author: PER CURIAM.

text:
    UNITED STATES of America, Petitioner, v. Honorable Edwin L. MECHEM, United States District Judge, District of New Mexico, and Frankie Chavez, Respondents.
    No. 74-1662.
    United States Court of Appeals, Tenth Circuit.
    Jan. 13, 1975.
    Victor R. Ortega, U. S. Atty., and Richard J. Smith, Asst. U. S. Atty., Albuquerque, N. M., for petitioner.
    Larry L. Lamb, Albuquerque, N. M., for respondent Frankie Chavez,

    Before SETH, HOLLOWAY and DOYLE, Circuit Judges.

      . Pursuant to Rule 21(b), FRAP, the Honorable Edwin L. Mechem advised that he did not desire to appear in the proceeding.

   PER CURIAM.

This proceeding was instituted by a petition for writ of mandamus and prohibition filed' by the United States. The action seeks an order directing the respondent Judge to vacate an order that the United States withdraw its indictment against respondent Frankie Chavez, a 14-year old juvenile, and substitute an information in its place, in connection with charges of rape and murder in Indian Country, pursuant to 18 U.S. C.A. § 5032 and related provisions for juvenile proceedings. The petitioner further asks that the respondent Judge be ordered to vacate the setting of a juvenile delinquency hearing, refrain from applying juvenile provisions during pendency of the criminal proceedings, and proceed with the trial of Chavez on the indictment.

Deeming the issue raised to be substantial, we ordered an answer to be filed to the petition pursuant to Rule 21(b), F.R.A.P., and stayed the order of the trial court requiring juvenile proceedings as to Chavez. We have now considered the petition, the answer of respondent Chavez, transcripts of hearings in the trial court and authorities and arguments submitted. We agree with the views of the trial court expressed in its order of October 21, 1974, that juvenile proceedings are proper, see - F.Supp. -, and accordingly have vacated the stay and denied the extraordinary relief sought.

The petition relates these facts. On August 2, 1974, a federal grand jury in Albuquerque returned an indictment naming Frankie Chavez and two others as defendants on charges of rape and first degree murder in violation of 18 U.S.C.A. §§ 2, 1111, 1152, 1153, and 2031 and § 40A-9-2, N.M.S.A. (1973 Supp.). The offenses allegedly occurred on July 7, 1974.

Chavez was arraigned on August 6. He stood mute on counsel’s advice and the trial court entered a plea of not guilty on his behalf. The court learned that Chavez was 14 years of age, his birthdate being November 30, 1959. The Federal Juvenile Delinquency Act then in force, 18 U.S.C.A. §§ 5031 — 5037, excluded Chavez from treatment under the statute. Section 5031 defined a “juvenile” as a person who has not attained his eighteenth birthday and “juvenile delinquency” as violation of a law of the United States committed by a juvenile and not punishable by death or life imprisonment. Since the charges against Chavez were of this serious nature, he was indicted for prosecution as an adult.

However, on September 7, 1974, Public Law 93-415 became effectiye, substantially amending the Federal Juvenile Delinquency Act. Amendments to 18 U.S. C.A. §§ 5031 and 5032 now require that a juvenile under 16 not surrendered to State authorities be proceeded against under the federal juvenile statute, unless he has requested in writing on advice of counsel to be proceeded against as an adult, regardless of the nature of the crime or possible penalty.

Both of the other defendants named in the indictment were over 18 years of age and a severance was ordered for their trials. However, in view of the new statute effective September 7, before Chavez was tried the trial court entered its written order of October 21 directing the United States to withdraw the indictment as to Chavez and to file an information charging juvenile delinquency and requiring the clerk to expunge all records of the indictment pertaining to Chavez. The court also set a hearing on November 18, 1974, for an adjudication of delinquency.

The trial court was of the view that the new delinquency statute controls the manner in which juveniles are proceeded against and is largely procedural and remedial; that although the Act also deals with adjudication of a substantive offense, “juvenile delinquency,” the general saving statute, 1 U.S.C.A. § 109, does not bar application of the new Act; that the new provisions manifest a policy that children of Chavez’s age must be removed from the criminal process. The court concluded that the policy and procedural import of the new Act are more important than the fact that the statute may also entail creation of a substantive offense.

The Government disagrees, arguing that the new amendments relate to a penalty, forfeiture or liability within the meaning of the general saving statute, 1 U.S.C.A. § 109, so that the provisions of the prior law apply, requiring trial of Chavez as an adult. We turn to these arguments and the application of the new Delinquency Act in these circumstances.

The Government argues that the general saving statute preserves Chavez’s pre-amendment liability to prosecution as an adult. It says that the amelioration of penalties or the provision in the new statute -affording subsequent offenders a defense from criminal prosecution is irrelevant. Reliance is placed on Warden v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383; Perea v. United States Board of Parole, 480 F.2d 608 (10th Cir.); Page v. United States, 459 F.2d 467 (10th Cir.), cert. denied, 410 U.S. 989, 93 S.Ct. 1506, 36 L.Ed.2d 187, and similar cases.

The general saving statute, 1 U.S.C.A. § 109, provides in pertinent part:

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.

We cannot agree that the saving statute bars availability of the new Delinquency Act provisions for Chavez. The cases relied on by the Government do not deal with a comparable situation of a statutory change mandating a new basic procedure as to a class of offenders. Marrero held that persons convicted under a narcotics statute expressly prohibiting their consideration for parole could not subsequently be considered for parole, even though the no-parole provision had been repealed following their convictions. See also Perea v. United States Board of Parole, 480 F.2d 608 (10th Cir.). The Court found from the legislative history of the no-parole provisions that Congress intended ineligibility for parole to be part of the penalty, forfeiture or liability incurred by those violating the statute. Thus the statute involved no system apart from the usual criminal process, as we have in this case.

We feel that the answer lies in the fact that by the Juvenile Delinquency Act, Congress has barred criminal prosecution of juveniles in certain circumstances and provided for a completely separate system of treatment for them under State or Federal procedures. 18 U.S.C.A. § 5032, as amended, says that “ . . .no criminal prosecution shall be instituted for the alleged act of juvenile delinquency except as. provided below. . . . ” This court has recognized that “ . . . [t]he very purpose of the [Juvenile Delinquency] Act is to avoid prosecution of juveniles as criminals.” Cotton v. United States, 355 F.2d 480, 481 (10th Cir.).

The Findings and Declaration of Purpose of the 1974 amendatory Act show an intent to provide a complete and improved system for assisting juvenile delinquents and runaway youths. See Pub.Law 93-415, §§ 101 and 102, 88 Stat. 1109. The amendments to the Act were for the stated purpose of enhancement of the juvenile system by assisting in the development of mechanisms designed to channel juveniles out of the criminal justice system. See S.Rep.No. 93-1011, 93d Cong., 2d Sess. (1974); 10 U.S.Code and Congressional Administrative News, p. 4239 (1974). Specifically the amendment to extend coverage of the Act even to crimes punishable by death or life imprisonment shows the intent that a juvenile under 16 should not be subject to ordinary criminal prosecution, unless he so requests in writing with advice of counsel.

The intent to remove juveniles from the ordinary criminal process is demonstrated further by the provision favoring surrender of juveniles to State authorities having programs and services adequate for the needs of juveniles. See 18 U.S.C.A. § 5032, as amended. Congress recognized that juvenile crimes are “essentially a State and local problem which must be dealt with by the State and local governments.” S.Rep.No. 93-1011, 93d Cong., 2d Sess. (1974); 10 U.S.Code Congressional and Administrative News, p. 4238 (1974). Throughout, the clear intent is to provide for handling the juvenile delinquent outside the criminal justice system.

It is true that aside from the separate procedure provided for juvenile delinquents, there is a substantive offense of “juvenile delinquency” dealt with by the statute, premised on commission of other substantive offenses. See 18 U.S. C.A. § 5031. We agree, however, with the trial judge that despite the substantive provision; the predominant purpose of the 1974 Act is procedural and remedial. The striking features of the Act are its provisions directing completely separate treatment for juvenile delinquents through State or Federal programs, and completely removing those under 16 from the ordinary criminal process, unless they consent to its jurisdiction.

We have considered .United States v. Azevedo, 386 F.Supp. 622 (D.Hawaii), which supports the Government’s position, and Nassar v. Commonwealth, 341 Mass. 584, 171 N.E.2d 157, reaching a similar result. Azevedo applies the saving statute as if in the context of dealing with general criminal statutes. We feel, however, that the distinct features and predominant purpose of the amended Juvenile Delinquency Act point to a different result.

Since the purpose of the Act is to avoid prosecution of juveniles as criminals, Cotton v. United States, 355 F.2d 480, 481 (10th Cir.), and since it recognizes the need for “immediate and comprehensive action,” Pub.L.No. 93-415, § 101(b), 88 Stat. 1109, we are satisfied that Congress did not intend the ordinary criminal process to continue, through the saving statute, to reach juveniles not yet tried. We are persuaded that the policy and procedural import of the Delinquency Act are more important than the fact the Act also deals with substantive offenses. Therefore we agree with the trial court that the new procedures adopted are available to a 14 year old juvenile in the circumstances of Chavez.

Accordingly we have ordered that our prior stay be vacated and that the petition and all extraordinary relief sought by it be denied.

      . Public Law 93-415, 88 Stat. 1109, known as the “Juvenile Justice and Delinquency Prevention Act of 1974.”

      . The saving statute is not made inapplicable because an amendment instead of outright repeal changes a statutory punishment. Moorehead v. Hunter, 198 F.2d 52, 53 (10th Cir.).


source: Caselaw Access Project

author: WEBSTER, Circuit Judge.

license: Public Domain

text:
    Dolores BUHR, Appellant, v. BUFFALO PUBLIC SCHOOL DISTRICT NO. 38 et al., Appellees.
    No. 73-1851.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 13, 1974.
    Decided Dec. 31, 1974.
    Rehearing and Rehearing En Banc Denied Feb. 13, 1975.

      David Rubin, Washington, D. C., for appellant.
    John D. Kelly, Wattam, Vogel, Vogel & Peterson, Fargo, N. D., for appellees.
    Before GIBSON, Chief Judge, VAN OOSTERHOUT, Senior Circuit Judge, and WEBSTER, Circuit Judge.
   WEBSTER, Circuit Judge.

In this case we are asked to review the termination of employment of Dolores Buhr, a fifth grade teacher in the Buffalo Public School District No. 38 in North Dakota. Ms. Buhr had been a nontenured teacher for seven years, and each year her employment contract had been presented to the school board for renewal. In March, 1973, the school board notified her of its contemplated nonrenewal of her contract. This notification contained no reasons for the proposed discharge but indicated, as required by state law, that she could appear at a meeting of the board to discuss the matter. She alleges that, at that closed meeting with the board, she was informed that the reasons for the contemplated action were the charges by certain persons that “she was the cause of certain emotional and nervous stress and tension on the part of some of the students.”

Nine days later, Ms. Buhr was notified by letter that the school board had reached a decision not to renew her contract. She thereupon filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of her Fourteenth Amendment rights to both procedural and substantive due process of law. The defendant school district and school officials moved for summary judgment dismissing the complaint, which was granted by the Honorable Paul Benson, whose supporting memorandum of decision appears at 364 F.Supp. 1225 (D.N.D. 1973). We affirm for the following reasons:

1. Procedural Due Process Claims.

The pivotal cases in the resolution of Ms. Buhr’s procedural due process claims are Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) [hereinafter Roth], and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) [hereinafter Sindermann]. Equally significant are the Supreme Court’s recent statements in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (opinion of Rehnquist, J., in which Burger, C. J., and Stewart, J., joined).

Under Roth and Sindermann, a state or public school teacher who is not formally tenured is entitled to procedural due process of law upon termination only if that termination deprives the teacher of an interest in liberty or an interest in property. Deprivation of an interest in liberty occurs where nonretention of the teacher imposes upon him a stigma or other disability foreclosing his future employment opportunities or resulting in significant damage to his standing and associations in the community. Adequate notice of the reasons for nonretention and an opportunity to rebut those charges are required under such circumstances. Roth, supra, 408 U.S. at 573, 92 S.Ct. 2701. Procedural due process is likewise required where the teacher whose dismissal is being contemplated, while not formally tenured, has held his job pursuant to a de facto tenure policy under which he had a legitimate claim to continued employment and thus a “property interest” therein. Roth, supra, 408 U.S. at 576-578, 92 S.Ct. 2701; Sindermann, supra, 408 U.S. at 599-603, 92 S.Ct. 2694.

Invoking this analytical framework, Ms. Buhr first contends that her nonrenewal for the reasons cited at the executive meeting of the school board deprived her of an interest in liberty by foreclosing future employment opportunities in her chosen profession. She argues that being named as the cause of certain students’ nervous tensions not only imposed a stigma on her professional record but also injured her standing in the small community in which she lives.

We cannot accept this argument under the factual circumstances of this particular case. Clearly, nonrenewal standing alone does not constitute the deprivation of an interest in liberty. Roth, supra, 408 U.S. at 574 n. 13, 92 S.Ct. 2701; Arnett v. Kennedy, supra, 416 U.S. at 157, 94 S.Ct. 1633; Calvin v. Rupp, 471 F.2d 1346 (8th Cir. 1973). On the other hand, where reasons for nonrenewal are announced publicly or are incorporated into a record made available to prospective employers, such reasons may indeed affect the dischargee’s chances of securing another job. See Wellner v. Minnesota State Junior College Board, 487 F.2d 153 (8th Cir. 1973); cf. Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). In the instant case, the reasons for nonrenewal were never publicized. Ms. Buhr was confidentially informed of the reasons only upon her request and then only at a closed meeting of the school board. The confidential nature of these charges was respected even during the trial court proceedings, and we note that Judge Benson made no explicit reference thereto in his summary judgment order and memorandum. See 364 F.Supp. at 1228 n. 1. We fail to discover any suggestion in the undisputed facts contained in the record that the defendants prejudiced Ms. Buhr’s ability to secure another teaching position.

Nor can we accept Ms. Buhr’s contention that she was entitled to procedural due process as a result of her “property interest” in continued employment. See Roth, supra; Sindermann, supra. North Dakota teachers do not work under any formal tenure system. Dathe v. Wildrose School District No. 91, 217 N.W.2d 781 (N.D.1974); Hennessy v. Grand Forks School District No. 1, 206 N.W.2d 876 (N.D.1973). Appellant concedes this point but argues that the state affords its teachers continuous job security through statutory provisions recognizing “the need to * * * retain qualified teachers”, N.D.C.C. § 15-47-38(1) (1971), and guaranteeing automatic renewal of each teacher’s yearly contract absent affirmative action by the school board, N.D.C.C. § 15-47-27 (1971). Yet it is clear that those same statutory provisions, which outline the procedures for terminating a teacher’s employment, do not provide for full-dress procedural due process. Dathe v. Wildrose School District No. 91, supra; Hennessy v. Grand Forks School District No. 1, supra. Where, as here, the only “grant of a substantive right [to continued employment] is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant [challenging the termination of employment] must take the bitter with the sweet.” Arnett v. Kennedy, supra, 416 U.S. at 153-154, 94 S.Ct. at 1644. Because Ms. Buhr’s only “property interest” in re-employment “was itself conditioned by the procedural limitations which had accompanied the grant of that interest,” 416 U.S. at 155, 94 S.Ct. at 1645, there is no merit to her claimed right to full procedural due process.

2. Substantive Due Process Claims.

Ms. Buhr’s final contention, separate and apart from her procedural due process claims, is that she was denied substantive due process of law because the reasons cited by the school board for her nonretention were totally unsupported by factual evidence. For purposes of review, “[w]e look at the record on summary judgment in the light most favorable to * * * the party opposing the motion,” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962), and “the inferences to be drawn from the underlying facts contained in [the record] must be viewed in the light most favorable to the party opposing the motion,” United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Assuming, therefore, for purposes of this appeal, that the reasons for Ms. Buhr’s nonretention did indeed lack factual support, we proceed to an analysis of her constitutional claims.

“The claim that a person is entitled to ‘substantive due process’ means * * * that state action which depriyes him of life, liberty, or property must have a rational basis — that is to say, the reason for the deprivation may not be so inadequate that the judiciary will characterize it as ‘arbitrary.’ ” Jeffries v. Turkey Run Consolidated School District, 492 F.2d 1, 3-4 (7th Cir. 1974). The concept of substantive due process, so defined, has had a long and tortuous history in the federal courts. As was observed in North Dakota State Board of Pharmacy v. Snyder’s Drug Stores, Inc., 414 U.S. 156, 94 S.Ct. 407, 38 L.Ed.2d 379 (1973), the United States Supreme Court once expressly espoused the concept and actively employed it to strike down state action “which a majority of the Court deemed unwise,” 414 U.S. at 164, 94 S.Ct. at 412. See, e. g., Coppage v. Kansas, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441 (1915); Adair v. United States, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436 (1908); Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905). Although analysis of recent opinions has led some commentators to conclude that substantive due process still plays a significant, albeit tacit, role in the Supreme Court’s decisions, see Tribe, Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv.L.Rev. 1 (1973); Epstein, Substantive Due Process by Any Other Name: The Abortion Cases, 1973 Sup.Ct.Rev. 159; cf. Note, The Irrebuttable Presumption Doctrine in the Supreme Court, 87 Harv.L.Rev. 1534 (1974), the Court itself has expressly repudiated the use of substantive due process as a vehicle for intervening in choices properly left within the discretion of state officials. E. g., North Dakota State Board of Pharmacy v. Snyder’s Drug Stores, Inc., supra; Ferguson v. Skrupa, 372 U.S. 726, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963); cf. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 53-55, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973).

Within the Eighth Circuit substantive due process claims have spawned two distinct views expressed in our opinions. The first would condition the right to federal judicial review of allegedly arbitrary state action upon a showing that a specific constitutional right has been infringed, such as deprivation of freedom of speech, racial discrimination or denial of procedural due process rights where liberty or property interests are at stake. The other line of cases seems to suggest that substantive due process is a specific constitutional right in itself, cognizable under 42 U.S.C. § 1983 and violated whenever a state acts to the detriment of an individual in a manner that is arbitrary or capricious.

Having carefully considered both lines of cases within this Circuit, as well as authorities from other jurisdictions, we conclude that under the facts of this case Ms. Buhr is not entitled to relief. Of primary importance is the fact that Ms. Buhr had no right to procedural due process. Since North Dakota law provides only that she be told the reasons for her termination but does not entitle her to a full-dress hearing in order to rebut those “charges,” we could scarcely overturn the school board’s decision on insufficiency of the evidence grounds. Indeed, although North Dakota law gave her the right to learn the reasons for her nonretention, see supra, her employment could have been terminated for no reason at all without offending the Constitution. Roth, supra; Frazier v. Curators of the University of Missouri, 495 F.2d 1149 (8th Cir. 1974); Scheelhaase v. Woodbury Central Community School District, 488 F.2d 237 (8th Cir. 1973), cert. denied, 417 U.S. 969, 94 S.Ct. 3173, 41 L.Ed.2d 1140 (1974); Freeman v. Gould Special School District, 405 F.2d 1153 (8th Cir.), cert. denied, 396 U.S. 843, 90 S.Ct. 61, 24 L.Ed.2d 93 (1969). Without wishing to encourage school boards to retreat behind a veil of silence in such situations, we must conclude that where a teacher can constitutionally be dismissed for no reason, he or she can be dismissed for reasons unsupported by factual evidence. In other words, to the extent that our cases recognize a constitutional right to substantive due process, that right, as expressed by the Seventh Circuit, “is no greater than the right to procedural due process.” Jeffries v. Turkey Run Consolidated School District, supra, 492 F.2d at 4.

In a well-reasoned opinion by Judge Stevens, the Seventh Circuit analyzed the claim of an untenured elementary school teacher in Indiana that the reasons for her discharge, as given, were illogical or untrue and that the final decision itself was illogical and lacking in reason. The court observed that, as an untenured teacher with no claim of a constitutionally protected “property interest” or any impairment of her “liberty,” she had no constitutional right to a fair hearing or to a statement of the reasons for her discharge. Thus, the fact that the school board voluntarily communicated such information to her was “not in itself sufficient to create a federal right that does not otherwise exist.” 492 F.2d at 3. The court then rejected the argument that the discharge was impermissibly arbitrary and capricious, holding that the absence of either a property or liberty interest was as fatal to the substantive as it was to the procedural due process claim. Jeffries v. Turkey Run Consolidated School District, supra.

We adopt the reasoning of the Seventh Circuit, and on this basis our post-Roth and Sindermann cases supporting a right to federal judicial review of school board actions which are arbitrary and capricious, note 5 supra, can readily be reconciled with the main line of our decisions, note 4 supra.

In Strickland v. Inlow, 485 F.2d 186 (8th Cir. 1973), cert. granted, 416 U.S. 935, 94 S.Ct. 1932, 40 L.Ed.2d 285 (1974), we held that a group of Arkansas students had been denied substantive due process when they were suspended from school for “spiking the punch” under a regulation which prohibited the “use of intoxicating beverages or possession of same [at school] or at a school sponsored activity.” Thus, while in Strickland we did not expressly determine whether the requirement of procedural due process had been satisfied, we first held that the students were entitled to procedural due process under our interpretation of the school regulation before passing on to a consideration of their substantive due process rights. We then held that the absence of any evidence that the beverage was “intoxicating” made the suspension a denial of substantive due process. However, we have never held lack of any evidence (substance of due process) to be grounds for reversing the action of a state agency when the right to a procedural due process hearing was not first shown to exist.

In Fisher v. Snyder, 476 F.2d 375 (8th Cir. 1973), the complaining teacher had in fact been given a hearing required by Nebraska law. The grounds for discharge, that her behavior displayed “a strong potential of sexual misconduct,” were shown to be nothing more than “subtle implication and innuendo.” 476 F.2d at 377. This reasoning is consistent with those cases requiring procedural due process as a result of the “stigma” imposed on an individual as the result of government or agency action. Roth, supra, 408 U.S. at 573, 92 S.Ct. 2701; Wisconsin v. Constantineau, supra. See also Wellner v. Minnesota State Junior College Board, supra. Fisher should not be considered authority in this Circuit, however, for the assertion of substantive due process claims where procedural due process rights would not first be recognized.

We think this analysis provides a rational view of our holdings in public school due process cases decided after the Supreme Court’s definitive rulings in Roth and Sindermann. Where procedural due process is required, the state agency must pay attention to the evidence adduced and act rationally upon it. On the other hand, we will not inquire into such claims unless a right to procedural due process has first been demonstrated or there has been identified to us some other federally protected right warranting our intervention in school board affairs.

Since an evidentiary hearing was not required as a part of the decision-making process, it follows that unpublished reasons for termination, given to Ms. Buhr in confidence, need not be supported by any evidence. No independent federally protected right has been disclosed. A claim of -total insufficiency of evidence, disembodied and cast adrift from procedural due process rights, is not a claim to be addressed in federal court. See Jeffries v. Turkey Run Consolidated School District, supra.

Affirmed.

ORDER ON PETITIONER’S PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC

Petitioner’s petition for rehearing is denied.

We wish to make clear that our holding in this case is bottomed upon our express conclusion that Ms. Buhr possessed neither an interest in liberty nor in property which entitled her to procedural due process. Our quotation from Justice Rehnquist’s plurality opinion in Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), was not intended to intimate that we thought there was any grant by the legislature of a property interest under state law.

Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972).

See Cusumano v. Ratchford, 507 F.2d 980 (8th Cir. 1974). As we observed in our opinion, North Dakota teachers do not work under any formal tenure system. Dathe v. Wildrose School District No. 91, 217 N.W.2d 781 (N.D.1974); Hennessy v. Grand Forks School District No. 1, 206 N.W.2d 876 (N.D.1973). Appellant concedes this point but argues that the state affords its teachers continuous job security through statutory provisions recognizing “the need to * * * retain qualified teachers,” N.D.C.C. § 15— 47 — 38(1) (1971), and guaranteeing automatic renewal of each teacher’s yearly contract absent affirmative action by the school board, N.D.C.C. § 15-47-27 (1971). The Supreme Court of North Dakota, however, has squarely held that the state statutes do not confer “property interests” to public school teachers. Dathe v. Wildrose School District No. 91, supra, 217 N.W.2d at 786-87; Hennessy v. Grand Forks School District No. 1, supra, 206 N.W.2d at 884.

While holding that these statutory sections therefore do not confer property interests, we also observe that claimants under such sections are properly entitled to no due process, substantive or procedural, arising from the United States Constitution and to no more procedural protection than the North Dakota statute itself provides and which was in fact given in this case.

      . Under applicable North Dakota law, there is no formal tenure system; each public school teacher is employed under a yearly contract which the school district may or may not renew. N.D.C.C. § 15-47-27 (1971); N.D. C.C. § 15-47-38 (1971). See Dathe v. Wildrose School Dist. No. 91, 217 N.W.2d 781 (N.D.1974); Hennessy v. Grand Forks School Dist. No. 1, 206 N.W.2d 876 (N.D.1973).

      . North Dakota, law, applicable at the time of the nonrenewal, N.D.C.C. § 15-47-38(2) (1971), provided:
      The school board of any school district contemplating discharging a teacher prior to the expiration of the term of the teacher’s contract, or contemplating not renewing a teacher’s contract shall notify such teacher in writing of such fact at least ten days prior to the date of discharge or final date to renew the teacher’s contract. Such teacher shall be informed in writing that he may request and appear at a meeting to be held by the school board prior to the final decision of such teacher’s discharge or failure to renew such teacher’s contract. The school board shall give an explanation and shall discuss at such meeting its reasons for the contemplated decision of the board in discharging such teacher or refusing to renew the teaching contract of the teacher. The meeting shall be an executive session of the board unless both the school board and the teacher requesting such meeting shall agree that it shall be open to other persons or the public. The teacher may be represented at the meeting by a person of his own choosing. If the teacher so requests, he shall be granted a continuance of not to exceed seven days by the board, unless for good cause otherwise shown. No cause of action for libel or slander shall lie for any statement expressed either orally or in writing at any executive session of a school board held for the purposes provided in this section.
      The statute was amended in 1973. The relevant provisions of the amendment, however, do not differ substantially from those in the prior version which governs Ms. Buhr’s case. See N.D.C.C. § 15-47-38(5) (Supp. 1973). According to the Constitution of North Dakota, all acts become effective on July 1 following the close of the legislative session unless an emergency is declared. N.D.Const. § 67.

      . For the long list of cases in which we have been confronted with similar issues, see Frazier v. Curators oí Univ. of Mo., 495 F.2d 1149, 1150 n. 1 (8th Cir. 1974).

      . Included herein are Frazier v. Curators of Univ. of Mo.r 495 F.2d 1149, 1153 (8th Cir. 1974) (“a nontenured instructor may be dismissed provided the dismissal is not in fact based upon some constitutionally impermissible ground”); Scheelhaase v. Woodbury Central Community School Dist., 488 F.2d 237, 242 (8th Cir. 1973), cert. denied, 417 U.S. 969, 94 S.Ct. 3173, 41 L.Ed.2d 1140 (1974) (“in the absence of a tenure statute a local school board has the right to decline to employ or re-employ any teacher for any reason or for no reason as long as such a decision is not violative of a specific constitutional right”); Harnett v. Ulett, 466 F.2d 113, ,117 (8th Cir. 1972) (“absent contractual, legislative or con- ■ stitutional provision on the subject, the power of removal is incident to the power of appointment, and government employment can be revoked at the will of the appointing officer”); Tims v. Board of Educ., 452 F.2d 551, 552 (8th Cir. 1971) (“ ‘a school district has the right to discharge an employee for good reason, bad reason, or no reason, absent discrimination’ * * * [but such] a decision * * * must not rest on grounds that are violative of constitutional or legal rights”); Freeman v. Gould Special School Dist., 405 F.2d 1153, 1159 (8th Cir.), cert. denied, 396 U.S. 843, 90 S.Ct. 61, 24 L.Ed.2d 93 (1969) (“[a]bsent [tenure] a public employee has no right to continued public employment, except insofar as he may not be dismissed or failed to be rehired for impermissible constitutional reasons, such as race, religion, or the assertion of rights guaranteed by law or the Constitution”).

        Accord, Strickland v. Inlow, 485 F.2d 186, 192 (1973), cert. granted, 416 U.S. 935, 94 S.Ct. 1932, 40 L.Ed.2d 285 (1974) (Mehaffy, C. J., joined by Stephenson and Webster, JJ., dissenting from denial of the petition for rehearing en banc) (“substantive reach of the due process clause on the public school campus is limited to the protection of specifically identifiable federal constitutional rights”).

      . Included herein are Strickland v. Inlow, 485 F.2d 186, 190 (8th Cir. 1973), cert. granted, 416 U.S. 935, 94 S.Ct. 1932, 40 L.Ed.2d 285 (1974) (“[suspended] students denied substantive due process [due to lack of evidence]”); Fisher v. Snyder, 476 F.2d 375, 377 (8th Cir. 1973) (“judgment [of school board] * * * must be afforded judicial deference ‘so long as the board does not act unreasonably, arbitrarily, capriciously, or unlawfully’ ”); McConnell v. Anderson, 451 F.2d 193, 196 (8th Cir. 1971), cert. denied, 405 U.S. 1046, 92 S.Ct. 1312, 31 L.Ed.2d 588 (1972) (“court is * * * limited to deciding whether the administrative action was arbitrary, unreasonable or capricious”); Smith v. Board of Educ., 365 F.2d 770, 782 (8th Cir. 1966) (school board free “so long as the board does not act unreasonably, arbitrarily, capriciously, or unlawfully”); Brooks v. School Dist. of Moberly, 267 F.2d 733, 740 (8th Cir.), cert. denied, 361 U.S. 894, 80 S.Ct. 196, 4 L.Ed.2d 151 (1959) (“plaintiffs are in no position to complain at least so long as the action of the Board is not unreasonable, arbitrary, or motivated by racial consideration”).

        Accord, Scheelhaase v. Woodbury Central Community School Dist., 488 F.2d 237, 244 (8th Cir. 1973), cert. denied, 417 U.S. 969, 94 S.Ct. 3173, 41 L.Ed.2d 1140 (1974) (Bright, X, concurring) (“the concept of substantive due process is not wholly alien to the administration of public schools [but] * * *■ appellee has not shown the action of the Board to have been arbitrary and capricious”); Freeman v. Gould Special School Dist., 405 F.2d 1153, 1167 n. 9 (8th Cir.), cert. denied, 396 U.S. 843, 90 S.Ct. 61, 24 L.Ed.2d 93 (1969) (Lay, J., dissenting) (“if there exists no evidentiary support to the charges * * *, a claim for relief is properly stated under 42 U.S.C. § 1983”).

      . We stated in Strickland that due process was required as a result of the severity of the penalty imposed. 485 F.2d at 190. Further, the regulation authorized suspension of students who were “found to be guilty” of the offense in question, thus intimating some form of evidentiary hearing.

      . Recent cases arising in other contexts are consistent with this approach. In Wright v. Arkansas Activities Association, 501 F.2d 25 (8th Cir. 1974), plaintiff challenged under 42 U.S.C. § 1983 a disciplinary ruling of the defendant association. As our opinion in that case makes clear, the defendant’s interference with plaintiff’s coaching contract with a local school district (a “property interest”) was sufficient to support our consideration of both substantive and procedural due process claims. And in Wilwording v. Swenson, 502 F.2d 844 (1974), wherein we remanded for an evidentiary hearing an inmate’s claim of denial of substantive and procedural due process in a prison’s disciplinary action, an adequate interest in liberty was at stake to support such review.

      . The burden is on the plaintiff to demonstrate that the termination was for an impermissible reason. See Calvin v. Rupp, 471 F.2d 1346 (8th Cir. 1973); Wilson v. Pleasant Hill School Dist., 465 F.2d 1366 (8th Cir. 1972).


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Stanley Morton BASHAW, Appellant.
    No. 74-2697.
    United States Court of Appeals, Ninth Circuit.
    Jan. 23, 1975.
    John K. Van De Kamp, Federal Public Defender, Los Angeles, Cal., for appellant.

      William D. Keller, U. S. Atty., Los Angeles, Cal., for appellee.
    Before DUNIWAY and ELY, Circuit Judges, and SOLOMON, District Judge.

       Honorable Gus J. Solomon, Senior United States District Judge, Portland, Oregon, sitting by designation.

   OPINION

PER CURIAM:

In a jury trial, Bashaw was convicted on two charges of having unlawfully sold government property, violations of 18 U.S.C. § 641. On this appeal, Bashaw makes two contentions: (1) That the District Court erred in refusing to grant a mistrial because of the prosecutor’s inquiry of Bashaw, while a witness in his own behalf, “Did you recently plead in state court to possession of drugs?” (2) Egregious error by the prosecutor in a comment, made during summation “that the defendant’s evidence doesn’t meet its burden of showing the defendant did not commit the crime charged.”

Germane to the first contention is that the prosecutor was apparently not aware that the state charge was a misdemeanor and that the proceedings therein had not terminated. When the mistrial motion was made following the question, the district judge immediately and firmly admonished the jury that the question should be entirely disregarded.

Likewise, when objection was made to the above quoted portion of the prosecutor’s summation, the district judge immediately and properly instructed the jury that it “must not accept the statements of counsel as to the law.” Thereafter, the court carefully instructed the jury that it rested upon the prosecution to prove Bashaw’s guilt beyond a reasonable doubt.

We do not condone the prosecutor’s conduct. In fact, we condemn it, and overzeal on the part of a counsel for the Government of the United States affords no legitimate excuse for his prosecutorial misconduct. In the light of the prompt and careful curative instructions of the district judge, however, and in light of the further fact that the evidence of Bashaw’s guilt was overwhelming, we are impelled to the conclusion that the prosecutor’s misconduct was legally harmless and that the judgment of conviction should be, and it hereby is,

Affirmed.


text:
    UNITED STATES of America, Appellee, v. Gordon R. SWANSON, Appellant. UNITED STATES of America, Appellee, v. Glenn F. GAFFEY, Appellant.
    Nos. 74-1395, 74-1396.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 9, 1974.
    Decided Jan. 23, 1975.

      T. M. Whicher, Sioux City, Iowa, for appellants.
    Robert Sikma, Asst. U. S. Atty., Sioux City, Iowa, for appellee.
    Before LAY, ROSS and WEBSTER, Circuit Judges.
   WEBSTER, Circuit Judge.

In these consolidated criminal appeals we review the convictions of Gordon R. Swanson and Glenn F. Gaffey, who were found guilty by the trial court of willful failure to file income tax returns for 1970 and 1971, in violation of 26 U.S.C. § 7203. Appellants challenge their convictions upon the basis of (1) unconstitutional selective prosecution, (2) denial of access to documents submitted by the government in camera and (3) failure of the government to prove willfulness. Upon a careful review of the facts contained in the record and the issues raised on appeal, we affirm both convictions.

THE FACTS

Swanson and Gaffey are both certified public accountants' and partners in the accounting firm of Shipway and Swanson in Sioux City, Iowa. A considerable portion of the firm’s business is devoted to tax-related matters. The evidence shows that for several years each defendant-appellant failed to file timely his personal tax returns as well as those of the partnership. Throughout these years Swanson and Gaffey sought frequent extensions, and they assessed against themselves and paid to the Internal Revenue Service interest and penalties due as a result of their delinquencies.

The record discloses that for 1970 and 1971, the tax years covered by the indictments, Swanson’s and Gaffey’s returns were not filed until December 15, 1972, after each defendant had been informed of pending criminal investigations. Each defendant has conceded that he knew that he was required to file timely tax returns for those years but had failed to do so.

At trial each defendant advanced a series of reasons for his failure to file timely returns: Swanson produced evidence that his father, mother and wife were ill during the time period in question and that, in addition to extraordinary business pressures, a third partner, Mel Hagberg, separated from the part-. nership in 1969. Hagberg’s withdrawal from the firm precipitated difficulties in dividing the partnership profits for the preceding years. At the portion of the trial devoted to Gaffey’s case, evidence was introduced indicating that the departure of Hagberg as well as certain record-keeping problems caused his tax returns to be filed late. Swanson’s reluctance to cooperate in the division of the partnership income exacerbated Gaffey’s difficulties.

Following the conviction of each defendant by the trial court, these consolidated appeals were filed. We resolve the three issues raised by appellants in favor of the government and affirm both convictions.

I. SELECTIVE PROSECUTION

Appellants first seek reversal of their convictions on the ground that their constitutional rights were violated by the Internal Revenue Service’s selective enforcement of the criminal tax laws. Following their entry of pleas of not guilty to the indictments, the trial court granted defendants’ motion to discover certain IRS materials. The IRS produced documents revealing the existence of “Project ACE” which gave “special priorities” to the prosecution of tax crimes by attorneys, certified public accountants and enrolled practitioners as a result of the “special obligation and responsibility [of these professionals] to the tax laws.” Pursuant to motions for additional discovery, the trial judge examined in camera Internal Revenue Manual 9180, Intelligence Tolerance and Criteria Handbook, established by Project ACE.

Defendants-appellants contend that Project ACE, which focused on C.P.A.’s and other professionals, represents arbitrary and capricious discrimination that deprives them of their constitutional rights. In support of this theory, appellants have submitted statistical data purporting to demonstrate that Project ACE has resulted in a disproportionate number of criminal tax indictments among attorneys and C.P.A.’s. Such contentions were presented to the District Court in motions to dismiss the indictments, which the District Court deferred until the time of trial and ultimately denied.

It is well established that a reasonable prosecutorial discretion is inherent in our judicial system, United States v. Wiley, 503 F.2d 106, 107 (8th Cir. 1974), and that such discretion does not amount to unconstitutional discrimination unless it is deliberately based upon an unjustifiable standard such as race, religion or other arbitrary classification, United States v. Alarik, 439 F.2d 1349 (8th Cir. 1971).

As the Court of Appeals for the Second Circuit has stated in a recent opinion:

To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government’s discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as ‘intentional and purposeful discrimination.’ See Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1943); Moss v. Hornig, 314 F.2d 89, 92-93 (2d Cir. 1963); United States v. Ahmad, 347 F.Supp. 912 (M.D.Pa.1972), aff’d sub nom., United States v. Berrigan, 482 F.2d 171 (3rd Cir. 1973); United States v. Falk, 479 F.2d 616 (7th Cir. 1973) (en banc); United States v. Crowthers, 456 F.2d 1074 (4th Cir. 1972); United States v. Steele, 461 F.2d 1148 (9th Cir. 1972), See Comment, ‘The Right to Nondiscriminatory Enforcement of State Penal Laws,’ 61 Colum.L.Rev. 1103 (1961). Mere ‘conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.’ Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962).
United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974).

It is clear that appellants have failed to satisfy the second prong of that burden. We uphold the order of the District Court denying defendants’ motions to dismiss the indictments as unconstitutionally selective and discriminatory. Cf. United States v. Mirabile, 503 F.2d 1065 (8th Cir. 1974).

II. DISCOVERY

In a related claim defendants-appellants contend that if they were in fact unable to establish a case of unconstitutional prosecutorial discrimination, this failure is attributable to the government’s noncompliance with the District Court’s discovery orders issued December 21, 1973, pursuant to Fed.R.Crim.P. 16. They further argue that the District Court should have permitted them to examine the documents which were inspected by the court in camera as well as additional correspondence and statistical data which they had requested the government to produce.

In its order of January 23, 1974, the District Court stated that the government had substantially complied with the court’s discovery order and, thus, a continuance requested by the defense would be denied. “The law of this Circuit is well established that ‘[a]n application for relief under the discovery rules . . is a matter within the sound discretion of the district court and is reviewable only for an abuse of discretion.’ ” United States v. Cole, 453 F.2d 902, 904 (8th Cir.), cert. denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972), quoting Hemphill v. United States, 392 F.2d 45, 48 (8th Cir.), cert. denied, 393 U.S. 877, 89 S.Ct. 176, 21 L.Ed.2d 149 (1968) . “[A]n error in administering the discovery rules is not reversible absent a showing that the error was prejudicial to the substantial rights of the defendant.” United States v. Cole, supra, 453 F.2d at 904; see Meyer v. United States, 396 F.2d 279, 283 (8th Cir. 1968), cert. denied sub nom. Dugger v. United States, 393 U.S. 1017, 89 S.Ct 621, 21 L.Ed.2d 561 (1969) ; Hansen v. United States, 393 F.2d 763, 770 (8th Cir.), cert. denied, 393 U.S. 833, 89 S.Ct. 103, 21 L.Ed.2d 103 (1968).

We have examined the evidence which the District Court reviewed in camera. We find no abuse of discretion or basis of a claim of prejudice in the refusal of the District Court to permit defense counsel to examine these documents. In general terms they reveal the establishment on February 28, 1973, of “Coordinated Compliance Projects.” Thé national goal was to be “simultaneous indictments or criminal informations against individuals who have willfully failed to file income tax returns.” The objective was “to achieve maximum geographic coverage involving all districts.”

The Projects were to be conducted in three phases: (1) simultaneous indictments of persons in certain groups throughout the country, (2) measurement of the effect of such indictments by reference to the number of delinquent returns before the indictments and thereafter and (3) civil actions brought against delinquent but unindicted taxpayers. It was provided that the cases selected “should be those with good prosecution potential and with few investigative problems. Income should be primarily from full time practice of, or employment in, the taxpayer’s means of livelihood and should be relatively substantial .... Necessary third party contacts should be minimal.” A manual of procedures (IRM 9180 Intelligence Tolerance and Criteria Handbook) was provided. On August 23, 1973, it was determined that the results to date indicated a degree of flagrancy not so great as to warrant a national public information effort; therefore, it was determined that the .public information was to be developed by districts and regions rather than nationally.

These documents support the government’s position that Project ACE was based upon a rational classification and was not to be administered so as to accomplish purposefully some infringement of appellants’ constitutional rights. We thus conclude that nothing contained in these documents, which were reviewed by the trier of the fact, was of such peculiar probative force that it was an abuse of discretion to deny the defendants access for use in trial.

III. WILLFULNESS

In their final assignment of error, appellants state that the evidence adduced at trial was insufficient to support a finding of willfulness, an essential element of the crime for which they were convicted. In criminal appeals challenging the sufficiency of the evidence, we view the facts “in the light most favorable to the verdict of the trier of fact . . . .” United States v. Hutchinson, 488 F.2d 484, 489 (8th Cir. 1973), cert. denied sub nom. Ennis v. United States, 417 U.S. 915, 94 S.Ct. 2616, 41 L.Ed.2d 219 (1974).

As used in the statutes defining tax crimes, “willfulness” connotes “a voluntary, intentional violation of a known legal duty,” United States v. Bishop, 412 U.S. 346, 360, 93 S.Ct. 2008, 2017, 36 L.Ed.2d 941 (1973), requiring “bad faith or evil intent,” United States v. Murdock, 290 U.S. 389, 398, 54 S.Ct. 223, 78 L.Ed. 381 (1933), or “evil motive and want of justification in view of all the financial circumstances of the taxpayer,” Spies v. United States, 317 U.S. 492, 498, 63 S.Ct. 364, 368, 87 L.Ed. 418 (1943). “Willfulness” cannot be equated with mere carelessness or recklessness. United States v. Bengimina, 499 F.2d 117 (8th Cir. 1974). We have examined the record and have considered the mitigating circmstances asserted by each defendant-appellant. Each has conceded on appeal that he was aware of his duty to file timely tax returns. Neither has asserted a good faith belief that his actions were in compliance with the law or that he was acting other than voluntarily. We must conclude that a valid defense to the crimes charged has not been established in either ease and that the evidence was sufficient to support the convictions in each ease.

Affirmed.

      . The United States District Court for the Northern District of Iowa, Honorable Edward J. McManus, Chief Judge. The cases were transferred from the Southern District of Iowa on defendants’ motion. Each defendant entered a plea of not guilty and waived his right to a jury trial.

      . The statute provides:
      Any person required under this title to pay any estimated tax or tax, or required by this title or by regulations made under authority thereof to make a return (other than a return required under authority of section 6015), keep any records, or supply any information, who willfully fáils to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,-000, or imprisoned not more than 1 year, or both, together with the costs of prosecution.
      26 U.S.C. § 7203.

      . Swanson is the senior partner of the firm; Gaffey the junior partner. The partnership formed in 1967 consisted of Swanson, Gaffey and Mel Hagberg.

      . The only major difference between the circumstances surrounding the returns for 1970 and those for 1971 is that for the latter each taxpayer had filed an automatic extension request and paid $1,000 toward his taxes on April 17, 1972, the filing date for 1971 returns. This was the first year that automatic extensions were permitted.
      The partnership returns for 1970 and 1971 were also filed in December, 1972.

      . Statement attributed by appellants to Evan Hultman, United States Attorney for the Northern District of Iowa, in affidavit of defense counsel, filed November 26, 1973.

      . Because federal governmental action rather than state action is challenged here, appellants’ argument must be framed in terms of the Fifth Amendment. While only the Fourteenth Amendment, which is addressed to the states, contains an equal protection clause, the Fifth Amendment, which limits action by the federal government, does contain a due process clause. The Supreme Court has observed that “the concepts of equal protection and due process * * * are not mutually exclusive” and that “discrimination may be so unjustifiable as to be violative of due process.” Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954).

      . Notwithstanding our affirmance, we are sufficiently troubled to insert this marginal comment concerning a point which none of the parties have raised as error. Swanson and Gaffey were represented by a single attorney at trial and in this appeal. Such dual representation under the facts of this case, where Gaffey asserted Swanson’s negligence in preparing the partnership returns as one of Gaffey’s defenses, was fraught with great risk and created a serious possibility of a conflict of interest. The record reveals, however, that the defendants were informed of the potential conflict by the court below and by their attorneys but insisted orally and in writing that the one attorney represent them both, even after the trial judge had offered to appoint separate counsel. [Tr. 4-8.] Although both cases were tried before one judge, the trials were conducted separately. Nonetheless, assuming arguendo that this potential conflict of interest did in fact constitute a denial of effective assistance of counsel, see Craig v. United States, 217 F.2d 355 (6th Cir. 1954), defendants (both C.P.A.’s) clearly had the requisite education and training to effect a knowing and intelligent waiver of that right. Compare Larry Buffalo Chief v. South Dakota, 425 F.2d 271 (8th Cir. 1970). Indeed, a letter filed prior to trial demonstrates their awareness of the potential conflict.


author: DUNIWAY, Circuit Judge. CHOY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kenneth MARTIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James E. RATHBUN, Defendant-Appellant.
    Nos. 74-1712, 74-1713.
    United States Court of Appeals, Ninth Circuit.
    Jan. 20, 1975.
    Certiorari Denied May 12, 1975.
    See 95 S.Ct. 1958.

      John W. Keker (argued), San Francisco, Cal., for defendants-appellants.
    Chester G. Moore, Asst. U. S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee.
    Before DUNIWAY and CHOY, Circuit Judges, and SMITH, District Judge.

       The Honorable Russell E. Smith, Chief Judge, United States District Court for the District of Montana, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge.

Martin was convicted under separate counts charging manufacturing and possessing a controlled substance (methamphetamine) with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). Rathbun was convicted of possession of heroin, in violation of 21 U.S.C. § 844. We affirm.

1. Statement of Facts.

On September 25, 1973, an employee of Central Scientific Co. (“CSC”), a scientific supply company in Santa Clara, California, about 40 miles from San Francisco, notified the San Francisco office of the Drug Enforcement Administration (“DEA”) that a person identifying himself as Kenneth Martin and as a representative of San Francisco-based Nevada Pacific Specialties (“NPS”), using an NPS purchase order, personally placed an order for various articles of glassware and chemicals. Items ordered by Martin included chemical glassware and substantial quantities of activated charcoal, acetone, isopropyl alcohol, and vacuum oil.

The next day, DEA agents watched CSC and saw Martin sign in his own name and pay cash for the purchases, to which had been added a quantity of ether anhydrous. Martin had arrived driving a panel truck. The agents learned that the truck was registered to one O’Brian, who had also made purchases from CSC, using NPS purchase orders.

After loading the items into the panel van, Martin did not head for San Francisco. Instead, he drove south, away from San Francisco. He was continually watched, and was seen making two U-turns and several brief stops, but without leaving the car, just before he reached his home in Cupertino. When Martin arrived at his home, he and his wife carried the contents of the van into the house. Shortly after, a red Toronado car arrived at the house.

From about 5:00 P.M., the agents, who had obtained permission from the owner of adjoining premises to enter his yard, stationed themselves behind a fence immediately adjacent to the Martin property. They smelled ether and acetone, heard the running of water and clinking of glassware, saw Martin pouring liquids from one container to another, and saw five-gallon cans, several boxes on a table, and later a jug containing an orange liquid with a white precipitate.

■ At about 7:45 P.M., Mrs. Martin left the house, drove off in a car, and was followed by two agents. Another agent approached the Martin house and knocked on the door. A man answered at a window and the agent asked the whereabouts of a fictitous person. The agent left and rejoined the agents in the neighbor’s yard. The two agents watching Mrs. Martin also returned. Martin then left the house, walked up and down the street, and met Mrs. Martin in the driveway when she returned. The two then drove to a parking lot and parked, facing the traffic and with the car lights turned off. When Martin left the house, the odors of acetone and ether stopped being noticeable by the agents.

Later, the Martins returned to the house, the odors were again noticeable, and sounds of running water and clinking glassware were again heard.

Rathbun had arrived at the house during the evening. About 11:00 P.M., the agents saw Martin and Rathbun removing some of the items seen in the house and placing them on the back seat and in the trunk of the Toronado, which was parked in the driveway. These included the jug with the precipitate. The two got into the car and drove away. Within a few minutes, the DEA agents stopped the car and arrested them both. A search of the car’s back seat revealed the jug — later found to contain 146 grams of pure methamphetamine — and the agents found a small amount of heroin and narcotics paraphernalia on Rathbun’s person.

After indictment, appellants moved to suppress all the evidence seized. This appeal challenges the district court’s denial of their motion.

2. Probable Cause for Arrest.

Appellants argue that the evidence should have been suppressed because it was obtained incident to an unlawful arrest. Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. Whether a warrantless arrest is constitutionally valid depends upon whether, at the moment of arrest, the officers had probable cause to make it. United States v. McDowell, 9 Cir., 1973, 475 F.2d 1037, 1039. Arresting officers have probable cause if, at the moment of arrest, “the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [arrested person] had committed or was committing an offense.” Beck v. Ohio, 1964, 379 U.S, 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142; United States v. McDowell, supra. In applying these standards, we must consider all the facts known to the officers and consider all the reasonable inferences that could be drawn by them before the arrest. Rodgers v. United States, 9 Cir., 1959, 267 F.2d 79, 85. The question is one of fact, and each case necessarily turns on its own peculiar facts.

Martin and Rathbun, in their briefs, analyze each bit of information that the officers had, demonstrate ,to their satisfaction that each is innoceht on its face, and conclude that, whether they be considered singly or together, these bits of information do not amount to probable cause. We cannot agree, although we do agree that the case is a close one.

We think that this is a case, like United States v. Patterson, 9 Cir., 1974, 492 F.2d 995, 997, in which “[t]he succession of superficially innocent events had proceeded to the point where a prudent man could say to himself that an innocent course of conduct was substantially less likely than a criminal one.”

Consider what the officers knew: First, Martin purported to purchase chemicals and supplies for NPS of San Francisco. He arrived in a car belonging to another man who had also placed such orders for NPS. But rather than heading for NPS in San Francisco, he headed in the opposite direction, toward Cupertino. The officers could wonder why.

Second, when Martin got near to his home, he made two U-turns and several stops. The officers could wonder whether he feared that he was being followed. The time when Martin would be most concerned about a “tail” would be when he was nearly home — not when he was en route on major thoroughfares.

Third, at Martin’s home, the chemicals and supplies, which could be used to make methamphetamine as well as many innocuous things, were taken inside.

Fourth, beginning at about 5:00 P.M., and continuing to about 11:00 P.M., Martin and others were doing work which could produce methamphetamine, but could also produce perfectly legal products. The officers could wonder why they were doing what they did at home and during the late evening.

Fifth, after a fictitious inquiry, Martin went outside, waited for his wife, and when she arrived they proceeded to a place where they could survey the scene. The officers could take this to show a fear of being watched and a consciousness of wrongdoing. 5

Sixth, at tlí'é rather late hour of 11:00 P.M., Martin and Rathbun loaded a jug which could well have contained methamphetamine, together with other things, into the Toronado and took off. Why?

We think that this behavior, coupled with what had gone before, could give the watching agents, as prudent men familiar with the unlawful making of the drug, cause to believe that Martin and Rathbun had committed or were committing an offense. Beck v. Ohio, supra. The stop, arrest, and search were valid because they were based upon probable cause.

3. Invasion of Privacy.

Martin and Rathbun mount one other attack upon the arrest and search. They argue that when the officers looked through and over the fence, and used their noses to smell ether and acetone, they were invading a constitutionally protected zone of privacy — the Martin house. Not so. The officers had a right to be where they were. They did not invade the Martin premises. They saw what they saw because it was visible from where they were. Martin and his cohorts may have believed that they enjoyed complete privacy, but they did not, not because of anything that the agents did, but because of what they did. The neighbor would not have violated their rights by seeing and smelling what the officers saw and smelled. The officers did no more.

No case cited by the appellants goes so far as Martin and Rathbun would have us go here. In the case on which they most heavily rely, the watching agents had unlawfully invaded the defendants’ private property and peered through his windows. Texas v. Gonzales, 5 Cir., 1968, 388 F.2d 145. Nor does Katz v. United States, 1967, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, help the appellants. There, agents overheard Katz’s conversation in a public telephone booth by means of an electronic device attached to the outside of the booth. In effect, the device took them inside. We find nothing in the Katz opinion indicating that if an officer had merely stood outside the booth and heard what Katz was saying, Katz’s rights would have been invaded. Eavesdropping from a place where the officer has a right to be is a long-accepted technique of crime detection, not outlawed by the Fourth Amendment. If Katz had talked loud enough to be overheard, his expectation of privacy would be gone. So here the activities in the Martin house were conducted in such a manner as to be seen and smelled from the adjoining property. Whatever expectation' of privacy Martin and his cohorts had was defeated by their own activities. See Ponce v. Craven, 9 Cir., 1969, 409 F.2d 621, 624-625; Gil v. Beto, 5 Cir., 1971, 440 F.2d 666.

Affirmed.

CHOY, Circuit Judge

(dissenting):

I respectfully dissent. Although I agree with my Brothers Duniway and Smith that the police observations did not amount to an illegal search and seizure, I find that the sightings contributed very little to the Government’s attempt to establish probable cause. The four-hour surveillance of the house which revealed the clinking of glasses, the movement of laboratory equipment- and boxes, and the smell of ether and acetone, proves nothing more than that the Martins may have been operating some type of laboratory in their home. But such an inference was already justified by the mere fact that Martin picked up a quantity of laboratory supplies and unloaded them at his house.

The only significant sighting by the police was the jug containing an orange liquid with a white precipitate. The jug, however, no more establishes probable cause than does the mere evidence of Martin’s purchase of chemicals and equipment. Although a colored liquid with a light precipitate is an element common to a methamphetamine laboratory, it is equally true that countless chemical processes result at some point in such a liquid.

Even considering the colored liquid evidence in conjunction with the evidence of chemicals and laboratory equipment and the smell of ether and acetone, the only reasonable inference is merely that a chemical laboratory was in operation. According to undisputed expert testimony at the suppression hearing, there was no more reason that such evidence pointed to methamphetamine production than to a legitimate chemical reaction, such as the isolation of the essence of roses. Thus, absent evidence that Martin ordered or possessed precursors of methamphetamine or other ingredients critically important to its manufacture, that Martin used a fictitious name in ordering the chemical, or that appellants’ conduct was otherwisé suspicious, the agents lacked probable cause to arrest.

I would, reverse the convictions.

      . Both Martin’s and NPS’ names were on a list supplied by DEA to scientific supply cornpanies such as CSC. This fact, however, we disregard. There is nothing in the record as to why the names were on the list.

      . The expert testimony was as follows:
      Q. Now taking that list and combining it, is there any particular chemical reaction that comes to mind when you smell acetone and ether at the same time?
      A. Well, for one thing, ether has a very pungent smell and 1 question I would be able to detect acetone.
      Q. What?
      A. I don’t recall how you smell both at one time.

        Q. Assuming that you did smell both acetone and ether, would that lead you to conclude, or even conjecture that any particular chemical reaction was going on?
      A. No.
      (Pre-trial Tr. 86-87)

      . The expert testimony was as follows:
      Q. If you took that list of chemicals and knew that they were at a place from which you could smell both ether and acetone and added to that the sighting of an orange liquid with a white precipitant [sic], what conclusion would you then draw?
      A. I would still conclude I am working in a chemical laboratory.
      Q. Is there anything about those facts, standing alone, that would point you to the direction of illegal drug manufacture, as opposed to a chemical laboratory working?
      A. Standing alone, a chemical laboratory, nothing more.
      (Pre-trial Tr. 87)

      . The Government contends that the appearance of Martin’s and NPS’s names on the DEA list submitted to chemical supply houses tends to support a finding of probable cause. However, the fact that DEA may have suspected Martin or the company of illegal activity is entitled to no weight. See Spinelli v. United States, 393 U.S. 410, 414, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

      . The facts available to the agents in this case were far less incriminating than those found to establish probable cause in the following methamphetamine cases: United States v. Welebir, 498 F.2d 346 (4th Cir. 1974) (purchase of precursors; informer tip that defendant intended to set ■ up laboratory for illicit drug manufacture); United States v. Noreikis, 481 F.2d 1177 (7th Cir. 1973), cert. denied, 415 U.S. 904, 94 S.Ct. 1398, 39 L.Ed.2d 461 (1974) (police affidavit that defendants possessed precursors; lithium aluminum hydride traced to the house); United States v. Moore, 452 F.2d 569 (6th Cir. 1971), cert. denied, 407 U.S. 910, 92 S.Ct. 2435, 32 L.Ed.2d 684 (1972) (delivery of precursors to mail drop; use of fictitious names; activities within building outside normal working hours). Cf. United States v. Ortiz, 445 F.2d 1100 (10th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L.Ed.2d 545 (1971) (presence of precursors inside defendant’s cabin and discovery of methamphetamine outside nearby found sufficient to sustain conviction for manufacturing illicit drug).
      And at least one court has ruled that facts much more incriminating than those shown in this case failed to establish probable cause. United States v. Failla, 343 F.Supp. 831 (W.D. N.Y.1972). In that case, the agents knew at the moment of arrest that defendant had ordered lithium aluminum hydride, used another’s name, and operated a laboratory in his basement.


text:
    Richard R. BROGLE, by his Guardian ad Litem, Trina A. Van de Wetering, Appellant, v. SOUTH CAROLINA ELECTRIC AND GAS CO., INC., Appellee. Richard M. GORE, by his Guardian ad Litem, Trina A. Van de Wetering, Appellant, v. SOUTH CAROLINA ELECTRIC AND GAS CO., INC., Appellee.
    Nos. 74-1946, 74-1947.
    United States Court of Appeals, Fourth Circuit.
    Submitted Jan. 23, 1975.
    Decided Feb. 7, 1975.
    E. Graydon Shuford and Roy E. Garris, Jr., Columbia, S. C., on brief, for appellants.
    Harold W. Jacobs and John C. B. Smith, Jr., Columbia, S. C., on brief, for appellee.
    Before BUTZNER, RUSSELL and FIELD, Circuit Judges.
   PER CURIAM.

Plaintiffs appeal from an order of the district court granting summary judgment in favor of defendant, South Carolina Electric and Gas Co., in their personal injury actions. Defendant has moved for summary affirmance of the judgment; plaintiffs have moved for summary reversal.

Plaintiffs allegedly were injured while inmates in the South Carolina Department of Corrections when they came into contact with a defective electrical distribution appliance in the prison yard. Their complaints allege, inter alia, that defendant was “negligent, careless, reckless, wilful and wanton . . . [i]n continuing to supply electric power to the electric power distribution station with knowledge that said station was unsafe and highly dangerous . . . .” [.Brogle R. 3; Gore R. 3 (emphasis added)]

Defendant moved for summary judgment on the ground that there was no genuine issue as to any material fact. The supporting affidavits “show uncontrovertedly that the substation at which the plaintiffs were injured and the electrical distribution lines leading to the substations are the properties of and within the exclusive supervision, maintenance and control of the State of South Carolina.” Brogle v. South Carolina Electric & Gas Co., Civ.No. 73-1264, Gore v. South Carolina Electric & Gas Co., Civ.No. 73-1269 (D.S.C., June 12, 1974). Since plaintiffs offered no opposing affidavits, the district court correctly found that there was no genuine issue as to the ownership and control of the apparatus. • Fed.R.Civ.P. 56(e).

However, even absent ownership and control, a power company can be held liable for personal injuries if it has actual knowledge that electrical equipment is dangerous and nevertheless continues to supply electricity to the premises. Carroway v. Carolina Power & Light Co., 226 S.C. 237, 243, 84 S.E.2d 728, 730 — 731 (1954). The affidavits supporting defendant’s motion for summary judgment do not go to the element of knowledge. Knowledge was alleged in plaintiffs’ complaints and denied in the defendant’s answer. It remained a genuine issue of material fact, to be resolved by the district court. Thus, the motion for summary judgment was improperly granted.

Accordingly, defendant’s motion for summary affirmance is denied, and plaintiffs’ motion for summary reversal is granted. The case is remanded to the district court with directions to vacate its order granting summary judgment, and for further proceedings as the district court deems appropriate.

Remanded with directions.

      . Defendant also submitted a copy of its General Terms and Conditions, which provide in pertinent part:
      6(f): . . The company will not be responsible for the use, care or handling of service delivered to the customer after same passes beyond the point of service connection. [Brogle R. 27; Gore R. 35] 5(i): The customer shall be responsible beyond the point of connection for distribution and control of service delivered by the company. The customer shall save the company harmless from any suit arising, occurring or resulting from the receipt or use of service by the customer. [Brogle R. 26; Gore R. 34]
      However, this contract does not relieve defendant of liability to an injured party. It merely gives defendant a cause of action for indemnification against its customer. The proper procedure is for defendant to implead its customer as a third party defendant under Rule 14(a) of the Federal Rules of Civil Procedure.


author: DUNIWAY, Circuit Judge:

text:
    BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, etc., Plaintiff-Appellant, v. Socrates MAMAKOS et al., Defendants-Appellees.
    No. 73-1700.
    United States Court of Appeals, Ninth Circuit.
    Jan. 21, 1975.

      Joseph M. Thornhill (argued), San Francisco, Cal., for plaintiff-appellant.
    William A. Whitledge, Atty. (argued), Dept, of Justice, Washington, D. C. (Tax Div.), for defendants-appellees.
    Before DUNIWAY, WRIGHT and IN-GRAHAM, Circuit Judges.

       The Honorable Joe McDonald Ingraham, Senior United States Circuit Judge for the Fifth Circuit, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

Bank of America National Trust & Savings Association (the bank), plaintiff in this interpleader action, appeals from denial of its motion for relief from judgment under Rule 60(b), F.R.Civ.P. We affirm.

On December 1, 1971, William Weeks deposited in the commercial checking account which he and his wife maintained at the bank’s Cloverdale branch a check drawn on a Florida bank for $13,-500. On December 3, 1971, the Internal Revenue Service (IRS) filed a notice of tax lien against the Weeks’ property and served on the Cloverdale branch a notice of levy (in the amount of $670,190) against the Weeks’ account. Also on December 3, or slightly before that date, Socrates Mamakos, attorney for the Weeks, presented for payment a $13,500 check drawn on their account. The Florida check had not yet cleared, and Mamakos was told that the check could not be honored for want of sufficient funds. Later, the Florida check was paid and $13,500 was credited to the Weeks’ account.

On December 9, 1971, Mamakos wrote a letter to the bank’s attorneys claiming that he was entitled to the money in his clients’ account by virtue of his presentment of their check before the IRS levy. As Mamakos suggested, the bank' then filed an action in interpleader in state court, naming the Weeks, Mamakos, and the government as defendants. At the government’s behest, the action was removed to federal court pursuant to 28 U.S.C. §§ 1441(a) and 2410(a)(5).

Shortly thereafter, on March 1, 1972, Mamakos disclaimed any interest in the interpleaded funds and advised the bank’s attorneys that his clients no longer contested the government’s right to collect the money. The bank, however, declined the government’s invitation to stipulate to the dismissal of the action, refusing to pay over the interpleaded funds unless it could deduct its costs and reasonable attorneys fees (approximately $547.50). The government then moved for summary judgment, and the bank moved for discharge with a direction to pay over the money to the government less its costs and fees. On November 10, 1972, the district judge granted the government’s motion for summary judgment and denied the bank’s motion.

Almost a month later, the bank filed its Rule 60(b) motion, alleging that the district judge’s memorandum opinion was based on an erroneous finding of fact, that the IRS levy occurred about the same time as, or after, the proceeds from the Florida check were credited to the Weeks’ account, and on an incorrect conclusion of law, that 26 U.S.C. § 6332(d) provides an absolute defense against a third party claimant for. a stakeholder like the bank which satisfies the government’s tax levy with contested funds. The district judge properly denied the motion.

Under Rule 60(b)(1), a district judge may grant relief from a judgment predicated on “mistake, inadvertence, surprise, or excusable neglect”. His ruling on such a motion may not be disturbed on appeal absent a showing that he has abused his discretion. Martella v. Marine Cooks & Stewards Union, 9 Cir., 1971, 448 F.2d 729;. Title v. United States, 9 Cir., 1959, 263 F.2d 28, 31.

Assuming, without deciding, that this is a proper case for entertaining a Rule 60(b) motion, which we seriously doubt, we find no abuse of discretion. The bank argues that because there were no funds in the Weeks’ account at the time the IRS served its notice, the levy was ineffective. (See 26 U.S.C. § 6331(b)). But the bank failed to raise the point in opposition to the government’s motion for summary judgment, asserting it only after judgment had been entered. This alone indicates that denial of the motion was not an abuse of discretion. We note also that the argument is incorrect. The IRS, on December 3, 1971, gave notice not only of a tax levy, see 26 U.S.C. §§ 6331-6332, but of a tax lien, see 26 U.S.C. § 6321. This lien attached to all after-acquired property of the Weeks, including their Cloverdale bank account. Glass City Bank v. United States, 1945, 326 U.S. 265, 66 S.Ct. 108, 90 L.Ed. 56; Seaboard Surety Co. v. United States, 9 Cir., 1962, 306 F.2d 855, 859. Thus, had the bank correctly investigated its' legal position before filing its action in interpleader, it would have discovered the government’s paramount and unquestionable right to the disputed funds.

Even were we to hold that the IRS levy was ineffective, the district court on remand would have to disallow the bank’s claims for costs and attorneys fees. Such claims may not diminish the portion of an interpleaded fund to which the government is entitled by virtue of a federal tax lien. Seaboard Surety Co. v. United States, supra; United States v. State National Bank of Connecticut, 2 Cir., 1970, 421 F.2d 519; Spinks v. Jones, 5 Cir., 1974, 499 F.2d 339. See United States v. R. F. Ball Construction Co., 1958, 355 U.S. 587, 78 S.Ct. 442, 2 L.Ed.2d 510; United States v. Liverpool 6 London & Globe Insurance Co., 1955, 348 U.S. 215, 75 S.Ct. 247, 99 L.Ed. 268.

Affirmed.

      . This argument obviously depends on the fact that funds from payment of the Florida check were not credited to the Weeks’ account until after the IRS levy. The bank is correct in asserting that the district court erroneously found that the levy occurred after, or at about the same time as, the Florida funds were credited, but the court’s error was harmless for the reasons stated below.

      . Even if 26 U.S.C. § 6332(d) does not provide an absolute defense against third party claimants to money paid in satisfaction of a tax lien, but only against taxpayers claiming the funds, § 6321 and the cases cited above clearly establish the government’s right to the money in the Weeks’ account.


author: FRIENDLY, Circuit Judge:

text:
    SIRBO HOLDINGS, INC., Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 209, Docket 74-1697.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 16, 1974.
    Decided Jan. 14, 1975.

      James R. McGowan, Providence, R. I. (Lester H. Salter and Salter, McGowan, Arcaro <fe Swartz, Providence, R. I., of counsel), for appellant.
    Ernest J. Brown, Dept, of Justice, Washington, D. C. (Scott P. Crampton, Asst. Atty. Gen., and Gilbert E. Andrews, Dept, of Justice, Washington, D. C., of counsel), for appellee.
    Before FRIENDLY, TIMBERS and GURFEIN, Circuit Judges.
   FRIENDLY, Circuit Judge:

When this case was here before, 476 F.2d 981 (2 Cir. 1973), on appeal from an earlier decision of Judge Quealy, Sirbo Holdings, Inc., 57 T.C. 530 (1972), we vacated the judgment and remanded the cause to the Tax Court for reconsideration. We were disturbed at the Tax Court’s refusal to treat the payment of $125,000 received by petitioner Sirbo Holdings, Inc. (Sirbo), from its tenant Columbia Broadcasting System, Inc. (CBS), in satisfaction of the latter’s obligation to restore, or indemnify Sirbo for the costs of restoring, the leased premises to their pre-lease condition as a long-term capital gain from the sale or exchange of property used in the landlord’s trade or business, I.R.C. § 1231, when, in what appeared to be a considered opinion, Judge Raum had allowed such treatment in a similar case decided only two months later, Boston Fish Market Corp., 57 T.C. 884 (1972), or even to explain the differences in result when Sirbo sought reconsideration. Thinking that the Tax Court’s lack of response to Sirbo’s petition might have been due to deference to dicta in Billy Rose’s Diamond Horseshoe, Inc. v. United States, 448 F.2d 549, 551-552 (2 Cir.), aff’g 322 F.Supp. 76 (S.D.N. Y.1971), which held that a similar transaction involving a series of payments did not qualify for special relief treatment under the installment reporting method of I.R.C. § 453(a)(1) «fe (b)(1) for “a casual sale or other casual disposition of personal property,” we advanced some suggestions why that decision did not necessarily determine that the transaction here at issue was not a sale or exchange of property used in the trade or business, one of the tests applicable for capital gains treatment under I.R.C. § 1231(a), but we reserved the question of law pending “the benefit of the considered view of the Tax Court ... on whether it would follow Boston Fish Market on the facts here.” 476 F.2d at 989 (footnote omitted). In a supplemental opinion by Judge Quealy, 61 T.C. 723 (1974), reviewed by the full court, the Tax Court adhered to its earlier determination, and petitioner has again appealed.

We can now forget about Boston Fish Market. We had noted, 476 F.2d at 987, that in that case the Commissioner was primarily concerned with fending off the landlord’s claim that the tenant’s payment was not income at all under I.R.C. § 109, which excludes from a lessor’s gross income the value upon termination of a lease of improvements made by the lessee, and had “abandoned his challenge to the propriety of capital gains treatment, see 57 T.C. at 887 n. 2”. But there were statements in Judge Raum’s opinion which we took as possibly meaning that the Tax Court thought that abandonment of the objection to capital gains treatment was required. See 57 T.C. at 889 (such payments “have generally been regarded as having been received in sale or exchange of the unrestored property.”). The Commissioner now states that his acquiescence in capital gains treatment in Boston Fish Market was not considered policy but rather was an error, and the Tax Court says that “Without such concession, the Boston Fish Market case may well have been decided differently,” 61 T.C. at 726 n. 4 — which we take to be a way of saying “would have been decided differ-'1 ently.” While even-handed treatment should be the Commissioner’s goal, cf. International Business Machines Corp. v. United States, 343 F.2d 914, 170 Ct.Cl. 357 (1965), cert. denied, 382 U.S. 1028, 86 S.Ct. 647, 15 L.Ed.2d 540 (1966), perfection in the administration of such vast responsibilities cannot be expected. See Davis, Administrative Law Treatise § 17.07, at 600 (1970 Supp.). The making of an error in one case, if error it was, gives other taxpayers no right to its perpetuation. See Wagner v. United States, 387 F.2d 966, 968, 181 Ct.Cl. 807 (1967). Cf. Snowden v. Hughes, 321 U.S. 1, 15, 64 S.Ct. 397, 88 L.Ed. 497 (1944) (concurring opinion of Mr. Justice Frankfurter).

On the other hand, appellant Sirbo’s arguments are quite persuasive in support of our intimation in our earlier opinion that the terms “a sale or other disposition of real property” and “a casual sale or other casual disposition of personal property” in I.R.C. § 453(b) are more restrictive than “sales or exchanges of property used in the trade or business” in I.R.C. § 1231(a). 476 F.2d at 988. The history and literature relevant to § 453(b) contain many references to contracts of sale and sales on the installment plan, all indicating an intention to confine this benefit to conventional sales. Certainly § 1231(a) has been extended far beyond these. Further force is added on this point by the recent decision in Central Tablet Manufacturing Co. v. United States, 417 U.S. 673, 94 S.Ct. 2516, 41 L.Ed.2d 398 (1974), in which the Court noted that the Government, accepting decisions by the Court of Claims and the Fourth Circuit, had properly conceded that an involuntary conversion constituted a “sale or exchange of property” within I.R.C. § 337(a), and as such was nonrecognized, although it had been held not to come within the then equivalent of I.R.C. § 1231(a), Helvering v. William Flaccus Oak Leather Co., 313 U.S. 247, 61 S.Ct. 878, 85 L.Ed. 1310 (1941), before that section was amended to include such a conversion. The concession, and the Court’s approval of it, at least serve to show that, where the Internal Revenue Code is concerned, no controlling weight can be given to the usual presumption that, when the same words are used in several sections of a statute, they mean the same thing. Rather the Court will look at the Congressional history and purpose in each case.

With Sirbo thus deprived of the aid we thought it might get from Boston Fish Market and the Commissioner' gaining little assistance from the decision as distinguished from the dicta in Billy Rose, we must decide the basic question whether Sirbo’s receipt of the $125,000 payment came within I.R.C. § 1231(a). We hold that not all of it did and that, since Sirbo has twice failed to avail itself of an opportunity to proffer evidence that would support an allocation, the Tax Court should be affirmed.

The problem with respect to the tax treatment of payments for the termination of contract rights having a property flavor is among the most frustrating in income tax law. Anyone reading such materials as Professor Eustice’s article, Contract Rights, Capital Gain, and Assignment of Income — the Ferrer Case, 20 Tax.L.Rev. 1 (1964), Professor Chirelstein’s article, Capital Gain and the Sale of a Business Opportunity: The Income Tax Treatment of Contract Termination Payments, 49 Minn.L.Rev. 1 (1964), or, for those with smaller appetites, the analysis of cases in 1 Surrey, Warren, McDaniel and*Ault, Federal Income Taxation 1049-54 (1972 ed.) must end with deep disappointment at the failure of decisions to fulfill the goals of predictability and of principled decision-making and at the enormous expenditure of professional and judicial time in accomplishing nothing more than a debatable decision of a particular case. “Unfortunately,” Professor Eustice reminds us, “matters remain nearly as muddled as ever; and the seemingly unending growth of litigation on this question shows little sign of abating, or, for that matter, of even reaching a general consensus of what the law is, not to mention what it ought to be.” Eustice, supra, 20 Tax L.Rev. 1. Yet Government counsel said, in answer to a question from the bench, that little would be gained by an attempt at legislative revision since the variety of problems is too great. Perhaps this is so, although even a quick look at the American Law Institute’s Draft of a study of Definitional Problems in Capital Gains Taxation (1960) makes one wonder whether a new attempt should not be made. However, we must take the statute as we find it.

When the case was last here, we pointed out that the covenant in the lease, see 476 F.2d at 983-984 fn. 2, from which CBS was relieved by the payment of $125,000, contained elements of two different sorts. One element was CBS’ obligation to pay “for removal or destruction of ‘property’ such as the theatre seats, carpeting, chandeliers, stage curtains and various structural features of the theatre.” 476 F.2d at 987. If CBS had paid at the time of occurrence for the removal and destruction of fixtures such as seats and the destruction of structural features, the transaction would have come under § 1231(a). We see no reason why a different conclusion should be reached because the payment was deferred until the end of the lease or because the covenant was settled rather than performed. Indeed, the Tax Court seems to have held as much in Hamilton & Main, Inc., 25 T.C. 878 (1956). We find little force in the emphasis by the Tax Court and the Commissioner on the points that Sirbo had a low or even a zero basis for the seats and other fixtures and structural features which have been removed or destroyed, and that some of the seats and fixtures had long since been junked. The “sale or exchange” occurred when they were removed or destroyed; it is of no moment that payment came much later. Compare Waggoner v. CIR, 15 T.C. 496 (1950). On this aspect of the case we adhere to what we previously said, 476 F.2d at 987.

We also suggested, however, that CBS’ covenant to remove its own property “clearly was not ‘property used in the trade or business’ ”, 476 F.2d at 987. This covenant related mainly to CBS’ property, not to Sirbo’s; it obligated CBS to remove its property (e. g., control booths, the stage apron extension) so that what had been converted into a TV studio (at some damage to the structure of the premises, an item included in the first element of the covenant) could be returned to a legitimate theatre.

Despite this plain intimation, Sirbo made no effort to supply an allocation on the remand. Perhaps the initial failure to do this had been excusable; within reason a taxpayer should be allowed to contend for the most favorable result in the first instance and to supply an allocation later, as we allowed in CIR v. Ferrer, 304 F.2d 125, 136 (2 Cir. 1962). But we see no basis for according Sirbo not merely a second but a third bite at the cherry, especially when our prior opinion so plainly apprised it of our tentative views. To be sure, we do not reach affirmance with great enthusiasm since the $125,000 payment received in 1964 represented a payment for acts occurring over a period of nearly twenty years; the effect of denying capital gain treatment would be even harsher if the landlord here were an individual. But § 1231(a) does not include all payments representing consideration that had accrued over the years; since Sirbo cannot show a compulsory or involuntary conversion, 476 F.2d at 985-986, for purposes of this appeal § 1231(a) relates only to those payments that constitute “sales or exchanges of property used in the trade or business” — whatever that may be.

Affirmed.

      . Our previous opinion states the facts; familiarity with it will be presumed.

      . “For all tax rulings, it is important that there be like treatment to those who should be dealt with on the same basis.” 343 F.2d at 923.

      . Speaking of the IBM decision, supra, Professor Davis remarks:
      No one would disagree with the principle of equality which the IBM decision advances. The problem of the case is not whether equality is desirable; of course it is. The problem is how much deviation from complete equality must be allowed as a concession to the difficulties of administration. If one taxpayer gets a favorable but erroneous ruling on a specific question, equality requires that every other taxpayer having that same question be allowed the advantage of the error. But is that practical? Do even the best of tax administrators have the capacity to carry the equality principle all the way?

      . See H.R.Rep. No. 1, 69th Cong., 1st Sess. (1926), reprinted in Internal Revenue Bulletin, Cum.Bull. 1939-1 (Part 2) at 315, 346-47, where the drafters of § 212(d) of the Revenue Act of 1926, 44 Stat. 23, explained the necessity of “validating” the Commissioner’s prior regulatory practices in recognizing an installment basis for reporting income. These practices had suffered setbacks before the Board of Tax Appeals, see Manomet Cranberry Co., 1 B.T.A. 706, 708 (1925); B.B. Todd, Inc., 1 B.T.A. 762, 767 (1925), and the drafters sought in § 212(d) to, provide a statutory basis for the installment method. The section of the report dealing with this provision is entitled “Installment Sales” and it speaks in terms of “personal property sold on the installment plan,” “installment sales,” and other sales “on deferred payment plans.” And see H.R.Rep. No. 356, 69th Cong., 1st Sess. (1926), reprinted in Internal Revenue Bulletin, Cum.Bull. 1939-1 (Part 2), at 361, 363; 2 Mertens, Law of Federal Income Taxation § 15.02 (1967) (history of installment sales provisions of the Code prior to 1954).

      . Towanda Textiles, Inc. v. United States, 180 F.Supp. 373, 149 Ct.Cl. 123 (1960); Kent Manufacturing Corp. v. CIR, 288 F.2d 812 (4 Cir. 1961).

      . See, e. g., the seven page definition of a capital asset, 20-27, and the substitution of “complete disposition”, defined at 27-30, for “sale or exchange”.

      . We are not here speaking of contractual allocations, or non-allocations, where different considerations may apply. Compare King Broadcasting Co. v. CIR, 48 T.C. 542 (1967).