author: SIMPSON, Circuit Judge:

text:
    Isabella SELLERS, wife of/and Lawrence Paul Randall, et al., Plaintiffs-Appellees-Cross-Appellants, v. Morton WOLLMAN, Individually and as President of Tri-State Contracting Co., et al., Defendants-Appellants-Cross-Appellees.
    No. 73-3953.
    United States Court of Appeals, Fifth Circuit.
    March 24, 1975.

      Richard J. Boutall, Metairie, La., for defendants-appellants.
    Bernette Joshua Johnson, Joseph W. Thomas, New Orleans, La., for plaintiffsappellees.
    Before AINSWORTH, GODBOLD and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

The plaintiffs below, Isabella and Lawrence Randall, Daisy and Jeffie Hookfin, and Earline and Edward DeGree sued Morton Wollman and his corporation, Tri-State Contracting Co., Inc. (Tri-State) for statutory damages and costs and attorney’s fees for violations, arising out of contracts for the repair and remodeling of their homes, of the Federal Consumer Protection Act, Title 15, U.S. C., Secs. 1601 et seq., popularly referred to as the Truth-in-Lending Act, and Regulation Z, 12 C.F.R., Sec. 226, promulgated pursuant to Title 15, U.S.C., Sec. 1604. The complaint charged that the defendants failed to notify them of their right to rescind, required by Sec. 1635 in situations where a security interest will be acquired on the consumer’s residence, and failed to disclose the annual percentage rate on the credit extended them, as required by Title 15, U.S.C., Sec. 1638. Although the DeGrees exercised their statutory right to rescind, they sought a damage award of $300 for aggravation of a nervous condition suffered by Mrs. DeGree as a result of their attempt to cancel the contract. The Randalls and Hookfins asserted unawareness of their right to rescind at the time of signing the contracts and sought rescission and $600 and $800 monetary damages, respectively, for structural damage allegedly caused to their homes by the defendants in the performance of the contracts.

Tri-State and its president Wollman counterclaimed against the Randalls for work done under the remodeling contract alleging satisfactory performance, for recovery of the contract price and 20% attorney’s fees as the contract provided. The Randalls interposed two defenses; (i) that the contract was illegal for failure to obtain the building permit required by New Orleans City Ordinance 17, 525, C.C.S., in Part III, Ch. 2, Art. 201; and (ii) that it was void because defendants fraudulently misrepresented that the Randalls would be reimbursed for the work by the Community Improvement Agency.

The district judge after a bench trial entered judgment for the Randalls for $600 and costs, for the Hookfins for $800 and costs, dismissed the DeGree complaint at their cost for failure to prove any monetary loss, and denied plaintiffs’ request for an award of attorney’s fees. The defendants’ counterclaim was not mentioned in the judgment. No findings of fact and conclusions of law were filed in support of the judgment, as required by Rule 52(a), F.R.Civ.P.

Both sides have filed appeals, plaintiffs asking an increased monetary award and reversal of the denial of attorney’s fees, and Wollman and Tri-State seeking favorable consideration of their counterclaim.

In the absence of findings and conclusions we are left to speculation as to the basis for judgment, necessitating vacation and remand for compliance with Rule 52(a).

The purpose of that rule iterated by the courts and unnecessarily frustrated in this case,

“is to aid the appellate court by affording it a clear understanding of the ground or basis of the decision of the trial court”. 2B Barron & Holtzoff, Federal Practice & Procedure Sec. 1121, p. 481 (Wright ed. 1961); see 5 Moore, Federal Practice Sec. 52.06[1], p. 2653 (1964).

S. S. Silberblatt, Inc. v. United States of America, for Use and Benefit of Lambert Corp., 5 Cir. 1965, 353 F.2d 545, 549. The disagreement of the parties as to the basis for the district court’s judgment demonstrates the insurmountable difficulties facing a court attempting the review of a judgment lacking the necessary undergirding of findings and conclusions.

The homeowner appellees assert that the district court granted rescission and actual damages but erroneously failed to award statutory damages under Title 15, U.S.C., See. 1640. They contend that attorney’s fees, authorized by Sec. 1640(a)(2), were refused solely because their attorney was salaried by legal aid, an improper ground for denial under the developing case law in this field and under related statutes. See Jones v. Seldon’s Furniture Warehouse, E.D.Va.1973, 357 F.Supp. 886.

Wollman and Tri-State contend that the district court did indeed award Sec. 1640 statutory damages to the Randalls and Hookfins and that their pursuit of such relief was an election which precluded an award of rescission and consequent actual damages. Similarly, rescission by the DeGrees precluded awarding them statutory damages. Because they view Sec. 1640 relief as inconsistent with rescission, the defendants argue further that the district court’s grant of relief to the Randalls under Sec. 1640 affirmed the validity of the Randall contract and hence entitled them to recover on their counterclaim. The failure of the district court to provide such relief is attributed to confusion over the issues in litigation.

Without findings of fact and conclusions of law (or a memorandum incorporating them, Rule 52(a)), we can only speculate which, if either, is the correct view of the basis for judgment below. There is no clue within the four corners of the bare judgment. The district judge may have intended to grant rescission and award the Randalls and Hook-fins actual damages under Sec. 1635 but have believed an award of Sec. 1635 relief precluded relief under Sec. 1640, as defendants contended. See Bostwick v. Cohen, N.D.Ohio 1970, 319 F.Supp. 875, holding that Sec. 1640 is remedial in nature, not punitive, and that Sec. 1635 and Sec. 1640 provide for mutually exclusive remedies. This might also explain his refusal of relief to the DeGrees. Or, his view was perhaps that while Sec. 1635 relief does not automatically preclude Sec. 1640 relief this was not a proper case for the award of both. See Eby v. Reb Realty, Inc., 9 Cir. 1974, 495 F.2d 646, holding that the grant of both forms of relief rests within the discretion of the court. He may have intended to deny rescission to the Randalls and the Hookfins on state and federal grounds but to grant statutory damages under Sec. 1640. It is conceivable that he may have found no Truth-in-Lending violations but nevertheless ordered rescission on pendent state law grounds, either for fraud or for failure to obtain a building permit. He may have overlooked defendants’ counterclaim, found the contract vitiated for Truth-in-Lending or state law violations, or decided that performance of the contract was not substantial. Attorney’s fees may have been denied, as plaintiffs believe, because their attorney is a legal services lawyer, but they may also have been denied on discretionary grounds or because no violation of the Truth-in-Lending Act was proved.

We cannot determine, in a word, whether the judgment below was founded upon an erroneous or a correct view of state or federal law nor whether the record will support the factual basis for the decision. It is regrettable also that the parties failed to request compliance with Rule 52(a), so that the necessity for remand might be avoided. We vacate the judgment appealed from and remand the cause to the district court, which is directed to enter findings of fact and conclusions of law and judgment accordingly, upon this or a supplemented record.

Several observations may be of help to the district court on remand. Defendants have called into question the relationship of Secs. 1635 and 1640, contending that rescission under Sec. 1635 precludes the See. 1640 monetary award, relying upon Bostwick, supra. The district judge in Bostwick admittedly construed the statute in a manner most favorable to the extender of credit. The basis for decision was that a debtor is not aggrieved within the meaning of the statute where rescission is granted because he is not liable for any finance charges.

Our preliminary view is that the Bostwick opinion is not soundly reasoned and should not be followed in this circuit in cases where violations of the Truth-in-Lending Act are established. We recognize that rescission under traditional contract analysis is inconsistent with affirmance of the contract, and a court, therefore, may not allow rescission while granting the rescinding party the right to sue for its breach. See 28 C.J.S. Election of Remedies §§ 3a, 6. The two remedies are inconsistent and election between them must be made. We do not view Sec. 1640, however, as a remedy for breach of contract, designed to give the nonbreaching party the benefit of his bargain. The damage provision, providing minimum and maximum limits, is inconsistent with such a thesis. Rather, Sec. 1640 provides a “civil penalty”. Mourning v. Family Publications Service, Inc., 1973, 411 U.S. 356, 376, 93 S.Ct. 1652, 1664, 36 L.Ed.2d 318, 333-34. Accord, Eby v. Reb Realty, Inc., supra.

In addition, we have held that the Truth-in-Lending Act is to be construed liberally in favor of the consumer. Thomas v. Myers-Dickson Furniture Co., 5 Cir. 1973, 479 F.2d 740, 748.

Finally, the Bostwick court’s belief that the consumer is not an aggrieved debtor if he is not required to pay a finance charge is effectively undercut by the recent Supreme Court decision of Mourning v. Family Publications Service, Inc., supra. In Mourning, the four installment rule of Regulation Z, 12 C.F.R. Sec. 226.2(k), promulgated by the Federal Reserve Board was challenged as being outside the scope of the Board’s powers. In rejecting this challenge, the Supreme Court considered the argument that Sec. 1640, the “civil penalty” provision, is inapplicable “in cases where no finance charge is involved but where a regulation requiring disclosure has been violated,” and held that the imposition of the Sec. 1640 penalty was proper even where the finance charge was nonexistent or undetermined. 411 U.S. at 376, 93 S.Ct. at 1664, 36 L.Ed.2d at 333-34. It follows that, although a consumer is not forced to pay a finance charge because he has rescinded, he is not precluded from Sec. 1640 relief. Accord, Eby v. Reb Realty, Inc., supra.

To force an election between rescission under Sec. 1635 and recovery under Sec. 1640 undercuts the effectiveness of the act without furthering other policies:

The purpose of making creditors civilly liable is to force disclosure of credit' terms. The purpose of according borrowers a right of rescission is broader; not only is it designed to compel disclosure, but it also serves to blunt unscrupulous sales tactics by giving homeowners a means to unburden themselves of security interests exacted by such tactics. See 114 Cong.Rec. 1611 (1968) (remarks of Cong. Cahill). If borrowers were forced to choose their “remedies,” both objectives might -be undermined. To the extent that only civil liability is pursued, the sanction against unscrupulous home sales practices is weakened. To the extent that only rescission is chosen— where available — the penalty attendant upon nondisclosure will be less severe and, consequently, the incentive to disclose diminished. See Comment, Private Remedies Under the Truth-in-Lending Act: The Relationship Between Rescission and Civil Liability, 57 Iowa L.Rev. 199, 205-07 (1971). Eby, 495 F.2d at 652.

Where the notice provisions of the Act are violated, therefore, relief under both Sec. 1635 and Sec. 1640 is appropriate.

If the district judge determines that Wollman and Tri-State violated the Truth-in-Lending Act, plaintiffs should not be denied attorney’s fees because their attorney was employed by a legal aid society. Sec. 1640(a)(2) directs their award, and such an award is not contingent upon an obligation to pay an attorney, or the fact that no fee was charged. Thompson v. Madison County Board of Education, 5 Cir. 1974, 496 F.2d 682; Fairley v. Patterson, 5 Cir. 1974, 493 F.2d 598; Miller v. Amusement Enterprises, Inc., 5 Cir. 1970, 426 F.2d 534. See also Jones v. Seldon’s Furniture Warehouse, supra.

Vacated and remanded.

      . Named as defendants and later dismissed were United Credit Plan of New Orleans, Inc., and Anthony Love. Also sued were Sal Sabella and Clayton Pitre. Service was never made on Sabella and judgment by default was entered against Pitre.

      . The attorney for Tri-State wrote to the DeGrees threatening legal action unless they allowed performance of the contract or reimbursed Tri-State for expenses it incurred in preparing to perform its contract with them.

      . Work on the Randall home began the day after the contract was signed. Aluminum siding was installed and four inside rooms were paneled. One room remained to be paneled when work was stopped by a representative of the Community Improvement Agency, an agency whose approval was necessary before a building permit could be obtained, because defendants had failed to procure the requisite approval and permit. The Randalls sought $600 actual damages, alleging that the work done was defective and would have to be torn out.
      The Hookfin contract called for the addition of a room. Defendants began work within three days of signing the contract, and had torn out existing siding, the back steps, and a garage wall when a representative of the Community Improvement Agency stopped the work for lack of agency approval and a building permit. The Hookfins claimed $800 in actual damages.

      . The Randalls lived in an area scheduled for rehabilitation under an urban renewal project sponsored by HUD. It was testified that residents in that area could qualify for grants up to $3500, and financing at 3% for additional sums. Wollman allegedly represented to the Randalls that the money they spent under the contract would be reimbursed. The credit extended to them was secured and arranged by Wollman at an interest rate of 13.69%.


source: Caselaw Access Project

author: STEPHENSON, Circuit Judge.

license: Public Domain

text:
    Sara SUMMERS et al., Appellants, v. UNITED STATES of America et al., Appellees.
    No. 74-1672.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 9, 1975.
    Decided Feb. 5, 1975.

      J. D. Riffel, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, Mo., for appellants.
    Vernon A. Poschel, Asst. U. S. Atty., Kansas City, Mo., for appellees.
    Before BRIGHT, STEPHENSON and WEBSTER, Circuit Judges.
   STEPHENSON, Circuit Judge.

In this action in the district court, low-income purchasers of single-family dwellings sought damages and other relief against the United States and the Department of Housing and Urban Development for maladministration (negligent appraisals and inspections of dwellings) of two home mortgage insurance programs established under sections 203(b) and 221(d)(2) of the National Housing Act, 12 U.S.C. §§ 1709 and 17151 (d)(2). The district court denied their claim for damages under the Tucker Act, 28 U.S.C. § 1346(a)(2), under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), and under their claims to have enforceable federal rights as beneficiaries of the National Housing Act. The district court also denied mandamus and injunctive relief. We affirm on the basis of the district court’s well reasoned opinion, reported as Cason v. United States, 381 F.Supp. 1362 (W.D.Mo.1974), and for the further reason that after the district court’s opinion was filed, the Congress created an administrative remedy for the problems raised by appellants in this case.

On August 20, 1974, the Housing and Community Development Act was enacted. It amended section 518(b), 12 U.S.C. § 1735b(b), of the National Housing Act to provide compensation for defects in dwellings covered by a mortgage insured under sections 203 or 221(d)(2).

The 1974 amendment provides as follows:

COMPENSATION FOR DEFECTS
Sec. 306. Section 518(b) of the National Housing Act is amended to read as follows:
“(b) The Secretary is authorized to make expenditures to correct, or to reimburse the owner for the correction of, structural or other major defects which so seriously affect use and livability as to create a serious danger to the life or safety of inhabitants of any one or two family dwelling which is covered by a mortgage insured under section 235 of this Act or which is located in an older, declining urban area and is covered by a mortgage insured under section 203 or 221 on or after August 1, 1968, but prior to January 1, 1973, and which is more than one year old on the date of the issuance of the insurance commitment, if (1) the owner requests assistance from the Secretary not later than one year after the insurance of the mortgage, or, in the case of a dwelling covered by a mortgage insured under section 203 or 221 the insurance commitment for which was issued on or after August 1, 1968, but prior to January 1, 1973, not more than one year after the date of enactment of the Housing and Community Development Act of 1974, and (2) the defect is one that existed on the date of the issuance of the insurance commitment and is one that a proper inspection could reasonably be expected to disclose. The Secretary may require from the seller of any such dwelling an agreement to reimburse him for any payments made pursuant to this subsection with respect to such dwelling. Expenditures pursuant to this subsection shall be the obligation of the Special Risk Insurance Fund.”

It should be noted that in the latest amendment Congress chose to pay for the “correction of, structural or other major defects which so seriously affect use and livability as to create a serious danger to the life or safety of inhabitants of [dwellings covered].” The Supreme Court several years earlier in United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), had held that the Government was not liable under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), to an individual purchaser of a house who had relied upon an inaccurate FHA inspection and appraisal for federal mortgage insurance under section 226 of the National Housing Act, 12 U.S.C. § 1715q. The Court, in reviewing the legislative history of the National Housing Act, stated: “Never once was it even intimated that, by an FHA appraisal, the Government would, in any sense, represent or guarantee to the purchaser that he was receiving a certain value for his money.” 366 U.S. at 709, 81 S.Ct. at 1301. In Davis v. Romney, 490 F.2d 1360, 1372 (3rd Cir. 1974), the Court of Appeals observed with respect to the statute here in controversy: “We are unable to find that § 221(d)(2) was designed to protect plaintiffs [insured owners],” and it noted that the legislative history and the wording of the section in question “support the government’s contention that the provision was intended to assure the United States of adequate security for the mortgages FHA insured.”

The relief provided by the Congress in the 1974 amendment to section 518(b) has been criticized as inadequate. A fair reading of the statute indicates relief is restricted to “major defects.” But the Congress, having acted in the face of judicial precedent and considerable experience by HUD in the administration of the Act, has provided an exclusive remedy for aggrieved parties. It is not our prerogative to command further relief. National Railroad Passenger Corp. v. National Assn, of Railroad Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 38 L.Ed.2d 646 (1973); United States v. King, 395 U.S. 1, 23 L.Ed.2d 52, 89 S.Ct. 1501 (1965). It should also be noted that when Congress adopted the 1974 amendment, it did not alter that part of the statute which provides that the Secretary’s decisions regarding payments under the Act shall not be subject to judicial review. See 12 U.S.C. § 1735b(c).

Affirmed.

      . The complaint Below sought relief for homeowners who purchased both under section 203 (12 U.S.C. § 1709) and section 221(d)(2) (12 U.S.C. § 17151(d)(2)) of the National Housing Act. On this appeal relief is sought only for those who purchased under section 221(d)(2).

      . The Act formerly provided compensation for defects in dwellings covered by a mortgage insured under section 235 only. Act of Dec. 31, 1970, Pub.L.No. 91-609 § 104, 84 Stat. 1770.

      . Pub.L.No. 93-383 § 306, 88 Stat. 678.

      . Note, Federal Compensation for Victims of the “Homeownership for the Poor” Program, 84 Yale L.J. 294 (1974).

      . 12 U.S.C. § 1735b(c) is as follows:
      The Secretary shall by regulations prescribe the terms and conditions under which expenditures and payments may be made under the provisions of this section, and his decisions regarding such expenditures or payments, and the terms and conditions under which the same are approved or disapproved, shall be final and conclusive and shall not be subject to judicial review.


author: PER CURIAM:

text:
    Application of Randolph PHILLIPS.
    Docket 74-2309.
    United States Court of Appeals, Second Circuit.
    Jan. 10, 1975.
    Before FEINBERG, MULLIGAN and GURFEIN, Circuit Judges.
   PER CURIAM:

Phillips, a litigant pro se in a matter that was decided by this court in 1968, has now brought what purports to be a motion requesting this court to require a lawyer, who was his adversary in the prior appeal, “to show cause why he should not be suspended or disbarred as a member of the bar of this Court.” The charge is that the putative respondent stated ex parte to a then active judge of this court that his client preferred that the judge not sit upon the panel in the prior appeal. The judge, after consultation with his colleagues, did not recuse himself. There is no allegation that the lawyer attempted to discuss the merits of the case with the judge.

We note first that a private person or a lawyer has no standing to participate in a disciplinary proceeding. Mattice v. Meyer, 353 F.2d 316 (8 Cir. 1965) cert. denied, 383 U.S. 939, 86 S.Ct. 1073, 15 L.Ed.2d 856 (1966); Ginsburg v. Stern, 125 F.Supp. 596, 603 (W.D.Pa.1954), aff’d, 225 F.2d 245 (3 Cir. 1955) (en banc). Even if we treat Phillips in the status of a complainant, we test whether the allegation is sufficient to require any further action by this court on his “request that, pursuant to Rule 46(b) of the Federal Rules of Appellate Procedure” the putative respondent “be suspended or disbarred.” We find that the ex parte communication of a suggested recusal which is alleged here is not of sufficient substance to merit suspension or disbarment of the lawyer. Cf. Cooke v. United States, 267 U.S. 517, 533, 45 S.Ct. 390, 69 L.Ed. 767 (1925). Therefore, we conclude that a hearing would be unproductive of the result the complainant seeks.

We note that under rule 46(c) of the Rules of Appellate Procedure, a sanction less severe than suspension or disbarment may be imposed, and such a sanction might be appropriate in other circumstances. Mr. Phillips, however, specifically seeks the suspension or disbarment of his former opponent. Under all the circumstances, the information tendered to the court is insufficient to justify the sanctions sought, especially in view of the lapse of more than six years since the action of the lawyer which is the subject of the complaint. With similar considerations in mind, we decline to treat the information, as we might in our own motion, as the basis for proceeding further under Rule 46(c).

We do not suggest that ex parte communications to a judge should be encouraged. We hold merely that no further action is justified in this case.

This opinion has been circulated to and approved by all the active members of this court, with the exception of two members who disqualified themselves.


author: GEWIN, Circuit Judge:

text:
    James Faldon TURNBOW, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
    No. 74-2593.
    United States Court of Appeals, Fifth Circuit.
    March 24, 1975.
    Rehearing Denied May 9, 1975.
    James Faldón Turnbow, pro se; Ted Redington, Staff Counsel for Inmates, Texas Dept, of Corrections, Huntsville, Tex., for petitioner-appellant.
    John L. Hill, Atty. Gen., Max P. Flusche, Jr., Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

      Before GEWIN and SIMPSON, Circuit Judges, and NICHOLS, Associate Judge.

       Of the U. S. Court of Claims, sitting by designation.

   GEWIN, Circuit Judge:

This appeal marks the third time that this court has considered the contentions of appellant James Faldón Turnbow in his efforts to secure the relief afforded by the writ of habeas corpus. Turnbow was convicted of rape on July 18, 1957; the trial jury set his punishment at ninety-nine years confinement. When the trial judge formally sentenced him two weeks later, neither of his court-appointed attorneys was present. He did not appeal from the judgment of conviction. Finding merit in his contention on the instant appeal, we vacate the order of the district court and remand.

Turnbow’s first three federal habeas applications were denied by the district court without evidentiary hearings. On appeal from the denial of the third federal habeas corpus petition, this court held that Turnbow had alleged a new and untested ground for relief, an abridgment of his right to a direct criminal appeal in forma pauperis, and remanded the cause for determination of whether the contention had been deliberately withheld in his previous federal habeas petitions. Turnbow v. Beto, 464 F.2d 527 (5th Cir. 1972). On remand, the district court denied relief on the basis of the following findings of fact:

(1) Petitioner did not deliberately withhold from his earlier applications for the writ of habeas corpus his contention that his right to appeal in for-ma pauperis had been abridged; (2) the judge of the trial court did not advise Petitioner of his right to appeal in forma pauperis; (3) Petitioner’s appointed counsel did advise Petitioner of his right to appeal and had advised him that they would represent him on appeal without compensation if he desired to appeal the conviction; (4) Petitioner was not represented by counsel at sentencing; (5) at the time of sentencing Petitioner knew that he had a right to appeal and knew that the appointed attorneys would represent him if he desired to appeal; and (6) Petitioner at no time advised any responsible state official that he desired to appeal.

This court affirmed the district court’s holding that Turnbow had not been denied the right to appeal because of his indigency. However, at that time, we did not reach the claim that the absence of counsel at sentencing was violative of his Sixth Amendment right to counsel because this issue had never been presented to the Texas state court. Turnbow v. Beto, 477 F.2d 1151 (5th Cir. 1973).

After receiving no relief upon this latter claim in the state forum, Turnbow returned to federal district court. He contended that his Sixth Amendment right to counsel had been violated when the state trial judge pronounced his jury-assessed sentence in the absence of court-appointed counsel. Respondent countered by arguing that the function of the trial judge at the sentencing proceeding was merely ministerial and mechanical since the sentence had been determined by the jury and, therefore, Turnbow had not been harmed by the absence of counsel. The trial court agreed and dismissed the habeas corpus petition. This appeal ensued. It is our conclusion that there was, in fact, a violation of Turnbow’s Sixth Amendment right to counsel.

Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), established that an indigent defendant is entitled to the appointment of counsel ’“at every stage of a criminal proceeding where substantial rights . . . may be affected.” 389 U.S. at 134, 88 S.Ct. at 257, 19 L.Ed.2d at 340. Sentencing is often a critical stage at which the right of an accused to counsel is deemed to be of fundamental importance. Indeed, Mempa dealt specifically with sentencing proceedings. McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968), gave Mempa retroactive effect.

In the case at hand, the sentence was determined and set by the convicting jury. The trial judge had no authority to vary the sentence in any respect. However, pursuant to Art. 42.03, Vernon’s Ann.Code Crim.Proc., the trial judge had the discretionary power to grant credit for the approximately seven months that Turnbow had spent in jail awaiting trial and sentencing. The possibility that this discretion might have been exercised in favor of Turnbow was sufficient to create a situation at the sentencing stage in which his “substantial rights” might have been affected. The presence of this discretionary power prevents us from accepting respondent’s argument that the sentencing proceeding was totally ministerial and mechanical.

In a case which is substantially identical in many respects to the present case, Ex parte Vestal, 468 S.W.2d 372 (1971), the Texas Court of Criminal Appeals ordered the conviction set aside because Vestal’s attorney was not present at sentencing. There is, however, one salient distinction between the Vestal case and the case under consideration. It appears that Vestal was denied the right to appeal because his attorney, who was not present at sentencing, failed to file the necessary notice of appeal within ten days after sentencing. There is no similar prejudice in the instant case. In a previous proceeding, we held that Turn-bow had not been deprived of his right to appeal. Turnbow v. Beto, 477 F.2d 1151 (1973). In response to questioning by the court at oral argument, counsel for Turnbow stated that the only apparent prejudice which Turnbow could have suffered by the absence of counsel was the failure to request credit for time spent in jail before trial and sentencing. As we have said, the granting of credit was within the discretion of the trial judge. There is no indication that a request for credit was made or that the trial judge considered the matter.

At oral argument and in a post-argument supplemental brief, the state of Texas asserts that, if this court orders that Turnbow be resentenced with counsel present, the result would be a new trial some 18 years after the original conviction. The reason for this is: re-sentencing would revive the time for filing a notice of appeal; if á notice of appeal is filed, appellant would be entitled to a transcript of the trial proceedings; it would be impossible to provide a transcript since the reporter is dead and the stenographic notes are destroyed and, therefore, the only recourse for the state would be to grant appellant a new trial. Counsel for Turnbow initially disagreed with the position that a new trial would result from resentencing but, in a post-argument brief, responds that a new trial may be necessary in some, though not all, cases of this nature. Finally, he makes the following assertion:

But the determination that a sentence is invalid because of absence of counsel certainly does not automatically yield a new trial. Resentencing of the defendant with counsel is sufficient in those cases where a defendant’s rights were not irretrievably prejudiced by the absence of counsel at that critical stage. Whether the remedy of resentencing is adequate to restore those rights is a decision that can best be made, in the first instance, by the trial court.

Supplementary Brief for Appellant p. 3.

We do not think that a new trial is necessary to cure the harm caused to Turnbow by the absence of counsel at sentencing. In the habeas petition under consideration, there is no charge that the trial was constitutionally infirm; rather, Turnbow challenges only the sentencing proceeding at which he was unassisted by counsel. Based upon a full review of the record and the contentions of the parties in written briefs and at oral argument, the only prejudice we are able to detect which possibly resulted from the absence of counsel at sentencing is that Turnbow did not request credit for the time spent in jail prior to trial and sentencing. The state of Texas offers to grant Turnbow credit for the time served and suggests that this court order the state to do so.

While we are reluctant to interfere with state sentencing procedure, it is our duty on a federal habeas proceeding to insure that state criminal proceedings conform to federal constitutional standards. United States ex rel. Radich v. Criminal Court of City of New York, 459 F.2d 745 (2d Cir. 1972); cert. denied, 409 U.S. 1115, 93 S.Ct. 893, 34 L.Ed.2d 698 (1973); Worts v. Dutton, 395 F.2d 341 (5th Cir. 1968); United States ex rel. Seals v. Wiman, 304 F.2d 53 (5th Cir. 1962), cert. denied, 372 U.S. 924, 83 S.Ct. 741, 9 L.Ed.2d 729 (1963). It is our conclusion that, in the circumstances of this case, it is appropriate for this court to remedy the only prejudice Turnbow has shown as a result of the absence of counsel at sentencing and to accept the suggestion of the state that Turnbow be given credit for the time he spent in jail pending trial and sentencing. Accordingly, the order of the district court is vacated and set aside and the district court is directed to enter an order directing the state of Texas to give Turnbow credit on his sentence for the time he spent in jail prior to trial and sentencing and, upon its failure to do so within thirty days, the Writ of Habeas Corpus shall be issued as sought. When credit for the time in question is given, the Writ shall be denied.

Vacated and remanded with directions.

      . In those petitions, appellant had contended: (1) he was forced to sign a confession; (2) he was subjected to cruel and unusual punishment because of beatings he received from the arresting officers and the jail inmates; (3) he was arrested without a warrant; (4) he was denied the right to confront witnesses against him; (5) he was denied an examining trial; (6) he was denied counsel for almost four months; (7) his appointed counsel was ineffective; (8) he was denied a fair trial because of prejudicial publicity; and (9) perjured testimony was used to secure his conviction.

      . On June 8, 1973, the state trial court denied appellant’s application for writ of habeas corpus, apparently concluding that appellant had been thoroughly apprised of his right to appeal and was not harmed by the absence of counsel at sentencing. The Texas Court of Criminal Appeals on October 3, 1973, affirmed the denial on the findings of the trial court without a written order.

      . In a post-argument memorandum the state makes the following suggestion:
      “. . . Appellee submits that this Court could remedy any possible harm that could have resulted to the appellant in the instant case by ordering appellee to credit appellant with the time spent in jail prior to trial.”


author: SWYGERT, Chief Judge. TONE, Circuit Judge, with whom FAIRCHILD, Circuit Judge,

text:
    Anthony John WARTMAN and Patricia Ann Wartman, Plaintiffs-Appellants, v. BRANCH 7, CIVIL DIVISION, COUNTY COURT, MILWAUKEE COUNTY, STATE OF WISCONSIN and Milwaukee Mutual Insurance Company, Defendants-Appellees.
    No. 73-2117.
    United States Court of Appeals, Seventh Circuit.
    Submitted Oct. 17, 1974.
    Decided Feb. 6, 1975.

      Anthony John Wartman, pro se.
    Gerard Paradowski, Asst. Corp. Counsel, Milwaukee, Wis., for defendants-appellees.
    Before SWYGERT, Chief Judge, and FAIRCHILD and TONE, Circuit Judges.
   SWYGERT, Chief Judge.

We consider this appeal, pursuant to Fed.R.App.P. 2, on the basis of the briefs and record alone, and without oral argument.

Plaintiffs allege in a pro se complaint that defendants insurance company and court violated the Seventh Amendment because plaintiffs were denied a jury trial in a suit brought against them in the Wisconsin state court by the insurance company.' The district court granted plaintiffs leave to proceed in forma pauperis and, on the court’s own motion, dismissed the complaint. Thus, the case was dismissed without the issuance of summons in contravention of our recent decision in Nichols v. Schubert, 499 F.2d 946 (7th Cir. 1974).

We note that some difficulties may have resulted from the failure of Nichols to discuss United States ex rel. Morris v. Radio Station WENR, 209 F.2d 105 (7th Cir. 1953). Radio Station WENR held that in determining whether to allow a complaint to be filed in forma pauperis under 28 U.S.C. § 1915(a) a district court should not consider the merits of the claim, but should grant the motion to proceed in forma pauperis if the affidavit of indigency is sufficient. We went on to hold that the question of whether the complaint presented a meritorious claim could then be examined and the action dismissed pursuant to 28 U.S.C. § 1915(d) if found to be frivolous or malicious. The problem is that under the recent decision in Nichols the dismissal of a complaint under such circumstances is prevented until summons has issued in accordance with Fed.R.Civ.P. 4(a). The result of these two decisions is that a district judge must allow an indigent plaintiff the right to have summons issue at no cost no matter how meritless the cause of action may be. Such a result cannot have been intended by either decision.

The question before us then is whether we were correct in our previous holding that section 1915(a) does not give a district judge the discretion to consider the frivolity or malice of an action when ruling upon a motion to proceed in forma pauperis. A close reading' 'of the language of section 1915(a) would support the conclusion that the merits of the claim are to be examined when making the initial determination of whether to grant leave to proceed in forma pauper-is. The use of the word “may” indicates that the district judge has some degree of discretion in deciding whether to allow such a motion. This discretion must surely go to the issue of whether the claim is frivolous or malicious, since the only other criterion is the factual determination relating to indigency and on the question of indigency there can be no discretion. Indeed, section 1915(a) requires that the affidavit submitted shall “state the nature of the action.” This requirement would be unnecessary if the merits of the case are irrelevant to a section 1915(a) inquiry.

Admittedly, section 1915(d) contains a specific reference to the problem of a malicious or frivolous action and states that the proper procedure is to dismiss, which implies that the case has already been filed. This does not necessarily indicate, however, that the only method of dealing with a frivolous or malicious complaint is to allow leave to proceed in forma pauperis and then dismiss the action. Section 1915(d) can be read to mean (we think correctly) that even though an initial examination did not result in a finding of frivolity or malice, if it should later be determined that the action is frivolous or malicious there may be a dismissal of the complaint. This interpretation is strongly supported by the additional language of section 1915(d) which allows dismissal “if the allegation of poverty is untrue,” despite the fact that the indigency question is also cognizable under section 1915(a). The two conditions go hand-in-hand.

Support for our interpretation of the statute can also be found in history. The legislation which, slightly modified, is now section 1915 was enacted in 1892 and was apparently modeled on the old English Statute of Henry VII (Act, 1494, II Hen. 7, c. 12). One of the rules of court implementing this statute required from at least 1744 on that a person seeking admission to sue in forma pauperis have an attorney certify that petitioner “hath good Cause of Action.” Thus, the proposition that the merit of an action should be considered before allowing a suit to be prosecuted in forma pauperis had deep historical roots by the time our federal statute was enacted.

The leading Supreme Court opinion interpreting the statute in question is Kinney v. Plymouth Rock Squab Co., 236 U.S. 43, 35 S.Ct. 236, 59 L.Ed. 457 (1915). There the issue was whether the plaintiff would be allowed to proceed in the Supreme Court in forma pauperis. In discussing the original language of this statute, which did not encompass appellate proceedings, the Court stated:

Prior to the amendment of 1910, on the face of the statute three things were certain: (a) that the statute imposed no imperative duty to grant a request to proceed as a poor person, but merely conferred authority to do so when the fact of poverty was established and the case was found not to be frivolous; that is, was considered to be sufficiently meritorious to justify the allowance of the request;

The Court then said that the 1910 amendment, which added defendants and appeals to the statute’s coverage, did not alter this discretion to consider the merits at the initial stage. A separate section allowing the dismissal of a frivolous or malicious action was a part of the statute at that time and, though the language of the statute has changed since Kinney v. Plymouth Rock Squab Co., there is no indication that Congress meant to change this aspect relating to a preliminary consideration of the merits of a forma pauperis complaint.

The cases in the other circuits have generally not explored our specific problem in any depth, and in some instances unrecognized inconsistencies appear to exist. In Prince v. Klune, 80 U.S.App. D.C. 31, 148 F.2d 18 (1945) the District of Columbia Circuit held that the statute was not meant to allow the privilege of commencing without cost a suit plainly without merit. It should be noted, however, that the opinion was based on an interpretation of the language of the statute which at that time contained the phrase “entitled to commence any suit or action.” Moreover, a more recent case in that circuit appears to adopt the opposing view. Fulwood v. Clemmer, 111 U.S.App.D.C. 184, 295 F.2d 171, 172, n. 1 (1961).

The Fifth Circuit has implicitly approved the practice of denying leave to proceed in forma pauperis when the action is frivolous or malicious. Startti v. United States, 415 F.2d 1115 (5th Cir. 1969) . This is probably also the view of the Sixth Circuit as expressed in Loum v. Underwood, 262 F.2d 866 (6th Cir. 1959), although a later case did quote language referring to the dismissal of frivolous or malicious actions, in addition to quoting Loum. Foster v. United States, 344 F.2d 698, 699 (6th Cir. 1965).

The Eighth Circuit has squarely held that the preferable procedure is to allow a case to be filed in forma pauperis and then dismiss it if it is frivolous or malicious. Cole v. Smith, 344 F.2d 721, 723 (8th Cir. 1965). The rationale for this position is that it allows a complete record of the proceedings to be made in an orderly fashion. Although we agree that as complete a record as possible is desirable, there need be no difference in this respect between denying leave to file and granting leave but then dismissing in the same order. If leave is denied the case can be given a miscellaneous docket number (if statistics and bookkeeping are a consideration) and a sufficient appellate record would exist. The Ninth Circuit’s view would seem to be in accordance with the Eighth’s. Brown v. Schneckloth, 421 F.2d 1402 (9th Cir. 1970) .

Most of these cases in the other circuits do not discuss the language or history of section 1915 and we regret to say that we do not find them persuasive authority. We believe that the statutory interpretation and historical analysis we have set out requires the overruling of Radio Station WENR. We see no benefit to an indigent in allowing his action to be filed at the same time it is dismissed. Accordingly, in the future, a district judge should deny leave to proceed in forma pauperis if an action is frivolous or malicious. If the motion is granted and the complaint filed, the matter cannot be dismissed until summons has issued. This practice will avoid any conflict between section 1915 and Fed.R.Civ.P. 4(a). We stress, however, that this opinion does not change the stringent standards to be applied in deciding whether a complaint is frivolous or malicious.

In the case before us, however, a remand is unnecessary since the district judge’s determination that the complaint is frivolous is correct and leave to proceed in forma pauperis could have been denied. The Seventh Amendment, upon which plaintiffs’ claim is grounded, does not apply in state courts. Moreover, the federal district court does not have jurisdiction over the state, and if we assume the judge of the court is intended as the defendant, he is immune from liability for damages. Finally, the only activity of the insurance company which could be considered as being “under color of state law” for the purposes of 42 U.S.C. § 1983 would be its character as plaintiff in the state court action and this would not be sufficient.

The order of the district court is affirmed.

TONE, Circuit Judge, with whom FAIRCHILD, Circuit Judge,

joins, concurring.

I concur in the court’s opinion, given the present state of the law in this circuit, as stated in the line of cases represented by Nichols v. Schubert, 499 F.2d 946 (7th Cir. 1974). Those cases hold that Rule 4(a), Fed.R.Civ.P., requires issuance of summons even though the complaint is obviously meritless. Because I believe that Rule 4(a) was not intended to require such a procedure, and that the district court has power to dismiss an obviously meritless/complaint before summons is issued, I would vote to overrule Nichols v. Schubert and the cases it follows if, to decide this case, we had to reach the question of the district court’s power once such a complaint has been filed. Since it is unnecessary to reach that question here, I merely note these views.

      . 28 U.S.C. § 1915(a) provides:
      Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that he is entitled to redress.
      An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith.

      . 28 U.S.C. § 1915(d) provides:
      The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue,' or if satisfied that the action is frivolous or malicious.

      . See Duniway, The Poor Man in the Federal Courts, 18 Stan.L.Rev. 1271, 1272-73 (1966).

      . See Maguire, Poverty and Civil Litigation, 36 Harv.L.Rev. 361, 377 (1923). '

      . 236 U.S. at 45, 35 S.Ct. at 237.

      . We do believe that if there Is any doubt as to the merits of the claim then leave to proceed in forma pauperis should be granted and summons should issue. If the matter is later dismissed there at least would be two opposing parties at the appellate level.

      . There is also a Ninth Circuit case which stated that leave should be denied if the action is without merit. Smart v. Heinze, 347 F.2d 114 (9th Cir. 1965). Smart has never been overruled or distinguished, but the practice in the Ninth Circuit is to use dismissal rather than denial. See Diamond v. Pitchess, 411 F.2d 565 (9th Cir. 1969); Williams v. Field, 394 F.2d 329 (9th Cir. 1968).
      The Tenth Circuit also has two cases on the subject that conflict. Compare Oughton v. United States, 310 F.2d 803 (10th Cir. 1962) with Tidmore v. Taylor, 323 F.2d 88 (10th Cir. 1963).

      . See Firnhaber v. Sensenbrenner, 385 F.Supp. 406 (E.D.Wis.1974).

      . This opinion has been circulated among all judges of this court in regular active service and no judge has voted that the matter of overruling United States ex rel. Morris v. Radio Station WENR be reconsidered en banc.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Paul PHILLIPS, Jr., Defendant-Appellant.
    No. 74-1216.
    United States Court of Appeals, Sixth Circuit.
    Feb. 11, 1975.

      James L. Gay, Versailles, Ky. (court appointed), for defendant-appellant.
    Eugene E. Siler, U. S. Atty., R. Burl McCoy, Asst. U. S. Atty., Lexington, Ky., for plaintiff-appellee.
    Before WEICK and LIVELY, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   PER CURIAM.

Phillips has appealed from his conviction by a jury in the District Court for knowingly transporting a motor vehicle, to wit, a stolen farm tractor, in interstate commerce, in violation of 18 U.S.C. § 2312.

Phillips complains (1) that inflammatory and prejudicial remarks were made by an Assistant United States Attorney in his closing argument to the jury; (2) that pretrial confrontations were conducted in such a suggestive manner as to render his identification unreliable; (3) that the District Court erred in not giving a specific instruction on identification, although such instruction was not requested by defense counsel; and (4) that the maximum prison sentence imposed was unduly harsh and was based on assumptions not in the record.

We will discuss only items 1 and 4 above, as we are of the opinion that items 2 and 3 have no merit.

The principal remarks of the Assistant District Attorney, complained of, are:

. now, Mr. Ponder insists that he is the person who rented the truck and for signing the contract. He says that Mr. Phillips was not with him. Well, I suggest to you that Mr. Ponder has purgered [sic] himself in that respect. (R. 241).
I submit to you that the testimony of the defendant and Mr. Ponder are, for the most part, a fabricated story, for the purpose of exonerating this defendant inasmuch as Mr. Ponder has already received a sentence after pleading guilty to this charge. (R. 247).

No objection to the argument was made at the trial. We are therefore required to find that the argument constituted plain error, in order to warrant reversal. It is contended that these remarks constituted the personal belief or opinion of the Assistant United States Attorney and therefore were improper. We disagree.

In reading the entire argument of the prosecutor to the jury, we are of the opinion that he was arguing on the basis of disputed evidence in the record, and was not stating his personal belief or opinion.

The difference is pointed out in Stewart v. United States, 101 U.S.App.D.C. 51, 247 F.2d 42 (1957). See also United States v. Hamilton, 409 F.2d 404 (7th Cir. 1969).

In sentencing Phillips, the District Judge stated:

. I just think this is a part of a theft ring, and this man [Phillips] was a cog in the wheel. How big a cog he was I don’t know, whether it was his idea or whether he saw a chance to make some quick money or whatever it was, I don’t know, but there is one thing certain the whole story hasn’t been told.

There is no evidence in the record to support any such charge against Phillips. The Court further stated:

I have to consider the fact that Mr. Ponder has come in here and obviously perjured himself and I have to further consider the fact, in the opinion of the Judge of the Court, this defendant has perjured himself. I don’t believe for one minute that he was over there hitchhiking there by Aberdeen, Maryland [sic] and just happened this U-Haul truck came along and he got in.

Neither Ponder nor Phillips, have ever been convicted of perjury, and it was error for the District Court, in its sentencing, to treat Phillips as if he had been convicted of perjury.

Furthermore, Ponder was the principal actor in the matter; he rented the U-Haul in Kentucky. There is no proof that Phillips did anything other than to be present at the time of renting the U-Haul, and as a passenger in the truck; and as to his presence in Kentucky even that was disputed.

Ponder had pleaded guilty to the Dyer Act violation and testified that Phillips was not with him at the time of the rental in Kentucky, but that he picked up Phillips later in Ohio. The District Judge had imposed on Ponder the maximum sentence of five years, and he imposed on Phillips, whom he termed as only a “cog in the wheel,” the same maximum sentence. This simply does not seem reasonable.

Phillips had only one previous conviction, about ten years ago, for which he had been placed on three years’ probation. He is married and the father of five children who are dependent upon him for their support. Also, he had been ill and the Court ordered that he be examined at the United States Medical Center at Springfield, Missouri.

The judgment of conviction is affirmed. The sentence is vacated for abuse of discretion, and the cause is remanded for resentencing.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Errold GRANT, Defendant-Appellant.
    No. 74-3300
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 21, 1975.

      A. Bruce Neuman, South Miami, Fla. (Court-appointed), for defendant-appellant.
    Robert W. Rust, U. S. Atty., Kerry J. Nahoom, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before THORNBERRY, MORGAN and RONEY, Circuit Judges.

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

   PER CURIAM:

Grant was convicted on two out of five counts for conspiracy to commit bank robbery and possession of stolen bank monies. He received a five year sentence on the conspiracy conviction and a nine year sentence for possession of stolen bank monies, said sentences to run concurrently.

Defendant raises four issues on this direct appeal: (1) the district court’s limitation of his cross-examination of a witness; (2) the district court’s refusal to give a requested jury charge; (3) the district court’s allowance of comments on prior criminal conduct of a co-conspirator; and (4) the adequacy of a jury’s guilty verdict based on an indictment count charging conspiracy to violate various inconsistent sections of 18 U.S.C.A. § 2113. None of these points warrants reversal.

Limitation of Cross-Examination

One of the prosecution’s witnesses, Deputy Sheriff Wilcox of the Tlade County Public Safety Department, was called to testify about the events surrounding the arrest of appellant. On cross-examination, appellant sought to question Wilcox concerning subsequent events which occurred after the arrested individuals had been transported to the police station. Fingerprints found on a dime roll tray and a money wrapper obtained in the bank robbery were a vital element of the prosecution’s case. Defense counsel sought to cross-examine Wilcox in order to establish that Grant’s prints got on these items when he was made to handle them and pose for photographs with them at the police station. The government objected to the line of questioning as being beyond the scope of the direct examination, and the court sustained the objection.

Although Wilcox was present at both the arrest and the police station, this does not affect the permissibility of the attempted cross-examination. The purposes of the two police activities were dissimilar, and the time span between them was more than sufficient to justify the district court’s finding that questions concerning matters at the police station went beyond the scope of direct examination.

Refusal to Give Requested Charge

Defense counsel attempted to establish that Grant’s fingerprints got on various items obtained in the robbery when he was made to handle them at the police station and not beforehand. In accordance with this strategy, he requested that the jury be charged that the probative value of an accused’s fingerprints upon a readily movable object is questionable unless it can be shown that such prints could have been impressed only during the commission of the crime. The district judge refused the charge and appellant argues that this constitutes reversible error.

A defendant in a criminal case is entitled to have the trial court instruct the jury on any theory of defense for which there is some foundation in the evidence. United States v. McCann, 465 F.2d 147 (5th Cir. 1972), cert. denied, 412 U.S. 927, 93 S.Ct. 2747, 37 L.Ed.2d 154 (1973); Perez v. United States, 297 F.2d 12 (5th Cir. 1961). In the instant case, however, the efforts to establish facts to support the fingerprint theory were unsuccessful. There was no foundation in the evidence to support the requested jury instruction.

Comments on Prior Criminal Conduct of a Co-Conspirator

Grant argues that the comments of two prosecution police witnesses as to the prior criminal conduct of his co-conspirator, who was not on trial, “spilled over and tainted” his own character. Both responses at issue related only to the character of appellant’s co-conspirator, Dawson, and not to that of appellant. The evidence was not directly introduced but came in descriptive comments of prosecution witnesses. Grant cites no authority and admits he has found none in support of his third point of error. He asks this Court to examine the unique relationship of co-conspirators which “merges the identities of individual co-conspirators into one” and to find that he was prejudiced by these comments about the prior criminal activity of Dawson. On the record in this case, it is unlikely that a jury, after careful and detailed instruction on the theory of conspiracy, would infer bad character on the part of Grant from references to juvenile offenses of Dawson who was not even on trial with appellant. Grant’s third contention is without merit.

Adequacy of the Conspiracy Count

Count I of the indictment charged that Grant conspired to commit various offenses in violation of 18 U.S. C.A. §§ 2113(a), (b), (c), and (d). These sections do not create separate offenses, but describe various stages or aggravated forms of. the basic crime of stealing property from a federally-insured institution. United States v. Gaddis, 506 F.2d 352 (5th Cir. 1975). Although in the instant case the district court correctly instructed the jury that a person cannot be lawfully convicted of both stealing and receiving the same property, see Milanovich v. United States, 356 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), there was no instruction given concerning the inconsistency of the § 2113 sections within the conspiracy count. Appellant argues that this failure to so instruct the jury caused them to convict defendant of a combination of offenses not cognizable under the law. The charge, however, related to a single conspiracy and it was immaterial whether the alleged objects of the conspiracy constituted multiple offenses or a single offense.

Affirmed.