author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John E. TEST, Defendant-Appellant.
    No. 73-1337.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Sept. 13, 1973.
    Decided Nov. 1, 1973.
    Rehearing Denied Nov. 26, 1973.

      James L. Treece, U. S. Atty., and J. Terry Wiggins, Asst. U. S. Atty., Denver, Colo., for plaintiff-appellee.
    Louis M. Fischer and Walter L. Ger-ash, Denver, Colo., for defendant-appellant.
    Before CLARK, Associate Justice, and SETH and MeWILLIAMS, Circuit Judges.

       Associate Justice, United States Supreme Court, Retired, sitting by designation.

   PER CURIAM:

Appellant John E. Test stands convicted by a jury on a one count indictment charging him with knowingly and intentionally distributing a controlled substance, to wit: Lysergic acid diethyla-mide (LSD) in violation of 21 U.S.C. § 841. On this appeal Test presents several questions but only two have substance, i. e., (1) Was Test entrapped as a matter of law and (2) Did he have the specific intent required by the statute. We have concluded that neither point has merit and, therefore, affirm the conviction.

1. Facts and Circumstances:

John Test first met Peter Brophy, the Government informer, in October, 1971, as a customer at Brophy’s fish market, Seafood Limited, located in the Happy Canyon Shopping Center in Denver, Colorado. During the next several months Test and Brophy developed a friendship. Test performed odd jobs at Seafood Limited and he and Brophy drank beer together occasionally; Test was invited to Brophy’s home and met his wife. It appears that at various unspecified times Brophy told Test that he had prior dealings in smuggling marijuana from Mexico to California, that he was a pilot and had used a plane to bring the contraband into the United States, and that he had invested his illegal profits in Seafood Limited. None of Brophy’s accounts of his trafficking in illicit drugs was true.

By February 24, 1972, the relationship having continued, Brophy told Test that he would like to have a few tablets to give some friends; and Test obligingly produced seven tablets in a tinfoil packet which he said were “probably mescaline and acid.” Brophy turned the tablets over to Agents Ercole and Lochridge of the Bureau of Narcotics and Dangerous Drugs; and a laboratory test revealed that they were LSD cut by a large amount of stearic acid. Test denied giving the tablets to Brophy. On March 13, 1972 Brophy called Agent Allen of the Bureau and arranged for Allen to come to Seafood Limited to meet Test. Neither Brophy nor Test had met Allen previously. Allen posed as Tom Stone, a ski instructor at Aspen and former associate of Brophy in the drug traffic in California. Allen testified that he told Test that he wanted to buy some cocaine and that Test told him “he had a connection for cocaine who could sell pound quantities . . .” quoting a price of $11,000 per pound. They discussed the purchase of approximately two to five pounds. In addition Test said he “could supply . . . marijuana, hashish, LSD and amphetamines.” No sale or distribution was made at this meeting.

A second meeting between Agent Allen and Test occurred on March 15, 1972. While Brophy’s part in the meeting is somewhat hazy, it appears that he overheard “a lot of the talk” but was not an active participant. Test told Allen that “there would be a delay in the delivery of the cocaine” but that “he had been successful in reducing the price of cocaine from $11,000 to $10,500” and that he “had access to 40 pounds of marijuana which he would be willing to sell for $145 a pound.” As to cocaine, the two discussed a purchase price of $42,000 for four pounds. Apparently both parties then endeavored to make a showing of good faith. Agent Allen displayed $15,000 in Government funds (Test claimed it was $50,000) in the trunk of his car. Test gave Allen a marijuana cigarette saying that he hoped he enjoyed smoking it. When it became apparent, however, that Test could not produce any cocaine, Allen said: “I have to show my people something” and asked Test “if he could get any other substances.” Test replied “that he might be able to get him some mescaline.”

Subsequently, on March 27, 1972, Bro-phy contacted Agent Allen to set up a meeting for the purchase of 1,000 tablets of what was alleged to be mescaline. Allen met Test the next day at Seafood Limited. The sale was made inside a Government car parked in the shopping center parking lot. Allen paid Test $450 and received approximately 1000 tablets in a plastic bag. Test told Allen that the tablets “were stamped out by his friends” and that “he could get 50,000 tablets more.” He testified that he had purchased the tablets two days earlier from two friends in Pine, Colorado paying $400 for them and leaving him a $50 profit on the deal.

Agent Allen testified that when he purchased the tablets, he believed them to be LSD. “Most of the drugs,” he said, “that we have encountered that have been referred to us, chocolate mescaline as they were called, in fact turned out to be LSD.” Subsequent laboratory analysis of the actual 1,018 brown tablets received by Agent Allen disclosed that they contained LSD cut by phency-clidine (PCP). The Government’s expert witness, Mr. Ruybal, a forensic chemist with the Bureau of Narcotics and Dangerous Drugs, testified at the trial that he had analysed more than five hundred separate samples of drugs denoted as mescaline but that they normally did not contain mescaline but were usually LSD by itself, PCP by itself, or LSD cut by PCP. He stated that PCP was a normal cutting agent for LSD.

2. Entrapment:

Test asserts that he was unquestionably entrapped as a matter of law and should, therefore, have been acquitted. His claim is based on Brophy’s alleged exploitation of their friendship to set him up for the drug deal with Agent Allen, Brophy’s false stories of his prior drug exploits, his introduction of Agent Allen under false pretenses, Agent Allen’s repeated requests for the production of drugs, and his showing of a large sum of money despite the fact that Brophy and Allen knew Test had no prior criminal record but kept after him on the theory that he might have known some large drug traffickers.

Entrapment is a “relatively limited defense.” United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). Entrapment as a matter of law is the more limited in terms of its availability. It is rudimentary that entrapment as a matter of law can only be found where it appears unmistakably clear to the trial judge that undisputed evidence establishes that the criminal design originated with Government agents, was the product of their creative activity and was implanted in the mind of an otherwise innocent person totally lacking the requisite predisposition to commit the crime. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

In Sorrells, supra, the Supreme Court stated that when a defendant claims entrapment:

“The government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused, and if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue. If in consequence he suffers a disadvantage, he has brought it upon himself by reason of the nature of the defense.” 287 U.S. at 451, 452, 53 S.Ct. at 216.

In line with this concept, this court has exhaustively scrutinized the record examining the conduct of informer Brophy, of Special Agent Allen as well as the conduct and predisposition of Test. Construing the evidence in the light most favorable to the Government, as we are required to do, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), we are not persuaded that the conduct of the Government’s agent and informer was so improper, overzealous or otherwise offensive as to amount to entrapment as a matter of law. As the Supreme Court said in United States v. Russell, supra: “Sorrells and Sherman both recognize ‘that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution,’ 287 U.S., at 441 [53 S.Ct. 210]; 356 U.S., at 372 [78 S.Ct. 819], Nor will the mere fact of deceit defeat a prosecution, see, e. g., Lewis v. United States, 385 U.S. 206, 208-209 [87 S.Ct. 424, 17 L.Ed.2d 312] (1966), for there are circumstances when the use of deceit is the only practicable law enforcement technique available.” At 435-436 of 411 U.S., at 1644-1645 of 93 S.Ct.

Here, Test contends he was tricked and enticed by his friend Brophy — their friendship exploited. There is no evidence in the record which conclusively establishes that Brophy was a paid Government informer when he first met Test. Nevertheless it is true that Test’s friendship with Brophy had a bearing on Test’s delivery of the seven tablets on February 24, 1972. However, Test was not indicted or convicted for this distribution. Brophy did utilize his friendship with Test to introduce him to Agent Allen but thereafter played a decidedly unobtrusive role in the course of events leading up to Test’s transaction with Agent Allen on March 28th. Neither this mere introduction nor his actions as a go-between for Allen and Test in arranging their meetings rises to the level of entrapment as a matter of law. Nor can Test successfully argue that his friendship with Brophy had such a compelling spillover effect on him vis-a-vis his relationship with Agent Allen that he was rendered powerless to distinguish between right and wrong or to refuse to cooperate with Agent Allen. Allen’s requests for the production of drugs are a judicially acceptable tactic especially since the solicitations involved here were met with very little, if any, firm reluctance on Test’s part. Furthermore, there is no evidence that Allen threatened, cajoled or browbeat Test. Indeed, Test volunteered extensive information about his drug connections, what types and quantities of drugs were available and presented Allen with various options and alternatives. Nor was Agent Allen’s display of cash a fatal flaw in the case when viewed in the context of the negotiations at that point. It was merely a showing of good faith. Test’s quid pro quo was the gift of a marijuana cigarette. Finally, all the evidence concerning Test’s continuous pattern of illicit drug activities and his state of mind as revealed by his highly significant admissions at the trial is convincing proof that he was no cats-paw for Bro-phy but was in reality a drug trafficker. He fails to qualify as the “unwary innocent” victimized by a pernicious criminal scheme wholly manufactured by law enforcement officers. Sherman v. United States, supra, at 372 of 356 U.S., 78 S. Ct. 819. His lack of a prior criminal record, contrary to his claim, is not exculpatory.

Although the trial judge found, and we agree, that there was no entrapment as a matter of law in this case, the Government, citing Martinez v. United States, 373 F.2d 810 (10th Cir. 1967), contends that Test was not entitled to have the entrapment issue submitted to the jury because he pled not guilty to the offense charged. Whether or not this be so as a general rule, a matter we do not reach, it is clear that the Government’s case here was in no wise prejudiced by the submission because the jury found with the Government.

3. Specific Intent:

Test’s second line of defense is that he lacked the specific intent required by the statue to commit the offense for which he was convicted. He claims a judgment of acquittal should have been entered on the grounds that he did not knowingly and intentionally distribute LSD, “although he may have had the intent to distribute mescaline.” At the trial Test testified that he told Agent Allen that he “might be able to get him some mescaline,” that subsequently he “purchased the mescaline” for $400, that he sampled the tablets to be sure they were not LSD, and that he dispensed over one thousand tablets to Agent Allen on March 28, 1972, two days after he purchased them, for $450. He stated he knew LSD was_illegal but “wasn’t sure” about mescaline.

Unquestionably it is the province of the jury to pass upon guilt or innocence. Sinclair v. United States, 279 U.S. 749, 765, 49 S.Ct. 471, 73 L.Ed. 938 (1929). Where, as here, an essential element of the offense charged is the specific intent to commit it, the issue of intent is to be submitted to the jury. Screws v. United States, 325 U.S. 91, 106-107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). Whether or not Test knew the character of the substance he was distributing or that his distribution was an illegal act is not for this court to say. It is the jury’s function and duty to weigh the conflicting evidence and draw reasonable inferences therefrom in making its judgment. And any claimed ignorance of the law on Test’s part is no excuse. United States v. International Minerals & Chemical Corporation, 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971).

We believe there was substantial credible evidence before the jury, both direct and demonstrative, from which it could justly reach its verdict, and we are bound to sustain it. Glasser v. United States, supra, at 80 of 315 U.S., 62 S.Ct. 457. To hold otherwise would precipitate a headon collision with the Seventh Amendment. U.S.Const. Amend. VII, Atlantic & Gulf Stevedores, Inc. v. Eller-man Lines, Ltd. et al., 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962).

We have closely examined appellant’s other contentions and find no merit in them. Accordingly, the judgment of conviction is affirmed.

Affirmed.

      . 21 U.S.C. § 841 provides in pertinent part: “Unlawful acts.
      (a) Except as authorized by this sub-chapter, it shall be unlawful for any person knowingly or intentionally —
      (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance”.
      21 U.S.C. § 812 specifies that Lysergic acid diethylamide is a Schedule I controlled substance.

      . See, Sorrells v. United States, 287 U.S. at 439, 451-452, 53 S.Ct. 210.


source: Caselaw Access Project

author: DUFFY, Senior Circuit Judge.

license: Public Domain

text:
    In the Matter of Jack KORMAN and Robert W. Likas, Witnesses before the Special February 1971 Grand Jury, Appellants, v. UNITED STATES of America, Appellee. UNITED STATES ex rel. Jack KORMAN and Robert W. Likas, Petitioners-Appellants, v. The UNITED STATES ATTORNEY FOR the NORTHERN DISTRICT OF ILLINOIS and the United States Marshal for the Northern District of Illinois, Respondents-Appellees.
    Nos. 72-1778, 72-1930.
    United States Court of Appeals, Seventh Circuit.
    Argued April 2, 1973.
    Decided June 8, 1973.

      Anna R. Lavin, Chicago, Ill., for appellants.
    James R. Thompson, U. S. Atty., William T. Huyck, James Murray, Asst. U. S. Attys., Chicago, Ill., for appellees.
    Before Mr. Justice CLARK, DUFFY, Senior Circuit Judge and KILEY, Circuit Judge.

       Associate Justice Tom C. Clark, Supreme Court of the United States, Retired, is sitting by designation.

   DUFFY, Senior Circuit Judge.

There are two appeals before us for our consideration. These have been consolidated in this Court in order to expedite the appeal in each.

On April 20, 1971, appellants Korman and Likas were found to be in civil contempt of the Court by a District Judge under 28 U.S.C. § 1826(a) for refusing “without just cause shown to comply with an order of the court to testify” before the Special February 1971 Grand Jury convened in Chicago, Illinois. Initially, the appellants herein refused to testify asserting their Fifth Amendment privilege against self-incrimination. Each defendant was granted immunity pursuant to 18 U.S.C. § 6002. They remained silent contending that the use immunity conferred by the statute was inadequate to supplant their Fifth Amendment privileges.

An appeal was taken to this Court and we reversed the District Court, holding that only full transactional immunity is sufficient to supplant the privilege against self-incrimination. In Re Kor-man, 449 F.2d 32 (7 Cir., 1971). Thereafter, the Supreme Court granted certio-rari and summarily reversed our Court’s holding relying on Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

On July 17, 1972 the District Court extended the term of the Special February 1971 Grand Jury for a period of six months pursuant to the provisions of 18 U.S.C. § 3331(a).

On August 15, 1972 while still free on bail during-the pendency of the District Court’s consideration of their contempt citations, motions were filed on behalf of the appellants declaring the necessity of a hearing in the District Court to determine whether they had been the subjects of illegal governmental electronic surveillance. In the “Motion for Production of Reports of Electronic Surveillance” and the “Motion to Stay Mitti-mus,” the appellants (petitioners therein) alleged that because the Solicitor General had refused to answer their inquiries with respect to the utilization of electronic surveillance in gathering information for the Special February 1971 Grand Jury, they therefore had reason to believe that they had, in fact, been so subjected.

On the same date the motions were filed and a hearing on the same held, the United States Department of Justice filed in District Court a letter dated August 7, 1972 from Henry E. Petersen, Assistant Attorney General, to Sheldon Davidson of the Chicago Strike Force denying that conversations of the appellants had been overheard by the Department of Justice by means of electronic surveillance. The letter disclosed that the Internal Revenue Service had utilized a pen register on the telephone of appellant Likas from February 8 to May 22, 1963, but no conversations were monitored at that time or any subsequent time. The letter mentioned conversations between one Phillip Stollman and an individual calling himself Jack Korman overheard on an extension phone by an Internal Revenue Service agent in Stollman’s office and., with Stollman’s consent on October 18 and 20, 1961. With respect to both appellants, the letter indicated no further electronic surveillance or monitorings of their conversations had been conducted by the Internal Revenue Service.

The letter concluded with a statement that the appellants had never been subjected to electronic surveillance by the United States Secret Service, the United States Postal Service, the Bureau of Alcohol, Tobacco and Firearms or the Bureau of Narcotics and Dangerous Drugs.

The District Court, 351 F.Supp. 325, denied the motions of the appellants in a Memorandum Order and Opinion dated August 17, 1972 and directed that they be taken into custody for the contempt citations. The Court, in its decision, reasoned that a pen register was not within the scope of the Omnibus Crime Control and Safe Streets Act of 1968; that the letter of August 7, 1972 was firm and unequivocal in its denial of “interception” as construed under 18 U. S.C. § 2515; and, that it was bound by the decisions of this Court in Fraser v. United States, 452 F.2d 616 (7 Cir., 1971) and In Re Womack, 466 F.2d 555 (7 Cir., 1972) when considering the efficacy of the denials of the Department of Justice and the evidentiary value to be given such representations.

On August 25, 1972 two subsequent motions were filed by the appellants, one a “Motion to Reconsider Ruling of August 17, 1972”, and the other, “Amendment to Stay Mittimus”. The District Court denied the former motion and allowed appellants to file an amendment to the Motion to Stay Mittimus nunc pro tunc August 15, 1972 for purposes of appeal.

In said amendment, appellants asserted that,

“7. The response of the government is insufficient in law and fact in that:
a. The attachment pre-dates the claim under Title 18 U.S.C. §§ 2515 and 3504.
b. It does not constitute an affirmance nor denial contemplated by the Statutes above.
c. It does not constitute an “official denial.” See concurring opinion, White, J., in Gelbard v. United States, [408 U.S. 41], 92 S.Ct. 2357 [33 L. Ed.2d 179].
d. It does not cover the use of pen registers or similar devices.
“8. „ That assuming, arguendo, pen registers and similar devices are not within the ban of Title 18 U.S.C. §§ 2515 and 3505:
a. The use of the pen register is a violation of the Telecommunications Act.
b. This Court is bound by United States v. Dote, 371 F.2d 176.
c. The use of such evidence is expressly prohibited by the Fourth Amendment, and particularly by the decision of the Supreme Court in Sil-verthorne v. United States, 251 U.S. 385 [40 S.Ct. 182, 64 L.Ed. 319]. (See discussion of Mr. Justice Douglas in Gelbard, 92 S.Ct. at 2368-2372.)”

Meanwhile the appellants had been incarcerated on August 22, 1972 as a consequence of their contempt citations and remain in jail pending the outcome of these appeals.

On October 11, 1972 a Petition for Writ of Habeas Corpus was filed on behalf of the appellants herein raising a multiplicity of issues concerning the constitutionality and existence of the Special February 1971 Grand Jury. The petition for the Writ of Habeas Corpus was dismissed by Judge Robson on November 7, 1972 in Memorandum and Order bearing the same date.

Subsequently, after a hearing on January 6, 1973, the Special February 1971 Grand Jury was again extended on January 10, 1973 upon the request of the members of the Special Grand Jury for another six months pursuant to 18 U.S.C. § 3331(a).

In appeal No. 72-1778, the appellants question the concomitant denials of the Motion for Production of Reports of Electronic Surveillance and the Motion and Amendment to the Motion to Stay Mittimus.

Appeal No. 72-1930 concerns the propriety of the dismissal of the Habeas Corpus action.

No. 72-1778

In response initially to appellants’ Motion for Production of Reports of Electronic Surveillance, the government refused to reply. Prior to the hearing on August 15, 1972, the government supplied counsel for appellants with the aforementioned letter of denial dated August 7, 1972 denying any overhear-ings of appellants’ conversations by means of electronic surveillance as defined in 18 U.S.C. § 2510 et seq. On appeal, appellants contend that assuming arguendo an official denial by the government precludes further refusals to testify by persons similarly situated with appellants, the inter-agency letter of denial in this case did not qualify as an official denial.

Our Court in In Re Womack, 466 F.2d 555 (7 Cir., 1972), stated at page 558 in an identical fact situation where potential grand jury witnesses alleged that electronic surveillance either led to the issuance of their subpoenas or constituted the source of information which motivated their production as witnesses,

“We can only conclude that neither Congress in the Omnibus Crime Control and Safe Streets Act or in the Organized Crime Control Act nor the Supreme Court in Gelbard intended to overrule or change the constitutional rule of Alderman [Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176] that only the person whose privacy is invaded by an illegal electronic surveillance has standing to object.
“Hence the representations in this case by the Department of Justice that the privacy of neither relator was subject to interference put ‘the matter at an end and the witnesses) must answer’.”

Thus, the initial question which must be resolved is whether the letter of denial by the Department of Justice was sufficient to put the appellants’ allegations of electronic surveillance to an end, foreclosing the necessity of additional affirmative action by the government or requiring a hearing on the matter. See also Fraser v. United States, 452 F.2d 616, 621 (7 Cir., 1971).

As indicated in the previous opinions, our Circuit has deemed such letters of denial sufficient as a disclaimer of governmental intervention by electronic means. Yet, subsequent to these decisions, certain indiscretions have been revealed concerning illegal electronic surveillance which seem to militate for a more formal and binding denial than those which were found to be adequate in Womack, supra, and Fraser, supra. We therefore are of the opinion that an official governmental denial of electronic surveillance must at the very least be submitted in the form of an affidavit by a responsible government official. Various Circuits have considered the adequacy of an affidavit of denial in similar cases and deemed the affidavit sufficient as an official denial. We agree this is the proper form of official denial. Consequently, a government affidavit of denial must be filed herein before the mandate can issue.

We will therefore stay the mandate in this appeal not to exceed thirty days after the issuance of the circulated slip opinion in order for the government to comply with our request if possible. Said affidavit may be sworn to by the prosecutor personally in charge of this investigation or by the person in charge of the governmental agency conducting this grand jury probe. The affidavit need only deny electronic surveillance of appellants occurring after June 19, 1968, and need deny pen register surveillance only when used in conjunction with an illegal wiretap for reasons hereinafter articulated. If compliance is not realized, this action will be remanded to the District Court for a hearing to determine why the mittimus should not be stayed.

As a second issue, appellants assert the District Court erred in its failure to hold a hearing on whether questions asked before the Special February 1971 Grand Jury were predicated on information obtained from investigatorial leads supplied by the use of a pen register. Their assumption is that United States v. Dote, 371 F.2d 176 (7 Cir., 1966), decided prior to 18 U.S.C. § 2510 et seq., is still viable law in this Circuit and, therefore, the use of the pen register qualifies as an interception of a “communication” thereby prohibited by 47 U.S.C. § 605, 18 U.S.C. § 2510 and by Dote, supra, if used outside the statutory framework.

But, as conceded by the appellants on appeal, recent precedent indicates that the pen register is not an interception of communication under 18 U.S.C. § 2510(4). United States v. Lanza, 341 F.Supp. 405, 421 (M.D.Fla. 1972); United States v. King, 335 F. Supp. 523 (S.D.Cal.1971); United States v. Vega, 52 F.R.D. 503 (E.D.N. Y.1971); United States v. Escandar, 319 F.Supp. 295 (S.D.Fla.1970.)

With respect to the contention that the pen register is mutually prohibited by Dote, supra, and 47 U.S.C. § 605, of importance is that the reference to “any communication” in that statute which Dote, supra, and the Court in United States v. Caplan, 255 F.Supp. 805 (E.D. Mich. 1966), construed to include the mechanical printout of phone numbers by a pen register, no longer appears in 47 U. S.C. § 605. The phrase was changed to “any radio communication” by Public Law No. 90-351, Title III, § 803, the same law which enacted Title 18, Chapter 119 (§§ 2510-2520). Therefore, the clear intent of Congress would seem to be that the interception of wire communications would be governed solely by the new Chapter 119. There have been no allegations by defendants that radio communications may have been intercepted in the present case, thereby precluding appellants’ reliance on Dote, supra, to this extent.

On the other hand, Dote, supra, may still have some viability when the use of a pen register is realized coincidentally with a court-ordered wiretap. See United States v. Lanza, 341 F.Supp. 405, 422 (M.D.Fla.1972). In such a situation, the pen register translates the signal into a visual printout, while the tape recorder records the signal into a sound. A government affidavit denying use of electronic surveillance, which inter alia denies the use of wiretap, will suffice to quash any allegations of illegal use of a pen register in this case.

Therefore, if the government conforms with the requirement imposed by this opinion, which action will be noted in an addendum to the slip opinion to be sent to the publishing company, we affirm the decision of the District Court denying the aforementioned motions. An affidavit of denial will foreclose appellants’ arguments in this appeal, for an official denial will be realized, and any illegal use of a pen register used in conjunction with an unauthorized wiretap will have been effectively denied

No. 72-1930

I.

Appellants’ first contention in challenging the propriety of the dismissal of the Petition for Writ of Habeas Corpus is that the statute which provides for the impanelment of a Special Grand Jury subjects them to an arbitrary and unreasonable classification. In pertinent part, 18 U.S.C. § 3331(a) provides that, Special Grand Juries shall be called by district courts in districts containing four million inhabitants or more or in any (emphasis added) district in which the Attorney General or his designate certifies that a Special Grand Jury is necessitated by criminal activity in that district.

Appellants refused to testify as witnesses called before a Special Grand Jury in Chicago, Illinois. They contend that because of their residence in a metropolitan area of over four million, they have been arbitrarily selected for more severe punishment than a person subpoenaed to appear before a grand jury in a smaller metropolitan or rural area, because the life of a Special Grand Jury —and consequently appellants’ potential period of incarceration for contempt-— may be extended for twice the term of a normal grand jury convened pursuant to Rule 6(g) F.R.Cr.P.

They assert that their continued incarceration on this basis is a denial of equal protection as embraced in the due process clause of the Fifth Amendment, which concept was overtly articulated in Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

This unique argument fails to consider the entirety of the statute which clearly permits like Special Grand Juries to be convened in any district of the nation regardless of population. Upon considering the wording of the questioned statute, there is no indication that once any Special Grand Jury is convened anywhere in the country there is a variance of potential terms of such grand juries or of obligations to appear and testify.

We find no merit, to appellants’ claim of an arbitrary or unreasonable classification or that they were, in fact, denied equal protection under the laws and Constitution of the United States. See United States ex rel. Womack v. United States Attorney, 348 F.Supp. 1331 (N.D.Ill.1972).

II.

A second argument raised by appellants in appeal No. 72-1930 is whether the District Court decision to extend the initial 18-month term of the Special February 1971 Grand Jury was reviewable, or an exclusive exercise of the discretionary powers vested in the Court by 18 U.S.C. § 3331(a) to extend the term.

Under 18 U.S.C. § 3331(a) the term of a Special Grand Jury may be extended either at the instigation of the jury members themselves by an affirmative vote of a majority of the members whereupon application for extension is made to the Chief Judge of the district for continuance, or, if in the opinion of the District Court the business has not been completed, that Court may order a six-month extension.

In this case, the District Court used the prerogative provided by statute and found the business of the Special February 1971 Grand Jury was not completed. We are of the opinion as was the Court below that Petition of A & H Transportation, Inc., 319 F.2d 69, 71 (4 Cir., 1963), is dispositive of appellants’ contention herein challenging the discretion of the District Court. The Court stated in 319 F.2d at page 71:

“The authority to convene or discharge a grand jury is vested in the District Court. Its exercise of its discretion to convene, or not to convene a special grand jury, or to discharge a grand jury is not reviewable on appeal, and a Court of Appeals cannot by mandamus, or any other extraordinary writ, inject itself into the discretionary area reserved to the District Court.”

We therefore hold the initial extension of the Special February 1971 Grand Jury and the subsequent extension on January 10, 1973 were authorized by the statute and within the discretionary powers of the District Court. This is not reviewable on appeal, absent some showing of a flagrant abuse of discretion. No such showing was made or alleged herein.

III.

Appellants contend that under 18 U. S.C. § 3332(b) a District Court is empowered to impanel only two Special Grand Juries in a single district at any given time. They assert the use of the word “an” signifies clear legislative intent to delimit the number of Special Grand Juries in a district. Therefore, they reason that the continuance of the Special February 1971 Grand Jury at a time when two additional Special Grand Juries had. been convened in the Northern District of Illinois was contrary to the mandate of the statute. We disagree.

The legislative history of the Organized Crime Control Act of 1970 indicates that the Special Grand Jury was created as an instrument to investigate organized crime in areas where such criminal activity was evident. It would thwart the purpose of the Act to limit to two the number of Special Grand Juries in a district when in fact four or five were necessary for adequate investigation of organized crime.

IY.

We find no merit in appellants’ constitutional challenges to the Organized Crime Control Act of 1970.

V.

We are of the opinion that, given the circumstances the appellants find themselves in at the time of this appeal, incarcerated in the Cook County Jail, their situation indicates a sufficient personal stake in the outcome of the controversy to confer standing to them in order to challenge the de jure existence of the Special February 1971 Grand Jury. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).

Since we have determined their challenges to said Special February 1971 Grand Jury are without merit, the dismissal of appellants’ Petition for Writ of Habeas Corpus by the District Court is affirmed.

ADDENDUM To No. 72-1778

The government has complied with our request in Appeal No. 72-1778 and submitted to this Court an affidavit denying electronic surveillance of appellants for the time intervals in contention. Therefore, the decision of the District Court denying the motions considered in this appeal is affirmed.

      . United States v. Korman, 406 U.S. 952, 92 S.Ct. 2055, 32 L.Ed.2d 340 (1972).

      . 18 U.S.C. § 3331(a) provides in pertinent part, “ . . . The [Special] grand jury shall serve for a term of eighteen months unless an order for its discharge is entered earlier by the court upon a determination of the grand jury by majority vote that its business has been completed. If, at the end of such term or any extension thereof, the district court determines the business of the grand jury has not been completed, the court may enter an order extending such term for an additional period of six months. No special grand jury so extended shall exceed thirty-six months, except as provided in subsection (e) of section 3333 of this chapter.”

      . In the Motion for Production of Reports of Electronic Surveillance the petitioners asserted on the authority of Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972) that as grand jury witnesses, they were entitled to invoke the statutory prohibition against use before the grand jury of evidence gleaned from interception of any wire or oral communications. In the Motion to Stay Mittimus the petitioners alleged they should remain at large until a hearing was held relying on In Re Egan, 450 F.2d 199 (3 Cir., 1971).

      . The subsequent letters were forwarded to our Court and leave was granted to supplement the Record on Appeal. In a letter dated February 14, 1973 from the Assistant Attorney General to Sheldon Davidson in Charge of the Chicago Strike Force, Department of Justice, stated, “A review of the Department of Justice files disclosed no information indicating that the above-named individuals, Korman and Likas, or any premises known to be owned, leased or licensed by them, were the subject of a pen register surveillance by the Federal Bureau of Investigation as of August 7, 1972. A review of the files of the Internal Revenue Service indicated that a pen register surveillance was used with respect to Robert W. Likas as more fully set forth in our letter to you dated August 7, 1972. [From February 8, 1963 to May 22, 1963] A review of the Internal Revenue files disclosed no information indicating that Jack Korman or any premises . . ., were the subject of a pen register surveillance on or before August 7, 1972.” In a letter dated March 23, 1973, between the same' parties, pen register surveillance of Korman or Likas was denied by the Department of Justice, the Internal Revenue Service, the United States Postal Service, the United States Secret Service, Bureau of Narcotics and Dangerous Drugs or Bureau of Alcohol, Tobacco, and Firearms, from August 7, 1972 to the date of the letter.

      . Under the provisions of 28 U.S.C. § 1826(a), the appellants so found to be in contempt are committed to custody for the life of the Grand Jury or until they answer questions before said Grand Jury.

      . Without such an extension, the Special February 1971 Grand Jury would expire by its own terms on January 31, 1973.

      . United States v. Fitch, 472 F.2d 548 (9 Cir., 1973); Beverly v. United States, 468 F.2d 732 (5 Cir., 1972); In Re Grumbles, 453 F.2d 119 (3 Cir., 1971); United States v. Doe, 451 F.2d 466 (1 Cir., 1971).

      . In United States v. Doe, 451 F.2d 466, 467 (1 Cir., 1971) the First Circuit instructed the government after oral argument to supply the Court in affidavit form a denial of surveillance. The government complied with the request. Therefore, we feel a similar request is not out of place at this time.

      . Sec 18 U.S.C. § 3504(a),(3).

      . Although we deem an affidavit of denial sufficient, we are of the opinion that a statement of denial of electronic surveillance under oath by a United States Attorney in charge of the probe or an agency head in charge of the investigation is likewise sufficient to formulate an official denial.

      . This opinion has been circulated to the full Court. No judge has requested a hearing en hane to consider our prospective overrulings in part of the Womack, supra, Fraser, supra, and Dote, supra, decisions.

      . Rule 6(g) F.R.Cr.P. provides that no grand jury’s term should exceed 18 months, whereas under 18 U.S.C. § 3381 (a) a Special Grand Jury sits for an initial 18 months with the proviso that it may be extended for an additional period of 6 months so as not to exceed a term of 36 months.

      . We also are of the opinion that the Special February 1971 Grand Jury was properly extended a second time on January 10, 1973 at the request of the members of said Special Grand Jury.

      . 18 U.S.C. § 3332(b) provides, “Whenever the district court determines the volume of business of the special grand jury exceeds the capacity of the grand jury to discharge its obligations, the district court may order an additional special grand jury for that district to be impaneled.”

      . This same argument was rejected in an unpublished ruling in the same district as this action cited as Gianola v. Robson, 72 G.J. 3363 (N.D.Ill.E.D.1972).


author: SPRECHER, Circuit Judge.

text:
    Robert D. BJORK, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant, and George E. Mahin, Director, Illinois Department of Revenue, Defendant-Appellee.
    No. 72-1936.
    United States Court of Appeals, Seventh Circuit.
    Argued June 13, 1973.
    Decided Oct. 4, 1973.

      Scott P. Crampton, Asst. Atty. Gen., Karl Sehmeidler, Atty., Tax Div., Dept, of Justice, Washington, D. C., James R. Thompson, U. S. Atty., William T. Huyck and James H. Alesia, Asst. U. S. Attys., Chicago, 111., for defendant-appellant, United States.
    Robert D. Bjork, pro se.
    William J. Scott, Atty. Gen., Bonny Barezky, Asst. Atty. Gen., Chicago, 111., for defendant-appellee, George E. Mahin, Director of 111. Dept, of Revenue.
    Before FAIRCHILD and SPRECHER, Circuit Judges, and GRANT, Senior District Judge.

       Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation.

   SPRECHER, Circuit Judge.

The Cline Letter Service, Inc. (Cline) made a bulk transfer of its card and gift shop and office supply business to Martin J. Kucera in July, 1971, under the provisions of Article 6 of the Uniform Commercial Code, Ill.Rev.Stat. ch. 26, §§ 6-101 to -110 (1971). On July 15, 1971, Kucera gave notice to those creditors of Cline who appeared on the transferee’s sworn list of creditors that on July 30 he would purchase Cline’s business for $13,000 cash. All the requirements of the Bulk Transfer provisions of the U.C.C., as enacted in Illinois, were complied with.

Among Cline’s creditors were the United States (the Government) and the Director of the Illinois Department of Revenue (the State). On July 24 the State, acting pursuant to the Retailers’ Occupation Tax Act, § 5j (Ill.Rev.Stat. ch. 120, § 444j (1971)), issued a Bulk Sales Stop Order to Kucera, directing him to withhold $2,500 from the purchase price as a fund from which to satisfy Cline’s obligation to the State for taxes due under the Act. At that time, the obligation was undetermined as to amount. In fulfillment of this stop order, Kucera procured a certified cheek for $2,500 payable to himself and endorsed it to his attorney, Robert D. Bjork, on July 30, 1971, the date the purchase was closed. Bjork thereafter held the check as an escrow deposit pending determination of the exact amount owed to the State by Cline.

On October 10, 1971, the Government assessed income withholding, Social Security and unemployment taxes against Cline in the amount of $2,323.69. Bjork was served with a notice of levy on October 27, and notice of the tax lien was filed in the appropriate public office the same day. When the Government and the State failed to reach agreement on the proper disposition of the fund and both sides continued to press Bjork, he filed this statutory interpleader action (28 U.S.C. § 1335) on January 14, in the district court. Shortly thereafter, when Cline filed its final return on January 31, 1972, the exact amount of the retailers’ occupation tax due the State was determined.

In an opinion filed July 24, 1972, the district court denied the Government’s motion for summary judgment. The State’s subsequent motion for summary judgment was granted on August 7, 1972, and judgment was entered awarding the fund as follows: $1,387.62 to the State, $24.48 in costs and $400.00 in attorney’s fees to Bjork and the remaining $687.90 to the Government. The Government has appealed, and we reverse.

The issue presented is whether under Illinois law, the escrow fund was Cline’s property on October 10, the date when, if at all, the Government’s lien attached. As the district court stated:

“Federal tax liens attach only to ‘property and rights to property’ of the taxpayer. 26 U.S.C. § 6321. State law must be examined to decide whether the taxpayer had any property or rights to property. Aquilino v. United States, 363 U.S. 509, 512-513, [80 S.Ct. 1277, 4 L.Ed.2d 1365] (1960) ; [Avco Delta Corp. Canada Ltd. v. United States, 484 F.2d 692 (7th Cir., 1973);] Continental Oil Co. v. United States, 326 F.Supp. 266, 269 (S.D.N.Y.1971). If under state law the taxpayer does have property or rights to property then it is a question of federal law whether the federal lien has priority over the liens of others. United States v. Security Trust & Savings Bank, 340 U.S. 47, 49-50, [71 S.Ct. 111, 95 L.Ed. 53] (1950).”

The district court concluded that at the time of the sale when the escrow fund was established (July 30), the State had a vested interest in the fund and taxpayer Cline had only a contingent interest to the extent of any money remaining after that due to the State and, therefore, that the Government’s lien attached on October 10 only to this contingent interest. We do not agree that the transfer of funds into an escrow account established a vested interest in the State. Ill.Rev.Stat. ch. 120, § 444.

By ascertaining ownership of the property at the time of transfer, we do not seek to determine who had the right to possession or physical custody of the fund. If that were the question, the answer would be simple: the right to possession passed from Kucera to Bjork at the time of the transfer, and it was still in Bjork on October 10. Indeed, it remained in Bjork until he endorsed the check and deposited it in the district court registry. At any time between July 30 and the date of deposit, Bjork could unquestionably have cashed the check and received the proceeds. Just as clearly, he would not have been able to retain the proceeds as his own,. for Bjork had no beneficial interest in the fund. The ownership of the beneficial interest is what we seek to determine.

Immediately before the transfer, Ku-cera had the beneficial interest in the fund. Absent a stop order, there is no question but that the beneficial interest in what became the fund would have shifted to Cline at the time of the transfer. This result is dictated by the contract between Cline and Kucera by which Kucera agreed to give Cline a full $13,000 in cash in return for Cline’s business assets. Since Cline performed his part of the bargain, had there been no stop order Cline would have prevailed against Kucera in an action to recover the full $13,000.

How did the stop order affect the shifting of the beneficial interest on July 30th? Section 5j’s (supra note 2) purpose is to insure the existence of some cache of the seller’s property from which the seller’s tax liability can be satisfied. To accomplish this purpose, the statute appeals to the purchaser’s self-interest in avoiding personal liability for the tax and gives him a means of doing so without breaching his contract with the seller. It provides for the creation of what the parties have referred to as an “escrow fund”. Section 5j does not purport to vest ownership of the held fund in the State. On the contrary, it leaves the State to its usual methods of determining and assessing the tax as set out in §§ 5 and 5a of the Act, Ill.Rev.Stat. ch. 120, §§ 444 and 444a.

Under the district court’s interpretation of § 5j, the State would be able to acquire a “vested interest” in funds due the taxpayer under a bulk sale contract, an interest good against all creditors who acquire a lien on the property subsequent to the issuance of the stop order. This interpretation effects a suspension of the normal procedures for obtaining a lien, a result which is difficult to justify without clearer authority in the statutory language. Given Section 5j’s apparent reliance on the remedial procedures of Sections 5 and 5a of the Act, the most reasonable interpretation of the effect of a stop order is that it insures some cache of the seller’s property from which to satisfy the seller’s tax liability only insofar as no perfected lien attaches to the fund prior to the determination of the amount of such liability to the State.

Accordingly, we conclude that the stop order did not interrupt the transfer of beneficial interest in the fund to Cline on July 30, but only interrupted possession. Unless or until the State proceeded to obtain a lien on the funds, beneficial interest resided in Cline. No State lien having arisen by October 10, Cline had sufficient property interest in the fund for the Government’s tax lien to attach. Fine Fashions, Inc. v. United States, 328 F.2d 419 (2d Cir. 1964).

The Government must also prevail in its appeal from the award of attorney’s fees and costs to Bjork out of the fund. Bjork depends on the district court’s holding that the Government’s lien did not attach to sustain his award. Since we reverse that holding and since the law on this point is clearly in the Government’s favor when it has a valid lien, we likewise reverse the award of fees and costs.

The judgment of the district court is reversed and the cause remanded with directions to enter judgment awarding the fund to the Government in the full amount of its lien, as determined by the district court. If any amount should remain after the award to the Government, the district court shall determine if this interpleader action was brought by Bjork in good faith. If it should so determine, it shall award Bjork as attorney’s fees the amount remaining in the fund, up to $400. If any amount shall remain after the award to Bjork, or if the district court should determine that this action was not brought in good faith, it shall award the remainder to the State, up to the full amount of its lien, as determined by the district court. The remainder, if any, shall be awarded to Cline. Bjork’s filing and service fees in the district court are to be assessed against the State.

In view of the relative amounts of the awards reversed herein, we tax costs in this court in favor of the Government, one-fourth of the taxable costs to be assessed against Bjork and three-fourths against the State. No costs shall be paid out of the interpleaded fund.

Reversed and remanded with directions.

      . In the official version of the U.C.C., Article 6 comprises eleven sections, one of which, § 6-106, is optional. Illinois is one of the 32 jurisdictions which has chosen not to adopt the optional section. Since § 6-106 is the only section which compels the transferee to see to the application of the proceeds of the transfer, the effect of choosing not to adopt the section is to enact a creditor-notice statute rather than a creditor-protection statute.

      . “If any taxpayer, outside the usual course of his business, sells or transfers the major part of any one or more of (A) the stock of goods which he is engaged in the business of selling, or (B) the furniture or fixtures, or (O) the machinery and equipment, of any business that is subject to the provisions of 'this Act, the purchaser or transferee of such assets shall, within 10 days after the sale or transfer, file a report of the sale or transfer with the Department disclosing the name and address of the seller or transferor, the name and address of the purchaser or transferee, the date of the sale or transfer, a description of the property sold, the amount of the purchase price and such other information as the Department may reasonably require. The seller or transferor shall pay the Department the amount of tax, penalty and interest (if any) due from him under this Act up to the date of the sale. The seller or transferor, or the purchaser or transferee, at least 30 days before the date of the sale or transfer, may notify the Department of the intended sale or transfer and request the Department to audit the books and records of the seller or trans-feror, or to do whatever else may be necessary to determine how much the seller or transferor owes to the Department hereunder up to the date of the sale or transfer. The Department shall take such steps as may be appropriate to comply with such request.
      “The purchaser or transferee shall withhold enough of the purchase price to cover the amount of all tax, penalty and interest due and unpaid by the seller or transferor under this Act or, if the payment of money or property is not involved, shall withhold the performance of the condition that constitutes the consideration for the sale or transfer, until the seller or transferor produces a receipt from the Department showing that such tax, penalty and interest have been paid or a certificate from the Department showing that no tax, penalty or interest is due from the seller or transferor under this Act.
      “The purchaser or transferee is relieved of any duty to withhold from the purchase price and of any liability for tax, penalty or interest due hereunder from the seller or transferor if the Department fails to notify the purchaser or transferee of the amount claimed by the Department to be due hereunder from the seller or transfer- or within 30 days after the sale or transfer has been reported to the Department where the seller or transferor, or the purchaser or transferee, did not notify the Department of the intended sale or transfer at least 30 days before the date of the sale or transfer, or if the Department fails to notify the purchaser or transferee of the amount claimed by the Department to be due hereunder from the seller or transferor within 10 days after the sale or transfer has been reported to the Department where the seller or transferor, or the purchaser or transferee, did notify the Department of the intended sale or transfer at least 30 days before it occurred and did request an audit or such other review as might enable the Department to determine how much it claims to be due hereunder from the seller or transferor up to the date of the sale or transfer.
      “If the seller or transferor fails to pay the tax, penalty and interest (if any) due from him hereunder and the Department makes timely claim therefor against the purchaser or transferee as hereinabove provided, then the purchaser or transferee shall pay the amount so withheld from the purchase price to the Department. If the purchaser or transferee fails to comply with the requirements of this Section, the purchaser or transferee shall be personally liable to the Department for the amount owed hereunder by the seller or transferor to the Department up to the amount of the reasonable value of the property acquired by the purchaser or transferee.
      “Any person who shall acquire any property or rights thereto which, at the time of such acquisition, is subject to a valid lien in favor of the Department shall be personally liable to the Department for a sum equal to the amount of taxes secured by such lien but not to exceed the reasonable value of such property acquired by him.”

      . The State does not argue that any lien it may have has priority over the Government’s lien. Bjork makes such an argument for the State, based on 26 U.S.C. §§ 6323(c) (1) (A) (iii) and (B). However, the argument fails to take the statutory definitions into account. The State’s stop order to Kucera and Kucera’s subsequent endorsement of the check to Bjork with the understanding that Bjork would pay the State the amount it finally assessed do not constitute an “obligatory disbursement agreement” within the meaning of § 6323(c)(4)(A). As only one example of the failure of this series of events to fit the definition, Bjork does not meet the requirement that he have entered into the agreement “in the course of his trade or business.”

      . § 6321. Lien for taxes.
      “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person." 26 U.S.C. § 6321 (emphasis added).

      . Section 5 (Ill.Rev.Stat. ch. 120, § 444) imposes a penalty upon the seller for failure to make a return or pay the tax and sets forth the administrative procedures for determining the amount of tax due from the seller. In part, the section provides that if the seller fails to provide a return, the Department shall determine the amount of the tax due from him. Proof of such determination may be made at a hearing before the Department or in any legal proceeding. The Department shall issue to the taxpayer a notice of liability. The latter has 20 days to file a protest and request a hearing. Thereafter, the Department shall issue a final assessment, or, if no protest is filed, the notice of tax liability shall become final. At any time before the final assessment is reduced to judgment, the Department may grant a rehearing, pursuant to which it shall issue a revised final assessment. In the case of a failure to pay the tax or penalty, where the above review procedures have terminated, or where the taxpayer has filed a return, the Department may bring suit to recover this amount. Likewise, the person assessed may file a suit in court for review of the final assessment or revised final assessment.
      Section 5a of the Retailers’ Occupation Tax Act (Ill.Rev.Stat. ch. 120, § 444a), provides in part that the Department shall have a lien for the tax, penalty or interest, upon all the real and personal property of the taxpayer after a final assessment or revised final assessment has been issued, or whenever a return is filed without payment of the tax or penalty shown therein to be due. Where the lien arises because of the issuance of a final assessment or revised final assessment, the lien shall not attach until all proceedings in court have terminated. Section 5a also provides for the issuance of a jeopardy assessment lien (infra note 7). It further provides that “[n]othing in this Section shall be construed to give the Department a preference over the rights of any bona fide purchaser, mortgagee, judgment creditor or other lien holder arising prior to the filing of a regular notice of lien or a notice of jeopardy assessment lien . . . . ”

      . The district court’s interpretation cannot be buttressed by the bulk sales provisions of the U.C.C. for Illinois has adopted a creditor-notice statute (supra note 1). The Illinois enactment does not obligate the transferee to apply the consideration for the transfer to the debts of the transferor. There is nothing in these provisions which even remotely divests the transferor of his property interest in the purchase price and vests the creditors with such a possessory interest.

      . The State has the authority to proceed rapidly under § 5a, which provides in part:
      “[I]f the Department finds that the collection of the amount due from any taxpayer will be jeopardized by delay, the Department shall give the taxpayer notice of such findings and shall make demand for immediate return and payment of such tax, whereupon such tax shall become due and payable. If the taxpayer, within 5 days after such notice (or within such extension of time as the Department may grant), does not comply with such notice or show to the Department that the findings in such notice are erroneous, the Department may file a notice of jeopardy assessment lien . . . [which] shall have the same scope and effect as the statutory lien hereinbefore provided for in this Section.”
      Ill.Rev.Stat. ch. 120, § 444a.

      . The fund does not fit neatly into the strictures of any device-created legal relationship, such as escrow or trust. However, the requirement that the purchaser set aside part of the purchase price is analogous to the institution of a proceeding by means of a writ of attachment to insure preservation of the property until the attachment creditor can obtain a perfected lien. In such a situation, the attachment creditor runs the risk that its lis pendens will be ineffective against a federal tax lien which arises and becomes perfected before the attachment creditor obtains a perfected lien. United States v. Security Trust & Savings Bank, 340 U.S. 47, 71 S.Ct. 111, 95 L.Ed. 53 (1950).

      . United States v. R. F. Ball Constr. Co., 355 U.S. 587, 588, 78 S.Ct. 442, 2 L.Ed.2d 510, (1958) ; United States v. Liverpool & London & Globe Ins. Co., 348 U.S. 215, 217, 75 S.Ct. 247, 99 L.Ed. 268 (1955) (per Minton, J.) ; United States v. State Nat’l Bank, 421 F.2d 519, 521 (2d Cir. 1970) ; United States v. Gurley, 415 F.2d 144, 150 (5th Cir. 1969) ; United States v Wilson, 333 F.2d 147, 149 (3d Cir. 1964) ; Seaboard Sur. Co. v. United States, 306 F.2d 855, 860 (9th Cir. 1962).

      . See Aetna Life Ins. Co. v. Bowen, 308 P. Supp. 1394, 1396-1397 (W.D.Mo.1969).


author: GEE, Circuit Judge:

text:
    Hector S. AMAYA, Petitioner-Appellant, v. U. S. BOARD OF PAROLE, Respondent-Appellee.
    No. 72-3142.
    United States Court of Appeals, Fifth Circuit.
    Nov. 9, 1973.
    Roland C. Anderson, Strasburger, Price, Kelton, Martin & Unis, Dallas, Tex. (court appointed), for petitioner-appellant.
    Alfred C. Aman, Jr., Atlanta, Ga., for Jesus Rolon Marxauch, and others amicus curiae.

      William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.
   GEE, Circuit Judge:

We determine in this case that one convicted under the now-repealed 21 U.S.C.A. § 174, at a time when the also now-repealed 26 U.S.C.A. § 7237(d) prohibited his consideration for parole, can be considered for parole under 18 U.S.C.A. § 4202.

Amaya was convicted and sentenced to a term of seven years’ imprisonment, which he presently is serving in La Tuna Federal Correction Institute at Anthony, on the Texas-New Mexico border. Under 18 U.S.C.A. § 4202, Amaya would have been eligible for consideration for parole after serving one-third of his sentence; but 26 U.S.C.A. § 7237(d) precluded application of § 4202 to Amaya’s situation. Congress repealed the old laws with the Comprehensive Drug Abuse Prevention and Control Act of 1970 (CDAPCA). P.L. 91-513, Oct. 27, 1970, 84 Stat. 1236, et seq., 21 U.S. C.A. § 801, et seq., effective May 1, 1971.

No provision in the present law bars Amaya’s application for consideration of parole, unless it is the specific savings clause found in the CDAPCA, § 1103(a):

Prosecutions for any violation of law occurring prior to the effective date of section 1101 [May 1, 1971] shall not be affected by the repeals or amendments made by such section or section 1102, or abated by reason thereof, (emphasis added).

or the general savings statute, 1 U.S.C. A. § 109:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability. The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

The issue then is whether either of these savings clauses prevents the application of 26 U.S.C.A. § 7237 to one convicted of violating 21 U.S.C.A. § 174 prior to May 1, 1971.

In Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973), the Supreme Court, after deciding that sentencing is part of the concept of prosecution and thus that the new sentencing provisions of the CDAPCA were inapplicable to a person convicted under the old law, expressly left open the question of the availability of parole under the general parole statute, 18 U.S.C.A. § 4202. 410 U.S. at 611, 93 5. Ct. 1151, 35 L.Ed.2d at 534. Several of our sister circuits have considered the question. We now align ourselves with the courts which have decided that neither 1 U.S.C.A. § 109 nor § 1103 (a) of the CDAPCA precludes application of 18 U.S.C.A. § 4202 to one convicted under the old act. Marrero v. Warden, 483 F.2d 656, (3d Cir., 1973) (13 Cr.L.Rept. 2557). United States v. Marshall, 485 F.2d 1062 (D.C.Cir., 1973); see also, United States v. McGarr, 461 F.2d 1 (7th Cir., 1972); contra, United States v. Simone, 468 F.2d 1196 (2d Cir., 1972).

Section 1103(a) saves only prosecutions for infractions committed before May 1, 1971. We conclude that, because of the character of parole in our penalogical system and in light of the Supreme Court’s statement in Bradley that the decision to grant parole under Section 4202 occurs “long after sentence has been entered and the prosecution terminated,” 410 U.S. 605 at 611, 93 S. Ct. 1151 at 1156, 35 L.Ed.2d at 534 fn. 6, “prosecution” under § 1103(a) does not include the § 4202 parole eligibility decision. Additionally, we conclude that 1 U.S.C.A. § 109 does not preclude § 4202 parole eligibility. We agree with the analysis of the Court in Marrero:

This general savings statute was intended to obviate the common law’s technical abatement of a prosecution by the repeal of the statute under which it proceeded. Hamm v. Rock Hill, 379 U.S. 306, 314, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964). Therefore, the statute’s purpose would not be furthered by applying it to preclude Marrero’s parole eligibility under § 4202. His conviction and sentence will remain intact even if he is paroled. We therefore hold that permanent parole ineligibility is not a “penalty” incurred under § 7237(d). We read § 7237(d)’s preclusion of parole as a dated legislative judgment as to the manner by which the actual penalty, i. e., the prison sentence, should be effectuated. To read it otherwise would preclude carrying out the apparent congressional judgment, in repealing the parole ban, that the rehabilitative goals of the criminal justice system will be furthered by parole . . . To the extent parole aids prisoner rehabilitation and consequently strengthens the tensile fabric of society, it is important that we avoid technical, purposeless construction which runs counter to the congressional plan to encourage prison rehabilitation, (footnote omitted)

Although Amaya brought this action as a petition for writ of mandamus, which the district court denied, we conclude it is more appropriate to treat the case in terms of habeas corpus. As we said in Carter v. Seamans, 411 F.2d 767, 773 (1969):

.. . mandamus is an extraordinary remedy which should be utilized only in the clearest and most compelling of cases. Though it is a legal remedy, it is largely controlled by equitable principles and its issuance is a matter of judicial discretion. Generally speaking, before the writ of mandamus may properly issue three elements must coexist: (1) a clear right in the plaintiff to the relief sought; (2) a clear duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available. In connection with the last requirement, it is important to bear in mind that manadamus does not supersede other remedies, but rather comes into play where there is a want of such remedies. Admittedly the alternative remedy must be adequate, i. e., capable of affording full relief as to the very subject matter in question, (footnotes omitted)

Habeas relief is both available and adequate, making the more drastic writ of mandamus unnecessary. The Board of Parole has declined to consider Amaya’s application because of the conclusion conscientiously held by it, but now rejected by at least three Circuits, that as a matter of law he is not eligible for such consideration. Petitioner need not exhaust administrative remedies where pursuing them would be futile, and improper denial of parole eligibility is a sufficient restraint to justify habeas corpus relief. Marrero v. Warden, supra.

Of course the matter in dispute goes to the question of the propriety of Amaya’s continued confinement. Also we are confident that the Board of Parole will accept the decision of this Court. But until such time as there is an indication that the Board will not accept the application for consideration, it is neither necessary nor appropriate to provide now for any conditional release. Rather, we vacate and remand to the District Court for further proceedings with the Board of Parole being required within a reasonable time to receive and thereafter consider and diligently process Amaya’s application. We emphasize that all we hold is that he is eligible to be considered for parole, and nothing said or unsaid is any judgment or intimation on what action the Board of Parole should or must take, or what, if any, judicial review may be available from such action, and if available, where or in what form.

Vacated and remanded.

      . § 174 provided:
      “If any person fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or assists in so doing, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law, such person shall upon conviction be fined not more than $5,000 and imprisoned for not more than ten years. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.”

      . § 7237(d) provided:
      “(1) of any offense the penalty for which is provided in subsection (b) of this section, subsection (c), (h), or (i) of section 2 of the Narcotic Drugs Import and Export Act, as amended, or such Act of July 11, 1941, as amended, or
      (2) of any offense the penalty for which is provided in subsection (a) of this section, if it is the offender’s second or subsequent offense, the imposition or execution of sentence shall not be suspended, probation shall not be granted and in the ease of a violation of a law relating to narcotic drugs, section 4202 of title 18, United States Code, and the Act of July 15, 1932 (47 Stat. 696; D.C.Code 24-201 and following) , as amended, shall not apply.”

      . § 4202 provides:
      “A Federal prisoner, other than a juvenile delinquent or a committed youth offender, wherever confined and serving a definite term or terms of over one hun-dered and eighty days, whose record shows that he has observed the rules of the institution in which he is confined, may be released on parole after serving one-third of such term or terms or after serving fifteen years of a life sentence or of a sentence of over forty-five years.”

      . § 1101 of the Act, 84 Stat. 1291-1292, expressly repealed the old 21 U.S.C.A. § 174 and 26 U.S.C.A. § 7237. Those provisions were replaced by §§ 1009-1012, 84 Stat. 1289-1291, 21 U.S.C.A. §§ 959-965.

      . 84 Stat. 1294. The section is evidently not codified in the United States Code. But see 21 U.S.C.A. § 174, Historical Note.

      . The Board of Pardons and Parole’s practice of considering for parole only those prisoners (convicted under the old law) held in prisons within the geographical limits of those circuits which have decided that the prisoners are eligible for consideration of parole disturbs us. This failure of the Board to adopt a consistent national policy supplies further impetus for our decision.

      . See also, Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484, 494: “Parole arises after the end of the criminal prosecution, including imposition of sentence.”


text:
    Jesse L. SMITH, Plaintiff-Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY et al., Defendants-Appellees.
    No. 72-3378.
    United States Court of Appeals, Fifth Circuit.
    Nov. 13, 1973.
    Rehearing and Rehearing Eh Banc Denied Jan. 10, 1974.

      H. Alva Brumfield, Baton Rouge, La., for plaintiff-appellant.
    Boris F. Navratil, Baton Rouge, La., for Ill. Central R. R.
    Roger M. Fritehie, Baton Rouge, La., for Int. Paper Co., and others.
    Before WISDOM, GEWIN and CLARK, Circuit Judges.
   PER CURIAM:

This is an action for damages brought by the plaintiff-appellee Jesse L. Smith against his employer, the Illinois Central Railroad Company, the International Paper Company, and the Paper Company’s insurer, American Motorists Insurance Company, to recover for injuries he suffered while riding on the side of a railroad ear filled with pulpwood. The accident occurred at one of the Paper Company’s woodyards. The trial court entered judgment for the defendants after the jury returned verdicts based on special interrogatories finding that neither the Paper Company nor the Railroad had been guilty of negligence; nor had the plaintiff been guilty of negligence. We affirm.

Smith was the conductor on an Illinois Central train making a run from Baton Rouge, Louisiana, to Vicksburg, Mississippi. On March 26, 1970, the train stopped at the Paper Company’s yard in Centreville, Mississippi, to pick up several freight cars loaded with pulpwood which were ready for shipment to the company’s mills near Vicksburg. Such cars are “wood racks” in railroad vernacular. The plaintiff’s injury occurred while the train was performing the switching operations necessary to connect the wood racks to the rest of the train. In performing those switching operations, the engineer had to drive the train’s engine onto a siding paralleling the main line, where the wood racks were loaded and where they stood while awaiting shipment. The train had to be coupled with the wood racks on the siding track. After the coupling, the cars were driven to the main track, where they were to be connected with the rest of the train.

Smith’s injury occurred after the train had been coupled with the wood racks and was on its way to the main line. When the train had moved eight or ten ear lengths after the coupling, pulpwood logs began to fall off the top of one of the wood racks. The plaintiff was riding by holding on to the grab irons on the leading end of the car immediately following the ear from which the wood was falling. When the falling wood began to strike Smith, he jumped from the train, swinging out to avoid falling under the wheels. He suffered a broken pelvis and leg injuries which required the amputation of his leg.

The plaintiff raises six issues on appeal. The first two concern the sufficiency of the evidence: first, the plaintiff argues that the trial judge should have granted him judgment notwithstanding the verdict and, second, that failing a grant of judgment n.o.v., the trial judge should have granted his motion for a new trial. Upon a review of the record as a whole, we find that the evidence was sufficient to support the jury’s findings that none of the three parties involved had been negligent. See Boeing Company v. Shipman, 5 Cir. 1969, 411 F.2d 365. We therefore find the trial judge properly denied the motions for judgment n. o. v. or, in the alternative, for a new trial.

The plaintiff’s other four objections all concern the trial judge’s charge to the jury. The first is a challenge to the judge’s instruction on unavoidable accident. The plaintiff argues that there was no evidence in the record to support this instruction. We cannot agree. In the first place, there was specific evidence tending to show that the accident was or could have been unavoidable: the brakeman and the engineer of the train both testified that in similar operations there was always slack between the cars, and that a certain amount of jerking was therefore inevitable. It could have been inferred from that testimony that in the particular operation in question, the principal reason the wood had fallen was that it had been shaken loose by the inevitable jerking during the operation. Both the brakeman and the engineer testified that there were no harsh couplings and that the entire switching operation was smooth and void of any “bangs” or irregularities. Three other witnesses testified that they saw nothing unusual and heard nothing unusual. It is significant too that the plaintiff never settled on a specific theory of how the accident had happened. In his complaint and throughout the trial the plaintiff attributed the accident to any of a number of causes, including (1) the negligence of the engineer in operating the train at too fast a speed after the coupling operation; (2) the negligence of the Paper Company in failing properly to maintain its track; (3) the negligence of the Paper Company in failing to load the wood racks properly. There was no substantial proof that any of these possible causes had in fact caused the accident, and the plaintiff in making his case constantly shifted ground in trying to fix liability for his injury on one or the other of the defendants. It was as plausible to find the accident a result of unavoidable causes as it was to find the accident the result of any of the alternative causes cited by the plaintiff. Consequently, we cannot say that the record did not support the trial judge’s instruction on unavoidable accident.

The plaintiff’s other three objections to the charges are-without merit. The second objection is to the trial judge’s instruction on intervening cause, and the third is to his instructions on contributory and comparative negligence. With respect to both of these instructions, it is clear that even if the instructions were erroneously given, they could not have prejudiced the plaintiff. The jury would have needed to consider those two instructions only if it had first found one or the other of the defendants negligent. Since its verdict was on special interrogatories to the effect that neither of the defendants was negligent, it is clear that the jury had no reason to consider the challenged instructions.

The final challenge is to the failure of the trial judge to instruct the jury on the Federal Safety Appliance Act, 45 U.S.C. § 2 (1970). We find no error in the judge’s action in this regard. There was no evidence in the record supporting the conclusion that the railroad had violated the Federal Safety Appliance Act.

Affirmed.

      . The trial judge’s charge was, if anything, unfavorable to the defendants, especially to the railroad company. In denying the plaintiff’s post-trial motions, the trial judge observed : “ . . . I don’t suppose there was any portion of the charge of this court that had more emphasis or was more emphasized than that the railroad could be held liable if they were found, to have contributed in any way whatsoever, even in the slightest, to this accident.” The charge concerning the railroad’s liability was repeated not less than five times. In instructing the jury on the question of the railroad’s liability the trial judge said “. he [plaintiff] must prove that negligence on the part of the railroad which he asserts, contributed in whole or in part, even the slightest, to his injuries.” Later, he charged: “The difference between the two defendants is that under what we call the FELA — the Federal Employers Liability Act —the railroad who is governed by that Act, is held liable if their negligence contributed even the slightest to the accident . . .” The third time the judge stated: “Going back, for a moment, if there is negligence on the part of the railroad and if it contributed in whole or in part, even the slightest, to the accident, you must find them guilty of actionable negligence.”
      It was after this third repetition, inviting the jury to find' the railroad liable to the plaintiff if its negligence, even the slightest, contributed to the plaintiff’s injuries, when the court informed the jury that the mere occurrence of the accident did not mean that anyone was negligent, as sometimes accidents happen which are inevitable. At two other points in the charge the trial explained the plaintiff’s rights of recovery against the railroad “if you find that its negligence played any part, however small, in causing plaintiff injury.”
      After properly explaining “unavoidable accident”, the trial judge did not err in adding:
      “. . . Lastly, in connection with negligence and proximate cause the mere happening of an accident does not necessarily mean that someone is negligent. In law we recognize what are termed unavoidable or inevitable accidents. These terms do not mean literally that it was not possible for such an accident to be avoided. They simply denote an accident that occurred without having been caused by negligence, even though such accident should have been avoided by the exercise of exceptional foresight, skill or caution, still no one may be liable for injuries resulting from it.”
      Again:
      “. . .It was possible for you to find that neither of the defendants was guilty of negligence at all. You may find that the plaintiff was the only one negligent. You may find that the plaintiff was not guilty of negligence. You may find that only the paper company was guilty of negligence and proximate cause, or you may find that the railroad was guilty of negligence which contributed in some way to the accident.”