nature of the weather conditions prior to the accident raised issues of “excuse”). The burden of proving proximate cause remains with the plaintiff.

Appellee contends, however, that appellant neglected to object to the district judge’s charge on the effect of the ordinance and thereby failed to preserve its point for appeal.

Neither party, as we have seen, submitted written requests to charge. In a discussion with counsel before making his charge, the judge informed them that he would charge the jury on the ordinance. He told counsel that he would instruct the jury that if they found that defendant had violated the ordinance, plaintiff would have established a prima facie case of negligence, thus shifting to the defendant the task of rebutting the presumption. And he would also charge that defendant’s evidence might show “that [violation] had nothing to do with the injury' which the plaintiff sustained.”

Appellant’s counsel objected that this ordinance was not a safety ordinance, but did not object to the proposed content of the charge, which stated correctly that the presumption of negligence was rebuttable.

Though the judge gave counsel a preview of a proper charge in chambers, he inadvertently gave the improper charge in his actual instructions to the jury. In such circumstances it may be going too far to require counsel to except to a clearly erroneous charge when he had every reason to think a correct one would be given. Still an appellate court should exercise its discretionary power to review errors not saved by proper objection sparingly and only in exceptional instances. See, e. g., Dowell, Inc. v. Jowers, 166 F.2d 214, 221 (5 Cir.), cert. denied, 334 U.S. 832, 68 S.Ct. 1346, 92 L.Ed. 1759 (1948). While we have some doubt that the error in the charge on the ordinance, standing by itself, is of such exceptional character, nothing is lost by our considering it now since the case must be remanded in any event for a retrial because of the erroneous charge on an abutter’s liability. See Troup v. Chicago, D. & G. B. Transit Co., 234 F.2d 253, 260 (2 Cir. 1956).

In light of the foregoing, we are constrained to reverse the judgment of the District Court and to remand for a new trial.

      . Appellees have raised two arguments in support of the verdict for the first time on this appeal. First, they now contend that even a natural flow of water may give rise to liability if it is interrupted by a “retaining wall along the sidewalk” that plays a part in the formation of the icy conditions and that the snow dike at the curb created in part by appellant’s shoveling efforts is akin to such a “retaining wall.” We are not sure either of the validity of the legal argument or of what role such a snow dike would play in the accumulation of ice in admitted depressions in the public half of the sidewalk in this case. In any event such a novel theory should have been brought to the attention of the judge and, if he thought proper, the jury, rather than advanced on appeal as an alternative theory to support a finding of liability.
      Second, appellees now argue that an abutter who undertakes to clean off a public portion of sidewalk may be held liable for improper work that creates a hazard to passersby. See 39 Am.Jr.2d Highways § 517 at 919 (1968). Whether or not this proposition would be true as a matter of law in Vermont, the jury was not specifically instructed to consider whether liability here could be premised on such a theory, having before it instead another specific theory which we find erroneous. We cannot therefore uphold their verdict on the basis now asserted by appellees.

      . Barre, Vt., City Ordinances, Ch. XIV:
      “Sec. 1. No person, partnership or corporation shall throw, shovel, propel, deposit or cause to be thrown, shoveled, propelled or deposited, snow or ice from private property into the streets or public sidewalk.
      “Sec. 2. If snow or ice is thrown, shoveled, propelled or deposited on the street or public sidewalk from private property, the Superintendent of Streets shall remove such snow and ice at the expense and charge of the abutting property owner or tenant, which expense and charge may be recovered with full costs, in an action of contract in the name and behalf of the city, and the person, partnership, or corporation causing such snow or ice to be thrown, shoveled, propelled or deposited from private property onto the street or public sidewalk, shall be fined not less than five dollars nor more than fifty dollars.
      “Sec. 3. The Chief of Police shall promptly notify the Superintendent of Streets of any violation of the provisions of this chapter.”

      . Nor did he object to the somewhat vague indication that the judge intended to charge that a finding of violation of the statute would shift the burden of proof on proximate cause.


author: SETH, Circuit Judge. CHRISTENSEN, Senior District Judge

text:
    Robert K. WEARY and Dale J. Weary, Appellants, v. UNITED STATES of America, Appellee.
    No. 74-1079.
    United States Court of Appeals, Tenth Circuit.
    Jan. 15, 1975.
    Rehearing Denied March 20, 1975.
    Robert K. Weary, of Weary, Robertson, Schuley & Davis, Junction City, Kan., for appellants.
    William M. Brown, Atty., Tax Div., Dept, of Justice (Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and Bennet N. Hollander, Attys., Tax Div., Dept, of Justice, Robert J. Roth, U. S. Atty., of counsel, with him on the brief), for appellee.
    Before LEWIS, Chief Judge, SETH, Circuit Judge,' and CHRISTENSEN, Senior District Judge.
   SETH, Circuit Judge.

This is an action seeking a refund of income taxes paid by plaintiffs for 1966 and 1967. The claim relates to deductions made for travel expenses for medical care which were disallowed. In 1966 the deduction claimed was at the rate of ten cents per mile for the distance driven in the family car for medical treatment. In 1967 a deduction was claimed at the.rate of five cents per mile plus a pro rata part of the difference between the purchase price and the sale price of a ear bought and sold in 1967.

The Commissioner allowed only a deduction in each year of five cents per mile. The trial court upheld the position of the Commissioner, and the taxpayers have taken this appeal.

The case was presented on stipulated facts and there is no dispute as to the distance traveled during the year for medical treatment for Mrs. Weary, nor that it was for a deductible purpose (26 U.S.C.A. (I.R.C.1954) § 213(e)(1)(B)). The dispute centers on the rate per mile in 1966, and the use of the difference in the purchase and the sale price of the car in 1967. The taxpayers did not seek to substantiate any actual travel expense, but used the flat rates indicated, and in 1967 added the change in value of the car. At the times in question, Revenue Procedure 64 — 15 provided five cents per mile, in the absence of a substantiated actual amount, for medical expense deduction. The rate of ten cents per mile was then provided for business purpose use of a private car.

For 1966 the district court, as indicated, upheld the action of the Commissioner in allowing only five cents per mile as a deduction. The court reasoned that the Wearys had the burden of proving actual expenses beyond five cents per mile, which they had not done. Further the court pointed out that the case law holds that depreciation is not an “amount paid” under section 213. Maurice S. Gordon, 37 T.C. 986; Stanley G. Calafut, T.C. Memo 1964-239. Similarly under section 170, Orr v. United States, 343 F.2d 553 (5th Cir.), depreciation is not an “amount paid.” We must agree with this conclusion.

As to 1967, although there is a definite amount paid, the district court upheld denial of a deduction for the depreciation in value attributable to the medical purpose use of the car. The court felt that the loss on the sale of the car was a long term capital loss, section 1222(4), and under section 165 which governs deduction of losses, a personal loss such as this is not deductible. Also it held again that section 213 was not applicable to the depreciation. We agree with the trial court as to 1967 also.

The taxpayers’ position is that the term “amount paid” should be liberally construed to allow deduction of the entire cost of operating an automobile under section 213, as it is illogical to allow only part of the cost to be deducted for medical and charitable purposes, but allow all of the cost of operation of the car to be deducted for business purposes. Taxpayers argue that the Internal Revenue Service has established ten cents a mile as the entire cost of car operation, thus this amount should be allowed as a section 213 deduction for. 1966. Appellants rely in their brief on Cohan v. Comm’r, 39 F.2d 540 (2d Cir.). It is however well established that the business purpose per mile allowance includes depreciation. Thus again the issue before us centers on the matter of depreciation. As to 1967 taxpayers argue that they have actually paid $2,086.99 for the use of the car, and a proportionate amount of the difference between the purchase price and the sale price is therefore a proper deduction under section 213, since the statute only requires that there be an “amount paid” for medical transportation. They urge also that the sections governing depreciation (section 167) and capital loss on the sale of a personal asset (sections 165, 1222) are not applicable.

As to 1967 the value difference in the car at the purchase and at the sale can be nothing but depreciation. The traditional position of the Internal Revenue Service has been that depreciation is not an “amount paid,” for purposes of sections 213 and 170 of the 1954 Code, and is not part of the out-of-pocket expenses of car operation. Gordon and Calafut, supra; Revenue Ruling 58 — 279; Orr, supra. It would serve no purpose to review the analysis again in this opinion. The Supreme Court has recently held that depreciation is an “amount paid” for purposes of section 263 of the 1954 Code. Comm’r v. Idaho Power Co., 418 U.S. 1, 94 S.Ct. 2757, 41 L.Ed.2d 535. In that case Idaho Power Company had used its construction equipment in improving its own facilities. Thus a portion of the depreciation on such equipment could be attributed to the time spent in constructing capital improvements. Idaho Power sought to deduct this depreciation in the usual manner (section 167). There, however, the Commissioner argued that this portion of the depreciation was an “amount paid out” for capital improvements (section 263) and thus should be capitalized as a part of the cost of the improvement. The Tax Court upheld the Commissioner, and the Ninth Circuit reversed, holding that depreciation is not an amount paid out. The Supreme Court reversed, agreeing with the Commissioner.

It may be argued that the Idaho Power case provides authority for holding that depreciation is also an amount paid for purposes of section 213, as argued here by the taxpayers, but we do not agree that it is. In Idaho Power the question was one of the timing of a depreciation deduction, or depreciation now versus inclusion in capital improvements to be depreciated at a different rate. In this case the choice is between allowing and denying a deduction for depreciation as a medical expense. We will continue to adhere to the authorities referred to above and hold that depreciation is not an amount paid within the meaning of section 213. The amount so claimed as a deduction in 1967 was thus properly disallowed. The paid out for capital improvements in Idaho Power as compared to the amount paid for medical services presents too great a difference to convince us that the established doctrine should be overturned.

As to 1966, taxpayers have presented no arguments which persuade us that the Gordon and Calafut authority should not be followed. Since actual expenses for 1966 have not been proved, and the ten cent figure claimed included depreciation, taxpayers are entitled to deduct only five cents per mile under Revenue Procedure 64 — 15.

The judgment of the district court is affirmed.

CHRISTENSEN, Senior District Judge

(dissenting):

I agree with the prevailing opinion that plaintiffs-appellants were not entitled to recover for the taxable year 1966, since technically the expenses in dispute for medical care based on depreciation of the automobile were not “paid during the taxable year”.

As to 1967, I think Commissioner v. Idaho Power Co., 418 U.S. 1, 94 S.Ct. 2757, 41 L.Ed.2d 535 (1974), controlling in principle against the position of the government here.

Previous to the years in suit it was necessary for the wife of the taxpayer to be hospitalized for some seven months in the psychiatric unit of the Kansas University Medical Center in Kansas City, Kansas, since she was suffering from a severe depression which had become psychotic. Upon her release by the hospital it was necessary for her to continue treatment in an outpatient status by making trips each week to Kansas City from Junction City, Kansas, during both 1966 and 1967, for the purpose of filling appointments with her doctor, a psychiatrist on the staff of the Medical Center. On January 2, 1967, the taxpayer and his wife purchased a 1967 Ford LTD 4-door sedan at a cost of $4,386.99. This car was used by Mrs. Weary for her medical travel to Kansas City during the year 1967 and primarily for this purpose. The approximate total number of miles driven in this car in 1967 was 30,000 miles; the car was sold back to the motor company on December 30, 1967, at a price of $2,300.00. For 1967 the taxpayer deducted for federal income tax purposes $2,696.16 as medical transportation expense, represented by five cents per mile for mileage driven together with less than 70% ($1,343.16) of the difference between the purchase and the selling price of the automobile. While the precise number of miles the car was utilized for other purposes is not revealed by the record, it appears clear that the total depreciation of $2,086.99 was more than fairly discounted on account of any other possible use to reach the taxpayer’s “payment” claim of $1,343.16. The prevailing opinion accepts the fact that “there is no dispute as to the distance traveled during the year for medical treatment for Mrs. Weary, nor that it was for a deductible purpose (26 U.S.C.A. (I.R.C.1954) § 213(e)(1)(B))”. Cf. Orr v. United States, 343 F.2d 553 (5th Cir. 1965) at 558, which indicates that the disallowance turned more on the inadequacy of proof than upon the nature of the claim.

The controlling statute, 26 U.S.C. § 213, provides that “[t]here shall be allowed as a deduction the following amounts . . . (1) the amount by which the amount of the expenses paid during the taxable year . . . for medical care of the taxpayer, his spouse exceeds 3 percent of the adjusted gross income . . . (e)(1) [t]he term ‘medical care’ means amounts paid . . . (B) for transportation primarily for and essential to medical care . . ..”

Because non-business depreciation is not deductible as an “amount paid” for purposes of Sections 213 and 170 of the 1954 Code does not mean that depreciation actually paid in the taxable year involved under the circumstances of this case is not deductible under Section 213. If the car had been rented for the purpose, the government concedes that the amount paid for this rental would be deductible; it seems probable that such rental would have exceeded the amount claimed and paid by virtue of the depreciation, plus the five cents per mile allowed. It seems excessively grudging against the taxpayer to ignore the realities of the actual payment during the single taxable year by applying rigidly a rule adopted for the purpose of other sections of the Code in disregard of the different context of Section 213.

In Idaho Power, supra, “[t]he taxpayer asserts that its transportation equipment is used in its ‘trade or business’ and that depreciation thereon is therefore deductible under § 167(a)(1) of the Code. The Commissioner concedes that § 167 may be said to have a literal application to depreciation on equipment used in capital construction . . . but contends that the provision must be read in the light of § 263(a)(1) which specifically disallows ' any deduction for an amount ‘paid out for new buildings or for permanent improvements or betterments’.”

The provisions of Section 213(a)(1) concerning the amount of expenses paid during the taxable year for medical care of the taxpayer or his spouse for similar reason should be given effect.

In Idaho Power there was “no question that the cost of the transportation equipment was ‘paid out’ in the same manner as the cost of supplies, materials, and other equipment, and the wages of construction workers. ... In acquiring the transportation equipment, taxpayer ‘paid out’ the equipment’s purchase price; depreciation is simply the means of allocating the payment over the various accounting periods affected.”

And the established depreciation in the case at bar was similarly “paid” as a medical expense “during the taxable year”.

For the reasons indicated, and since I see no justification in view of Idaho Power to endow the government with a “heads it wins, tails they lose” position in the treatment of depreciation under the circumstances of this case, I respectfully dissent.