author: RONEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Oscar SQUELLA-AVENDANO, Defendant-Appellant.
    No. 72-1798.
    United States Court of Appeals, Fifth Circuit.
    April 13, 1973.
    Rehearing Denied June 1, 1973.

      Donald I. Bierman, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Bruce E. Wagner, Asst. U. S. Atty., Miami, Fla., Mervyn Hamburg, Appellate Sec., Crim. Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and MOORE and RONEY, Circuit Judges.

       Hon. Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation.

   RONEY, Circuit Judge:

Oscar Squella-Avendano, a Chilean national and owner of a small cargo airplane, was convicted by a jury of the unlawful possession and importation of 202 pounds of cocaine. 21 U.S.C.A. §§ 173, 174 (repealed October 27, 1970); 26 U. S.C.A. §§ 4704(a), 4705(a), 7237. Defendant challenges the sufficiency of the evidence and certain procedural and evi-dentiary rulings, which he claims cumu-late to the level of reversible error. We affirm.

I. Sufficiency of the Evidence

In July, 1970, Government agents learned of a proposed shipment of cocaine from Chile and commenced a continuous surveillance in the Coral Gables, Florida, area of suspected individuals and an apartment used by co-defendant Rodolfo Quintanilla. On July 26th, a 1970 Ford bearing a rental license plate was placed under surveillance. The following morning, Quintanilla, accompanied by another co-defendant, drove the Ford to Miami International Airport and left it at a nearby parking lot. Several hours later, defendant Squella drove this vehicle into the cargo area of the airport. The Government agents then espied him unloading certain cartons from his airplane, which he had flown to the United States from Chile five days before, and placing them in the trunk of the automobile. The agents’ recollections differed as to whether defendant looked into any of the boxes.

Within a few hours, Squella returned the rented ear to the same parking lot; and two hours later, the vehicle was picked up by Quintanilla, who was then lost by the agents for a period of some five to twelve minutes. When found, Quintanilla was observed unloading an unidentified box from the car’s trunk to his apartment, the subject of the surveillance and the site of the arrest. Within a few minutes, the agents searched the apartment and found cocaine and wine bottles in suitcases and in cartons marked “Plinella,” a Chilean brand of wine.

Before this incident, Squella’s name had never been brought to the Government’s attention, and throughout the investigation he had never before been observed in association with the co-defendants. His broad defense is that he had taken a spontaneous trip to the Dominican Republic with a load of baby chickens and, upon his return, he thought he was unloading cartons of wine and a box of trash.

Defendant challenges the adequacy of the evidence to support the jury’s conclusion that the cocaine found in Quin-tanilla’s apartment came from defendant’s plane, that the narcotics had been in the boxes which defendant unloaded from his plane, and that he was aware of their contents.

Although undisputed direct evidence shows that defendant unloaded boxes from the plane, only circumstantial evidence is available to prove that those boxes were the objects subsequently found in the apartment and that he was aware of their contraband contents. Government agents testified that, although they observed him inspect the cartons which he unloaded, they could neither view their contents nor identify markings on the boxes. Sixty yards away, an agent using field glasses faintly recognized some writing — -“Planters,” “Plants,” or “peanuts,” it was thought. There were neither fingerprints, clear markings, nor other direct evidence to show conclusively that the boxes unloaded by Squella were those found in the apartment or that he had knowledge of their contents.

As a reviewing court, we must decide whether reasonable jurors could conclude beyond a reasonable doubt that Squella knowingly unloaded from the plane the cocaine found in the apartment.

Two basic rules guide our consideration of the sufficiency of the evidence: the evidence must be viewed in the light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and we must make all reasonable inferences and credibility choices as will support the jury’s verdict of guilty. See Gordon v. United States, 438 F.2d 858 (5th Cir. 1971).

Having done this, however, we are at once confronted with the fact that certain events could have occurred which would be consistent with all of the evidence presented to the jury and which would prove the defendant innocent of the crime charged.

Among these hypotheses of innocence, for example, are the following scenarios: (1) Squella, thinking the boxes he was unloading from the plane contained wine and trash, did not know that their actual contents were cocaine; (2) the cartons did not contain wine and trash when unloaded into the trunk of Quintanilla’s automobile, but during the lapse in the Government’s surveillance, the original cartons were replaced by similar ones containing cocaine, or their contents were simply changed; or (3) the cocaine found in the apartment came from someplace other than the trunk of Quin-tanilla’s car and was either in boxes other than those Quintanilla unloaded or had been placed in those boxes upon their delivery to the apartment and before arrival of the agents.

The question for our determination is whether the jury verdict must be set aside because the Government’s evidence did not entirely refute such hypotheses of innocence.

Some early eases held that circumstantial evidence must be inconsistent with every hypothesis of innocence. See, e. g., Barnes v. United States, 341 F.2d 189 (5th Cir. 1965). Under that rule, reversal of Squella’s conviction would be required. Other cases held that the evidence must be inconsistent merely with every reasonable hypothesis of innocence. See, e. g., Cohen v. United States, 363 F.2d 321 (5th Cir. 1966), cert. denied, 385 U.S. 957/ 87 S.Ct. 395, 17 L.Ed.2d 682; Newsom v. United States, 311 F.2d 74 (5th Cir. 1962). Observance of that rule, though, would cast this Court in the role of the jury. If one hypothesis of innocence were to satisfy this Court’s sense of reasonableness, we would then have to reverse the verdict.

We have since settled on a standard which requires reversal of a guilty verdict unless the trier of fact “could reasonably find that the evidence excludes every reasonable hypothesis, except that of guilt.” United States v. Sidan-Azzam, 457 F.2d 1309, 1310 (5th Cir. 1972); United States v. Garza, 426 F.2d 949 (5th Cir. 1970); Henderson v. United States, 425 F.2d 134 (5th Cir. 1970); Harper v. United States, 405 F.2d 185 (5th Cir. 1969); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969); Riggs v. United States, 280 F.2d 949 (5th Cir. 1960).

There is some suggestion that the above statement of the rule presents a standard which is different from or stricter than that set forth in United States v. Warner, 441 F.2d 821 (5th Cir. 1971). The Warner opinion dealt with Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), a case concerning requested jury instructions. Holland involved the net worth theory of proving income tax evasion. Contending that the Government’s evidence did not disprove that nontaxable sources might be responsible for the increase in his net worth, the taxpayer argued that the trial judge should have instructed the jury that, where the Government’s evidence is circumstantial, it must exclude every reasonable hypothesis other than that of guilt. Mr. Justice Clark, speaking for the Court, refused to follow such a rule:

“Circumstantial evidence in this respect is intrinsically no different from testimonial [direct] evidence. Admittedly, circumstantial evidence may in some cases point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more.”

348 U.S. at 140, 75 S.Ct. at 137. In Warner, Judge Wisdom concluded from Holland that “The same test, therefore, for judging the sufficiency of the evidence should apply whether the evidence is direct or circumstantial.” 441 F.2d at 825.

Reconciling the holding in Holland with some earlier Fifth Circuit cases which suggested a special rule for reviewing the sufficiency of circumstantial evidence, Judge Wisdom rephrased the substantial evidence test:

“[In] criminal cases based on circumstantial evidence our task is to determine whether reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence. United States v. Andrews, 5 Cir. 1970, 427 F.2d 539, 540; Surrett v. United States, 5 Cir. 1970, 421 F.2d 403, 405. Notwithstanding these differences, which some might term verbalistic, we are in agreement with our brothers in other circuits that where the evidence be direct or circumstantial, the matter of the defendant’s guilt is for the jury to decide unless the court concludes that the jury must necessarily have had a reasonable doubt.”

441 F.2d at 825. See United States v. Sutherland, 463 F.2d 641 (5th Cir. 1972) ; 3 L. Orfield, Criminal Procedure Under the Federal Rules, § 26:446, at 778; 2 C. Wright, Federal Practice & Procedure § 467, at 259.

In the case at bar, we are concerned with the approach a reviewing court, either on motion at the trial level or on appeal, should take to the consideration of the sufficiency of the evidence to support a jury’s guilty verdict. We are not considering questions regarding special jury instructions on circumstantial evidence, which are controlled by Holland. We have recently reasserted the Holland principal that, when a jury is properly instructed on the standards for reasonable doubt, it is not error to refuse an additional instruction on circumstantial evidence. United States v. Stokes, 471 F.2d 1318 (5th Cir. 1973) .

Any conclusion that differing statements of the test for review might lead to different results rests on a futile exercise in linguistics. In both Warner and Sidan-Azzam, as well as the other cases which articulate the rule, the essential element is that, whether the evidence be direct or circumstantial, the matter is for the jury to decide unless the reviewing court concludes that no reasonable mind could find guilt beyond a reasonable doubt.

In our view, there is no logical difference between determining whether reasonable minds could conclude that the evidence is inconsistent with, the hypothesis of innocence (Warner) and determining whether reasonable minds could conclude that the evidence excludes every reasonable hypothesis except that of guilt (Sidan-Azzam). However the test is articulated, the result will be the same if the standard is qualified by the minimum requirement that we must affirm any conclusion that could be reached by reasonable minds.

It is not by a casuistry of reason that we arrive at this result. A logician may defend the argument that, given our finite understanding of causation, all evidence is necessarily circumstantial, and both direct and circumstantial evidence, therefore, may sometimes point to an incorrect result. But the task of the jury is, in Mr. Justice Clark’s words, to “use its experience with people and events in weighing the probabilities.” 348 U.S. at 140, 75 S.Ct. at 138. The proper function of the reviewing court is merely to consider the reasonableness of the jury’s conclusions.

Following this test, we find that reasonable jurors, from their individual and common experience, could have concluded from the evidence, beyond any reasonable doubt, albeit not beyond all doubt, that the boxes taken from the plane did contain cocaine and that Squella was aware of their contents. The jury, by making reasonable assumptions, could have dismissed each of the hypotheses presented earlier in this opinion and traced the cocaine found in Quintanilla’s apartment through the preceding events to establish Squella-Avendano’s knowing possession of the cocaine.

First, it is reasonable to assume that there was no explanation for the cocaine to have been placed in the cartons at the apartment. There is no evidence that any cartons, other than those from which the cocaine was being removed, were found. The jury could reasonably infer that these were the same boxes which were being carried into the apartment from the trunk of Quintanilla’s automobile.

Second, the lapse in the surveillance of Quintanilla’s automobile between the airport and the apartment was too brief to require, in the minds of reasonable men, any doubt that the cartons and their contents put in the trunk by Squel-la were the same as those unloaded by Quintanilla into the apartment.

Third, even if Squella’s owning and piloting the plane would leave any doubt that he knew the nature of his cargo, or that he would unload boxes, the contents of which he did not know, the resulting questions could be resolved by the fact that two agents testified that Squella, while unloading the cargo, looked into one of the boxes. Since boxes of this size which were found in the apartment contained clear plastic bags of cocaine, the jury, having concluded that the cocaine was in the boxes when unloaded by Squella, could conclude beyond reasonable doubt that he had seen the cocaine at that time.

Although defendant might proffer many other contrary hypotheses, we find the Government presented sufficient evidence from which the jury could reasonably have concluded that defendant committed the narcotics offenses charged beyond reasonable doubt.

II. Procedural and Evidentiary Rulings

Defendant alleges that the trial court abused its discretion by the

(a) limitation to three of the number of character witnesses;

The trial judge is invested with discretion to limit the number of character witnesses. Absent a clear showing of prejudicial abuse of discretion, appellate courts will not disturb rulings of trial courts on this subject. United States v. Jacobs, 451 F.2d 530 (5th Cir. 1971), cert. denied, 405 U.S. 955, 92 S.Ct. 1170, 31 L.Ed.2d 231. Defendant has not demonstrated in this case that the trial judge’s decision to limit the number of character witnesses constituted a prejudicial abuse of this discretion, particularly in view of the fact that there was no contradictory testimony. It was not necessary under these circumstances to inform the jury that the court was limiting the number of character witnesses.

(b) denial of an opportunity for defendant to prove that he was financially unable to post bond immediately and, after posting bond, that he never attempted to flee to Chile;

In its opening statement, the Government referred to Squella as “the big man” and “the importer.” To refute the possible inferences from these comments that he was the kingpin in a smuggling operation, defendant sought to show that he was required to remain in prison for several months because of his inability to post a bond of $50,000, allegedly not an inordinately large amount for an underworld figure equal to the Government’s inferences.

Moreover, defendant maintains that he was entitled to show the jury that, given the opportunity afforded by a visit to Chile while released on bail, he did not attempt to find safe harbor in his home country, with which the United States has no extradition treaty and to which, as the jury was aware, a co-defendant had escaped.

The Government opposed the use of this proffered testimony on the grounds that it was not proof of innocence and would necessitate a detailed explanation of complex negotiations with the Chilean government regarding defendant’s return, a subject far afield from the issues at bar.

The Court, barring defendant’s proposed line of testimony, reasoned that it would have complicated the trial beyond its worth to defendant’s defense. Such a determination is properly within the trial court’s discretion to refuse attempts to inflate collateral issues and to obscure those which are genuine. See Rule 403, Rules of Evidence for the United States Courts and Magistrates.

(c) denial of an opportunity for defendant to demonstrate to the jury that he could not have physically handled the cocaine in the manner described by the agents;

Squella wanted to demonstrate to the jury that he was physically unable to lift a box weighing 125 pounds, the approximate weight, defendant asserts, of the large box alleged to have contained four fully-packed wine cartons. There was no proof, though, of the weight of each of the boxes either at the time of either their unloading from the airplane or their seizure, and the Government noted that, if a packing arrangement other than that which defendant presented had been employed, then the large box could have weighed less than 125 pounds.

Given these conjectures about the manner of packing, it was not error to refuse the imperfect demonstration. See Pacheco v. United States, 367 F.2d 878 (10th Cir. 1966); Burriss v. Texaco, Inc., 361 F.2d 169 (4th Cir. 1966); C. McCormick, Evidence § 215 (1972); and 2 Wharton’s Criminal Evidence § 682 (12th ed. 1955).

(d) granting the Government the permission to introduce as rebuttal testimony the deposition of a co-defendant, Raul DeMaria, who was neither on trial nor present; and

Defendant argues that the deposition of co-defendant DeMaria should not have been admitted because

(1) the indictment which was outstanding at the time the deposition was taken had been superseded;
Squella had not been present at the taking of the deposition and, since DeMaria was not present at the trial, defendant was denied his Sixth Amendment right of confrontation ; (2)
(3) the Government should not have been allowed to use a deposition secured by a defendant under Rule 15; and
(4) there was insufficient proof of DeMaria’s unavailability.

The trial judge correctly ruled that, in the absence of an extradition treaty with Chile, the unavailability of co-defendant DeMaria had been sufficiently established. United States v. Bentvena, 319 F.2d 916 (2nd Cir. 1963), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271. And Rule 15(e), F.R.Crim. P., which governs the use of depositions, is a complete answer to the other objections to the usé of the deposition. Defendant moved to obtain the deposition, and he cannot now object to its use in rebuttal.

(e) denial of a motion for a new trial based on the fact that the Government knew and had stated prior to trial that the deposition of DeMaria, which it used at trial, was perjured testimony;

It was clear to the jury that the Government was not vouching for the truth of DeMaria’s testimony. Rather, it was introduced in rebuttal to demonstrate that defendant and his co-conspirators made inconsistent explanations on material matters. United States v. Wilson, 439 F.2d 1081 (5th Cir. 1971), cert. denied, 404 U.S. 836, 92 S.Ct. 122, 30 L.Ed.2d 67; United States v. Skillman, 442 F.2d 542 (8th Cir. 1971), cert denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63.

We find no basis in the claimed procedural and evidentiary errors for the reversal of defendant’s conviction.

Affirmed.

      . In United States v. Squella-Avendano, 447 F.2d 575 (5th Cir. 1971), this Court held that the arrests, resulting from, an informant’s tip, were made on probable cause, and the consequent search of the apartment and seizure of the cocaine were proper.


source: Caselaw Access Project

author: OAKES, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Phillip MANUELLA, Appellant.
    No. 588, Docket 72-2274.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 16, 1973.
    Decided May 2, 1973.
    Sheila Ginsburg, New York City (Robert Kasanof, The Legal Aid Society, New York City, of counsel), for appellant.
    Liam S. Coonan, Sp. Atty., Dept, of Justice, Brooklyn, N. Y. (Robert A. Morse, U. S. Atty., E.D. New York, and Sidney M. Glazer, Atty., Dept, of Justice, Washington, D. C., of counsel), for appellee.
    Before FRIENDLY, Chief Judge, OAKES, Circuit Judge, and DAVIS, Judge.

       Of the United States Court of Claims, sitting by designation.

   OAKES, Circuit Judge:

This case involves an attempt by a federal district judge to avoid the two month or so delay, usual in his district (and others), in obtaining presentence reports, by sentencing immediately at conviction subject to subsequent revision. While the attempt was laudable in aim, and the statutes and rules of criminal procedure might be amended so as to permit the flexibility here sought, we cannot agree that the sentencing was proper under existing law.

Appellant was tried and convicted on November 1, 1972, of dealing in firearms and ammunition without a license, 18 U.S.C. §§ 921, 922, having sold three guns to undercover Treasury agents and indicated a willingness and ability to supply other weapons.

During the jury’s deliberations Judge Weinstein instructed appellant’s counsel to inquire into his client’s background as, in the event of a verdict of guilty, he intended to impose sentence immediately, although he said that appellant could move for a reduction of sentence after the “presentence” report was filed. Defense counsel objected to the procedure and the court said:

I don’t believe in delaying these cases particularly in a situation where in my opinion the man had perjured himself before me ... If I don’t sentence him, you can’t appeal. I am not going to have these things dragged on for years. It now takes two months for a probation report, it might be different if I could get the probation report within a reasonable time.

After the verdict, defense counsel advised the court of appellant’s health situation, including his diabetes and a serious heart condition. He also referred to the hospitalization of appellant’s elderly mother, the pending eviction of the family, appellant’s record of honorable military service and lack of a criminal ree-ord, as well as appellant’s employment as a chef until disabled.

The Government advised the court of the seriousness of the crime, that there was “informant information” that appellant was “heavily in the firearm business,” that he had had three arrests, and that he was “a real danger to the public in that he is a funnel and channel for illicit firearms.” After a further statement by defense counsel about the arrests, the court forthwith sentenced appellant to four years’ imprisonment, and advised him to file a motion to reduce his sentence after the appeal contemplated by counsel. The court then said it would consider at that time his cooperation with the Government during the interim up to “the time of the reduction of sentencing” and released appellant on bail in view of his health problem.

What we have to say in no way is intended to constitute interference with a district judge’s broad sentencing powers, which still include under the plain language of Fed.R.Crim.P. 32(c)(1) the power in his discretion not to order any presentence report, even in a serious felony case. United States v. Deas, 413 F.2d 1371, 1373 (5th Cir. 1969); King v. United States, 410 F.2d 1127, 1128 (9th Cir. 1969); United States v. Visconti, 261 F.2d 215, 217 (2d Cir. 1958), cert. denied, 359 U.S. 954, 79 S.Ct. 743, 3 L.Ed.2d 762 (1959); United States v. Schwenke, 221 F.2d 356, 358 (2d Cir. 1955). See 2 C. Wright, Federal Practice and Procedure § 522 at 389-90 (1969). Our own United States v. Warren, 453 F.2d 738, 743-744 (2d Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2040, 32 L.Ed.2d 331 (1972), however, makes it very plain that dispensing with a presentence report should be done very rarely and then only if accompanied with a statement of the reasons therefor. Here there was no order that a presentence report be dispensed with. Thus, the question is whether, subject to revision on an application under Fed.R.Crim. P. 35 for reduction of sentence, the court could properly sentence before the report was received.

There are several vices which the judge’s innovative procedure would foster if it became a practice. These we believe outweigh the gain of despatch occurring when sentence is imposed and judgment entered promptly after verdict. First, a given judge’s mind might tend to become intransigent; once having made a sentencing determination in the absence of a presentence report, there would be a tendency, we feel, not to change that determination. In saying this we by no means have particular reference to this judge, who to the contrary is well known for careful consideration of individual circumstances.

Second, the sentencing judge might not himself be available at the time the Rule 35 application for reduction is made, for in this vale of tears, death, disability, promotion and retirement are all at the turn of fortune’s wheel. A second judge hearing the motion for reduction out of respect for a fellow judge’s views would be naturally disinclined to alter the sentencing judge’s sentence. Third, were this a practice to be followed the natural inclination would be to impose the larger sentence in the range of possible sentences since subsequently on a motion for reduction sentence could not be increased. In some cases, this may impose unnecessary mental anguish; in others, even the larger sentence may prove not large enough in the light of information disclosed in the presentence report. Fourth, a sentence imposed in what is sometimes the heat at the close of a trial may not carry with it the cool objective reflection that the complex '■ sentencing process, see M. Frankel, Criminal Sentences 26-37 (1973), necessarily must entail to be effective. Indeed, the sentence here was rendered at some time after 6:00 p. m. immediately after the jury returned its verdict. Fifth, this course may lead to a bailable defendant taking an appeal, often at the Government’s expense, that might not otherwise be taken, as apparently was the case here; this is not what is most needed by the courts of appeal.

Finally, it should be pointed out, Rule 32 calls for a presentence report, not a report for post-sentence review.

Nor are these reasons countered by what the sentencing judge expressed were factors underlying his determination to sentence immediately here — that the appellant had lied in court and that he might cooperate with the Government in connection with weapons sources. These factors may be taken into account upon sentencing at the proper time and there was nothing to prevent the court from speaking to the defendant of cooperation at the close of the case.

The Government argues nevertheless that there is no indication of harm to this appellant. Were it our province, we would agree that the sentence does not seem in the least undue under the circumstances set forth to this point in the record. The judge elicited from defense counsel mitigating factors. But we may query whether the same mitigating factors would carry the same weight coming from defense counsel at the conclusion of the case as they would in a report of the probation department. We query also whether a defendant with the emotional strain necessarily present at the immediate conclusion of a criminal trial is fully prepared to inform counsel of all relevant mitigating factors. And in any event, the two months’ delay entailed by the probation department’s preparation of a report in the Eastern District of New York is hardly the kind of discretionary factor that, under United States v. Warren, supra, would warrant non-use of any presentence report. Cf. United States v. Brown, 470 F.2d 285, 288 (2d Cir. 1972) ; United States v. Fields, 466 F.2d 119, 121 (2d Cir. 1972).

We reverse the judgment below and remand for resentencing in the light of the presentence report which we understand is available now.

Reversed and remanded.

      . We are advised that in at least two other oases, if not as a general rule, Judge Weinstein has initiated this practice of sentencing at the time of verdict subject to revision upon receipt of the presen-tence report.

      . Rule 32(c)(1) provides:
      The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty. It is proposed, however, to amend this rule to permit the court to dispense with a presentence report only if the maximum penalty is one year or less, or if the defendant has two or more felony convictions, or if the defendant refuses to be interviewed or requests that sentence be imposed without a report, or if it is impracticable to verify the defendant’s background. Proposed Amendments to the Rules of Criminal Procedure for the United States District Courts, Rule 32.2 (a), 48 P.R.D. 614 (preliminary draft 1970). See also ABA Project of Standards for Criminal Justice, Sentencing Alternatives and Procedures § 4.1(c) at 206 (1968).

      . Of course, the exercise of any act of discretion, including this one, may be an abuse in a given situation. United States v. Hazelrigg, 430 F.2d 580, 583 (8th Cir. 1970). Cf. Leach v. United States, 115 U.S.App.D.C. 351, 320 F.2d 670 (1963). See also United States v. Spadoni, 140 U.S.App.D.C. 376, 435 F.2d 448 (1970) ; ABA Project, supra note 1, § 4.1(b) at 204-06 (1968). We generally agree with Judge Frankel’s recent statement that “whatever its defects, the presentence investigation is indispensable in any sentencing scheme that does not treat the infinite varieties of people as entirely fungible. This means . . . that [district judges] could not pretend at all to any measure of sense in sentencing without the basic presentence investigation.” M. Frankel, Criminal Sentences 35 (1973). It may be that, at least by agreement of counsel, in an appropriate case delay in sentencing could be avoided and all necessary information secured for the court, without resort to a full pre-sentence report. The same beneficial result could be accomplished, presumably, by making greater resources available to the probation department.

      . This Rule provides in pertinent part:
      The court may reduce a sentence within 120 days after the sentence is imposed, or within 120 days after receipt by the court of a mandate issued upon af-firmance of the judgment or dismissal of the appeal, or within 120 days after receipt of an order, of the Supreme Court denying an application for a writ of certiorari.

      . Judgment may not enter until sentence, under Fed.R.Crim.P. 32(b).


author: KOELSCH, Circuit Judge. EUGENE A. WRIGHT, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael DUNN (aka Mike Dunn), Defendant-Appellant.
    No. 24380.
    United States Court of Appeals, Ninth Circuit.
    March 23, 1973.
    Rehearing Denied June 22, 1973.

      Gregory R. Harris (argued), John Carlson, of Duryea, Carpenter & Barnes, Newport Beach, Cal., for defendant-appellant.
    Dennis M. O’Connell, Atty. (argued), Raymond N. Zagone, Atty., Shiro Kashi-wa, Asst. Atty. Gen., Lands and Natural
    Resources Division, Dept, of Justice, Washington, D. C., Robert L. Meyer, Thomas H. Coleman, Ernestine Tolin, Asst. U. S. Attys., San Francisco, Cal., for plaintiff-appellee.
    Before KOELSCH, CARTER and WRIGHT, Circuit Judges.
   KOELSCH, Circuit Judge.

This matter involves a dispute between the government and a group of persons, defendants, below, who are asserting an easement for a road across public lands. It is here on defendant’s appeal from partial summary judgment holding defendants trespassers and the government entitled to immediate possession of the government lands over which defendants were constructing portions of the road at the time this suit was commenced.

We conclude the judgment cannot stand. Summary judgment may not be entered unless, in the language of Rule 56(c) Fed.R.Civ.P., “. . . the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” This record discloses several such issues.

Defendants asserted the doctrine of easement by implication and necessity as the basis for the road. They relied upon affidavits, etc. which tended to show that they succeeded, through mesne conveyances, to the ownership or control of a number of sections and partial sections of land which had been patented in the year 1906 to the Southern Pacific Railway Company, pursuant to Congressional grant to aid in the construction of railroads (Act of July 27, 1866, 14 Stat. 292; Act of Mar. 3, 1871, 16 Stat. 573); that the lands so patented were and are wholly surrounded by public lands and that no roads to defendants’ lands have ever existed nor do the patents make any provision for access; that the lands, although never exploited commercially, have utility for some purposes and that defendants desire to “develop” them and sell parcels for home-sites and recreational uses; that the defendants, to that end, laid out and coim menced to construct a two lane surfaced road suitable for vehicular travel, linking said sections together and providing access to them; that upon completion defendants intended to dedicate the road to the public. They make further statements concerning the route selected and the width of the road, which tend to show that the course is predominantly dictated by the nature of the surrounding terrain and that the size is commensurate with the probable need.

The court held this showing insufficient to meet the government’s motion. It gave two reasons. The first that no necessity appeared. Said the court: “It is interesting in connection with the claim of the defendants to a way of necessity that they have not shown that any of the parcels as to which defendants claim an interest is entirely landlocked.” Even if the record bore out this statement, such fact would not necessarily have ended the matter. However, the record is to the contrary; it includes, in addition to defendants’ statements concerning lack of access to their lands, a plat which tends to show that most, if not all, of defendants’ lands are wholly surrounded by those of the government.

The district court, as the second basis for its ruling, declared in effect that, assuming an easement, the road exceeded in scope that contemplated by the government at the time patent issued. But that fact does not support, let alone require, the conclusion reflected in the summary judgment that defendants are wholly without a right nor does it justify the broad order directing them to quit the public land altogether.

The defendants, having raised a factual issue as to whether or not they hold an easement, are entitled to a hearing to determine not only that issue, but the incidental ones that relate to it.

The judgment is vacated and the cause is remanded to the district court for further proceedings consistent with this opinion.

EUGENE A. WRIGHT, Circuit Judge

(dissenting):

I dissent:

I would hold that under the facts of this case the doctrine of easement by necessity is not binding on the United States and accordingly I would affirm the granting of summary judgment.

      . The complaint names several persons as defendants, but the judgment, as well as the writ, runs solely against one of them— Michael Dunn, and leaves the present status of the others unclear. References to “the defendants” throughout this opinion include not only Dunn but any other of the defendants who are interested.

      . Since the government did not, in our judgment, raise the point upon which Judge Wright bases his dissent, we have not discussed it in the opinion, but nevertheless did give it due consideration and concluded that it lacked merit. 3 Powell, Real Property, 443-444. See Superior Oil v. United States, 353 F.2d 34 (9th Cir. 1965).
      The doctrine applies to roads:
      “A way of necessity arises where there is a conveyance of a part of a tract of land of such nature and extent that either the part conveyed or the part retained is entirely surrounded by the land from which it is severed or by this land and the land of strangers. It is a universally established principle that where a tract of land is conveyed which is separated from the highway by other lands of the grantor or surrounded by his lands or by his and those of third persons, there arises, by implication, in favor of the grantee, a way of necessity across the premises of the grantor to the highway. . ” (17 Am.Jur. Easements, § 58).

        The court, apparently as a third basis for its ruling, gratuitously held that defendants had no right by statute to an easement. Thus, in the course of its opinion the court declared “ [t] he Congressional statute provides for the construction of public highways by duly constituted public authorities over public lands, but it does not provide for the construction of roads of the nature here involved on the public lands by private persons.” The court did not designate the statute referred to but no doubt had in mind 43 U.S.C. § 932, for both parties now discuss that statute in their briefs on appeal and defendants place considerable reliance upon it as a. separate basis for their attack on the summary judgment. Since the cause must go back to the district court, we will assume that the reference was to 43 U.S.C. § 932 and undertake to consider it.
      43 U.S.C. § 932 reads as follows: “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”
      This statute constituted section 8 of the Act of July 26, 1866, 14 Stat. 251, R.S. § 2477; the historical conditions leading to its enactment and the circumstances of its operation are set out. and carefully explained at considerable length in Central Pac. R. Co. v. Alameda Co., 284 U.S. 463, 52 S.Ct. 225, 76 L.Ed. 402 (1932) and will not be repeated here. Suffice to say that the statute was passed to protect persons who have already encroached upon the public domain without authorization but who have been allowed to remain there with the knowledge and acquiescence of the government and who should not in conscience be deemed trespassers. It was not intended to grant rights, but instead to give legitimacy to an existing status otherwise indefensible. That such is its purpose is clear. Justice Sutherland, speaking for the Court, in the Central Pacific case, pointed out that the statute “is controlled by the same general principles.” [284 U.S. at 472, 52 S.Ct. at 228] as those embraced in companion section 9 of the same Act, which relates to ditches and canals on the public domain. And to declare those “principles” he quoted the following from Broder v. Water Company, 101 U.S. 274, 25 L.Ed. 790 (1872):
      “ ‘It is the established doctrine of this court that rights of persons who had constructed canals and ditches are rights which the government had, by its conduct, recognized and encouraged and was bound to protect before the passage of the Act of 1866.’ We are of the opinion ‘that the section of the Act which we have quoted was rather a voluntary recognition of ® preexisting right of possession, constituting a valid claim to its continued use, than the establishment of a new one.’ ” (284 U.S. at 469-470, 52 S.Ct. at 227).
      None of the cases cited and relied upon by defendants is apposite; they treat of long established roads or highways and hence do not present the question, as here, whether the statute authorized one to commence construction of a way over public lands. Defendants’ own affidavits showing, as they do, that the road is as yet not even ready for use, render inapplicable the protective provisions of 43 U.S.C. § 932.

      . “Absolute” necessity is not always prerequisite to an implied easement. 2 Thompson, on Real Property, § 353.

      . In this conclusion, the district court noted defendants’ concessions to the effect that the government at the time of patent (1906) had not intended a highway for motor vehicles across its retained lands, but this concession does not foreclose all inquiry into questions of size, nature and course of a road. See Superior Oil Co. v. United States, 353 F.2d 34 (9th Cir. 1965).


author: BENSON, District Judge.

text:
    Sebastian A. ANZALDO, guardian for Gia Anzaldo, a minor, Plaintiff-Appellee, v. S. W. CROES, d/b/a Modern City Motel, Defendant-Appellant.
    No. 72-1448.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 15, 1973.
    Decided May 1, 1973.

      Gene R. Bushnell, Rapid City, S. D., for defendant-appellant.
    Curtis D. Ireland, Rapid City, S. D., for plaintiff-appellee.
    Before HEANEY and ROSS, Circuit Judges, and BENSON, District Judge.

       Benson, Chief Judge, United States District Court, District of North Dakota, sitting by designation.

   BENSON, District Judge.

This is a diversity negligence action in which the jury returned a $55,000.00 verdict for Gia Anzaldo, a minor. Appellant Croes appeals from the judgment and the order which denied his motion for judgment notwithstanding the verdict, or in the alternative for a new trial.

The Anzaldo family had checked into the Modern City Motel, owned by Croes, and were given a second story room which included an outside balcony. The balcony was entirely enclosed by iron grillwork with a gate leading to a fire escape stairway. The stairway which served the room as the only means of ingress and egress, was prefabricated, and attached to the building in such a way that it left a step eight inches in height at the top landing. This distance exceeded a comfortable step by % to % of an inch. The steps themselves were 24 inches wide. Both of these measurements were insufficient to meet the safety standards of the community. The balcony area and stair landing were encased in a mesh screen, except for the side of the landing toward which the gate opened. In addition to being open on the one side, the space between the individual bars of the railing was greater than the recommended ten inches, leaving an open space through which a child could easily fall. The gate on the balcony was below standards in that it was not self closing, and was too close to the stairs. At ground level and at the fire escape landing were concrete steps that led into a basement entrance. On the evening of August 13, 1969, Gia Anzaldo, then four years old, fell from the balcony, striking her head on one of the basement steps. The fall caused injuries to Gia, resulting in treatment at Creighton Memorial St. Joseph Hospital at Omaha, during which three electroencephalograms were taken.

In his motion for judgment notwithstanding the verdict, Appellant Croes asserts that the Appellee Anzaldo failed to prove as a matter of law, that any negligence on the part of the defendant was a proximate cause of Appellee Anzaldo’s injuries. We do not agree.

The evidence was sufficient for the jury to find appellant was negligent in maintaining a balcony and stairway that did not conform to the community standards of safety. In addition, there was evidence relating to the line of fall and point of impact, from which the jury could find the negligence was a substantial factor in causing the harm. Mulder v. Tague, 186 N.W.2d 884 (S.D.1971).

Appellant’s motion for a new trial was grounded principally on the receipt in evidence of the EEG reports which were part of the hospital records of the Creighton Memorial St. Joseph Hospital of Omaha. The reports were summaries and conclusions of the doctors who read the actual tracings of the electroencephalograms, which were not a part of the record. The trial court had originally sustained the appellant’s objection, and ruled these reports to be inadmissible as outside the scope of the Business Records Act. Later the court changed its ruling and allowed the reports into evidence without any testimony or cross-examination of the doctors. The tracings were taken at three different times under the direction of two different doctors.

The report of each EEG bore notations as follows:

1. Dr. Harold A. Ladwig, August 21, 1969— “abnormal EEG, showing S3, right temporal area.”
2. Dr. Harold A. Ladwig, May 19, 1970— “normal EEG.”
3. Dr. Clifford Danneel, March 17, 1972 — “moderately abnormal EEG for age.”

The appellant attacks the admissibility of these reports unless the doctors are present and subject to cross-examination. Under a reasonable interpretation of both the Federal Shop Book Act, 28 U.S.C. § 1732, and the South Dakota Business Records as Evidence Act, SDCL 19-71-111, the appellant submits that the EEG reports are outside the scope of such acts, and opinions contained therein are not admissible as exceptions to the hearsay rule. Appellant argues that the Business Records exception exists because business entries covered by the Acts are trustworthy in that (1) they are a product of an efficient clerical system, (2) they are the kind of observations on which competent men would not differ, and (3) they are an automatic reflection of observation, citing New York Insurance Company v. Taylor, 79 U.S.App.D.C. 66, 147 F.2d 297 (1945) (en banc). As such, appellant argues that opinions and conclusions such as the EEG reports do not come within this exception as they are conclusions obtained from interpreting lines produced by electrical devices measuring the activity of the brain. Such interpretation, appellant continues, are by definition matters of judgment which depend on the training and skill of the individual interpreters; they are very subjective and subject to substantial disagreement among experts.

Appellee relies on the holding in Allen v. St. Louis Public Service Co., 365 Mo. 677, 285 S.W.2d 663 (1956), which followed the dissenting opinion in New York Life Insurance Co. v. Taylor.

“It would seem that the following parts of a duly authenticated and qualified hospital record should be admissible unless subject to specific objection such as irrelevancy, inadequate sources of information as being self-serving, as going beyond the bounds of legitimate expert opinion, or on similar substantive grounds: the physical examination findings, the patient’s symptoms and complaints, treatment and progress records, diagnosis by those qualified to make them, the results of analyses and laboratory tests, X-rays, the behavior of the patient, and those parts of the patient’s history inherently necessary (or at least helpful) to the observation, diagnosis and treatment of the patient (citations omitted). The matters here noted do not purport to be exclusive. Since the hearsay objection is obviated, we see no reason why a proper expert medical opinion contained in a hospital record should not be accorded dignity equal to that of a similar opinion from the witness stand; to preserve the right of cross-examination intact as to such matters would be to repeal the statute.” at 667.

Although the trend at present is narrowing the instances in which records kept pursuant to ordinary and routine business procedures are excluded if they include diagnosis or opinions, the issue of admissibility per se remains open, and we do not decide it as a matter of law in this case.

After initially excluding the EEG reports, the trial court admitted them on the grounds that appellant’s counsel had opened the matter on cross-examination of appellee’s principal medical witness. Under the circumstances of this case, the trial court’s initial ruling excluding the evidence was correct.

Appellant submits that because he was denied the opportunity to conduct meaningful discovery of the medical issues prior to trial, the court should have either excluded the evidence entirely, or granted a continuance to insure a fail-trial. We agree.

An examination of the trial transcript shows that the matter was not opened by appellant’s counsel in his cross-examination, but rather by information volunteered by the witness that went beyond the scope of counsel’s question.

In reversing its ruling at the trial and permitting the evidence to be received, the trial court should have granted appellant’s motion for continuance to give the defendant an opportunity to cross-examine the doctors whose opinions were on the reports. The denial of a continuance, coupled with appellee’s counsel’s unwarranted pre-trial obstructionist tactics (explored more fully below), resulted in appellant’s inability to secure meaningful discovery in the critical area of appellee’s claim of mental and psychic damage.

Appellee, asserting physician-patient privilege, obtained a protective order from the court on April 17, 1972, preventing appellant from deposing Dr. John R. Mitchell, - the primary treating physician, and Dr. Richard Altland, the psychologist. Just four days later, on April 21, in response to interrogatories requesting appellee to “[ijdentify each person that you expect to call as an expert witness at trial . . .”, the ap-pellee listed the same two doctors as “possible witnesses”. They were called to testify at the trial with Dr. Mitchell as appellee’s principal medical witness. The record is clear that appellee’s counsel asserted medical privilege well knowing the witnesses appellant sought to depose were going to be used to testify on critical matters at the trial. Such tactics serve no purpose, except to obstruct and delay justice, and cannot be condoned.

One week prior to trial, the court held that appellee had waived medical privilege. It was too late for meaningful medical discovery. Appellant unsuccessfully tried to arrange for the depositions of Dr. Danneel and Dr. Mitchell.

Dr. Mitchell’s testimony at the trial was based on the EEG reports. He had not personally interpreted the electroencephalograms, but was relying on the interpretation of Dr. Danneel and Dr. Ladwig, who were not produced at the trial, and thus unavailable to appellant for cross-examination. Appellant did not know prior to trial that Dr. Mitchell had not interpreted the electroencephalograms himself. These three EEG reports were offered to support a claim of injury which could expose appellant to the likelihood of a very substantial adverse verdict. This, together with the variance in the reports, made it crucial to the appellant to have the opportunity to explore and test the opinions of Dr. Danneel and Dr. Ladwig.

As previously stated by this court, a motion for continuance is subject to the broad discretion of the trial judge. Nutt v. Black Hills Stage Lines, Inc., 452 F.2d 480 (8th Cir. 1971); Greyhound Lines, Inc. v. Miller, 402 F.2d 134 (8th Cir. 1968). And further, a trial court’s refusal to grant a continuance cannot be overturned unless abuse of discretion or “prejudicial error” is shown. Nutt, at 483. Long ago we stated that “[t]his court cannot inquire into and examine the mental operations of the trial court in its exercise of a discretionary power. On such an appeal as this we are limited to a consideration of whether the order itself constitutes an abuse of discretion in that it infringes the legal or equitable rights of the defendant as shown by the circumstances and facts conceded or undisputed.” Homeowners’ Loan Corporation v. Huffman, 134 F.2d 314, 318 (8th Cir. 1943). The prime reason for resting broad discretion in the trial court as to continuances was clearly put forth by the Second Circuit, to-wit:

“The failure to be ready for trial when called — unfortunately, a condition too prevalent in our courts — is one of the basic causes creating a backlog of calendars. The ensuing delay caused by adjournments and other dilatory tactics, not only hobbles justice but causes the public to mistrust the entire judicial process.” Davis v. United Fruit Company, 402 F.2d 328, 330 (2nd Cir. 1968).

However, that court was quick to add this caution:

“We realize that a court must not let its zeal for a tidy calendar overcome its duty to do justice .... In order to reduce this choking congestion, the district courts must be permitted to exercise their discretion in appropriate ways that will ensure justice to all who seek it . . . . ” At 331.

In this case where counsel was unable to utilize discovery procedure designed to insure full knowledge of the facts and issues upon which adequate preparation could be based, we are unable to say that substantial justice was done. In light of the state of the record, it was a clear abuse of discretion to admit the reports, and not grant the appellant’s motion for continuance.

It has been observed that prior to adoption of the present rules pertaining to discovery, results were not based upon the merits of the case, but upon legal maneuvering of counsel. Gebhard v. Ni-edzwiecki, 265 Minn. 471, 122 N.W.2d 110, 114 (1963).

The language of the Supreme Court highlighting the importance of discovery in this respect has been stressed in this circuit:

“The new rules, however, restrict the pleadings to the task of general notice giving and invest the deposition-discovery process with a vital role in the preparation for trial .... The way is now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial.
. . . the deposition-discovery rules should be accorded a broad and liberal treatment. . . . Mutual knowledge of all relevant facts gathered by both parties is essential to proper litigation. . . . ” Hickman v. Taylor, 329 U.S. 495, 501, 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947) cited in Greyhound Bus Lines, Inc. v. Miller, 402 F.2d 134, 143 (8th Cir. 1968).

The instant case is similar to Nutt, which held that where the defendants did not learn of a claim for traumatic neurosis until commencement of trial, “[t]he court should have required the plaintiff to forego this new issue, ... or, if plaintiff refused, then it should have granted the defendants a reasonable continuance.” 452 F.2d at 483. This ruling prevailed despite (1) the fact that the record did not reveal any willful unfairness on the part of the plaintiff, or (2) that the appellant conducted “a vigorous and thorough examination” of the neuro-psychiatrist who had examined plaintiff the day before trial. Chief Judge Matthes in dissent, pointed to the trial judge’s attempt in Nutt to protect the appellant’s interests by ordering a day’s delay before allowing the neuropsychia-trist to testify, to enable appellants to have plaintiff examined by a physician of their choice. It would seem that the case for requiring a continuance to the appellant-defendant in this case is even more persuasive than the situation in Nutt. At any rate, in Nutt, this court concluded, in view of the purpose of the federal discovery rules, and that the neuropsychiatrist’s testimony added a “significant new dimension” to ap-pellee’s case, that justice demanded such testimony be struck, or a continuance granted.

Without doubt, the admission of the three EEG reports added a “significant new dimension” to appellee’s case, 'when considering that meaningful discovery had been denied.

The judgment is vacated and the case is remanded for a new trial limited to the sole issue of damages.

      . The actual electroencephalograms were not offered in evidence.

      . See the advisory committee’s notes setting forth the scope of the Proposed Rules of Evidence for United States Courts and Magistrates, Rule 803(6), 468 F.2d 1, 119, 120 (1973).

      . The following question was asked and the answer given at the close of the appellant-defendant’s cross-examination of Dr. Mitchell:
      “Q: So that other tests with regard to what you testified to since have been negative, that is, the angiogram and the neurologicals ?
      A : The two that you mention have been negative. There have, been others.” (Emphasis ours)


author: CAMPBELL, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff, Appellant, v. COMMONWEALTH OF PUERTO RICO et al., Defendants, Appellees.
    No. 71-1357.
    United States Court of Appeals, First Circuit.
    Argued Feb. 6, 1973.
    Decided May 18, 1973.

      Scott P. Crampton, Asst. Atty. Gen., with whom Julio Morales Sanchez, U. S. Atty., Meyer Rothwacks, William Massar, and Jane M. Edmisten, Attys., Tax Division, Department of Justice, were on brief, for appellant.
    Ruth Tentori De Lebron-Velazquez, Asst. Sol. Gen. for Commonwealth of Puerto Rico and Jose L. Novas, San Juan, P. R., for Puerto Rico Automobile Accident Compensation Administration, with whom Gilberto Gierbolini Ortiz, Sol. Gen. of Puerto Rico, and Fernando Perez-Colon, San Juan, P. R., Counsel for Puerto Rico Automobile Accident Compensation Administration, were on joint brief, for appellees.
    Before COFFIN, Chief Judge, McEN-TEE and CAMPBELL, Circuit Judges.
   CAMPBELL, Circuit Judge.

Every person harmed in Puerto Rico as a consequence of maintaining or using a motor vehicle is entitled, regardless of fault, to receive hospital and medical care and to be paid scheduled benefits for dismemberment and other disability. If death ensues, the victim’s family and kin are entitled to benefits. Up to stated limits, benefits take the place of what a victim might recover in a tort action against the person responsible for the accident. Tort recovery is permitted, but only above those limits. § 2058.

This “no-fault” plan, enacted in 1970, a year before Massachusetts became the first state to adopt compulsory no-fault insurance, M.G.L. c. 90 § 34A et seq., as amended by St.1970, c. 670 § 1 et seq., is operated by an instrumentality of the Puerto Rico government, a special corporation known as the Automobile Accident Compensation Administration (AACA). § 2060. The AACA is empowered to fix a yearly “premium”, which is to be “in accordance with the experience and the corresponding actuarial study.” § 2063(4). This is exacted annually from each owner of a registered motor vehicle. It is used solely to compensate victims and for expenses of the no-fault scheme. § 2064(3), (4). The funds may not be used for general revenue purposes.

The United States brought the present action in the district court on behalf of non-resident servicemen stationed in Puerto Rico. Puerto Rico requires all servicemen owning automobiles to pay the annual no-fault premium. They and their families, like all others in Puerto Rico, may share in the plan’s benefits. The United States has sought a declaration that the exaction, from non-resident servicemen, is illegal under § 514 of the Soldiers’ and Sailors’ Civil Relief Act (the Relief Act), 50 U.S.C. App. § 574. The district court ruled otherwise. It held that the annual contribution, being neither a “tax” nor a fee paid for the privilege of operating a motor vehicle, was not “forbidden” by § 514. We affirm.

The district court’s decision was made upon cross motions for summary judgment. Besides affidavits filed earlier for purposes not here relevant, the court had before it a stipulation of facts. Prom the court’s findings and the undisputed facts, the following appears. The premium is set irrespective of the vehicle’s value, and may vary from year to year depending upon past experiences in the administration of the system. In 1970-71 it was fixed by the AACA at $35 per vehicle. A separate $25 license plate fee is charged on registering an automobile in Puerto Rico which servicemen retaining their home state registration need not pay. § 179. (However, the no-fault premium must be paid regardless of place of registration.) Under the no-fault act, § 2064(1), and under the regulations of the Administration, Rule II, Rule 2.1, payment of the premium is made at the time of registration or of renewal of an owner’s license. An owner without Puerto Rican registration must have a sticker attached to his plates evidencing payment of the premium; a required transit license is not issued unless the insurance is paid. Rule 2.6. The premium is prorated if the vehicle is brought into Puerto Rico after the beginning of the year or taken out before the end. § 2064(3).

Servicemen for whom this action was brought, residents of the continental United States, are in Puerto Rico solely by reason of military orders. They own motor vehicles, some registered in Puer-to Rico, some registered in home states. All are insured. Their insurance companies are required by Puerto Rico authorities to issue endorsements to their policies which exclude from coverage thereunder accidents occurring in Puer-to Rico to the extent the accident is or would be covered by the Protection Act.

While § 514 of the Relief Act has as its chief aim “to prevent multiple State taxation of the property and income of military personnel,” it does not “relieve servicemen from every state tax which is somehow dependent on the presence of personal property within the state.” Sullivan v. United States, 395 U.S. 169, 180, 89 S.Ct. 1648, 23 L.Ed.2d 182 (1969).

The tax “in respect of” personal property as to which § 514 most plainly grants immunity is the recurring ad valorem property tax. Thus in California v. Buzard, 382 U.S. 386, 86 S.Ct. 478, 15 L.Ed.2d 436 (1966), § 514 was held to exempt a Washington resident from paying a so-called license fee which California sought to impose as a condition to his registering his car in California. While termed a “license fee”, the exaction was separate from and in addition to an $8 “registration fee”. Calculated at 2% of a motor vehicle’s market value, and collected “in lieu of all taxes according to value levied for state or local purposes on vehicles,” the tax had been adopted as a substitute for local ad valorem taxation of automobiles. Buzard, supra, 382 U.S. at 389, 395, 86 S.Ct. 478, n. 9. The tax proceeds went for highway maintenance, a familiar object of tax revenues. See also Snapp v. Neal, State Auditor, et al., 382 U.S. 397, 86 S.Ct. 485, 15 L.Ed.2d 445 (1965) (serviceman exempt from paying ad valorem trailer tax).

Section 514 does not, however, provide exemption from a host state’s sales and use taxes. In Sullivan v. United States, supra, the court held that “taxation in respect of” personal property, within the meaning of § 514, means taxes “on” personal property:

The legislative history of the 1942 enactment and the 1944 and 1962 amendments of § 514 reveals that Congress intended the Act to cover only annually recurring taxes on property — ■ the familiar ad valorem personal property tax. Thus, the reports advert to the possibility that servicemen ordered to move around the country — as they were increasingly during World War II — might have their property taxed by more than one state “within the same calendar year”. . . . And the reports throughout refer explicitly to “personal-property taxes on property” . . 395 U.S. at 176-177, 89 S.Ct. at 1653.

The court also emphasized the absence of any significant risk of double taxation, both because of credit provisions and the taxes’ non-recurring nature. See 395 U.S. at 180, 89 S.Ct. 1648.

In the present instance, the United States argues that Puerto Rico’s no-fault premium is simply a tax on automobiles, the proceeds of which are used for a special class of citizens — those harmed by automobiles. It likens the exaction to the 2% tax in Buzará, used for highway improvement.

We do not agree. The measure of the exaction is not the value of the vehicle; the amount of the annual contribution is based on experience and actuarial computations. And it is adjusted to reflect the length of a vehicle’s stay in Puerto Rico. The exaction is, in fact, an insurance premium. As with private insurance, the premium reflects an effort to spread certain costs of personal injuries caused by motor vehicles among all those registering and-maintaining such vehicles. What is significant is not the taxable wealth represented by the vehicle, but the vehicle’s potential for harm when driven — a potential which gives rise to the requirement that its owner contribute to a pool of money held for the benefit of those injured or killed.

We believe it to be immaterial whether the sum is properly described as a “tax” (see Carmichael v. Southern Coal Co., 301 U.S. 495, 508, 57 S.Ct. 868, 81 L.Ed. 1245 (1937)) or as a form of regulatory exaction (see Head Money Cases, 112 U.S. 580, 595, 5 S.Ct. 247, 28 L.Ed. 798 (1884)). It is, in any event, not “taxation in respect of” personal property within the meaning of § 514. Sullivan, swpra, 395 U.S. at 175, 89 S.Ct. 1648. Puerto Rico’s exaction is most closely allied to the premium required by some states to be paid to private insurers for “compulsory” motor vehicle insurance, i. e. a policy of insurance made mandatory if one is to secure registration. Such compulsory insurance is usually closely regulated by the state— the terms of the policy being prescribed by law and the amount of the premium set annually by the state. See, e. g., M.G.L. c. 175 § 113A et seq. We are not aware of any authority interpreting § 514 to prevent a host state from requiring a serviceman to comply with its compulsory insurance law. That Puerto Rico’s compulsory insurance is administered by the state rather than by private insurers should make no difference.

We recognize that Puerto Rico’s plan, being state-run and no-fault, may create a particular burden; transient servicemen may find it more difficult to obtain full premium adjustments from home-state liability insurers in view of these features (although no-fault is, of course, no longer unique, see M.G.L. c. 90 § 34A et seq., as amended, and generally Note, A Social Insurance Scheme for Automobile Accident Injuries, supra, n. 6 at 432-476). Puerto Rico has a substantial interest in the welfare of its citizens exposed to injury and death through the operation of motor vehicles. We do not believe that Congress meant in § 514 to exempt servicemen, whose vehicles increase the risk of injury to a host state’s citizenry, from participating on the same terms as all others in the prevailing insurance requirements.

In holding that the annual premium is not taxation in respect of property under § 514, we have considered whether it might be such by virtue of clause (2) (b) of § 514, defining “taxation” as including “licenses, fees, or excises imposed in respect to motor vehicles or the use thereof: . . .” That clause and its proviso were extensively analyzed in Buzará, supra, and also in Sullivan, supra. The words “licenses, fees or excises” were given a narrow and restricted interpretation in Buzará. They were held to refer “only to those taxes which are essential to the functioning of the host State’s licensing and registration laws in their application to the motor vehicles of non-resident servicemen”. Buzard, supra, 382 U.S. at 395, 86 S.Ct. at 484. In Sullivan, supra, 395 U.S. at 182, 89 S.Ct. 1648, the words were equated with “the motor vehicle registration fee” itself — that and no more. It seems clear, under Buzará and Sullivan, that the Puerto Rico premium is not a “license, fee or excise”, and thus is not, on that ground, “taxation” within the meaning of § 514(2) (b). Moreover, not being a “license, fee or excise”, the premium is not subject to the language in the proviso of clause (2)(b); we need not consider what effect, if any, to give to a serviceman’s compliance or non compliance with the requirements of his home state.

Significantly, in Sullivan, supra, 395 U.S. at 181, 89 S.Ct. at 1655, the Supreme Court stated;

[Tjhe only taxes on the use of property from which servicemen are exempted are the special registration taxes imposed annually by all States on the use of motor vehicles.

The “special registration taxes” referred to were the motor vehicle registration fee; in Puerto Rico, this would presumably be the $25 charge imposed for obtaining Puerto Rico “plates”. Since the premium is not such a special registration tax, and since, if a tax at all, the premium taxes the use of the vehicle rather than its value, § 514 does not prohibit it.

Affirmed.

      . Automobile Accident Social Protection Act of the Commonwealth of Puerto Rico, 2A Laws of Puerto Rico Ann., Title 9, § 2051 et seq. Property damage is not reimbursable under the plan.

      . § 574. Residence for tax purposes
      (1) For the purposes of taxation in respect of any person, or of his personal property, income, or gross income, by any State, Territory, possession, or political subdivision of any of the foregoing, or by the District of Columbia, such person shall not be deemed to have lost a residence or domicile in any State, Territory, possession, or political subdivision of any of the foregoing, or in the District of Columbia, solely by reason of being absent therefrom in compliance with military or naval orders, or to have acquired a residence or domicile in, or to have become resident in or a resident of, any other State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, while, and solely by reason of being, so absent. Por the purposes of taxation in respect of the personal property, income or gross income of any such person by any State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia, of which such person is not a resident or in which he is not domiciled, compensation for military or naval service shall not be deemed income for services performed within, or from sources within, such State, Territory, possession, political subdivision, or District, and personal property shall not be deemed to be located or present in or to have a situs for taxation in such State, Territory, possession, or political subdivision, or district. Where the owner of personal property is absent from his residence or domicile solely by reason of compliance with military or naval orders, this section applies with respect to personal property, or the use thereof, within any tax jurisdiction other than such place of residence or domicile, regardless of where the owner may be serving in compliance with such orders: Provided, That nothing contained in this section shall prevent taxation by any State, Territory, possession, or political subdivision of any of the foregoing, or the District of Columbia in respect of personal property used in or arising from a trade or business, if it otherwise has jurisdiction. This section shall be effective as of September 8, 1939, except that it shall not require the crediting or refunding of any tax paid prior to October 6, 1942.
      (2) When used in this section, (a) the term “personal property” shall include tangible and intangible property (including motor vehicles), and (b) the term “taxation” shall include but not be limited to licenses, fees, or excises imposed in respect to motor vehicles or the use thereof : Provided, That the license, fee, or excise required by the State, Territory, possession, or District of Columbia of which the person is a resident or in which he is domiciled has been paid.

      . From affidavits filed in the district court, we understand that of 4300 privately-owned vehicles registered at Ramey ARB to military personnel, 38% aré registered in Puerto Rico; the rest are home-state registered (48%) or registered solely for on-base driving. About 14% of vehicles owned by servicemen at the naval station are registered in Puerto Rico, as are 30% of vehicles owned by other military personnel.

      . It appears from the affidavits that servicemen get refunds from their insurance companies. However, one officer states in an affidavit that his refund was less than the amount required to be paid under the Puerto Rico plan. Further, two New York servicemen state that New York minimum coverage requirements would force them to continue their coverage while paying for protection under the Puerto Rico plan, and that the plan thus compels them to pay double premiums. New York is one of a relatively few states with a compulsory insurance law. See infra, n. 6.

      . S.Rep.No.1558, 77th Cong., 2d Sess., 11 (1942) ; H.R.Rep.No.2198, 77th Cong., 2d Sess., 6 (1942) both of which went on to express concern that “[u]nder present state laws the personal property and income of such persons may beeome liable for taxes in several states within the same calendar year.” See also S.Rep.No.959, 78th Cong., 2d Sess., 1 (1944). Although avoidance of multiple taxation is a chief aim, a serviceman need not pay a tax covered by the Relief Act in a host state even if no similar tax is imposed in his home state. Dameron v. Brodhead, 345 U.S. 322, 73 S.Ct. 721, 97 L.Ed. 1041 (1953).

      . Massachusetts adopted compulsory insurance as early as 1925. See Opinion of the Justices, 251 Mass. 569, 147 N.E. 680 (1925), upholding the scheme under the state’s power to regulate highway travel for the public welfare. Although all states have some kind of financial responsibility law concerning motor vehicle operators, as of 1971 only three, Massachusetts, New York and North Carolina, had compulsory insurance laws. Note, A Social Insurance Scheme for Automobile Accident Compensation, 57 Va.L.Rev. 409, 414 (1971). There is no evidence that Congress had such insurance plans in mind when it enacted § 514 in' 1942 and amended it in 1944 and 1962.

      . We add that the government has not shown that Puerto Rico’s plan results in all or most cases in double exactions for transient servicemen. See Sullivan, supra, 395 U.S. at 180, 89 S.Ct. 1648. Puerto Rico would seem to avoid or at least reduce double exaction by prorating the premium and exempting the serviceman, while driving in Puerto Rico, from liability below stated limits, thus presumably lowering his liability insurance costs. Preliminary affidavits from some servicemen suggest that the mathematics are unfavorable, especially for those from one of the few compulsory insurance states, New York. But given the variety of home-state laws and the total absence of serious data, we cannot say what financial tradeoffs actually result from a serviceman’s move to Puerto Rico.


author: GIBBONS, Circuit Judge.

text:
    NON-RESIDENT TAXPAYERS ASSOCIATION, a corporation on behalf of itself, its members and other persons who have been and will be similarly situated in the same class and classes of persons, et al., Appellants, v. The MUNICIPALITY OF PHILADELPHIA et al., Appellees.
    No. 72-1166.
    United States Court of Appeals, Third Circuit.
    Argued March 5, 1973.
    Decided May 10, 1973.

      Lee B. Laskin, Camden, N. J., for appellants.
    Richard S. Zackin, Asst. U. S. Atty., Newark, N. J., and Albert J. Persiehetti, Deputy City Sol., Philadelphia, Pa., for appellees.
    S. Jay Sklar, Asst. City Sol., John Mattioni, Deputy City Sol., Martin Weinberg, City Sol., Philadelphia, Pa., for the Municipality of Philadelphia and Thomas Rogers.
    Herbert J. Stern, U. S. Atty., Joseph F. Audino, Asst. U. S. Atty., Newark, N. J., for U. S. Government, George Schultz, Director of the Office of Management and the Budget, and John Chafee, Secretary of the Navy.
    George F. Kugler, Jr., Atty. Gen. of N. J., Herbert K. Glickman, Deputy Atty. Gen., Trenton, N. J., for the State of New Jersey as amicus curiae.
    Before GIBBONS and HUNTER, Circuit Judges, and MUIR, District Judge.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

Appellants filed in the United States District Court for the District of New Jersey a suit challenging (1) the right of the City of Philadelphia to impose and collect a wage tax on non-residents of Philadelphia employed in the Philadelphia Navy Yard, a federal enclave; and (2) certain federal regulations and a federal executive order alleged to have a coercive effect in assisting the City of Philadelphia in the collection of the challenged tax. The defendants named were the City of Philadelphia and Thomas Rogers, the Director of its Department of Collections (the municipal defendants), the Commonwealth of Pennsylvania and Milton Shapp its Governor (the State defendants), and the United States Government, George Schultz, the Director of its Office of Management and the Budget, and John Chafee, its Secretary of the Navy (the federal defendants). The complaint seeks injunctive relief and asks for the convening, pursuant to 28 U.S.C. § 2281 et seq., of a three-judge district court. Such a court was convened. The State defendants moved for dismissal of the complaint on several grounds. The court decided that the Johnson Act, 28 U.S.C. § 1341, denied jurisdiction to a federal court, and it dismissed the complaint as against the State defendants. The municipal defendants moved that the three-judge court be dissolved and that the complaint be dismissed as to them on the ground, among others, that the injunction sought was against a municipal ordinance of local application. See Cleveland v. United States, 323 U.S. 329, 332, 65 S.Ct. 280, 89 L.Ed. 274 (1945); Rorick v. Board of Commissioners, 307 U.S. 208, 212, 59 S.Ct. 808, 83 L.Ed. 1242 (1939); Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 94, 55 S.Ct. 678, 79 L.Ed. 1322 (1935). The three-judge court concluded that neither the challenge to the municipal ordinance nor the challenge to the federal regulations and federal executive order were matters required to be heard by a three-judge district court, and it entered an order dissolving itself and transferring the case to a single district judge. NonResident Taxpayers Association v. Philadelphia, 341 F.Supp. 1135 (D.N.J. 1971), aff’d by order, 406 U.S. 951, 92 S.Ct. 2061, 32 L.Ed.2d 340 (1972). That order left pending before the single district court judge, against the municipal defendants, the challenge to the taxing ordinance, and against the federal defendants, the challenge to the federal regulations and federal executive order. The motions of the municipal defendants and the federal defendants to dismiss the complaint were granted by the single district judge, Non-Resident Taxpayers Association v. Philadelphia, 341 F.Supp. 1139 (D.N.J.1971), and this appeal followed.

The district court dismissed as to the municipal defendants because the complaint seeks a permanent injunction against the collection of a tax authorized by state law, and such an injunction is prohibited by the Johnson Act, 28 U.S.C. § 1341. Appellants urge two grounds for reversal.

First, they urge the Johnson Act properly construed applies only to injunctive relief prior to final hearing. Thus, they urge, the case should be remanded for final hearing, with the city free to collect the tax in the interim, but recognizing the power of the district court to enter an injunction as a part of a final judgment. No case has been called to our attention which recognizes so novel a construction of the Johnson Act. We need look no further than the plain text of the statute to reject it.

Next, relying on Hillsborough v. Cromwell, 326 U.S. 620, 66 S.Ct. 445, 90 L.Ed. 358 (1946), the appellants urge that they fall within the exception in the Johnson Act which permits injunctions where there is no plain, speedy and effective state remedy by which the questioned tax may be litigated. The Pennsylvania courts would, however, entertain a suit for a refund. Pa.Stat.Ann. tit. 72, § 7342. Such a suit is a plain, speedy and effective remedy. See, e. g., Houston v. Standard Triumph Motor Co., 347 F.2d 194, 199 (5th Cir. 1965), cert. denied, 382 U.S. 974, 86 S.Ct. 539, 15 L.Ed.2d 466 (1966); Helmsley v. Detroit, 320 F.2d 476, 480 (6th Cir. 1963). Indeed, the power of the City of Philadelphia to tax wages of nonresidents earned in the Philadelphia Navy Yard has been litigated in the courts of the Commonwealth. Kiker v. Philadelphia, 346 Pa. 624, 31 A.2d 289, cert. denied, 320 U.S. 741, 64 S.Ct. 41, 88 L.Ed. 439 (1943) . The Kiker case recognizes the taxing power here challenged. Because that holding by the Commonwealth’s highest court would be recognized as a persuasive if not a controlling authority in any Pennsylvania court to which appellants might resort, they rely on it as establishing the lack of an effective state court remedy. Hillsborough v. Cromwell, supra, does not hold that the unlikelihood of success in the state courts is sufficient to take a case outside the Johnson Act. Rather, the Hillsborough v. Cromwell suit was entertained because it was not clear, under the New Jersey law at the time of the decision, whether there was “any adequate remedy in the New Jersey courts for challenging the assessments on local law grounds.” 326 U.S. at 628, 66 S.Ct. at 451.

The Johnson Act, then, is a sufficient reason for sustaining the dismissal of the complaint for injunctive relief against the municipal ordinance without reaching the issue of its alleged unconstitutionality as applied to a federal enclave. We note, however, that the Buck Act, 4 U.S.C. § 106, passed in response to James v. Dravo Contracting Co., 302 U.S. 134, 58 S.Ct. 208, 82 L.Ed. 155 (1937), appears to provide ample justification for the decision of the Supreme Court of Pennsylvania in Kiker v. Philadelphia, supra. Appellants’ due process attack on the ordinance, under cases such as General Motors v. Washington, 377 U.S. 436, 84 S.Ct. 1564, 12 L.Ed.2d 430 (1964), Miller Brothers Co. v. Maryland, 347 U.S. 340, 74 S.Ct. 535, 98 L.Ed. 744 (1954), and International Harvester Co. v. Wisconsin Dept. of Taxation, 322 U.S. 435, 64 S.Ct. 1060, 88 L.Ed. 1373 (1944) , if we had to consider it, we would regard it as insubstantial.

Turning to the challenged federal actions, our starting point is 5 U.S.C. § 7501(a) which permits the removal or suspension without pay of federal employees in the competitive service “only for such cause as will promote the efficiency of the service.” The head of an executive or military department may, under 5 U.S.C. § 301, prescribe regulations for the governing of his department and the conduct of his employees. The Executive Office of the President, Bureau of the Budget, has, by Circular No. A-38, instructed the heads of all executive departments and establishments to furnish information concerning compensation for personal services of federal employees to states and other governmental units taxing such compensation. That circular states in part:

“It is the long-established policy of the Federal Government that its employees have an ethical responsibility to pay their just taxes, whether Federal, State or local, on the grounds that such taxes are a responsibility which every citizen must meet for the support of services provided by each level of government exercising taxing powers.”

The Navy Department has issued Joint Instruction No. 12750.2B to all its civilian employees advising them that disciplinary proceedings will be taken for certain common offenses. The Joint Instruction cross references to FPM 735-9 Subchapter 2, Agency Regulations Governing Ethical and Other Conduct and Responsibilities of Employees, which among other things, states:

“Employees are required to pay each just financial obligation in a proper and timely manner, especially one imposed by law such as Federal, State, or local taxes.”

The Joint Instruction states:

“(2) Employees who repeatedly refuse to honor just and acknowledged debts are subject to disciplinary action, including removal, whenever the indebtedness reflects so unfavorably upon their suitability for Federal Service as to warrant disciplinary action.
* * ■» * *
(5) City of Philadelphia, Wage Tax. The legality of the Philadelphia Wage Tax has been established and all employees must recognize this tax as an obligation which they cannot disregard.
(6) Based on the foregoing information, effective immediately, the following procedure for handling all City of Philadelphia Wage Tax Delinquency, will be followed:
(a) Upon receipt of tax delinquency notice involving any employee of the Compound, male or female, from the City of Philadelphia Tax Authority, the employee concerned will be notified through his supervisor to report to the Consolidated Civilian Personnel Department, NPFC 23, and be personally counseled by CCPD personnel.
(b) Should a second notice of delinquency be received within 6 months following such counseling and the employee fails to show acceptable evidence of responsible action on his/her part, the employee will be officially disciplined for first infraction of ‘Failure to Honor Just Debts Without Good Cause’ following the procedures for initiating disciplinary action, reference (a). The penalty for a first offense ranges from a minimum of a Letter of Reprimand to a maximum penalty of 5 Days Suspension Without Pay.
(c) Should a third notice of delinquency, be received during the one year reckoning period and the employee fails to show acceptable evidence of responsible action on his/her part to liquidate the delinquency, it will be considered a second offense of Failure to Honor Just Debts Without Good Cause. The penalty for second offense ranges from a minimum of 3 days suspension without pay to a maximum of 10 days suspension without pay.
(d) Should a fourth notice of delinquency be received within the one year reckoning period and the employee fails to show acceptable evidence of responsible action on his/her part to liquidate the debt, a proposed notice of removal from employment will be issued under the procedures set forth in reference (a).”

The provisions of the Joint Instruction dealing with delinquency by employees in payment of Philadelphia wage taxes meet reasonable due process requirements. There is a sufficient nexus between the efficiency of the service and the non-payment by employees of their just debts since the federal employer may be importuned by creditors such as Philadelphia to put pressure on such employees for payment. See Jenkins v. Macy, 357 F.2d 62 (8th Cir. 1966); McEachern v. Macy, 341 F.2d 895 (4th Cir. 1965); Carter v. Forrestal, 85 U.S.App.D.C. 53, 175 F.2d 364, cert. denied, 338 U.S. 832, 70 S.Ct. 47, 94 L.Ed. 507 (1949). Cf. Norton v. Macy, 135 U.S.App.D.C. 214, 417 F.2d 1161, 1168 (1969). The contention that the federal employer, by releasing information belonging to it, thereby violates a constitutionally protected right of privacy, is sustained by no authority which has been called to our attention. Cf. 26 U.S.C. § 6103(b). The contention that the quoted provisions of Joint Instruction No. 12750.2B amount to a pri- or restraint on free speech we regard as frivolous. All of us, appellants included, are free to complain about taxes. We must, nevertheless despite the first amendment, pay them.

The judgment of the district court will be affirmed.

      . That section provides :
      “The district court shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.”

      . Issued August 4, 1963.

      . Issued July 7, 1970.