source: Caselaw Access Project

author: WINTER, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Emilio Henquies PEREZ, Appellant.
    No. 73-1638.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 4, 1973.
    Decided Jan. 2, 1974.
    Alfred Z. Bernstein, Rosslyn, Va. [Court-appointed counsel] (Bernstein, Ward & Glassman, Rosslyn, Va. on brief), for appellant.
    Paul A. Scott, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and WINTER and BUTZNER, Circuit Judges.
   WINTER, Circuit Judge:

Emilio Henquies Perez was convicted of assaulting an officer of the District of Columbia Department of Corrections at the District of Columbia penal institution — the Lorton Reformatory — at Lorton, Virginia, and he appeals. The act of which defendant was convicted is made a crime under the D.C.Code, § 22-505 (1967 Ed.Supp. V 1972). The trial was held in the United States District Court for the Eastern District of Virginia. The sole contention raised on appeal is that the court lacked jurisdiction and that the only court having jurisdiction to try defendant was the Superior Court of the District of Columbia. We disagree, and thus affirm the judgment from which the appeal is taken.

Assault on a correctional officer of a District of Columbia penal institution is made a criminal act by § 22-505 whether such institution is located within the District of Columbia or elsewhere. Prior to 1965, when this statute was amended, it rendered criminal only assaults on police officers, and then only when the assault occurred within the District of Columbia. See R.S., D.C., § 432; June 29', 1953, 67 Stat. 95, ch. 159, § 205. But the 1965 amendment expanded the class of protected officials and gave the statute extraterritorial reach with regard to officers or employees of prisons, correctional institutions, and juvenile detention facilities. After the 1965 amendment, we held in three cases that the United States District Court for the Eastern District of Virginia had jurisdiction to try offenders under the statute when the assault was committed outside the District of Columbia and within the Eastern District of Virginia. United States v. Smith, 398 F.2d 595 (4 Cir. 1968); United States v. Haley, 417 F.2d 625 (4 Cir. 1969); United States v. Horton, 423 F.2d 474 (4 Cir. 1970).

Perez contends, however, that the Eastern District of Virginia lost jurisdiction of such cases by the enactment of the District of Columbia Court Reform and Criminal Procedure Act of 1970, P.L. 91-358, 84 Stat. 473. That Act reorganized the judicial system of the District of Columbia. It sought to eliminate “the chaos and confusion resulting from disagreement between Federal and Local Courts” within the District of Columbia, H.R.Rep.No. 91-907, 1970 D.C.Code, Legislative and Administrative Service 420, by establishing two sets of courts: one set like the federal courts in other districts, having the same jurisdiction and such additional functions as relate to the national character of the District of Columbia as the seat of federal government, and the other like the trial and appellate courts of any state, having jurisdiction comparable to the usual state court jurisdiction. Williams, District of Columbia Court Reorganization, 59 Georgetown L.J. 477, 533-34 (1971). Inter alia, the Act created the Superior Court of the District of Columbia, giving it general trial jurisdiction in civil and criminal matters. Specifically, in regard to criminal jurisdiction, the Superior Court was given jurisdiction (except for certain cases pending in the United States District Court for the District of Columbia when the Act became effective or instituted within a certain period thereafter) “of any criminal case under any law applicable exclusively to the District of Columbia.” D.C.Code § 11-923(b) (1973).

Briefly stated, Perez’s argument is that the law under which he was convicted is a “law applicable exclusively to the District of Columbia” because it outlaws assaults only on District of Columbia correctional officers, that jurisdiction is thus vested in the Superior Court of the District of Columbia,- and that it follows that the Eastern District of Vir-gina was thereby ousted of jurisdiction.

We have no occasion to consider the effectiveness or validity of D.C.Code § 11-923(b) to vest jurisdiction in the Superior Court to try an assault on a D.C. correctional officer at Lorton, Virginia. Certainly it is effective and valid to vest jurisdiction in the Superior Court to try an assault of a protected District of Columbia officer or employee when the assault is alleged to have been perpetrated within the District of Columbia.

However, regardless of whether § 11-923(b) vests jurisdiction in the Superior Court to try all offenses under § 22-505 or only those occurring within the District of Columbia, we cannot conclude that the creation of the Superior Court, and the conferral of criminal jurisdiction on it, was an express or implied ouster of the jurisdiction of the Eastern District of Virgina to try an offense under the District of Columbia Code allegedly committed within the Eastern District.

Under 18 U.S.C. § 3231, the Eastern District of Virginia had jurisdiction to try “all offenses against the laws of the United States,” and it had venue to try all such offenses committed in that district. Rule 18, F.R.Crim.P. Section 3231 was not expressly repealed by the Court Reorganization Act, and we do not think that the Act had that implied effect.

The basic purpose of the Court Reorganization Act was no more than to divide the pre-existing jurisdiction of the court system of the District of Columbia between the newly created Article I courts, which were to handle local matters, and the reconstituted Article III courts, which were to handle normal federal district court business and matters arising from the special status of the District of Columbia as the seat of national government. Accomplishment of that purpose would not require any change in the pre-existing jurisdiction of courts outside the District of Columbia.

Furthermore, we are constrained not to imply divestment of the Eastern District’s jurisdiction because of several constitutional provisions. Article III of the Constitution provides that “[t]he Trial of all Crimes . . . shall be held in the State where the said Crimes shall have been committed.” Article III, § .2, cl. 3. Additionally, the Sixth Amendment states that:

[i]n all criminal prosecutions, the accused shall enjoy the right to a . trial, by an impartial jury of the . . . district wherein the crime shall have been committed, which district shall have been previously ascertained by law .

To construe the Court Reorganization Act to imply divestment of the Eastern District’s jurisdiction would raise a substantial question as to whether the Act was in violation of these provisions. It is axiomatic that statutes are to be interpreted to avoid constitutional issues unless their plain and explicit meaning requires that constitutional issues be met and decided.

Since the Act neither expressly nor impliedly repealed the jurisdiction of the Eastern District of Virginia under § 3231, including jurisdiction to try violations of the provisions of the District of Columbia Code having extraterritorial effect, that jurisdiction remains unimpaired. The judgment appealed from will be

Affirmed.

      . § 22-505. Assault on member of police force or fire department.
      (a) Whoever without justifiable and excusable cause, assaults, resists, opposes, impedes, intimidates, or interferes with any officer or member of any police force operating in the District of Columbia, or any officer or member of any fire department operating in the District of Columbia; or any officer or employee of any penal or correctional institution of the District of Columbia or any officer or employee of the government of the District of Columbia charged with the supervision of juveniles being confined pursuant to law in any facility of the District of Columbia, whether such institution or facility is located within the District of Columbia or elsewhere, while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than five years or both. It is neither justifiable nor excusable cause for a person to use force to resist an arrest when such arrest is made by an individual he has reason to believe is a law enforcement officer, whether or not such arrest is lawful. (Emphasis added).

      . See generally, U.S. Constitution, Article I, § 8, cl. 17; Article III, § 2, cl. 3; Sixth Amendment.

      . Compare 28 U.S.C. § 1363 (Court Reorganization Act’s basic provision divesting federal district courts of jurisdiction over local civil matters in the District of Columbia, e. g., under 28 U.S.C. § 1331, the general federal question jurisdictional provision), with D.C.Code § 11-521 (a) (2) (1967) (repealed) (customarily regarded as the statutory basis of the D.C. federal district court’s local criminal jurisdiction before the Court Reorganization Act, see Williams, supra, p. 537, n. 433) and 18 U.S.C. § 3231 (genera) federal court criminal jurisdiction).


author: TALBOT SMITH, Senior District Judge.

text:
    Arthur MOTON, Appellant. v. Harold R. SWENSON, Warden, Missouri State Penitentiary, Appellee.
    No. 73-1109.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1973.
    Decided Dec. 17, 1973.
    James A. Jablonski, Washington U. School of Law, St. Louis, Mo., for appellant.
    Neil MacFarlane, Asst. Atty. Gen., Jefferson City, Mo., for appellee.
    Before GIBSON and BRIGHT, Circuit Judges, -and TALBOT SMITH, Senior District Judge.

       Hon. Talbot Smith, United States Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

This case comes to us on a certificate of probable cause issued by Judge Regan of the United States District Court for the Eastern District of Missouri after denial of habeas corpus relief to the appellant. Jurisdiction is based upon 28 U.S.C. § 2253. The case has had extensive prior history, appellant’s argument, here presented, having been considered, and rejected, by the Circuit Court of the City of St. Louis, by the Supreme Court of Missouri, by the United States District Court for the Eastern District of Missouri.

The record discloses that on June 14, 1970, appellant Arthur Motón and one Charles Robinson accosted two attendants, Welton Rideout and Calvin Cook, at a gasoline service station in St. Louis, Missouri. Robinson held the men at gunpoint and demanded and obtained money from Rideout. Meanwhile, Moton relieved Cook of his money changer and took money from a desk in the station. Both appellant and Robinson were apprehended soon after fleeing the station.

On July 10, 1970, an information was filed against appellant, charging him with the first degree robbery by means of a deadly weapon of attendant Ride-out, and, in a second information, with the first degree robbery by means of a deadly weapon of Cook. Appellant was found guilty of the robbery of Ride-out on August 26, 1970, and sentenced to 12 years’ imprisonment. Subsequently, appellant was tried and convicted on the charge of robbing Cook, and sentenced to a term of 15 years in prison, to run consecutively with the 12-year term imposed for the first conviction.

Appellant appealed both convictions to the Supreme Court of Missouri, which rejected a double jeopardy argument in affirming both convictions, State v. Moton, 476 S.W.2d 785 (Mo.1972), after full consideration of Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) upon which appellant herein strongly relies. Appellant then sought federal habeas corpus relief, denied by Judge Regan below.

Appellant’s argument, succinctly stated, is that separate charges arising out of the same episode must be tried together, “regardless of the number of violations of law, as long as they all arose in the same episode.” To try the defendant successively, then, for the robbery of Rideout, and then of Cook, as to neither of which offenses, we note, does he assert his innocence, placed him, he argues, in double jeopardy, in violation of the U.S.Const. Amend. V, made applicable to the states by the Fourteenth Amendment.

The premise presented seems to be that a defendant, who has committed, in one episodal tour of violence a series of unlawful acts, such as rape, robbery, and kidnapping is somehow better off if the entire series is presented to the jury at one time, rather than possibly in successive trials. Granting that the problems presented admit of no easy solution, and that any solution is susceptible to abuse, we are not persuaded by appellant that such a rule would best serve either the defendant’s advantage, or that of the public. With respect to a defendant he may well feel, for example, and with reason, that to put before the jury both an armed robbery and a kidnapping would enhance his chances of conviction on both, even though the proofs on one alone might, in the judgment of some, be weak. The repetitive motions we get for severance of defendants and offenses bear witness that our reservations in this respect are not without pragmatic support. The public, moreover, has a profound interest in seeing the guilty convicted as well as the innocent acquitted and to the extent that complexity of issues in a series of crimes may tend to confuse a jury it is doubtful indeed that such a procedure should reach the status of a constitutional mandate.

It is against this background of opposing policy considerations that we proceed to the issue before us. In its resolution we see no need to review the development of the interpretation of and the tests for the word “offense” in the double jeopardy clause, in view of its recent exegesis in the Ashe case, supra, following the decisions in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) and Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L. Ed.2d 913 (1958), voluminous treatments by legal scholars (“There has been enough written about double jeopardy to satisfy the most avid scholar” ), and consideration both by the American Law Institute and in the ABA Minimum Standards for Criminal Justice §§ I. 1 and 1.3, the latter providing that a defendant may make a timely motion for joinder of all charges against him.

There is no doubt that the problems presented in this area of multiple offenses are difficult and challenging, but we do not believe that the “same evidence” test (for “offense”) has been supplanted by the “same transaction” test, the former remaining the test to be applied save under such circumstances as may fairly come within the collateral estoppel doctrine of the Ashe case.

The Ashe ease, as here, involved the problem of successive criminal trials. On its facts it is similar to the case before us. Appellant Ashe was arrested for the robbery of five men at a poker game. As in our ease' he was tried in the first trial only for the robbery of one of the victims. Unlike appellant before us, however, he was acquitted at his first trial after asserting as his sole defense that he was not one of the robbers. In Ashe’s second trial he was tried and convicted on the charge of robbing another of the poker players. His assertion of double jeopardy eventually reached the Supreme Court, where his conviction was reversed. There can be little doubt that had the “same evidence” test been rigidly applied Ashe could not have prevailed, in view of the fact that he was being tried the second time for the robbery of a different victim.

The decision of the court, however, did not rest upon the barring of the second trial through the employment of the “same transaction” standard of double jeopardy which appellant urges, despite its espousal by Justices Brennan, Douglas, and Marshall. Rather, Justice Stewart narrowly delimited the issue before the court: “It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.” 397 U.S. at 446, 90 S.Ct. at 1195. The reversal of Ashe’s conviction, then, was on the narrow ground that the issue of Ashe’s presence at the robbery had been resolved in his favor at the first trial and the state was “collaterally estopped” from re-litigating the issue in a second prosecution after the prior acquittal.

It is clear that prior acquittal was thus the linchpin of the Ashe decision, leading directly to and serving as the foundation for the “collateral estoppel” doctrine applied. This court considered the problem and reviewed the Ashe decision in the case of Percy v. State of South Dakota, 443 F.2d 1232 (8th Cir. 1971) involving a prosecution for and conviction of kidnapping after reversal of a prior conviction, arising out of the same episode, for indecent violation of a five-year-old child. In denying a claim of double jeopardy based in part upon Ashe we pointed out that “ * * * Ashe would not control because here, as distinguished from Ashe, the [first] jury found the appellant guilty.” 443 F.2d at 1235. Such is, as well, the situation before us.

The Sixth Circuit also reviewed the matter in Pulley v. Norvell, 431 F.2d 258 (6th Cir. 1970), involving the armed robbery of two persons committed upon one occasion. The claim of appellant, as here, was grounded on the Ashe case and asserted violation of the double jeopardy proscription. A guilty plea had been entered on the first charge. In denying the claim and upholding the multiple prosecutions, the court held as follows:

Ashe v. Swenson, supra, overruled Hoag v. New Jersey, 356 U.S. 464, 78 S.Ct. 829, 2 L.Ed.2d 913, in which on similar facts the Supreme Court had held that the Fifth Amendment did not apply to the States in the field of double jeopardy or collateral estoppel.
It is significant that Ciucci v. Illinois, 356 U.S. 571, 78 S.Ct. 839, 2 L.Ed.2d 983, decided the same day as Hoag, was not overruled by Ashe. In Ciucei a man was accused of killing his wife and two children by shooting them and leaving them in a burning building. He was tried in three separate trials and convicted each time of first degree murder. The Court affirmed the convictions upon the same basis as Hoag but with the factual distinction that in Ciucei the defendant was convicted at the earlier trial while the defendant in Hoag was acquitted. We construe Ashe to recognize a distinction between a case where the defendant is convicted in trial one of a crime against A and in trial two of a crime occurring the same time against B, and the situation where at the first trial one of the defendants is acquitted of a crime against A under circumstances that the defendant’s presence or absence at the scene of the crime is resolved in favor of the accused.
Our interpretation of Ashe is strengthened by the concurring opinion of Mr. Justice Brennan joined by Mr. Justice Douglas and Mr. Justice Marshall, espousing the single transaction test. [431 F.2d at 261]

The “same transaction” theory, urged upon us by appellant, was again rejected, in so many words, in the application for certiorari filed in the case of Grubb v. State, 497 P.2d 1305 (Okl.Cr. App.1972). The defendant in this case went to a home harboring his former female companion. At gunpoint he abducted the woman, threatening death to the family, after robbing the owner of a small sum of money and his car keys. Eventually apprehended, he was tried and convicted twice, first for armed robbery, second for kidnapping the woman. The petition for certiorari, Grubb v. Okla., 409 U.S. 1017, 93 S.Ct. 450, 34 L. Ed.2d 309 (1972), was denied over the dissent of Mr. Justice Brennan, joined by Justices Douglas and Marshall, who took the position that “Under this ‘same transaction’ test, all charges against petitioner should have been brought in a single prosecution.” 409 U.S. at 1018-1019, 93 S.Ct. at 451. Although we recognize, of course, that denial of a writ of certiorari imports no expression of opinion upon the merits of the case, nevertheless the reasons given may serve to illuminate the precise contours of the issue presented.

Upon the facts before us we find no violation of the constitutional provision against double jeopardy.

Affirmed.

      . We are unconvinced by the state’s contention that it was required to try the cases separately by Rule 24.04, V.A.M.R. Such rule was not followed if defendant failed to object to the state’s consolidation of charges, State v. Terry, 325 S.W.2d 1 (Mo. 1959). Moreover, the rule obviously could not justify violation of a defendant’s constitutional rights, should such occur.

      . See Collateral Estoppel, 49 N.Car.L.Rev. 351 (1971).

      . Justice Schaefer of the Supreme Court of Illinois, “Unresolved Issues in the Law of Double Jeopardy,” 58 Calif.L.Rev. 391 (1970).

      . Model Penal Code § 1.07(2), “[A] person shall not be subject to separate trials for multiple offenses based on the same conduct or arising from the same criminal episode, if such offenses are known to the appropriate prosecuting officer at the time of commencement of the first trial.”

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ; 21 Am. Jur.2d, Criminal Law, § 182 et seq.; 22 C. J. S. Criminal Law § 278(1).

      . The use of the “same transaction” test has not been without its own difficulties. See Lugar, “Criminal Law, Double Jeopardy and Res Judicata,” 39 Ia.L.Rev. 317 (1954), stating in part:
      This realistic statement as to the “same transaction” test appears in Harris v. State, 193 Ga. 109, 116, 17 S.E.2d 573, 578 (1941) : “ * * * It appears that the necessity for engrafting the various exceptions upon the original abstract statement of the same evidence rule has caused the courts of some states, including this State, to repudiate its efficacy as a sound and controlling test. They have therefore some other more definitive rule, and, in so doing, have adopted what is known as the ‘same-transaction’ test * * * In the language of the same-transaction test, the question is, What constitutes the ‘same-transaction’? * * * [The test] lacks the much to be desired element of being definite and specific. It therefore appears that this court in numerous decisions, although recognizing as controlling the ‘same-transaction’ test, in its effort to elucidate what in fact constitutes the same transaction, has nevertheless applied elements pertaining to the same-evidence rule; and in doing so has recognized the generally approved principle, that, in order for the transaction to be the same, it must be identical both as a matter of fact and as a matter of law * * * ” In other words, either test may bring the same result, though the language route to that destination may vary. [39 Ia.L.Rev. at 324, n. 29.]

      . Justice Harlan, in concurring, stated that he did not believe that the opinion of the court in any way embraced the “same transaction” language in Justice Brennan’s concurrence. 397 U.S. at 448, 90 S.Ct. 1189.


author: PELL, Circuit Judge.

text:
    Donald G. ADAMS, Plaintiff-Appellee, v. Daniel WALKER, a/k/a Dan Walker, Individually and as Governor of the State of Illinois, Defendant-Appellant.
    No. 73-1491.
    United States Court of Appeals, Seventh Circuit.
    June 27, 1973.
    William J. Scott, Atty. Gen., Herbert L. Caplan, Asst. Atty. Gen., Chicago, 111., for defendant-appellant.
    Richard A. Hollis, Springfield, 111., for plaintiff-appellee.
    Before FAIRCHILD, PELL and STEVENS, Circuit Judges.
   PELL, Circuit Judge.

This matter is before the court on the emergency motion of the defendant Daniel Walker, Governor of the State of Illinois, requesting a stay of the orders of the United States District Court for the Southern District of Illinois pending the disposition of the appeal from said orders. The plaintiff-appellee has filed his response to the granting of such a stay. A temporary stay was granted by this court pending further study of the immediate matter. We are not now making any final determination of the substantive issues or of the ultimate merits of the appeal. Nevertheless, one of the primary considerations for this court’s present determination must be whether the appellant has made a strong showing that he is likely to prevail on the merits of his appeal. Miltenberger v. Chesapeake & Ohio Railway, 450 F.2d 971, 974 (4th Cir. 1971). The relief here requested has been termed an extraordinary remedy. Belcher v. Birmingham Trust National Bank, 395 F.2d 685, 686 (5th Cir. 1968).

In Belcher, other factors for consideration are set forth: (a) whether mov-ants have shown that unless a stay is granted they will suffer irreparable injury; (b) whether a stay would substantially harm other parties to the litigation; and (c) where lies the public interest? 395 F.2d at 686.

We consider the various applicable factors in reverse order. The appellant has not demonstrated any public interest overriding the asserted claims of impermissible deprivation of constitutionally protected rights to due process. Likewise, the appellant has not negated the real likelihood of substantial harm to the appellee, the only other party to the litigation, during an appeal-related stay. We do not deem it to be a satisfactory answer to say, as does the appellant, that if the appellee ultimately prevails he will be deemed to have held office continuously since his purported removal from office. Such retroactive balm would scarcely heal the wounds of divestiture from a statutorily specified term of office under the cloud of an assertion by the chief executive of the state of “incompetence, neglect of duty and malfeasance in office and other cause.”

As we read the appellant’s motion he does not purport to claim that he will suffer irreparable injury unless a stay is granted unless such a claim is found in the averment that in the absence of a stay the district court “threatens to immediately impose sanctions against defendant.” A violation of a court order may well produce the imposition of sanctions. That other purported appointees to a vacancy predicated upon constitutionally impermissible grounds may suffer harm, such persons not being parties to this litigation, is not here persuasive, particularly in the absence of a more clearly demonstrable entitlement on their part.

Turning then to the remaining factor, and without expressing any opinion on the ultimate merits of the appeal, we are of the opinion that the appellant has not made the requisite substantial showing of probable success.

We do not undertake lightly an intrusion into the affairs of state government. However, the wording of 42 U.S.C. § 1983 is clear: “Every person who, under color [of state law] subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” While the appellant was entitled under Article 5, § 10 of the Illinois Constitution, S.H.A., to remove the appellee for incompetence, neglect of duty, or malfeasance in office, it has not been demonstrated to us thus far in the case of appellee who held his office for a six year term pursuant to Chap. 43, § 98, Ill.Rev.Stat., that he was not entitled to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution as a part of the removal. Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Fiat does not meet the standard and thus far nothing has been demonstrated to us regarding even a pretext of due process. The conclusory language of the discharge telegram merely repeating the wording of the Illinois constitutional provision with the added ambiguous “and other cause” is certainly not sufficient for due process requirements.

The result we reach is one which we probably would have reached in other factual situations more quickly than we have here but because of significant underlying aspects of comity in the present case we have deemed it desirable to accord nonprecipitous attention to the claim for stay. Having done so, we are not persuaded that the stay pending appeal should be granted. Accordingly, the stay entered by this court on June 4, 1973, is now vacated and dissolved and the appellant’s motion for a stay pending appeal is denied.

It is so ordered.


author: PER CURIAM:

text:
    Kathryn S. BRAUN, Plaintiff-Appellant, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellee.
    No. 73-3230
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 21, 1974.
    Tom Davis, Don L. Davis, Austin, Tex., Jerry R. Hoodenpyle, Arlington, Tex., for plaintiff-appellant.
    David S. Kidder, Walter H. Mizell, Dallas, Tex., for defendant-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Appellant, the widow of a former employee of Hickok Manufacturing Company, brought a suit seeking to recover $25,000 under an insurance policy issued by the employer’s group insurer, the Insurance Company of North America. At issue is an exclusion provision in the policy which disallowed any recovery if the accident occurred while the assured was traveling in a company airplane. The District Court granted the insurance company’s motion for a directed verdict on the grounds that recovery was barred by the exclusion provision in the policy. We affirm.

The deceased, Richard J. Braun, died in an airplane crash on January 18, 1972. The aircraft was a Lear jet owned by the Tandy Corporation for the private use of Mr. Tandy, executives of Tandy Corporation, and employees or representatives of Tandy subsidiaries. Hickok Manufacturing Company was a subsidiary of Tandy and Braun was traveling on company business at the time of the fatal crash.

On appeal Mrs. Braun asserts that Tandy Corporation is not an affiliate of Hickok Manufacturing Company under a proper definition of the word. The District Court found to the contrary in its “Memorandum on Instructed Verdict” and held that Tandy Corporation was an affiliate of Hickok Manufacturing Company and therefore the exclusionary provision was in effect.

In an onslaught of dictionary definitions, appellant attempts to restrict the usage of the word affiliate in the insurance policy to organizations in a subordinate relationship to Hickok. Arguing that the Latin origins of the word compel an interpretation of affiliate as referring to adoption by a parent institution of others which are dependent, the appellant contends that affiliate cannot refer to an associate with a superior status. Alleging the existence of ambiguity regarding the use of the word affiliate, the appellant asserts that the Court must construe the contract provision most favorably to the assured. Continental Casualty Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762 (1953).

We neither accept the appellant’s viewpoint that the policy provision was ambiguous nor adopt the appellant’s restrictive downstream definition of the word affiliate. In adherence to the rule in Texas that unambiguous writings must be construed so as to give effect to the intentions of the parties, Republic National Life Ins. Co. v. Spillars, 368 S.W. 2d 92 (Tex.1963) we conclude that the intent of the parties was to extend subsection (d) to any plane (owned or leased) used by employees or representatives of any of the separate corporate entities within the corporate structure. The word affiliate was not used grammatically but rather legally in the context of the present day corporation, most spectacularly represented by the conglomerate, in which connections between companies may be vertical, diagonal or horizontal and sometimes all the way around with occasional mixtures of any one or all of the four. What was intended was to exclude coverage for deaths or injuries while a passenger in a “company” airplane. The clause clearly defined what the “company” was in broad but economically understandable terms.

This affords a fair and reasonable reading of the provision rather than a strained technical one. State Farm Mutual Auto Ins. Co. v. Walker, 334 S.W.2d 458 (Tex.Civ.App.—Ft. Worth, 1960, reh. den., err. ref. n. r. e.); Trinity Universal Ins. Co. v. Tubbs, 342 S.W.2d 209 (Tex.Civ.App.—Amarillo, 1960, reh. den., err. ref. n. r. e.). The language of the policy was plain and therefore is entitled to judicial enforcement. Royal Indemnity Co. v. Marshall, 388 S.W.2d 176 (Tex.Sup.1965).

Affirmed.

      . The exclusionary provision in Part I of the policy relating to “Description of Coverage,” provided:
      “With respect to air travel, the insurance afforded shall apply to loss caused by or resulting from travel or flight in any aircraft, or any other device for aerial navigation, including boarding or alighting therefrom, except
      “(a) * * *
      “(b) * * *
      “(c) * * *
      “(d) any such aircraft or device which is owned or leased by or on behalf of [Hickok Manufacturing Company] or any subsidiary or affiliate of [Hickok Manufacturing Company] .”

      . Prior to June 1971, Hickok Manufacturing Company had been a closely held corporation. At that time 99% of the corporate stock was purchased by P. J. Parker, Inc. In July 1971 P. J. Parker merged with HTT, Inc. a holding company which was 100% owned by Tandy Corporation. The surviving company from the merger was HTT, Inc. which gradually acquired 99% of Hickok stock thus making Hickok a wholly owned subsidiary of HTT while HTT remained a wholly owned subsidiary of Tandy.

      . Appellant designated a second issue on appeal, whether the aircraft was leased by Tan-dy Corporation to Hickok Manufacturing Company at the time of the fatal crash. We see no issue here and conclude that appellant based her second issue on a misinterpretation of the exclusionary provision of the policy. The wording of the provision was intended to refer to any company airplane, whether that plane was owned by an affiliate or leased by an affiliate. The language “owned or leased” did not refer to the relationship between the individual companies within the corporate structure or the technical legal status or characterization of the contractual arrangement under which the airplane was made available for use.


author: .PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard GLASCO, Jr., Defendant-Appellant.
    No. 73-2720
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 4, 1974.
    Robert W. Duckworth, Orlando, Fla. (Court-appointed), for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Jeffry R. Jontz, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appel-lee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   .PER CURIAM:

Glaseo appeals from a conviction of perjury, 18 U.S.C.A. § 1621, alleging that the District Judge should have granted his motion to suppress the testimony forming the basis of the conviction. The testimony was given by Glas-eo in the federal trial of Leonard Stro-ble, charged with transporting a stolen vehicle in interstate commerce and with conspiring with Glaseo to do so. Glaseo, having entered a guilty plea in his own trial for interstate transportation of the same stolen vehicle, was serving a sentence on that charge. While testifying as a defense witness at Stroble’s trial he made the statements forming the basis of his present perjury conviction.

The denial of a motion to suppress this testimony is the sole issue on appeal. The motion was premised on a contention that the testimony was given while Glaseo was in custody and that, therefore, he should have received prior to his testimony warnings that he had a right to remain silent, that any statement made by him could be used against him, and that he had the right to the presence of an attorney prior to testifying. The trial court correctly denied this motion.

In United States v. Orta, 253 F.2d 312 (CA5, 1958) cert. denied, 357 U.S. 905, 78 S.Ct. 1149, 2 L.Ed.2d 1156 (1958), this court stated:

A witness, ignorant and uninformed of his constitutional rights, does not intelligently waive them if he testified, thinking that he was compelled - to do so. He might answer truthfully and thereafter assert the constitutional guaranty. Under no circumstances, however, could he commit perjury and successfully claim that the Constitution afforded him protection from prosecution for that crime.

253 F.2d at 314. Orta was a pre-Miranda decision, but its post-Miranda vitality was indicated in United States v. Wilcox, 450 F.2d 1131, 1140-1141 (CA5, 1971) and in Stassi v. United States, 401 F.2d 259, 264 (CA5, 1968). More recently in United States v. Daniels, 461 F.2d 1076 (CA5, 1972), a case in which an appellant convicted of perjury in the course of testifying before a grand jury argued that he should have been afforded and advised of a right to appointed counsel when so testifying, this court affirmed the continuing force of Orta.

One reason for this result was articulated in Glickstein v. United States, 222 U.S. 139, 142, 32 S.Ct. 71, 73, 56 L.Ed. 128, 130 (1911):

the immunity afforded by the constitutional guaranty (against self-incrimination) relates to the past, and does not endow the person who testifies with a license to commit perjury.

Accord, United States v. Orta, supra, 253 F.2d, at 314.

Affirmed.


author: AINSWORTH, Circuit Judge:

text:
    Marcus Junior CLANTON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2637.
    United States Court of Appeals, Fifth Circuit.
    Jan. 25, 1974.
    Rehearing and Rehearing En Banc Denied Feb. 25, 1974.

      John A. Chandler, Atlanta, Ga. (Court-appointed), for petitioner-appellant.
    Robert L. Smith, J. Owen Forrester, Anthony M. Arnold, Asst. U. S. Attys., Atlanta, Ga., for respondent-appellee.
    Before COLEMAN, AINSWORTH and GEE, Circuit Judges.
   AINSWORTH, Circuit Judge:

Appellant Marcus Junior Clanton brought this appeal from an unfavorable decision denying him relief under 28 U. S.C. § 2255. The sole issue is whether he was mentally competent when he entered pleas of guilty, then represented by counsel, and was sentenced on two charges of bank robbery.

The record shows that a psychologist, Dr. Boone, in a report dated January 12, 1972, found that Clanton was competent to stand trial. Clanton was also examined at the United States Penitentiary Hospital in Atlanta on January 18, 1972 by a psychiatrist, Dr. Mascort, who concluded that Clanton was not at that time mentally competent to stand trial. Several months thereafter, on April 11, 1972, Dr. Alderete, chief medical officer of the penitentiary and a psychiatrist, after examination of Clanton, concluded that he was then mentally competent to stand trial. At Clanton’s request, he was examined by Dr. Brannon, a psychiatrist in Atlanta, whose report dated June 21, 1972 to the court held that Clan-ton was mentally competent to stand trial. Clanton pleaded guilty to the Atlanta bank robbery on July 10, 1972, and shortly thereafter, on August 3, 1972, pleaded guilty to the second bank robbery which had occurred in Miami, the case having been transferred to Atlanta under Rule 20, Fed.R.Crim.P.

Several weeks after sentence, on August 21, 1972, Dr. Alderete again examined Clanton and stated that he would have been competent to stand trial at that time.

The principal point relied upon by appellant on this appeal is that at the section 2255 evidentiary hearing the district court erroneously admitted testimony by Clanton’s trial counsel concerning his client’s mental competence, in violation of his attorney-client privilege. Clanton’s trial attorney, M. C. Mykel, had been a state juvenile court probation officer and a social worker and had had extensive training with psychiatrists and psychologists. He testified that there was nothing to indicate that Clanton was incompetent or could not fully cooperate with him; also that he believed Clanton was mentally competent on July 10, 1972 and August 3, 1972, when he entered his guilty pleas which are the subject of the present petition, and that he would not have permitted his client to plead guilty knowing he was not mentally competent.

Appellant relies on Gunther v. United States, 1956, 97 U.S.App.D.C. 254, 230 F.2d 222, where a judgment was reversed because an accused’s attorney was allowed to express an opinion as to his client’s competency and ability to assist in the defense. The Government argues that Gunther is distinguishable on its facts. Without deciding whether it is or not, we think the better view on the law is expressed by the Fourth Circuit in United States v. Kendrick, 1964, 331 F.2d 110, where that court held that an accused’s attorney was properly permitted to testify as to his client’s mental competency at the time of trial. Kendrick’s attorney did not testify to any private communications between the client and attorney nor to the substance of such communications. His testimony was limited to nonconfidential matters, such as whether his client was responsive, readily supplied the attorney with his version of the facts and names of people involved, was logical in conversation and reasoning, and appeared to know and understand everything that went on before and during the trial. The Fourth Circuit said in its opinion that it need not consider whether filing of the section 2255 petition constituted a waiver' of the attorney-client privilege, or “whether such an assertion is always so necessarily an implicit attack upon the competence of trial counsel as to amount to a waiver of the privilege to the extent necessary to enable • trial counsel to defend himself and his reputation.” Id. at 113. The court held:

“Communications made in confidence by a client to his attorney are protected by the attorney-client privilege. It is the substance of the communications which is protected, however, not the fact that there have been communications. Excluded from the privilege, also, are physical characteristics of the client, such as his complexion, his demeanor, his bearing, his sobriety and his dress. Such things are observable by anyone who talked with the client, and there is nothing, in the usual case, to suggest that the client intends his attorney’s observations of such matters to be confidential. In short, the privilege protects only the client’s confidences, not things which, at the time, are not intended to be held in the breast of the lawyer, even though the attorney-client relation provided the occasion for the lawyer’s observation of them. See generally VIII Wigmore, Evidence (McNaughton Revision) § 2306.” [Footnote omitted.] Id. at 113-114.

Here, as in the Kendrick case, the attorney’s testimony did not relate to private, confidential communications with his client but pertained to his observations of his client during the time of communication prior to and at the entry of the pleas of guilty. He was qualified as a layman to express a view as to his client’s mental competency. United States of America v. Milne, 5 Cir., 1973, 487 F.2d 1232. Such testimony was properly received together with other evidence at the hearing in the present case. The transcripts of the proceedings at the time of entry of the pleas of guilty give no indication in Clanton’s answers to questions posed to him at that time, or in colloquy with the district judge, that there was anything in his behavior that suggested mental incompetence. Judge Edenfield, who accepted the guilty pleas, and likewise was the trial judge who heard this section 2255 case, found that there was no evidence supporting Clanton’s plea of incompetency. He therefore correctly dismissed Clanton’s petition.

Affirmed.

      . In United States v. Woodall, 5 Cir., 1971, on rehearing en banc, 438 F.2d 1317, 1322, 1324, we held that a defendant who sought to withdraw guilty pleas on the ground that he lacked knowledge of the sentence consequences, thereby waived the right to bar the reception of evidence as privileged; accordingly, that there was no error in receiving evidence of his trial counsel as a witness, that he had fully informed the defendant prior to entry of guilty pleas of the maximum limits of punishment under the indictments.


text:
    Burrel RUBENSTEIN, Appellant, v. UNITED STATES of America, Appellee.
    No. 72-2022.
    United States Court of Appeals, Ninth Circuit.
    Nov. 19, 1973.

      Arthur Cofod (argued), of Angelí, Adams & Holmes, Lyman G. Lea, San Francisco, Cal., for appellant.
    Jerry K. Cimmet, James L. Hazard, Brian Denton, Asst. U. S. Attys., San Francisco, Cal., for appellee.
   OPINION

Before ALDRICH ELY and WALLACE, Circuit Judges.

PER CURIAM:

This appeal is from a judgment, in favor of the Government, in a suit brought by Rubenstein under the Federal Tort Claims Act. 28 U.S.C. §§ 1346, 1402, 2671-2680.

Rubenstein and his son, along with a friend of the latter, made a visit to the Yellowstone National Park. Upon arriving there, they found no room accommodations available and decided to camp for the night in a partially lighted area near the lodge wherein they had unsuccessfully sought accommodations. The youths slept in the open, and Rubenstein, at first alone, slept in a tent. During the night, Rubenstein was awakened by a disturbance and, fully aroused, determined that his tent had been invaded by a grizzly bear. In attempting to flee, Rubenstein was bitten by the bear on both of his legs, and his suit for damages for his personal injuries eventually followed.

Here, Rubenstein makes two contentions which, in effect, may be briefly summarized as follows: (1) That the unprovoked attack by the bear at the place in question was not reasonably foreseeable by him, was foreseeable by the Government, and that the Government failed to give him adequate warning, and (2) that the District Court applied an improper standard in reaching its dispositive conclusion.

Rubenstein’s second argument is based upon the fact that the District Court, in its opinion, generally remarked that if the Government should be held liable in suits such as that brought by Rubenstein, the cost to the Government of maintaining national parks would be greatly increased and, moreover, would promote a reluctance on the part of the Government to establish and maintain recreational areas. Rubenstein’s argument has no merit. The challenged remarks made by the court do not establish that it applied improper legal standards relating to negligence. In fact, the court’s opinion, considered as a whole, clearly reflects that the court was knowledgeable as to the issues involved and the law to be applied in resolving them. We interpret the remarks of which Rubenstein complains as merely the observations of the court as to what could happen should the court impose a higher standard than that existing under established law.

As to Rubenstein’s first contention, there was evidence that, before entering the park, Rubenstein had been fully warned, in writing, of the dangers he might encounter from the presence of animals, including bears, in the' park. Furthermore, Rubenstein himself testified that he had read certain government brochures and that he recalled their warning that the park was populated by wild, dangerous, unpredictable animals. The District Court’s critical determinations are supported by substantial evidence, and its judgment is therefore affirmed.

       Honorable Bailey Aldrich, Senior United States Circuit Judge, Boston, Massachusetts, sitting by designation.

      . The court concluded “that actionable negligence is not shown on the part of the defendant . . . . ” This constituted, in effect, a finding that Rubenstein had failed to prove, by a preponderance of the evidence, that the Government was negligent.


text:
    Isidro MANLANGIT, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 73-1700.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 8, 1973.
    Decided Dec. 18, 1973.
    Michael I. Gordon, Baltimore, Md. (Smullian & Gordon, Baltimore, Md., on brief) for petitioner.
    Mary Jo Grotenrath, Atty., U. S. Dept, of Justice (John L. Murphy, Chief Government Regulations Section, Crim. Div., Brian P. Gettings, U. S. Atty., David G. Lowe, Asst. U. S. Atty., on brief) for respondent.
    Before WINTER, BUTZNER and FIELD, Circuit Judges.
   PER CURIAM:

Petitioner, Isidro Manlangit, challenges an order of the Board of Immigration Appeals that he be deported as an alien under the provisions of Section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2). The order was based on the fact that Man-langit, a native and citizen of the Republic of the Philippines, entered the United States in September of 1969 as a temporary visitor' and had remained beyond the time permitted for his stay in this Country.

Manlangit was born in the Philippines on April 6, 1936, two years after Congress enacted the Philippine Independence Act of March 24, 1934, 48 U.S.C. (1946 ed.) Section 1244. Section 14 of that Act, which became operative upon the Proclamation of Philippine independence on July 4, 1946, provides:

“Upon the final and complete withdrawal of American sovereignty over the Philippine Islands the immigration laws of the United States (including all the provisions thereof relating to persons ineligible to citizenship) shall apply to persons who were born in the Philippine Islands to the same extent as in the case of other foreign countries.”

The Immigration and Naturalization Service takes the position that under the foregoing section Manlangit lost his status as a non-citizen national and became an alien on July 4, 1946, the date of the Proclamation.

Petitioner contends that the involuntary change of his status from that of a non-citizen national at the time of his birth in the Philippine Islands to that of a complete alien without giving him the right to make an election as to his allegiance upon attaining his majority is a violation of his constitutional rights as an individual born under the protection of the United States. An argument substantially similar to this was advanced and rejected in Rabang v. Boyd, 353 U. S. 427, 430-431, 77 S.Ct. 985, 987, 1 L. Ed.2d 956 (1957), in which the Court stated:

“Section 14 of the Independence Act in clear language applies ‘to persons who were born in the Philippine Islands.’ This language demonstrates, and we hold, as did the courts below, that persons born in the Islands, and who thereby were nationals of the United States became aliens on July 4, 1946, regardless of permanent residence in the continental United States on that date.”

Petitioner’s suggestion that Rabang was diluted by the decision in Afroyim v. Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L. Ed.2d 757 (1967), is without merit for the decision in that case dealt with the rights of a naturalized American citizen, whereas the petitioner’s status was for a brief period of time only that of a non-citizen national.

We find that the petitioner was properly treated as an alien and, accordingly, the petition is dismissed.

      . Presidential Proclamation No. 2695, 11 Fed.Reg. 7517.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. George C. EHMIG, Defendant-Appellant.
    No. 72-3254.
    United States Court of Appeals, Fifth Circuit.
    Dec. 17, 1973.

      Wayne D. Mancuso, Gretna, La. (Court-appointed), for defendant-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, Robert Livingston, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   PER CURIAM:

Appellant, George C. Ehmig, was charged in a two count indictment with willfully and knowingly making and subscribing fraudulent United States income tax returns for thé years 1965 and 1966. He was found guilty by a jury and appeals from his judgment of conviction, alleging that several evidentiary errors were committed during the course of the trial, that the court improperly refused certain requested charges and did not adequately hear his objection to the charge given to the jury. We affirm.

Ehmig’s most substantial contention is that the district court permitted the government to introduce several signed statements by witnesses as memoranda of past recollections recorded without requiring it to establish a proper foundation for their admissibility. During the course of the trial, the government called forty-one witnesses to testify concerning the legal fees they had remitted to Ehmig during the years 1965 and 1966. This testimony was adduced in order to show that since the income Ehmig received exceeded the amount of income shown by his tax returns, he possessed the requisite knowledge that his returns were false and fraudulent. The court permitted the government to introduce into evidence a statement given by one of Ehmig’s clients despite the inability of his client to verify from his recollection the accuracy of the figures contained in the statement. Although the government may have been remiss in establishing a proper evidentiary foundation, we cannot say that the failure of the district court to exclude this evidence was reversible error.

Ehmig complains of five additional errors on appeal. Based on our review of the briefs and the record and the contentions advanced at oral argument we find these to be devoid of merit and hence affirm.

Affirmed.

      . These contentions, and the authority supporting our disposition, are as follows: first, that under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1970), the court erred in admitting statements made by him to IRS agents investigating him, see Marcus v. United States, 422 F.2d 752, 756 (5th Cir. 1970) ; second, the court erred in admitting evidence of past due taxes proffered by the government in order tó show intent, see United States v. Martinez, 466 F.2d 679, 683-684 (5th Cir. 1972) ; third, the court erred in admitting evidence-of his expenditures in the year 1966, which expenditures exceeded the amount of income shown by the returns he filed in that year and hence buttressed the conclusion that Ehm-ig hail knowledge that he underrepresented his income, cf. United States v. Penosi, 452 F.2d 217 (5th Cir. 1971), cert. denied, 405 U.S. 1065, 92 S.Ct. 1495, 31 L.Ed.2d 795 (1972) ; fourth, the court erred in failing to give an instruction on entrapment, see United States v. McCann, 465 F.2d 147, 161-162 (5th Cir. 1972) and a separate instruction on negligent or mistaken as opposed to intentional underrepresentation of income, see United States v. Gremillion, 464 F.2d 901, 909 (5th Cir. 1972) ; and fifth, the court erred in refusing to hear objections by Ehmig to certain jury charges offered prior to the jury’s retirement for deliberation, cf. United States v. Mendoza, 473 F.2d 697, 701 (5th Cir. 1973).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eugene VESSEL, Defendant-Appellant.
    No. 73-3360
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 18, 1974.
    Rehearing Denied Feb. 20, 1974.
    John J. Dolan, New Orleans, La. (Court-appointed), for defendant-appellant.
    Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Appellant was convicted on a two count indictment for distribution of heroin in violation of 21 U.S.C.A. § 841 (a)(1). We affirm.

During the course of the trial, the Judge commented that “we are going to let all of these exhibits go into the jury room with the jury except for the actual heroin * * There was no objection to this comment. Realizing his error, however, the District Judge carefully and thoroughly instructed the jury that it had been improper for him to refer to the white powdery substance as “the actual heroin”, that they were to totally disregard this comment, and that it was their duty as the fact finder to determine whether the Government exhibit was in fact heroin. In view of the Court’s curative instruction, we find no plain error in the Court’s earlier comment.

Under cross-examination appellant admitted that he had previously been convicted for possession of marijuana and possession and transportation of heroin. Following this testimony the Government introduced certified copies of these convictions into evidence. These copies were never shown or called to the attention of the jury and at the request of the Government they were not allowed to be taken into the jury room.

Once the defendant on trial fully admitted the two prior convictions about which he was interrogated on cross-examination, no legitimate evidentiary purpose remained for the introduction of certified copies of the prior judgments of conviction. The prosecuting attorney should not have offered them and it was error for the trial court to admit them in evidence. But under the circumstances of this case we think the error was harmless beyond a reasonable doubt. Since the copies were not exhibited to the jury, their receipt in evidence was not prejudicial to the defendant on trial, Vessel. Kotteakos v. United States, 1946, 328 U.S. 750, 66 S.Ct. 1239, 90 L. Ed. 1557; United States v. Steinkoenig, 5 Cir., 1973, 487 F.2d 225.

Affirmed.


author: DYER, Circuit Judge:

text:
    Charles CHAVIS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent-Appellee.
    No. 73-3235
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 18, 1973.
    Phillip A. Hubbart, Public Defender, Lewis S. Kimler, Asst. Public Defender, 11th Judicial Circuit of Fla., Miami, Fla., for petitioner-appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Fla., Arnold R. Ginsberg, Barry Scott Richard, J. Robert Olian, Asst. Attys. Gen., Miami, Fla., for respondent-appellee.
    Before BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges

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

   DYER, Circuit Judge:

Chavis appeals the denial of his petition for Writ of Habeas Corpus by the district court, contending that the inventory of his clothing at a hospital made by a police officer investigating the stabbing of Chavis was an illegal search and that he was, therefore, entitled to have the heroin found in his clothing suppressed. We disagree and affirm.

Chavis was convicted in a Florida state court for the offense of unlawful possession of a narcotic drug. On direct appeal he unsuccessfully argued that the drug was obtained as a result of an unlawful search and seizure. Chavis v. State, Fla.App.1973, 274 So.2d 544. He has therefore exhausted his state remedies. McCluster v. Wainwright, 5 Cir. 1972, 453 F.2d 162.

The facts are largely uncontradicted. Chavis was stabbed in the back by his girl friend. He was taken to the hospital in critical condition. He was in a semi-conscious state, and his clothing was soaked with blood. Police Officer Chamberlain and other officers went to the hospital to investigate. Chavis told Chamberlain that he was not interested in prosecuting his girl friend. Before Chamberlain’s arrival the nurse had removed Chavis’ clothing and placed them in a plastic bag at the foot of the stretcher. Chamberlain took custody of the clothes as evidence in connection with the aggravated assault, which appeared at that time to likely be a homicide. The district court found, and the record fully supports the fact, that Chavis’ clothing was seized for no other purpose than as evidence in connection with the assault. In the presence of the other officers and the nurse, Chamberlain made an inventory of the contents of the clothing. Among other things a packet of heroin was found.

Chavis urges that the officer had no right to continue his investigation after he was told that Chavis was not interested in prosecuting his girl friend. As the district judge properly observed, it is not for the victim of a crime to decide whether the perpetrator of the crime should be prosecuted. Clearly, the officer, under the circumstances here present, would have been derelict in his duty had he not taken custody of Chavis’ clothing as evidence of a possible homicide that he was investigating.

We agree with the district court that Officer Chamberlain did not find the heroin as a result of a search for evidence against Chavis. He inadvertently found the heroin as a result of an inventory of the clothing that he was duty bound to keep as evidence of a crime. Personal effects in the clothing required protection for the benefit of Chav-is. Officer Chamberlain could not send the clothing off in the custody of others without knowing what was to be returned. The only reasonable method for such safekeeping was to inventory the contents. That was plainly the real purpose of the inventory undertaken here. Finding the heroin was simply an unanticipated result. See, United States v. Pennington, 5 Cir. 1971, 441 F.2d 249; United States v. Lipscomb, 5 Cir. 1970, 435 F.2d 795.

Chavis’ reliance on Brett v. United States, 5 Cir. 1969, 412 F.2d 401, is not only misplaced but supports the district court’s finding. There we took pains to point out that, “The search was unrelated to the duties of the police, as guardians of the prisoner’s property, to inventory or to protect property in their hands for safekeeping.” In the instant case the inventory was made precisely for the purpose of safekeeping. No unreasonable search and seizure having been shown, the motion to suppress the heroin was properly denied.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Gus RECTOR, Defendant-Appellant.
    No. 73-2806
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 18, 1973.
    Murray L. Williams, Water Valley, Miss, (court-appointed), for defendant-appellant.
    H. M. Ray, U. S. Atty., Alfred E. More-Attys., Oxford, Miss., for plaintiff-ap-pellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

The appellant William Gus Rector was convicted after jury trial under five counts of a five-count indictment charging him with violation of the Internal Revenue Code with respect to non-tax paid distilled spirits, or “moonshine whisky”, in April and May, 1972, in Choctaw County, Mississippi.

The two grounds of error asserted on appeal are (1) that the evidence was insufficient to sustain conviction and that Rector’s motion for judgment of acquittal as to each count should have been granted by the trial court, or in the alternative, his motion for new trial should have been granted below; and (2) that the trial court committed prejudicial error in instructing the jury upon the government’s request as to the permissible inferences to be drawn from appellant’s presence at the still site.

As to the first contention, our review of the record convinces us that the evidence produced by the government together with the permissible reasonable inferences therefrom, viewed in the light most favorable to the government, Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, 704, amply sufficed to take the case to the jury and to support the verdict of guilty as to each count.

The appellant fares no better under the second point raised. The able district judge was careful to limit his instruction as to the inference permitted to be drawn from unexplained presence at the still (based on Title 26, U.S.C. Sec. 5601(b)(2)) to Count Three, the charge of carrying on the business of a distiller without giving bond, and aiding and abetting in the same, Title 26, U.S. C. Sec. 5601(a)(4), as approved by United States v. Gainey, 1965, 380 U.S. 63, 69-70, 85 S.Ct. 754, 757-758, 13 L. Ed.2d 658, 662-663 without alluding to the statutory inference from presence alone under Title 26, U.S.C. Sec. 5601(b)(1) with reference to possession of an unregistered distillery, Title 26, U. S.C. Sec. 5601(a)(1). In United States v. Brookins, 5 Cir. 1970, 434 F.2d 41, cert. denied, 1971, 401 U.S. 912, 91 S.Ct. 880, 27 L.Ed.2d 811, we pointed out the distinction between the constitutionality of the inference under Title 26, Sec. 5601(b)(2) and the unconstitutionality of the inference permitted to be drawn from mere presence authorized in a prosecution under Title 26, U.S.C. Sec. 5601(a) (1) by the provisions of Title 26, U.S.C. Sec. 5601(b)(1). The distinction is apparently overlooked by appellant in his discussion on brief. At any rate, it is not alluded to. As we indicated in Brookins, supra, it is critical, and it is fatal to appellant’s position here.

Affirmed.

      . Count One charged Rector and two others, Surrett and Thompson with conspiracy, Title 18 U.S.C. Sec. 371, to violate Sec. 5601(a) (1), 5601(a) (4), 5601(a) (7), 5601(a) (12), 5602, 5604(a)(1) and 7206(4) of Title 26, and alleged 9 overt acts committed in furtherance of the conspiracy, 6 of them by Rector.
      Counts Two through Five were substantive counts: Count Two charged Rector and Thompson with possession, aided and abetted by eacli other, of an unregistered, set-up distillery, Title 26, Sec. 5601(a)(1) and Title 18 U.S.C. Sec. 2; Count Three charged Rector, Thompson and Surrett, aided and abetted by each other, with carrying on the business of a distiller without having given bond as required by law, Title 26 U.S.C. See. 5601(a)(4), and Title 18 U.S.C. Sec. 2; Count Four charged Rector and Thompson, aided and abetted by each other, with making and fermenting 5100 gallons mash fit for distillation into distilled spirits on premises other than those of an authorized distillery, Title 26 U.S.C. Sec. 5601(a) (7) and Title 18 U.S.C. Sec. 2; and Count Five charged Rector, Thompson and Surrett, aided and abetted by each other, with unlawful possession of 446 gallons of non-tax paid distilled spirits, Title 26 U.S.C. 5601(a)(4) and Title 18 U.S.C. Sec. 2.

      . Neither the defendant, nor his co-defendants Thompson and Surrett offered any evidence in their defense.

      . Since the tidal judge sentenced Rector to five concurrent 3 year terms of confinement, the conviction is sustainable under the concurrent sentence doctrine, see e. g. United States v. Vigo, 5 Cir. 1970, 435 F.2d 1347 provided the evidence was sufficient to support the conviction as to any single count. As we note in the text, we think the guilty verdict was proper under each count.

      . The instruction given by the trial judge was:
      “Whenever a defendant is shown to have been at the site or place where and at the time when, the business of a distiller or rectifier was so engaged in or carried on, such presence ■ is a circumstance from which the jury may infer that the person or persons present were carrying on the business of a distiller without having given bond as required by law, unless the evidence in the case provides a satisfactory explanation for the defendant’s presence at the still and such presence shall be deemed sufficient evidence to authorize conviction unless such presence is explained to the satisfaction of the jury.
      This does not mean that the presence of a defendant at the site and place at the time referred to required the jury to convict a defendant, if the evidence in the case, facts and circumstances proved, fails to explain a defendant’s presence to the satisfaction of the jury. It simply means that a jury may, if it sees fit, convict upon such evidence, as it shall be sufficient to authorize a conviction, but does not require such a result.”


author: James HUNTER, III, Circuit Judge: VAN DUSEN, Circuit Judge

text:
    Donald SHERMAN et al., Appellants, v. Roland H. NASH, District Director of Internal Revenue.
    No. 72-1607.
    United States Court of Appeals, Third Circuit.
    Argued Sept. 5, 1973.
    Decided Nov. 27, 1973.
    Van Dusen, Circuit Judge, dissented and filed opinion.

      Clive S. Cummis, Sills, Beck, Cummis, Radin & Tisehman, Newark, N. J., for appellants.
    Herbert J. Stern, U. S. Atty., John J. Barry, Stephan E. King, Asst. U. S. Attys., Newark, N. J., for appellee.
    Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

James HUNTER, III, Circuit Judge:

Appellants, Donald and Marcia Sherman, sought in the district court injunc-tive relief from a jeopardy assessment imposed upon them by the District Director of Internal Revenue (“District Director”). The district court held that it was without jurisdiction to review the decision of the District Director. This appeal followed pursuant to the jurisdiction granted this court by 28 U.S.C. § 1291. We reverse.

On April 7, 1971, there was delivered to the Shermans’ New Jersey residence a demand for payment of taxes and notification that the Internal Revenue Service (“IRS”) had seized their home and cars and had levied upon their bank accounts. This apparently was the first notification sent to the Shermans informing them that the IRS considered the tax liability reported on their tax return for the years 1965 to 1969 to be incorrectly computed.

On April 30, 1971, the Shermans filed a claim for abatement of the jeopardy assessment, pursuant to 26 U.S.C. § 6861(g). Subsequently, the IRS on June 4, 1971 sent a deficiency letter as required by 26 U.S.C. § 6861(b) and on August 12, 1971 forwarded new notices and demands for payment. The asserted deficiencies in these subsequent notices were of different amounts and were considerably less than the amount originally demanded.

After receipt of these notices, the Shermans petitioned the United States Tax Court for a redetermination of their tax liability. This action is presently pending before that court. Not having received a reply to their claim for abatement, the Shermans on October 8, 1971 brought suit in the district court seeking a review of the District Director’s action. The Shermans’ complaint alleged, inter alia, that the assessment was impairing Mr. Sherman’s personal credit, resulting in great harm to his business ventures which were largely dependent on his credit; that this further impaired his ability to meet personal debts and provide for his family; and that the assessment was arbitrary and unreasonable, lacking any justification and imposed solely to harass and coerce plaintiffs for improper purposes. In support of this latter allegation, the Shermans argue on this appeal that the IRS was assisting the Justice Department in an attempt to force Mr. Sherman to appear before a grand jury investigating various criminal activities in Hudson County, New Jersey.

Initially, we emphasize that the only question before us is whether and to what extent a district court has jurisdiction to review a decision of the District Director imposing a jeopardy assessment. We are therefore concerned sole-

ly with interpreting those statutes which grant or limit the jurisdiction of the district court over the issues raised by the Shermans.

For many years under 26 U.S.C. § 7421 and its predecessors, Congress has withheld from courts jurisdiction to enjoin the “assessment or collection” of “any tax.” This restraint against injunctions has given rise to what has been commonly referred to as the “pay and sue” doctrine, the essence of which is that before a taxpayer may resort to the courts for a review of a tax assessment, he must first pay the assessment. After much criticism of this doctrine, Congress recognized the harshness and inadequacy of granting judicial review only through a suit for refund, and, in 26 U.S.C. § 6213 and its predecessors, provided a broad exception to section 7421 by giving the taxpayer the right of judicial review before any assessment and collection of a deficiency “in respect of any tax imposed by subtitle A or B or chapter 42” may be “made, begun or prosecuted.” In the present case, the taxes allegedly owed by the Shermans were imposed under subtitle A (income taxes) of the Internal Revenue Code of 1954, and the Shermans have sought in the Tax Court a redetermination of their tax liability. Thus, pending a Tax Court decision which has become final, section 6213 clearly grants the district court jurisdiction to enjoin the assessments and levies imposed by the District Director on the Shermans and their property, unless such assessment was imposed in accordance with the authority granted in the jeopardy assessment provisions of section 6861. Section 6861 by contrast reflects the Congressional recognition that in the limited circumstances where the collection of revenue seems to be in jeopardy, any hardship resulting from levying on a taxpayer’s assets prior to judicial review is outweighed by the Government’s need to protect revenue which would otherwise be lost.

Our decision today in no way deviates from this Congressional policy, for we fully concur with those courts which have concluded that Congress withheld jurisdiction from the district courts to review the sufficiency of the facts relied upon by the IRS to support a belief that jeopardy exists. E. g., Transport Manufacturing & Equipment Co. v. Trainor, 382 F.2d 793 (8th Cir. 1967); United States v. Bonaguro, 294 F.Supp. 750, 753 (E.D.N.Y.1968). This does not mean, however, that Congress intended that by merely following th'e formal procedures of section 6861, the IRS should have thereby complete license to act arbitrarily and in bad faith and for other than the purpose of preserving revenue. See Iannelli v. Commissioner of Internal Revenue, 487 F.2d 317 (3d Cir., filed June 29, 1973); Bonaguro, supra.

When the IRS has acted ostensibly under section 6861, but in fact has used the jeopardy assessment as a device to harass a taxpayer or as a leverage to exert pressure on a taxpayer for nontax purposes, it has exceeded its statutory authority. Section 7421 does not shield such unauthorized acts from judicial review; since they are not authorized by section 6861, they are prohibited by the general provisions of section 6213 and are subject to the injunction authorized therein. For these reasons we conclude that the allegations in the Shermans’ complaint to the effect that the only reason the IRS imposed the jeopardy assessment was to harass and coerce the plaintiffs for improper purposes are sufficient to give the district court jurisdiction under 26 U.S.C. § 6213.

In remanding to the district court, we note briefly that a jeopardy assessment, imposed in good faith, may have a myriad of incidental effects on a taxpayer, some of which may beneficially inure to other departments of government. So long as the IRS, however, acts from a good faith concern that its revenue interest is in jeopardy, its actions are shielded from injunctions by section 7421.

Finally, since an action of this nature seeks equitable relief, the district court should consider possible equitable defenses, such as laches, and should insure that the taxpayers seek promptly and without delay final judicial determination of their tax liability.

The order of the district court shall be vacated and the cause remanded for further proceedings not inconsistent with this opinion.

VAN DUSEN, Circuit Judge

(dissenting) :

Since the majority opinion seems to me inconsistent with this court’s recent decision in Iannelli v. Long, 487 F.2d 317 (3d Cir. 1973), as well as with the great majority of federal cases considering 26 U.S.C. § 6861(a) and 26 U.S. C. § 7421, I respectfully dissent. In Iannelli, Judge Hastie recognized a narrow exception to the prohibition of suits restraining the assessment or collection of taxes in 26 U.S.C. § 7421, using this language:

“ . . . if a levy on property is in formal guise an effort to collect taxes but in fact is only a device for harassing and punishing a wrongdoer without honest anticipation that the levy may yield money owed for taxes, it is arguable that a suit to restrain the tax collector’s enterprise is not in reality a suit to restrain the collection of taxes. .
“Though one of the government’s objectives in this undertaking to seize all of the taxpayers' discoverable property may have been to put economic pressure upon persons believed to be engaged in large scale criminal activities, the jeopardy assessment and consequent levies also appear to have been bona fide and potentially productive attempts to collect revenue. And bona fide efforts to collect taxes through lawful procedure are the very undertakings that Congress has protected through the enactment of section 7421(a) against frustration or delay by litigation.”

The majority relies on the conclusory allegations in paragraph 19 of the complaint that the jeopardy assessment “is illegal, arbitrary and unreasonable” and that “the only reason” for such assessment “has been an attempt to harass and coerce the plaintiffs for improper purposes.” Contrary to these general allegations, the record contains the memorandum of an interview by Richard T. Phillips with the husband taxpayer on March 30 and 31, 1971, in Nassau, Bahamas, quoted in note 5 of the majority opinion, in which such taxpayer conceded that “he was aware of the income tax investigation being conducted and thought he could be financially ruined by the results of this investigation.” Further, he stated that “he was contemplating moving himself and his family to the Republic of Ghana, Africa, where, he stated, he would be safe from any further proceeding.”

On such a record, the income tax authorities were, at the least, entitled to issue the prompt jeopardy assessment of early April 1971. The good faith of the authorities is indicated by the decrease of the amount of the assessment several times since early April 1971. The failure of the authorities to withdraw the jeopardy assessment because the husband taxpayer returned to this country in mid-April 1971 and filed in November 1971 an affidavit saying he “stood ready to pay any deficiency properly determined to be due from me” (16a) but that his tax returns were correct as filed, does not justify the issuance of an order vacating the jeopardy assessment, which is what appellants seek. This is particularly true where the district court made a finding that “I don’t think there is any irreparable injury here” (20a).

I would affirm the district court order of April 18, 1972, dismissing the action insofar as it was 'brought by the husband and wife plaintiffs.

      . Appellants’ children, who originally were complainants in the district court, are not involved in this appeal. On April 26, 1972, the parties entered a stipulation dismissing the complaint on behalf of the children and withdrawing the assessment as to the children.

      . 26 U.S.C. § 6861(g) provides :

        “Abatement if jeopardy does not exist.— The Secretary or his delegate may abate the jeopardy assessment if he finds that jeopardy does not exist. . . . ”

      . 26 U.S.C. § 6861(b) provides :

        “Deficiency letters. — If the jeopardy assessment is made before any notice in respect of the tax to which the jeopardy assessment relates has been mailed under section 6212(a), then the Secretary or his delegate shall mail a notice under such subsection within 60 days after the making of the assessment.”

      . On April 7, 1971, when the jeopardy assessment was imposed, the IRS asserted a deficiency in the amount of $1,542,133.71 of which $639,862.38 was for penalties and interest. Appellants allege in their complaint that the notice of June 4, 1971 claimed a tax deficiency in the amount of $422,187.84 and the notice of August 12, 1971 made a demand for payment for taxes, penalties and interest in the sum of $1,194.087.45. At oral argument it was disclosed that the IRS is presently conducting a reaudit.

      . The record on this appeal reveals that a government agent, whose connection with the IRS is unclear, had served a subpoena on Mr. Sherman on March 30, 1971 in the Bahamas, where Mr. Sherman alleges he was vacationing from early February until April 13, 1971. A memorandum prepared by the agent following his encounter with Mr. Sherman discloses:
      “Mr. Sherman stated that he had been in the Bahamas since early February, 1971, to avoid service of process. He stated that he had no intention of returning to the United States to honor the subpoena I served upon him. He also stated that he was contemplating moving himself and his family to the Republic of Ghana, Africa, where, he stated, lie would be safe from any further proceeding. He stated he was aware of the income tax investigation being conducted and thought he could be financially ruined by the results of this investigation.”

      . 26 U.S.C. § 7421 provides:
      “(a) Tax. — Except as provided in sections 6213(a) . . . , no suit for
      the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person . . . .”

      . The legislative history of section 274 of the Revenue Act of 1924 (the original predecessor of 26 U.S.C. §§ 6212, 6213) discloses the following:
      “The right of appeal after payment of the tax is an incomplete remedy, and does little to remove the hardship occasioned by an incorrect assessment. The payment of a large additional tax on income received several years previous and which may have, since its receipt been either wiped out by subsequent losses, invested in nonliquid assets, or spent, sometimes forces taxpayers into bankruptcy, and often causes great financial hardship and sacrifice. These results are not remedied by permitting the taxpayer to sue for the recovery of the tax after this payment. He is entitled to an appeal and to a determination of his liability for the tax prior to its payment.” H.R.Rep.No.179, 68th Cong., 1st Sess. 7 (1924), 1939-1 Cum.Bull. 246.

      . See note 6 supra.

      . 26 U.S.C. § 6213(a) provides:
      “Except as otherwise provided in section 6861 no assessment of a deficiency in respect of any tax imposed by subtitle A or B or chapter 42 and no levy or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such 90-day or 150-day period, as the case may be, nor, if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final. Notwithstanding the provisions of section 7JjStl(a), the making of such assessment or the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court.” (Emphasis added.)

      . 26 U.S.C. § 6861(a) provides:

        “Authority for Making. — -If the Secretary or his delegate believes that the assessment or collection of a deficiency, as defined in section 6211, will be jeopardized by delay, he shall, notwithstanding the provisions of section 6213(a), immediately assess such deficiency . . . . ”

      . See Iannelli v. Commissioner of Internal Revenue, 487 F.2d 317 (3d Cir., filed June 29, 1973). In finding the actions of the IRS to' be bona fide, the court in Iamnelli noted that the taxpayers had not disputed that they may have owed the government taxes which were unpaid and that in the aggregate the property levied upon would probably yield substantial revenue. While these were factors in the court’s analysis, it is important to recognize that Iannelli did not hold that by merely denying that one owed any taxes, could one prevent a district court from finding that the IRS had acted in good faith. To so conclude would be inconsistent with the rationale of Enochs v. Williams Packing & Navigation Co., Inc., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). Also, while a jeopardy assessment imposed upon property which will yield little or no revenue is evidence of bad faith by the IRS, Iannelli did not hold that merely because the property levied upon will probably yield substantial revenue, a court must then always find that the IRS had acted in good faith.

      . See, e. g., Enoch v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962) ; Flora v. United States, 362 U.S. 145, 175-177, 80 S.Ct. 630, 4 L.Ed. 2d 623 (I960) ; Transport Manufacturing and Equipment Co. v. Trainor, 382 F.2d 793, 799 (8th Cir. 1967) ; Johnson v. Wall, 329 F.2d 149 (4th Cir. 1964). In the Transport Manufacturing case, the court said :
      “ . . . we believe that the same principles that govern the validity of the District Director’s imposition of a jeopardy assessment should also apply to and control his refusal to abate that assessment. Under Section 273(a) of the Internal Revenue Code of 1939, which gives to the District Director broad discretionary power to make jeopardy assessments, the single limitation on the exercise of the Director’s authority is that he must believe that the ultimate collection of the tax will be jeopardized by delay. For this reason the courts have refused to scrutinize the grounds underlying the Director’s determination of jeopardy and have accordingly declined to substitute their judgment for that of the Director. Field v. United States, 263 F.2d 758, 763 (5th Cir. 1959), cert. denied, 360 U.S. 918, 79 S.Ct. 1436, 3 L.Ed.2d 1534 (1959) ; Lloyd v. Patterson, supra, 242 F.2d [742] at 744 [5th Cir. 1957] ; Publisher’s New Press, Inc. v. Moysey, 141 F.Supp. 340, 343 (S.D. N.Y.1956) ; Communist Party, U. S. A. v. Moysey, 141 F.Supp. 332, 336 (S.D.N.Y. 1956). The corresponding authority to abate jeopardy assessments, conferred upon the District Director under Section 273 (k) of the 1939 Code, is of a similar discretionary character, and does not impose a mandatory duty on the Director to abate a particular jeopardy assessment. Cf. Poretto v. Usry, 295 F.2d 499 (5th Cir. 1961), cert. denied, 369 U.S. 810, 82 S.Ct. 687, 7 L.Ed. 2d 612 (1962). Absent some patent showing of illegality and other extraordinary or exceptional circumstances, we will not intercede to compel the abatement of an otherwise proper jeopardy assessment.”

      . See footnote 19 of majority opinion.

      . See footnote 6 of majority opinion.

      . This paragraph reads as follows :
      “19. The jeopardy assessment made by the defendant is illegal, arbitrary and unreasonable. The collection of any tax which may be determined against the plaintiffs has never been and is not now jeopardized by any delay in assessment. There is no evidence whatsoever to legally justify the aforesaid wrongful assessment made by the defendant, and there is no legal basis for the continued imposition of the said jeopardy assessment against the plaintiffs herein. The only reason for defendant’s action has been an attempt to harass and coerce the plaintiffs for improper purposes.”


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frank HORTON, Jr., Defendant-Appellant.
    No. 73-1629.
    United States Court of Appeals, Eighth Circuit.
    Dec. 18, 1973.

      Justin C. Cordonnier, St. Louis, Mo., for appellant.
    Donald J. Stohr, U. S. Atty., and Terry I. Adelman, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before BRIGHT and STEPHENSON, Circuit Judges, and STUART, District Judge.

       WILLIAM C. STUART, District Judge, Southern District of Iowa, sitting by designation.

   PER CURIAM.

Frank Horton, Jr., appeals the denial of his F.R.Crim.P. 35 motion for reduction of sentence. Upon pleading guilty to one count of violating the Dyer Act, 18 U.S.C. § 2313, appellant was sentenced to five years imprisonment, the maximum permissible under the Act. He now urges that the imposition of this sentence was an abuse of the trial court’s discretion under our decision in Woosley v. United States, 478 F.2d 139 (8th Cir. 1973). Having reviewed the record, we do not agree and, therefore, affirm.

The winds of change are indeed blowing across the landscape of criminal sentencing, and a trial judge’s discretion in the meting out of punishment is no longer completely unfettered. See M. Frankel, Criminal Sentences: Law Without Order (1973). As Woosley well illustrates, mechanically imposing a maximum sentence defeats the goal of fitting the punishment to the crime and the criminal; it is, in short, no exercise of discretion at all. But here there is no such abuse of discretion.

. Although the debate may never end as to the proper purpose of punishment, Judge REGAN set forth a reasonable theory for imposing the maximum sentence on the appellant who is a prior offender. In denying the Rule 35 motion, the court explained:

It was the view of the Court in imposing sentence that the confinement should be of sufficient length so that the defendant could gain a salable skill, which is the program outlined for him by the institution, and this objective has been furthered by the nolle pros of the then pending state charge.

The appeal on this record is clearly without merit.

Appeal dismissed.


text:
    Gerald RAY, Plaintiff, v. TEXACO, INC., et al., Defendants-Third Party Plaintiffs-Appellants, v. NOBLE DRILLING CORPORATION, Third Party Defendant-Appellee.
    No. 73-2962
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Dec. 18, 1973.

      Fred E. Salley, Frank C. Allen, Jr., New Orleans, La., for plaintiffs-appellants.
    James E. Blazek, Joel L. Borrello, New Orleans, La., for Noble Drilling Corp.
    Joel T. Chaisson, Luling, La., for Gerald W. Ray.
    Stephen J. Hornyak, Dominick Sa-vona, Jr., Gretna, La., for Pan Mar Services.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   PER CURIAM:

The entry of judgment in the within matter adjudicated the liabilities of fewer than all of the parties in and to the litigation. There has been no entry of final judgment by the district court upon an express determination that there is no just reason for delay as is required by Rule 54(b), F.R.Civ. Procedure. Hence, the judgment lacks the requisite finality to be appealable within the meaning of 28 U.S.C.A. § 1291. International Harvester Credit Corporation v. Belding, 5 Cir., 1972, 462 F.2d 624; Bailey v. Rowan Drilling Company, 5 Cir., 1971, 441 F.2d 57; Cook v. Eizenman, 5 Cir., 1963, 312 F.2d 134.

Dismissed.


text:
    UNITED STATES of America, Appellee, v. Joseph Henry MARTINEZ, Appellant.
    No. 73-2239.
    United States Court of Appeals, Ninth Circuit.
    Nov. 30, 1973.

      Kenneth Stahl, San Francisco, Cal., for appellant.
    John Cooney, Asst. U. S. Atty., San Francisco, Cal., for appellee.
    Before ELY and WRIGHT, Circuit Judges, and JAMESON, District Judge.

       Honorable William X Jameson, Senior United States District Judge, Billings, Montana, sitting by designation.

   OPINION

PER CURIAM:

In a jury trial, Martinez was convicted on all charges of a five-count indictment. The first two counts alleged the distribution of heroin in violation of 21 U.S.C. § 841(a)(1). The third count charged the unlawful use of a communication system in facilitating the distribution of the drug in violation of 21 U. S.C. § 843(b). Count 4 charged possession of heroin with intent to distribute it in violation of 21 U.S.C. § 841(a)(1), and the fifth count alleged that Martinez had unlawfully conspired to distribute heroin in violation of 21 U.S.C. § 846. The district judge sentenced Martinez to a term of ten years imprisonment on each of the five counts, providing, however, that the sentences should be served concurrently. From the judgments of conviction, Martinez appeals.

The first two arguments that Martinez here presents are related. He first contends that he claimed entrapment as a defense and that the Government failed to establish the lack of entrapment because it did not prove that Martinez had previously been convicted of, or had previously committed, acts similar to those for which he was being tried. This argument is specious, inasmuch as one may be predisposed to commit his first crime as much as, if not more than, a chronic offender who, theoretically, should be more fearful of the consequences. Martinez’ second argument is that the district judge’s entrapment instruction was erroneous because it did not embrace the theory here advanced by Martinez in his first argument. As to this, we have above held that the first argument has no merit. Moreover, the defense interposed no objection to the court’s instruction in respect to entrapment, and there is certainly nothing therein which could properly be held to constitute plain error.

Martinez’ third contention is that he did not receive the effective assistance of trial counsel. This argument is based upon Martinez’ assertion that his trial counsel failed to employ legal means of discovery so as to ascertain the name and address of the person claimed to have entrapped Martinez and failed to ascertain whether that person could present testimony favorable to the entrapment defense. The short answer to this contention is that the record before us does not support it. There is nothing in the record to establish that defense counsel was unaware of the identity of the person claimed to have entrapped Martinez. Moreover, the present record does not show, and could not show, that even if defense counsel did know the identity, he did not decide, as a matter of strategy, that the person should not be subpoenaed and offered as a defense witness.

Finally, Martinez complains of the court’s failure to give a certain jury instruction concerning the “use of a communication facility.” Inasmuch as this argument is directed only to Martinez’ conviction on the third count, and since the court ordered that the sentences on all counts be served concurrently, we choose, in the exercise of our discretion, not to discuss the contention. United States v. Moore, 452 F.2d 576 (9th Cir. 1971).

Affirmed.