author:
BRIGHT, Circuit Judge. MATTHES, Chief Judge
      VAN OOSTERHOUT, Senior Judge,

text:
    Robert Michael WOOSLEY, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
    No. 71-1691.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 15, 1972.
    Decided April 24, 1973.
    Dale L. Rollings, St. Charles, Mo., for defendant-appellant.

      Robert E. Grote, Asst. U. S. Atty., St. Louis, Mo., for plaintiff-appellee.
    Before MATTHES, Chief Judge, VAN OOSTERHOUT, Senior Circuit Judge, and MEHAFFY, GIBSON, LAY, HEANEY, BRIGHT, ROSS and STEPHENSON, Circuit Judges.
   BRIGHT, Circuit Judge.

Upon this rehearing en banc of the instant appeal we grant relief to Robert Michael Woosley, a Jehovah’s Witness, from a five-year prison sentence for refusing induction into the military service in violation of 50 U.S.C. App. § 462.

Appellant was convicted on his guilty plea, which the district court refused to permit him to withdraw. Woosley then appealed the conviction. We sustained this ruling of the district court and affirmed the conviction in United States v. Woosley, 8 Cir., 440 F.2d 1280, cert. denied, 404 U.S. 864, 92 S.Ct. 53, 30 L.Ed.2d 108 (1971). Thereafter, Woosley petitioned the district court under Rule 35, Fed.R.Crim.P. for reduction of his sentence. The court, without a hearing, denied the petition on November 5, 1971, and on November 23, 1971, again without a hearing, denied appellant’s motion to reconsider. Woosley now brings this timely appeal from those orders.

At the time of sentencing, the record showed appellant Woosley to be 19 years of age, married, steadily employed, and a prospective father of a child to be born within two months. His difficulties with the Selective Service System from his sincere religious beliefs as a Jehovah’s Witness, which beliefs do not permit him to take up and bear arms against other people nor permit him to perform civilian service as a conscientious objector at the order of a Selective Service Board, an arm of the military in the view of Jehovah’s Witnesses. Thus he did not ask his draft board to classify him as a conscientous objector but did request a ministerial classification. The Board declined this request and thereafter ordered Woosley, a resident of Springfield, Illinois, to report for induction. He declined induction at the induction station in St. Louis, Missouri, and prosecution followed in the United States District Court for the Eastern District of Missouri. The district judge described Woosley as “a fine young man,” and from the testimony adduced at the hearing on motion for withdrawal of the guilty plea, the court noted that “[T]his young man should have desired to obtain a conscientious objector status.”

Without doubt the evidence available to the district court showed Woosley to be a sincere and religiously motivated conscientious objector who failed to qualify for an exemption from military service solely because his religious tenets forbade him to apply for and perform civilian work as a conscientious objector. Notwithstanding this showing, the court pronounced a five-year sentence, the maximum prison term authorized by law. Our reading of the record discloses no indication of the reasons for the severity of the sentence, except a comment made by the court at an earlier hearing on July 10, 1970, when the court, in response to counsel’s plea for probation, stated:

THE COURT: Mr. Woosley, I have examined the probation report and these letters very carefully. I have decided what I’m going to do with you today. I am not going to sentence you today. But I want to be right certain that you understand what you are going to do. It has been my policy, and I don’t intend to change it at this point, first of all, you have not even asked for a conscientious objector status. I think the reason is obvious, because, apparently, it is your belief that in the event you are classified as a conscientious objector, you would not serve in any noncombatant work. Is that correct ?
DEFENDANT WOOSLEY: That is correct, sir.
THE COURT: So I am going to have you surrender to the custody of the marshal this morning. I am going to have sentencing next Friday at ten o’clock. You think carefully about what you are going to do in this week’s time. In the meantime I want to discuss it with your counsel further. [Transcript of proceedings, July 10,1970 (emphasis added).]

On this appeal, Woosley urges these propositions:

(1) The district court did not resort to appropriate standards in imposing sentence but utilized a “mechanical” and automatic • approach in giving him a maximum prison sentence, as evidenced by the sentencing judge’s similar treatment of all selective service violators who refused induction regardless of the circumstances of the violation or of the violator;

(2) That the trial court abused its discretion in not granting Woosley probation and in refusing a hearing on his postconviction application for reduction of the sentence under Rule 35.

We hold Woosley is entitled to relief and remand for resentencing under standards enunciated herein.

I.

LIMITED REVIEW OF SENTENCES

The federal courts have uniformly agreed that “a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.” United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); see, e. g., Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958) ; Blockburger v. United States, 284 U.S. 299, 305, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Gurera v. United States, 40 F.2d 338, 340-341 (8th Cir. 1930).

This circuit has generally adhered to the principle that a sentence within statutory limits should not be disturbed if the district court has exercised discretion in imposing the sentence. United States v. Smallwood, 443 F.2d 535, 543, cert. denied, 404 U.S. 853, 92 S.Ct. 95, 30 L.Ed.2d 93 (1971); United States v. Dennison, 437 F.2d 439, 440 (1971) ; Cassidy v. United States, 428 F.2d 585, 588 (1970). Yet, in. fact, this court has undertaken to review the severity of sentences following a district court’s denial of a reduction under Rule 35, Fed. R.Crim.P., although we found no abuse of discretion on the part of the district court. Hood v. United States, 469 F.2d 721 (8th Cir. 1972); United States v. Anderson, 466 F.2d 1360 (8th Cir. 1972). If we possess the power to review the severity of the sentence or the appropriateness of the sentencing procedure, this appeal from the denial of relief under Rule 35 properly places these issues before us.

The Supreme Court support for the rule that federal appellate courts generally may not review a sentence is pure dicta, 2 C. Wright, Federal Practice and Procedure § 533 at 451-52 (1969). See, e. g., Tucker, supra, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592; Gore, supra, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405; Blockburger, supra, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. However, in a contempt case, Yates v. United States, 356 U.S. 363, 78 U.S. 766, 2 L.Ed.2d 837 (1958), the .Court not only reviewed the severity of the sentence imposed by the district court, but also set it aside and imposed its own sentence. The Court observed:

Reversing a judgment for contempt because of errors of substantive law may naturally call for a reduction of the sentence based on an extent of wrongdoing found unsustainable in law. Such reduction of the sentence, however, normally ought not be made by this Court. It should be left, on remand, to the sentencing court. And so, when this Court found that only a single offense was committed by petitioner, and not eleven offenses, it chose not to reduce the sentence but to leave this task, with gentle intimations of the necessity for such action, to the District Court. However, when in a situation like this the District Court appears not to have exercised its discretion in the light of the reversal of the judgment but, in effect, to have sought merely to justify the original sentence, this Court has no alternative except to exercise its supervisory power over the administration of justice in the lower federal courts by setting aside the sentence of the District Court.

* * * Not unmindful of petitioner’s offense, this Court is of the view, exercising the judgment that we are now called upon to exercise, that the time that petitioner has already served in jail is an adequate punishment * * * and is to be deemed in satisfaction of the new sentence herein ordered formally to be imposed. Accordingly, the writ of certiorari is granted, and the judgment of the Court of Appeals is vacated and the cause remanded to the District Court with directions to reduce the sentence to the time petitioner has already been confined in the course of these proceedings. [Id. at 366-367, 78 S.Ct. at 768-769.]

From our review of the cases, we think it clear that the repetitive pronouncement of the general rule of unreviewability of sentences imposed within statutory limits does not insulate from review every sentence within statutory limits.

II.

MECHANICAL SENTENCE

We believe that we have the power to examine and review a sentence if it is shown to have been imposed on a mechanical basis. Appellant asserts that the district judge in referring to “my policy” in the sentencing proceeding held on July 10, 1970, (see p. -140, supra) clearly meant that he sentenced all defendants convicted of refusing induction to a maximum five-year prison term. Although the record does not clearly disclose this meaning, counsel for appellant states in his brief that his examination of the district court records uncovered no selective service case where this district judge imposed less than the maximum term of imprisonment for refusing induction under § 462. At oral argument the United States Attorney referred to his research into sentences pronounced by the district judge for defendants who have refused induction into military service. Restricting consideration to sentences in the Eastern Division of Missouri, we understand the statements of the government attorney to indicate that this sentencing judge' sentenced eight violators who refused induction to maximum prison terms, although one sentence permitted possible early parole under § 4208(a). Clearly, the judge’s policy in the' St. Louis (Eastern) Division called for five-year sentences for all young men convicted of refusing induction into the military.

The general rule precluding review of a sentence within statutory limits is not dispositive of the problem we confront here. We do not deal here with a sentence imposed in the informed or sound discretion of a trial judge after consideration of all the circumstances surrounding the crime. See Tucker, supra, 404 U.S. at 447, 92 S.Ct. 589; Williams v. Oklahoma, 358 U.S. 576, 585, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959). Instead, we deal with a predetermined sentence resting upon a policy followed by the trial judge in certain selective service cases. A mechanical approach to sentencing plainly conflicts with the sentencing guidelines announced by the Supreme Court in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), and Williams v. Oklahoma, supra, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516. In Williams v. New York, supra, the Court stated:

A sentencing judge * * * is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. * * *
Undoubtedly the New York statutes emphasize a prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime. * * * The belief no longer prevails that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender. [337 U.S. at 247, 69 S.Ct. at 1083.]

Later, in Williams v. Oklahoma, supra, 358 U.S. at 585, 79 S.Ct. at 427, the Court reaffirmed these principles, saying:

Necessarily, the exercise of a sound discretion in [sentencing] required consideration of all the circumstances of the crime, for “[t]he belief no longer prevails that every offense in a like legal category calls for an identical punishment. . . .” Williams v. New York, supra, [337 U.S.] at 247 [69 S.Ct. at 1083, 93 L.Ed. 1337]. In discharging his duty of imposing a proper sentence, the sentencing judge is authorized, if not required, to consider all of the mitigating and aggravating circumstances involved in the crime.

A mechanical approach to sentencing, such as that used here, ignores the Supreme Court’s decree that sentences be tailored to fit the offender. We reject the view that in all cases the trial judge’s action is immune from review simply because we do not ordinarily review sentences within statutory limits. Although a trial judge possesses wide discretion in sentencing, he is not free to ignore sentencing guidelines established by the Supreme Court.

The Sixth Circuit has reached the same conclusion. United States v. McKinney, 466 F.2d 1403 (1972) ; United States v. Charles, 460 F.2d 1093 (1972); United States v. Daniels, 446 F.2d 967 (1971). Before imposing sentence in Daniels, the trial judge said that he had imposed the maximum sentence in selective service cases for over 30 years. Faithful to his policy, the trial judge then imposed the maximum sentence. The Sixth Circuit held that it did possess the power to review such a sentence. In vacating the sentence and remanding for resentencing, the court commented :

[Wje are seriously perturbed about the trial judge’s avowal that since 1938 or 1939, his court has * * * sentenced to five years in the penitentiary every young man who has refused to obey an order of a draft board. * * i:'
A trial court which fashions an inflexible practice in sentencing contradicts the judicially approved policy in favor of “individualizing sentences.” Williams v. New York, 337 U.S. at 248 [69 S.Ct. 1079, 93 L.Ed. 1337] * * *. Moreover, such an inflexible sentencing practice is incompatible with the United States Supreme Court’s declaration in Williams v. Oklahoma * * *. [446 F.2d at 971.]

In Charles, supra, 460 F.2d at 1094-1095, the court noted its problems with sentencing procedures in selective service cases in one of its districts and observed :

Yet, as we have had occasion to point out in the past, the Courts in one District within this Circuit have persistently disregarded this individual sentencing approach with respect to one category of offenses — violations of the Selective Service laws. With very rare exceptions, the judges in the Eastern District of Kentucky have consistently meted out five year prison sentences to draft offenders regardless of the circumstances of the particular offender. We have had occasion to criticize this practice in the past. United States v. Daniels, 429 F.2d 1273 (6th Cir. 1970); United States v. Daniels, 446 F.2d 967 (6th Cir. 1971); United States v. McKinney, 427 F.2d 449 (6th Cir. 1970); United States v. McKinney [466 F.2d 1403 (6th Cir. 1971)]; we have not changed our policy on this matter.

In McKinney, supra, 466 F.2d 1403, the court itself set the sentence after its mandates on two earlier remands were ignored in United States v. McKinney, 427 F.2d 449 (6 Cir. 1970) and United States v. McKinney, 466 F.2d 1403 (6 Cir. 1971).

We agree with the reasoning of the Daniels case and its progeny. The rule against review of sentences is founded primarily upon the premises that a trial judge, who has the best opportunity to. observe the defendant and evaluate his character, will exercise discretion in imposing sentence. See Briscoe v. United States, 129 U.S.App.D.C. 146, 391 F.2d 984, 986 (1968). On that assumption we ordinarily defer to the trial court’s judgment. However, where as here, the district court has not exercised discretion in imposing sentence, there is no reason for us to defer to the trial court’s judgment. In reviewing such a sentence, we would not be usurping the discretion vested in trial judges; rather we would be according the defendant the judicial discretion to which he is entitled. See Gryger v. Burke, 334 U.S. 728, 734, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948) (Rutledge, J., dissenting).

III.

FAILURE TO GRANT PROBATION

What we have already said makes it abundantly clear that by resorting to “policy” in sentencing, the district judge gave no consideration to Woosley’s claim for probation.

Appellant had earlier stated that, because of his religious beliefs, he could not comply with a draft board order to work in alternative service as a conscientious objector, but that he would perform such service in compliance with a court order. Such a request is not unusual from Jehovah’s Witnesses who find their religious tenets in conflict with requirements of Selective Service laws. Judge Solomon, as Chief Judge of the United States District Court in. Oregon, adopted and enunciated an enlightened solution.

The great majority [of Selective Service violators placed on probation] are Jehovah’s Witnesses who were classified as conscientious objectors. They refused to report for alternative service because they regard the Selective Service System as an arm of the military. To perform work directed by the military would compromise their religious convictions.
A few years ago, I stumbled onto the idea that Jehovah’s Witnesses would do alternative service if I ordered it because I am not in military. Romans XIII teaches that the orders of those in civil authority are equivalent to the orders of God.
I know that Selective Service is happy about this solution, and a number of courts throughout the country are using the same technique. [Solomon, Sentences in Selective Service and Income Tax Cases, 52 F.R.D. 481, 487 (1970).]

See Daniels, supra, 446 F.2d at 969, 972.

Judicial recognition has been given to statistical evidence showing “[that] Jehovah's Witness violators have regularly been included in the group toward whom an increasing number of judges have shown a growing lenience.” United States v. McCord, 466 F.2d 17, 20 (2d Cir. 1972).

The Supreme Court long ago made clear that federal appellate courts have the power to review a trial judge’s refusal to grant probation. Burns v. United States, 287 U.S. 216, 221-223, 53 S.Ct. 154, 77 L.Ed. 266 (1932). In Burns, the Court described the standard for appellate review as follows:

The question is simply whether there has been an abuse of discretion and is to be determined in accordance with familiar principles governing the exercise of judicial discretion. That exercise implies conscientious judgment, not arbitrary action. * * * It takes account of the law and the particular circumstances of the case and is “directed by the reason and conscience of the judge to a just result.” * * * While probation is a matter of grace, the probationer is entitled to fair treatment, and is not to be made the victim of whim or caprice. [Id. at 222-223, 53 S.Ct. at 156.]

This circuit has acknowledged the power of appellate courts to review a trial judge’s refusal to grant probation. See United States v. Alarik, 439 F.2d 1349, 1351 (8th Cir. 1971); Berra v. United States, 221 F.2d 590, 598 (8th Cir. 1955), aff’d, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956). In other circuits, cases acknowledging this power of review are legion.

Under these circumstances, the trial judge’s refusal to consider probation as a reasonable alternative in his sentencing procedures was error.

IV.

EXCESSIVENESS OF SENTENCE

Aside from the district court’s failure to utilize its discretion in the sentencing process, i. e., its imposition of five-year sentences as a mechanical and automatic policy, we next consider whether the imposition of a maximum sentence was in itself an abuse of discretion under the circumstances presented here.

Appellant’s crime was a crime of conscience. He expressed his willingness to serve his country in a civilian capacity if ordered to do so by the district judge. The privilege of civilian service is afforded others "who, by reason of religious training and belief, [are] opposed to participation in war in any form.” 50 U.S.C. App. § 456(j). Thus, Woos-ley’s transgression rested upon a technical violation of the law. The circumstances of the crime and the character of the criminal dictated leniency of treatment but produced the maximum prison sentence.

An examination of cases in which federal appellate courts have reviewed sentences falling within the statutory maximum discloses the underlying fact in each was a sentence which was greatly excessive under traditional concepts of justice or was manifestly disproportionate to the crime or the criminal. McKinney, supra, 466 F.2d 1403; Daniels, supra, 446 F.2d 967; United States v. Wiley, 278 F.2d 500 (7th Cir. 1960); see United States v. Walker, 469 F.2d 1377 (1st Cir. 1972); McGee v. United States, 465 F.2d 357 (2d Cir. 1972); Charles, supra, 460 F.2d 1093; United States v. McCoy, 139 U.S.App.D.C. 60, 429 F.2d 739 (1970). Other cases have indicated that the courts possess the power to review a sentence when there has been a gross abuse of discretion. Hood, supra, 469 F.2d 721, 722; United States v. King, 420 F.2d 946, 947 (4th Cir.), cert. denied, 397 U.S. 1017, 90 S.Ct. 1253, 25 L.Ed.2d 432 (1970) ; United States v. Weiner, 418 F.2d 849, 851 (5th Cir. 1969); United States v. Latimer, 415 F.2d 1288, 1290 (6th Cir. 1969); United States v. Holder, 412 F.2d 212, 214-215 (2d Cir. 1969). See generally, 2 C. Wright, Federal Practice and Procedure § 533 (1969). In Holder, supra, 412 F.2d 212, 214-215, the court noted:

If the sentence could be characterized as so manifest an abuse of discretion as to violate traditional concepts, it is possible that we might, pursuant to our power to supervise the administration of justice in the circuit, overturn our long established precedents of non-intervention and intervene.

We hold that we possess the power to review the severity of a criminal sentence within narrow limits where the court has manifestly or grossly abused its discretion. This is such a case. The severity of the sentence shocks the judicial conscience. The sentence greatly exceeds penalties usually exacted against Jehovah’s Witnesses, and the record completely fails to justify, nor has the district judge undertaken to explain, the imposition of a maximum penalty under the circumstances presented here.

Moreover, we take judicial notice of statistical data showing that in the year in which sentence was first assessed (1970) and in the year in which the district court refused Rule 35 relief (1971), most convicted violators of the draft laws received probation, and only a minute number of offenders received the maximum prison terms (4.4 percent in 1970; 2.8 percent in 1971). These statistics disclose nothing of the character of the offender, but they do indicate the increasing tendency of the courts to afford leniency to a high percentage of violators of the draft laws.

We find it difficult to conceive of a situation offering more compelling circumstances to justify leniency than that in the instant case. Referring to a similarly situated offender, the Sixth Circuit said in Daniels, supra, 446 F.2d at 972:

The imprisonment of Appellant can hardly be deemed helpful in reforming a young man of concededly “good character” and “model behaviour.” Imprisonment cannot serve as protection for society because the immediate release of Appellant poses no risk to society’s safety. Moreover, disciplining or punishing the Appellant by imprisonment would seem to be an inappropriate rationale for sentencing where, as here, a young man has devoutly adhered to his religious beliefs without impeding the rights of others. Finally, under the limited factual circumstances of this case, the issuance of an order probating the Appellant subject to his performance of the identical work demanded of him by the Selective Service is not the kind of sentencing which would induce widespread disobedience of the orders of local Selective Service boards.

We can find no basis by any rational criteria to justify Woosley’s punishment in this case. Neither society nor the individual stands to gain any benefit therefrom. Nor is there a deterrent effect since Jehovah’s Witnesses have stood steadfastly by their religious convictions, whatever the potential sentence. The broad and unreviewable discretion possessed by federal district courts in matters of sentencing does not extend to the meting out of punishment manifestly disproportionate to the nature of the crime and the character of the criminal.

V.

We believe it appropriate to remand this case to the district court for resen-tencing. The district judge is an experienced and able trial judge. We know that he will give Woosley fair consideration under the standards promulgated here. In selective service cases, the district judge may have followed a policy initiated by other judges, and this court has not previously commented upon that policy. Moreover, the district judge may appropriately evaluate Woosley’s changed family circumstances which may disclose additional considerations dictating leniency of treatment.

Reversed and remanded. Release bond to continue until final disposition.

MATTHES, Chief Judge

(concurring) .

After weighty consideration of all relevant circumstances I have concluded to concur in the majority opinion.

Recognizing the firmly entrenched rule that appellate courts generally will not interfere with the sentence imposed if it is within statutory limits, I am nevertheless persuaded to conclude that, like many rules, it has exceptions. This case is the exceptional one justifying remedial action.

It is hardly debatable that implicit in the imposition of a sentence is the exercise of sound discretion by the sentencing judge. Such exercise encompasses consideration of all relevant factors such as the nature of the offense, the history and background of the defendant, and of course the interest and concerns of society, to mention only a few.

I have been unable to escape the conclusion that the maximum sentence imposed here was the product of an inflexible policy rigidly applied to all offenders of the Selective Service Laws. Such a policy is difficult to defend and condone just as imposition of the maximum sentence on every Dyer Act violator regardless of attending circumstances would be subject to condemnation.

VAN OOSTERHOUT, Senior Judge,

with whom MEHAFFY and STEPHENSON, Circuit Judges, join (dissenting).

I respectfully dissent. I would affirm the trial court’s order denying relief under Rule 35. The sentence of five-years imprisonment was imposed upon the defendant following the acceptance of his voluntary plea of guilty to a charge of failure to submit for induction in violation of 50 U.S.C. App. § 462. This is the maximum penalty provided for the offense committed.

The majority opinion concedes that this court, as well' as others, has repeatedly held that a sentence imposed by a district judge which is within statutory limits is not subject to review. In Gu-rera v. United States, 40 F.2d 338, 340-341 (8th Cir. 1930), this court held:

“If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by a statute. If Congress had intended to change that rule in regard to violations of the liquor laws, we would have expected a very clear and definite expression of that intent and a workable expression of the rules which should guide the trial courts in assessing punishments and the appellate courts in reviewing such assessments.”

The Supreme Court in the recent case of United States v. Tucker, 404 U.S. 443, 447-448, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972), holds:

“It is surely true, as the government states, that a trial judge in the federal judicial system generally has wide discretion in determining what sentence to impose. . . . The government is also on solid ground in asserting that a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review. Gore v. United States, 357 U.S. 386, 393 [78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405]. Cf. Yates v. United States, 356 U.S. 363 [78 S.Ct. 766, 2 L.Ed.2d 837].”

The Tucker Court goes on to hold that a. remand for resentencing was proper because the record showed that the trial court at the time of the sentencing was not aware of the fact that two prior convictions of the defendant called to its attention were constitutionally infirm because the defendant was not represented by counsel in such eases.

Subsequent to Tucker this court in Hood v. United States, 469 F.2d 721, 722 (8th Cir. 1972), summarily affirmed the trial court’s denial of a motion to reduce sentence, stating:

“In United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972) the Supreme Court observed: 1 * * * that a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.’ We fail to find any abuse of discretion on the part of the trial court in denying the motion to modify or set aside the sentence.”

In United States v. McCord, 466 F.2d 17 (2d Cir. 1972), the court affirmed the denial of a Rule 35 motion to reduce a sentence imposed on a selective service violation. In doing so, the court cites and relies upon Tucker. The court recognizes that many judges have pronounced sentences in Jehovah Witness type draft cases of the type advocated by the majority opinion and holds that such evidence does not require a remand for resentencing.

There is no statute nor rule which expressly confers jurisdiction on Courts of Appeal to review sentences within statutory limits imposed upon a lawful conviction. Legislation to confer such appellate jurisdiction has been frequently proposed but has not yet been enacted. See ABA project “Appellate Review of Sentences”, tentative draft 1967, pp. 86-90.

In Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958), the Court in affirming an order denying a petition to review sentence imposed within statutory limits states and holds:

“In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, see Radzinowicz, A History of English Criminal Law: The Movement for Reform, 1750-1833, passim, these are peculiarly questions of legislative policy. Equally so are the much mooted problems relating to the power of the judiciary to review sentences. First the English and then the Scottish Courts of Criminal Appeal were given power to revise sentences, the power to increase as well as the power to reduce them. See 7 Edw. VII, c. 23, § 4(3); 16 & 17 Geo. V, c. 15, § 2(4). This Court has no such power.” (Emphasis added.)

As set out in the majority opinion, we have in a number of cases purported to review a district court’s denial of a Rule 35 motion to reduce a sentence but have denied relief on the basis that there has been no abuse of discretion. Such holding is technically inconsistent with the established law that sentences imposed within the statutory limit are not reviewable. However, the result is the same.

8A Moore’s Federal Practice 2d Ed. § 35.02(4) states:

“Since the motion for reduction of sentence is a plea for leniency, decision on the motion is as close to being a matter of pure discretion as any other under the Rules, with the exception of the sentence itself. It might be argued that such a determination should therefore not be reviewable by way of appeal. Apparently, no court has gone this far, although reversal of an order denying reduction is extremely rare.”

If we assume for the purposes of this case without so deciding that the abuse of discretion standard applies, we are satisfied that the defendant has failed to establish that the court abused its discretion in imposing the five-year sentence. This is not a case where the court acted on any relevant misinformation in imposing the sentence. The record reflects that the court was fully informed on all factors relevant to appropriate punishment. He had carefully considered the probation report, he knew defendant had sought a ministerial classification which was rejected by the Draft Board, and that the defendant had never applied for a conscientious objector classification. The court was aware of the reasons assigned by the defendant for not applying for the conscientious objector classification and stated that he recognized that the defendant was a fine young man.

A wide discretion is vested in the trial court with respect to imposition of sentence within statutory limits. A heavy burden rests on a party asserting abuse of discretion. A reviewing court is not justified in substituting its discretion for that of the trial court who had the benefit of seeing and hearing the defendant. See 5A C.J.S. Appeal and Error § 1583; United States v. McCord, supra; McGee v. United States, 462 F.2d 243 (2d Cir. 1972); Burns v. United States, 287 U.S. 216, 222-223, 53 S.Ct. 154, 77 L.Ed. 266 (1932).

In Delno v. Market St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942), the court in defining discretion states:

“Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”

In our present case there is nothing in the record to indicate that the trial court acted upon any misinformation with respect to the defendant’s character and background. Judges vary greatly as to sentences imposed, not only in selective service eases but in all types of cases, particularly those involving nonviolent crimes such as income tax evasion, and embezzlement. Defendant’s crime is more than a technical one. His plea of guilty admits all essential elements of the offense charged. Defendant has no constitutional right to a conscientious objector classification or to be excused from military service obligations. The exemption of conscientious objectors from military service is a matter of legislative grace and does not rise to a constitutional command. United States v. Crocker, 308 F.Supp. 998 (D.Minn.), aff'd 435 F.2d 601 (8th Cir. 1971).

Probation for a convicted defendant is a matter of grace and not a matter of right. No defendant has an absolute right to probation. Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 77 L.Ed. 266; United States v. Alarik, 439 F.2d 1349,1351 (8th Cir. 1971).

Defendant has failed to establish his right to exemption from military service by failing to follow the reasonable procedures prescribed by the statutes and regulations for asserting exemption. Defendant by failing to report for military service as ordered has created unnecessary confusion in the administration of the draft law and has made it necessary for some other person to take his place and expose himself to the possible hazard of Vietnam conflict.

While imprisonment may not be necessary to rehabilitate the defendant, the deterrent effect upon others is always a proper item for consideration in imposing sentence. See Williams v. New York, 337 U.S. 241, 248-249 n. 13, 69 S.Ct. 1079, 93 L.Ed. 1337. It cannot fairly be said on the basis of the record in this case that the public interest does not require a fair enforcement of the selective service laws and that reasonable men could not differ on the propriety of the sentence imposed.

The issue of mechanical sentencing discussed by the majority was never presented in the trial court and hence such court had no opportunity to consider the issue. Issues not raised in the trial court cannot properly be considered on appeal. Smith v. American Guild of Variety Artists, 368 F.2d 511, 514 (8th Cir. 1966).

In any event, I believe that the majority has misconceived the trial court’s statement with respect to his policy. There is nothing in the court’s statement which explicitly describes the policy to which he refers. Inasmuch as sentence has been deferred, it would appear that the policy was to give the defendant an opportunity to reconsider reporting for induction before sentence was imposed. There is nothing in the record to indicate that the defendant has been denied due process in connection with his sentencing or Rule 35 proceedings. Defendant and his attorney were afforded a full opportunity to present anything they desired to support the claim for leniency and probation made prior to sentence. The present petition and the application for reconsideration do not reveal that the defendant had anything to present which had not previously been presented to the court in connection with his pre-sentence request for parole. Under such circumstances the trial court did not abuse its discretion in not affording a hearing.

The result reached by the majority is supported by the Sixth Circuit cases cited and relied upon. For reasons herein-above stated, I do not agree with the reasoning upon which such decisions are based. The majority opinion departs from the long-established rule in effect in this circuit and generally elsewhere-that sentences within the statutory limits are not subject to appellate review and in effect opens the gate to appellate review of all sentences. Such a drastic change in the law in my view requires appropriate Congressional action. Gore v. United States, supra.

I would affirm the order denying defendant’s,, Rule 35 motion.

      . Initially, a divided panel denied Woosley relief from this sentence. Woosley v. United States, No. 71-1691, May 26, 1972 [unpublished].

      . Pending the disposition of this appeal, a majority of this court authorized AYoos-ley’s release from prison on his personal recognizance bond. At the time of his release Woosley had served approximately eight months of his sentence.

      . Until the jurisdiction of the original circuit courts was transferred to the circuit courts of appeals in 1891, federal appellate courts reviewed sentences under the authority of the Act of March 3, 1879, ch. 176, § 3, 20 Stat. 354. See United States v. Wynn, 11 F. 57 (C.C.E.D.Mo.1882) ; Bates v. United States, 10 F. 92, 96 (C.C.N.D.Ill.1881). Federal courts have disclaimed the authority to review sentences since that statute was repealed, on the assumption that the power of review does not exist without statutory authority. See Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958) ; Freeman v. United States, 243 F. 353, 357 (9th Cir. 1917). It has been suggested that such statutory authority does exist under 28 U.S.C. § 2106. See Smith v. United States, 273 F.2d 462, 468-469 (10th Cir. 1959) (Murrah, J., dissenting) ; United States v. Rosenberg, 195 F.2d 583, 604-607 (2d Cir.), cert denied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652, rehearing denied, 344 U.S. 889, 73 S.Ct. 134, 97 L.Ed. 687 (1952).
      A few courts, without referring to statutory authority, have indicated that federal appellate courts possess the power to review a sentence imposed within the statutory maximum if it appears that the trial judge plainly abused his discretion. See United States v. Hetherington, 279 F.2d 792, 796 (7th Cir.), cert. denied, 364 U.S. 908, 81 S.Ct. 271, 5 L.Ed.2d 224 (1960) ; Livers v. United States, 185 F.2d 807, 809 (6th Cir. 1950) ; Tincher v. United States, 11 F.2d 18, 21 (4th Cir.), cert. denied, 271 U.S. 664, 46 S.Ct. 475, 70 L.Ed. 1139 (1926) ; Goldberg v. United States, 277 F. 211, 220 (8th Cir. 1921).
      Finally, the Sixth and Seventh Circuits have reviewed and vacated sentences imposed within the statutory maximum. See United States v. McKinney, 466 F.2d 1403 (6th Cir. 1972) ; United States v. Charles, 460 F.2d 1093 (6th Cir. 1972) ; United States v. Daniels, 446 F.2d 967 (6th Cir. 1971) ; United States v. Wiley, 278 F.2d 500 (7th Cir. 1960) ; cf. United States v. McCoy, 139 U.S.App.D.C. 60, 429 F.2d 739 (1970) ; Leach v. United States, 118 U.S.App.D.C. 197, 334 F.2d 945 (1964). The Second Circuit has examined what it has termed the “integrity” of the sentencing process. McGee v. United States, 465 F.2d 357 (1972) ; cf. United States v. Brown, 470 F.2d 285 (1972). The First Circuit has expressed some dissatisfaction with the severity of a sentence in a selective service case. United States v. Walker, 469 F.2d 1377 (1972).

      . Some question may be raised whether the severity of a sentence, if reviewable under any circumstances, should be raised on direct appeal or by post-appeal application for relief under Rule 35, Fed.R.Crim.P. Both Hood and Anderson raised the sentence question on their second appeal, as does Woosley here. The government raises no question as to the appropriateness of the appeal. Since a trial court retains the power under Rule 35 to reduce a sentence within 120 days after final direct review of a conviction, the sentence does not become firmly fixed until the trial court has acted or declined to act under Rule 35.

      . In requesting probation, the transcript discloses the following:
      [THE COURT:] Do you know of any reason why sentence should not be imposed this morning?
      MR. JACOBS [Attorney for Woosley]: I know of none, Your Honor.
      THE COURT: All right. Will you stand up, Mr. Woosley?
      MR. JACOBS: I would like to state, Your Honor, that based upon the Court’s finding I would make a motion for pre-sentence investigation and leave to apply for probation.
      THE COURT: I don’t think that will be necessary.
      Mr. Woosley, do you have anything to say to the Court before sentence is imposed?
      THE WITNESS : No, Your Honor.
      THE COURT: Does your attorney have anything further to say?
      MR. JACOBS: I would like to ask the defendant one question, Your Honor.
      (Thereupon, there was a conference between the defendant and his counsel out of the hearing of the reporter and off the record.)
      MR. JACOBS: Your Honor, I would, in renewal of my motion for probation, like to state that the defendant is, as the Court is well aware, an ordained minister and has pursued it diligently except to the extent that he is necessarily—
      THE COURT: No, I’m not well aware that he is an ordained minister. That is his notion of what he is. But it does not comply with what the rules and regulations of the Selective Service System require. I am aware that he is a fine young man. And I regret very much that he is making this decision. But it is his decision.
      MR. JACOBS: Well, Your Honor-
      THE COURT: Go ahead.
      MR. JACOBS: The decision that brings him here is one of refusing induction under the Selective Service Act. There is a 1-A registrant. 1-Iis classification is one that he has strenuously opposed. The Selective Service file reflects that he attempted to obtain a ministerial classification.
      THE COURT: I understand that.
      MR. JACOBS: I think there would be little question that his refusal to induction in the Armed Forces is because of his conscientious conviction that he will not take up arms and bear arms against other people. On the question of his conscientious objection I think it should be perfectly clear that it is not a position of the Jehovah’s Witnesses that they will not do hospital work or something of a humane nature. The repugnant nature of it is doing it under the forcible order of a Selective Service Board which is appointed primarily under a military act. Therefore their conscience carries to that extent. Their entire life, however, is devoted toward performing service of a ministerial and humane nature. If there ever was a ease which warranted a person who is not a threat to the public or a danger to the xtublic, which would warrant probation, I would certainly think it is one in which the background of the person is as thorough and clear and as much of a contribution to the public welfare as it has been on the part of this man.
      THE COURT: Have you anything further?
      MR. JACOBS: No, Your Honor.
      THE COURT: On your plea of guilty this Court will sentence you to five years in the custody of the Attorney General. Probation will be denied. [Tr. 18-21.]

      . See United States v. Birnbaum, 402 F.2d 24, 30 (2d Cir. 1968), cert. denied, 394 U.S. 922, 89 S.Ct. 1181, 22 L.Ed.2d 455 (1969) ; United States v. White, 147 F.2d 603 (3d Cir. 1945) ; Mann v. United States, 218 F.2d 936, 939 (4th Cir. 1955) ; Hoopengarner v. United States, 270 F.2d 465, 472 (6th Cir. 1959) ; United States v. Wiley, 267 F.2d 453, 455-456 (7th Cir. 1959) ; United States v. Borgis, 182 F.2d 274, 277 (7th Cir. 1950) ; Burr v. United States, 86 F.2d 502, 503 (7th Cir. 1936), cert. denied, 300 U.S. 664, 57 S.Ct. 507, 81 L.Ed. 872 (1937) ; United States v. Taylor, 449 F. 2d 117, 118 (9th Cir. 1971) ; Whitfield v. United States, 401 F.2d 480, 482 (9th Cir. 1968), cert. denied, 393 U.S. 1026, 89 S.Ct. 630, 21 L.Ed.2d 570 (1969) ; Longknife v. United States, 381 F.2d 17, 19 (9th Cir. 1967), cert. denied, 390 U.S. 926, 88 S.Ct. 859, 19 L.Ed.2d 987 (1968) ; Jordan v. United States, 370 F.2d 126, 129 (10th Cir. 1966), cert. denied, 386 U.S. 1033, 87 S.Ct. 1484, 18 L.Ed.2d 595 (1967) ; Dodd v. United States, 213 F.2d 854, 855 (10th Cir. 1954) ; Sullivan v. United States, 212 F.2d 125, 128 (10th Cir.), aff’d, 348 U.S. 170, 75 S.Ct. 182, 99 L.Ed. 210 (1954) ; Humes v. United States, 186 F.2d 875, 878 (10th Cir. 1951).

      . Federal Offenders in the United States Distriet Courts, Administrative Office of the U. S. Courts at 188 (1970) (containing criminal sentence analysis 1967-71).
      AATe note the wealth of statistical data collected from the United States courts relating to sentencing by categories of federal crimes. See, e. g., Annual Report of the Director, Administrative Office of the United States Courts (1972). It would seem that if such data were collected and disseminated in a more useable form, it might serve as a helpful guide to sentencing judges to avoid greatly disparate sentences for offenders of cornparatively equal status. See generally Frankel, Lawlessness in Sentencing, 41 Cincinnati L.Rev. 1 (1972) (discussion of sentencing in the United States),

      . Appellant’s counsel lias filed a petition in this court stating that appellant’s wife was killed in an automobile accident on April 29, 1972, while enroute to the federal penitentiary to visit appellant. Tims, according to the petition, appellant’s infant son is “in temporary custody of relatives who are not properly equipped to continue caring for the child.”

      . In 2 Wright Federal Practice and Procedure § 533, p. 455, the following appears : “Reasonable men may well wonder whether the greater uniformity in sentences expected from appellate review will in fact materialize, and whether it will simply add a new burden to appellate courts that are already overworked.” Additional problems presented by appellate review of sentencing are ably set out in United States v. Wiley, 184 F.Supp. 679 (N.D.Ill.1960).


source: Caselaw Access Project

author: ADAMS, Circuit Judge. GERALD McLAUGHLIN, Circuit Judge

license: Public Domain

text:
    Robert J. BENSON, Plaintiff-Appellant, v. AMERICAN EXPORT ISBRANDTSEN LINES, INC., Defendant-Appellee, v. ATLANTIC & GULF STEVEDORES, INC., 3rd Party Defendant.
    No. 72-1463.
    United States Court of Appeals, Third Circuit.
    Argued April 5, 1973.
    Decided May 4, 1973.

      George J. O’Neill, Philadelphia, Pa., for plaintiff-appellant.
    John P. Penders, Marshall, Dennehey & Warner, Philadelphia, Pa., for defendant-appellee.
    Before McLAUGHLIN, ADAMS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ADAMS, Circuit Judge.

In this appeal, Robert J. Benson, plaintiff-appellant, a longshoreman who sustained serious injuries while working on a vessel, and who recovered what he believed to be an inadequate amount in the district court, contests the ruling of the trial judge permitting the jury to consider whether Benson was eontributo-rily negligent and thus, under admiralty law, subject to having his recovery reduced. Benson contends also that in the conduct of the damage part of the trial, the judge committed reversible error. We hold that it was error to allow the question of contributory negligence to go to the jury. Therefore, we reverse the district court in its denial of plaintiff’s motion for a directed verdict on the issue of contributory negligence and its reduction of the damage award based on the finding of contributory negligence.

Benson was injured on April 17, 1968, while helping to ready the N. S. Exchequer for cargo operations. The £. S. Exchequer, owned by defendant-appellee, American Export Isbrandtsen Lines, Inc., was berthed alongside a pier extending into the Delaware River from the Philadelphia shore. In preparing the S. S. Exchequer, Benson was working in the area of the forward-most hatch, the Number 1 hatch, on the shelter deck. As is the norm on freighters, the hatch was closed over with wooden hatch covers, boards about one foot wide and nine feet long, placed side by side, extending fore and aft. The ends of those boards rested, not on the edge of the hatch, but on two steel beams about three inches short of each edge. A third steel beam supported these boards at their midpoint. As part of the preparation, Benson was walking along the hatch cover, with two fellow workers, guiding into position a heavy steel plate being lowered by a crane. The steel plate was to be used to permit the operation of a forklift truck. One of the hatch covers suddenly “see-sawed” under Benson, flew up, struck the side of his head, and then fell through to a deck twenty feet below. Benson, by catching the boards on either side of the gap created by the now-fallen board, was able to keep from plunging the twenty feet himself. This hatch cover was never recovered. As a result of the mishap, Benson sustained serious back injuries, and subsequently brought suit in the district court.

The trial was bifurcated, the issue of liability being severed from the issue of damages. American Export conceded that the ship’s unseaworthiness was a cause of the injury, but contended that Benson’s own negligence contributed to his injury. After the presentation of the evidence relating to this allegation, Benson moved for a directed verdict on the issue of contributory negligence. This was denied by the trial court and the issue was submitted to the jury which found that plaintiff’s negligence was a 20% cause of his injury. Consequently, when the damage verdict was returned by the jury, it was reduced by one-fifth.

Contributory negligence is not a complete bar to recovery in an action based on unseaworthiness but a finding that a seaman, or one in his position, was contributorily negligent can be used to mitigate damages. As with the doctrine. in negligence actions, however, it is the burden of the defense to prove the contributory negligence of the plaintiff.

The parties advanced at trial several theories attempting to explain the board’s “see-sawing” action. Some of the theories postulated a defect that would be observable by the reasonably prudent longshoreman, others were bottomed on a latent defect. The trial judge held that, by adducing testimony that the defect might have been patent, the defense had supplied adequate evidence to avoid a directed verdict on the issue of contributory negligence. We disagree, and hold that the postulation of a series of theories does not satisfy the burden of proof required to permit an issue to be submitted to the jury. This is so especially when the article of evidence that might reveal the cause of the accident was not retrieved by the party bearing the burden of proof, and the evidence presented demonstrates that there could be alternative causes of the accident, some of which under these circumstances would be a basis for imposing liability, others of which would result in a decision adverse to the one carrying the burden.

The plaintiff contends that he was prejudiced when defense counsel was permitted to cross-examine Benson on compensation he received in violation of the “collateral source” rule. That rule provides that, in general, knowledge of receipt of workmen’s compensation, or similar benefits, should be kept from the jury, lest such data be used to diminish the plaintiff’s recovery. Here, however, the information concerning compensation benefits was introduced during cross-examination to refute the impression created by the plaintiff that he had very reluctantly submitted to a painful, exploratory back operation in order to cooperate with the physicians. Defendant, in refutation, attempted to show that Benson’s motivation was not a desire to cooperate with his doctors, but a fear of having his workmen^ compensation benefits terminated. Under these circumstances, we do not find that permitting this questioning constituted reversible error.

Benson further asserts that the trial judge’s repeated admonitions to his counsel to refrain from coaching the witnesses, and the ultimate holding that counsel was in contempt unfairly prejudiced the plaintiff. While our review of the transcript indicates some question whether counsel’s conduct was objectionable or contemptuous, we do not find that the trial judge’s warnings were so prejudicial as to constitute reversible error. Moreover, when counsel was advised that he was being held in contempt, it was done at sidebar, out of earshot of the jury. Therefore, we reject these contentions.

It is also suggested by Benson that by erroneously permitting the issue of contributory negligence to be submitted to the jury, the district court prejudiced the amount Benson ultimately recovered, beyond the percentage reduction directly attributable to the finding of contributory negligence. Since the trial was in two stages, the issue of damages was separated from the issue of liability. Thus, in considering the amount of the award the jury was not, at that time, focusing on the alleged contributory negligence of Benson. Rather, its award reflects nothing more or less than its attempt to calculate damages. Benson hypothesizes that the damage award would have been greater had the jury not been allowed in the first part of the trial to consider the possibility that Benson was contri'butorily negligent. To hold that such speculation requires a new trial on the issue of damages would be to put conjecture over consideration. This we decline to do.

Therefore, we reverse the district court insofar as it refused to direct a verdict on the issue of contributory negligence and reduced the damage award in consequence thereof. We remand the case to the district court for entry of a judgment in favor of the plaintiff, awarding the full amount found by the jury plus interest and costs. As to all other claims, we affirm the district court.

GERALD McLAUGHLIN, Circuit Judge

(dissenting).

The majority opinion asserts that upon the record of this appeal the trial judge committed legal error by refusing to conclude as a matter of law that the plaintiff-appellant was not eontributori-Iy negligent.

The court opinion puts the best possible face on its theory, but in view of the facts of the accident to the plaintiff it has taken on an impossible task in its self imposed proposition that appellant was completely free from contributory negligence. The court below did not claim that plaintiff was guilty of contributory negligence. It merely held that from the facts presented it was a jury question as to whether appellant was or was not guilty of contributory negligence. Admittedly, as stated in the court opinion that there was “the issue of contributory negligence”. The appeal record shows it to have been a very live issue which the district court rightly held was an important factual problem to be decided by the trial jury. The necessarily thin viewpoint that the question was one of law for the court is impossible to accept under the facts before us. I would affirm the judgment of the trial court.

      . The distinction in maritime torts between unseawortliiness and negligence of the shipowner is not clear. For a full discussion of the doctrine of unseaworthiness, its origins and its differences from negligence, see e. g. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550-570, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960) (Frankfurter, J., dissenting).

      . The doctrine of unseaworthiness was extended to protect longshoremen injured aboard ship in Seas Shipping Co. v. Sier-acki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946).

      . Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953).

      . W. E. Hedger Transp. Corp. v. United Fruit Co., 198 F.2d 376, 379 (2d Cir.), cert. denied 344 U.S. 896, 73 S.Ct. 275, 97 L.Ed. 692 (1952).

      . Among the possibilities raised were that the board was too short, that it was not properly resting on the steel beam, or that it was visibly rotted.

      . These theories include the possibility that the board broke, that it was rotted beneath the metal cap at one end, that the middle beam was out of place, or that it was warped and shifted.

      . Feeley v. United States, 337 F.2d 924, 926 (3d Cir. 1964). The basis of the rule is the refusal of the courts to permit the tortfeasor to be benefited by money or services received by the injured plaintiff from other sources intended to compensate plaintiff for his injury or loss.


author: HILL, Circuit Judge.

text:
    VENTURE INVESTMENT CO., INC., and James M. McPeek, Plaintiffs-Appellees, v. Paul A. SCHAEFER, a/k/a Paul Schaefer, Individually and d/b/a Continental Schools of America, Defendants-Appellants.
    No. 72-1627.
    United States Court of Appeals, Tenth Circuit.
    May 10, 1973.
    Dale Yoakum, Denver, Colo., for defendants-appellants.
    Bernard Dan Steinberg, Denver, Colo., for plaintiffs-appellees.
    Before HILL and BARRETT, Circuit Judges, and SMITH, District Judge.

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

   HILL, Circuit Judge.

Venture Investment Company and its president, James M. McPeek, brought suit in Colorado federal district court against Paul A. Schaefer for fraudulent conduct and for violations of state and federal securities laws. Jurisdiction was founded on diversity of citizenship and the Securities Acts of 1933 and 1934. The trial court, after hearing all the evidence, determined that Schaefer had violated the Colorado securities laws, and awarded plaintiffs $9,990 plus $1,000 attorneys fees.

Schaefer operated a correspondence school in Englewood, Colorado, titled Continental Schools of America (CSA). On January 2, 1970, Schaefer sent MePeek, a Kansas citizen, a letter offering him a franchise with CSA in the Dallas-Houston region of Texas. Because this letter was instrumental in convincing appellees to purchase CSA franchises, we will set it out in detail. The letter began by glorifying CSA’s success in the correspondence business. It explained that CSA had been operating nearly 10 years and wrote up to $10,000 in business a month in an area no larger than the one intended for appellees. It suggested that appellees could reach that figure in as little as 60 days because CSA courses were “par excellence,” as attested by its license from the Colorado State Board of Education. The letter stated the result would be that from a monthly investment of around $150, nearly $6,000 could be generated in school contracts. To demonstrate the potential of CSA franchises, three pages of sales and profit projections were attached.

Appellees responded favorably and received a second letter which again expounded the virtues of CSA. This letter remarked that CSA was directed by a team of experienced, successful businessmen ; that in CSA’s effort to insure success, it hired the finest talent available in the Western United States to prepare its home study courses; and that as a result, franchisees could expect to reap around 45% net profits on all fully collected contracts.

Along with the second letter Schaefer sent a CSA brochure. This brochure told of Schaefer’s founding the company in 1959 and his making it a great success by selecting as his company officers businessmen who were officers and directors of successful companies prior to joining CSA. The brochure also stated that CSA unconditionally guaranteed a minimum sales quota. Finally, it asserted that CSA’s marketing program was so timely and effective that profits were unlimited.

Appellee MePeek was interested in the franchise so he visited Schaefer in Denver, Colorado. In reliance upon the aforementioned correspondence and conversations with Schaefer and his agents, ap-pellees purchased two franchise contracts for $10,700. The contracts granted ap-pellees exclusive rights over the Dallas-Fort Worth and the Houston areas, plus an option over the San Antonio area.

At this point problems arose. Schae-fer had promised to send a “sales training group” to assist appellees in their sales promotion, but no group appeared — ■ only Schaefer. He did not make his forty sales as provided in the two contracts. At most he generated eleven sales, and even then he failed to send ap-pellees their percentage from the sales. Several times Schaefer promised to help appellees rectify the existing problems, but this was never done.

Appellees finally gave up hope of ironing out their problems with Schaefer and sued in federal district court. Schae-fer’s testimony at trial indicated: that he did not know when the school was founded, but it became known as CSA in 1969; that CSA had no officers, but was a sole proprietorship owned by Schaefer; that no employees were directors of corporations prior to joining CSA, rather Schaefer used “director” to mean his employees directed the operations of other companys; and that his assertion in the letter of January 2, 1970, that a franchisee could reach figures of up to $10,000 in business a month within 60 days of start-up was based upon personal speculation rather than fact.

The trial court after hearing all evidence made the following relevant findings of fact: (1) CSA had been in business since 1969; (2) only eight other franchises had been sold and none enjoyed the monthly business promised by Schaefer; (3) the CSA courses had not been licensed by the State of Colorado; (4) CSA was basically a one-man operation and was not comprised of a team of successful businessmen; (5) Schaefer did not intend personally to secure the first twenty enrollments on each franchise; and (6) Schaefer knew his representations were false and intended ap-pellees to rely upon them.' The trial court therefore concluded the “franchises” were securities within the meaning of Colorado securities laws and were sold by use of misleading and untruthful statements.

We agree with the findings of fact and result reached by the trial court, but adopt another approach in reaching the same conclusion. The trial court found Schaefer’s misrepresentations to violate Colorado’s securities laws. We do not feel it necessary to determine the applicability of either the Colorado securities laws or the federal Securities Acts when it is clear from the evidence that Schaefer perpetrated common law fraud on appellees. Fraud as developed in the Colorado common law requires: concealment or misrepresentation of a material fact by the perpetrator; indifference or knowledge of the misrepresentation by the perpetrator; representation or concealment made with the intention that it be acted upon; and action on the misrepresentation or concealment resulting in damages. Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458 (1937); Bemel Associates, Inc. v. Brown, 164 Colo. 414, 435 P.2d 407 (1967). All these elements are found in 'the present case. The evidence is replete with misrepresentations in Schaefer’s correspondence with McPeek. Although the trial court commented on appellees’ naiveté in taking Schaefer at face value, it nevertheless felt appellees relied on Schaefer’s representations in good faith and we find no error in this conclusion. It is apparent from the record that Schaefer had no intention of making appellees’ franchise a success. He promised them help in starting up the franchise but no real effort was made to follow through on this promise. Schaefer did generate a few enrollments but he failed to send appel-lees their percentage. The overall picture was one of fraud with the primary purpose being to divest appellees of their money.

Affirmed.

      . Securities Act of 1933, 15 U.S.C. §§ 77b (1), 77e, 77k, 771, 77o, 77q, 77v; Securities Act of 1934, 15 U.S.C. § 78c (a) (10) and (11); 78j, 78aa; Rule 10b-5 of the Securities Exchange Commission, 17 C.F.R. § 240.10b-5.

      . Colorado Licensing and Practice Act, C.R.S.1963,125-1-12 and 125-1-21.


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    Cheryl WELLS, a minor by her father and next friend, Carroll G. Wells and Carroll G. Wells, Plaintiffs-Appellees, v. COLORADO COLLEGE, Defendant-Appellant.
    No. 72-1390.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted March 28, 1973.
    Decided April 23, 1973.

      Reed L. Winbourn, of Zarlengo, Mott & Carlin, Denver, Colo., for defendant-appellant.
    John F. Bennett, of Bennett, Heinicke, Morrison & Holloway, Colorado Springs, Colo. (Howard Morrison, of Bennett, Heinieke, Morrison & Holloway, Colorado Springs, Colo., on the brief), for plaintiffs-appellees.
    Before BREITENSTEIN and DOYLE, Circuit Judges, and KERR District Judge.

       Sitting by designation.

   WILLIAM E. DOYLE, Circuit Judge.

In this diversity action, the plaintiff, suing through her father, recovered a judgment against Colorado College in the amount of $150,000.00. In addition, her father, who was also maintaining an action in his own behalf for actual damages, recovered the sum of $15,742.43. The incident which gave rise to the injuries and to the lawsuit was an unusual one. Plaintiff was injured in the course of taking a judo lesson which was sponsored by the appellee college.

Plaintiff was shown to have resided in Illinois but was at the time enrolled as an undergraduate student at Colorado College. The judo class which the plaintiff was taking at the time of the injury had been arranged by the college as a self-defense measure for the students— there having been a number of incidents involving assaults which had occurred on the campus. The college employed two Colorado Springs police officers to conduct the classes. The students worked in pairs. After having received instruction, they practiced on one another. The particular exercise which allegedly produced the injury was a hip throw. The person executing the hip throw grasps the partner by the shoulders and turns quickly. By throwing the person grasped over the hip it causes her (or him) to lose balance. The person throwing eases the other to the mat. The plaintiff’s partner was unable to throw her and the policeman instructor demonstrated the throw on the plaintiff. She was thrown on her back but did not land on the mat. The two mats had, according to the evidence, come apart. Plaintiff’s back hit partly on the mat and partly on the floor.

Plaintiff testified to immediate awareness of back pain. She attempted to work out the injury by exercise and she also applied heat and rested it. None of this succeeded and although plaintiff tried to carry on normal activities including skiing, she was unable to do so and finally she visited an orthopedic surgeon, a Dr. Hauser, while on ■spring vacation at Evanston. He applied a body cast but this was also unsuccessful. Dr. Hauser diagnosed plaintiff’s injury as intervertebral disc in the lower back (between L4 and L5). During the following days she fell down while walking in her dormitory. She was unable (due to her weakened condition) to finish the semester. She returned home and thereafter was taken to Mayo Clinic. A laminectomy was performed on June 24, 1969. However, this operation did not alleviate her troubles. When she returned to school in the fall she continued to experience intense pain as a result of which further surgery became necessary. This was performed at the Mayo Clinic on February 6, 1970. Plaintiff was not released from the Clinic until March 29, 1970. This operation was more extensive than the first. The disc was operated on and the spine was fused at the place of the injury.

At the next semester plaintiff returned to school at Colorado College. The pain persisted but she completed the term and went on a summer trip to Europe. The trip was interrupted by severe back pains and muscle spasms causing plaintiff to be further hospitalized. After that she continued her studies at Northwestern University, finally completing them.

Plaintiff testified that as a result of her injury she lost a full year of college. The evidence also established that she had permanent disabilities. Although she had been an expert athlete excelling in ice skating, swimming, diving, skiing and horseback riding, she was unable, after the accident, to engage in anything more strenuous than walking. The pain was shown to have continued up to the time of trial. All of this, according to the evidence, had a serious psychological as well as physical effect on her.

In seeking a reversal of the very substantial judgments appellant raises numerous issues. Some of these are argued in the brief, while other points are merely mentioned. The points which are emphasized include:

1. The contention that it was error to instruct the jury on contributory negligence but for the court to refuse to instruct on voluntary assumption of risk.

2. Alleged excessiveness of the verdict.

3. Instructing on loss of earnings since plaintiff was a student.

4. Receiving medical bills after May 2, 1968 (immediately after the incident and following a supervening fall); instructing on expenditure for travel and subsistence of parents to Mayo’s.

5. Instructing on loss of enjoyment of life.

Appellant merely mentions the following:

6. Alleged error in denying the motions of appellant for a directed verdict, for a new trial and for judgment notwithstanding the verdict.

We have been unable to perceive merit in any of the above contentions and, therefore, we affirm the judgments.

I.

REFUSAL TO INSTRUCT ON ASSUMPTION OF RISK

The trial court charged the jury as to the standards applicable to contributory negligence, but determined that an instruction on assumption of risk was not appropriate. As noted, the appellant contends that it was prejudicial to refuse to give this requested instruction and this contention is the primary one advanced. This is not a case involving participation in a sport which activity is commonly associated with the assumption of risk doctrine. Rather, the plaintiff was participating in a scheduled class and was doing so for a very practical reason. But even if we were to consider it as a sport, the evidence presented would still be deficient to support assumption of risk because it is not shown that the plaintiff anticipated an extraordinary hazard such as that to which she was subjected. She had a right to expect that she would be thrown on the mat and not on the hardwood floor.

It is the law of Colorado, of course, which governs the question which we now consider, see Askin v. Dalgarno, 293 F.2d 424 (10th Cir. 1961), and the trial court’s view of state law within its district is to be upheld unless it is clearly erroneous.

The Supreme Court of Colorado considered this very question in Summit County Dev. Co. v. Bagnoli, 166 Colo. 27, 441 P.2d 658, 661-662 (1968). The court there held that the important aspects of assumption of risk are knowledge or awareness of a risk assumed and voluntary participation in it. The court in commenting on the extent of knowledge required to support assumption of risk quoted from Restatement of the Law of Torts Second 496, which states that the plaintiff must know the existence of the risk and must appreciate its unreasonable character. See also Appel-hans v. Kirkwood, 148 Colo. 92, 365 P.2d 233 (1961); Prosser, Law of Torts 461, 462 (3d ed. 1964).

Instruction on contributory negligence and assumption of risk given in the same case tend to confuse rather than to enlighten. See Summit County Dev. Co. v. Bagnoli, supra. A juror is apt to consider assumption of risk as a bar to recovery for an injury incurred in an activity such as that at bar regardless of whether the risk was one about which the plaintiff was aware or not. Thus, in a skiing case such as the Colorado Supreme Court had before it in Summit County Dev. Co. v. Bagnoli, supra, the jury might find that the plaintiff had assumed the risk by participating in the activity. Similarly here a jury could conceivably jump to the mistaken conclusion that one who takes part in judo lessons accepts all hazards seen and unseen. Accordingly, we are of the opinion that sound reason existed for the trial court’s rejection of this instruction.

II.

A. THE ALLEGED EXCESSIVENESS OF THE VERDICT

Appellant levels its attack against the award in the amount of $150,000.00 to appellee Cheryl Wells, contending that this amount was excessive in light of the injuries suffered and the extent of permanent disability. In order for this court to set aside the jury award it would have to be convinced that the jury was guilty of an abuse of discretion and the verdict was the result of bias, prejudice or passion. See 3 Barron & Holtzoff (Wright ed.) 1302.1. Such bias, prejudice or passion can be inferred from excessiveness. Earl W. Baker & Co. v. Lagaly, 144 F.2d 344, 347 (10th Cir. 1944). However, a ver-diet will not be set aside on this basis unless it is so plainly excessive as to suggest that it was the product of passion or prejudice on the part of the jury. See Snowden v. Matthews, 160 F.2d 130, 131 (10th Cir. 1947).

In the case at bar the injury was unquestionably severe. Notwithstanding two operations, the condition persisted and undisputedly plaintiff’s activities have been curtailed. Considering the duration time wise of her disability, the pain and suffering involved and her loss of one year of schooling, together with the fact that, at least from the indications, she is permanently disabled, we would not be justified in setting aside the award as excessive. The most that' can be said is that it is on the high side, but abuse of discretion is not apparent.

B. LOSS OF EARNINGS

Nor did the court err in instructing the jury on the loss of earnings, past and future. It is true that the evidence established that the plaintiff had not been employed — that she had been a student. But even assuming that the plaintiff had not established in specific terms her earning capacity, from that fact it does not follow that the jury was not entitled to consider her training, her athletic prowess, her personality before and after and other factors from which it was to be reasonably concluded that she had potential earning capacity and from concluding also that her earning capacity had been and now has been impaired. Cf. Thompson v. Tartler, 166 Colo. 247, 443 P.2d 365 (1968). See also Annot. 18 A.L.R.3d § 2 at 96.

C. LOSS OF ENJOYMENT

The trial court’s charge contained an instruction on past and future “pain, suffering and mental anguish.” The judge then went on to say:

In this connection you may take into account, and you should take into account, plaintiff’s interests and past way of life and you may allow for any loss of enjoyment of life for any emotional strain or any mental suffering which you find proximately resulted from the negligence of the defendant or its agents.

Accordingly, the element of loss of enjoyment was tied to emotional strain or mental suffering. As we view this, it was more an explanation of mental suffering than allowance of damages for loss of enjoyment of life as such.

The Supreme Court of Colorado has neither approved nor disapproved loss of enjoyment as an element, and so even if the instruction in question had not submitted loss of enjoyment as a part of pain and suffering, we are not saying that the instruction would have been invalid. It is unnecessary to pass on that. We note that a few cases have disallowed recovery for loss of enjoyment of life as a separate element of damages because of its vagueness. Nevertheless, a number of courts have recognized it. See the recent note in 15 A.L.R.3d 506, 511, 513. A number of courts have held that loss of the capacity to enjoy life, resulting from personal injuries, is a proper element of damages, separate and distinct from pain and suffering. See 15 A.L.R.3d § 5 at 514.

Accordingly, we are unable to agree with appellant that the instruction was erroneous.

III.

DENIAL OF MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT

Notwithstanding that the appellee has not argued the present issue, we have carefully considered the evidence and are of the opinion that the plaintiff made out a prima facie case of negligence because the activity was a hazardous one; it was being performed by an expert and his duty of care was commensurate with the high degree of hazard and the likelihood of injury if the judo throw went awry.

We are of the opinion that the judgments of the district court should be and the same are hereby affirmed. It is so ordered.

      . Plaintiff’s injury occurred on February 21, 1968, and according to her testimony she was continuing to suffer pain and disability on the date of the trial which was March 2, 1972.

      . The author there states :
      “Knowledge of the risk is the watchword of assumption of risk.” Under ordinary circumstances the plaintiff will not be taken to assume any risk of either activities or conditions of which he is ignorant. Furthermore, he must not only know of the facts which create the danger, but he must comprehend and appreciate the danger itself. “A defect and the danger arising from it are not necessarily to be identified, and a person may know of one without appreciating the other.” The standard to be applied is, in theory at least, a subjective one, geared to the particular plaintiff and his situation, rather than that of the reasonable man of ordinary prudence who appears in contributory negligence. If because of age or lack of information or experience, he does not comprehend the risk involved in a known situation, he will not be taken to consent to assume it. His failure to exercise ordinary care to discover the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence.


author: SIMPSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sam PRESLEY, Sr., et al., Defendants-Appellants.
    No. 71-3577.
    United States Court of Appeals, Fifth Circuit.
    May 4, 1973.
    Rehearing Denied June 27, 1973.

      Roland J. Mestayer, Jr., Pascagoula, Miss.,' Thomas M. Haas, Mobile, Ala., for defendants-appellants.

      Robert Hauberg, U. S. Atty., Jackson, Miss., Paul G. Kratzig, Sp. Atty., U. S. Dept, of Justice, New Orleans, La., Sidney M. Glazer, Shirley Baecus-Lobel, U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and GODBOLD and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

In July, 1970, appellants and co-defendant Pat Presley, all Mississippi residents at the time of the alleged offenses, were indicted for offenses in connection with the operation of a gambling casino in Mississippi on various dates between July, 1965, and January, 1966. The appellant, Sam Presley, Sr. owned the Sage Patch Casino in Jackson County, Mississippi, and the other appellants were his employees. Count One charged a violation of 18 U.S.C. Section 371, by conspiring to use a facility of interstate commerce for the purpose of managing, establishing, carrying on, facilitating or promoting illegal gambling activities in violation of 18 U.S.C. Section 1952. Counts Two through Eight charged substantive violations of Section 1952. For purposes of this appeal, appellants admit that illegal gambling activities were conducted and that the interstate facility employed to promote their gambling activities was the collection by use of the mails, “of” out of state checks given them by their customers and deposited in a Mississippi bank.

Appellants were arraigned on August 10, 1970, and pled “Not Guilty” to all counts of the indictment. Various motions thereafter filed by appellants were heard and overruled in January, 1971, by the district judge in a written opinion. On March 9, 1971, appellants and their co-defendant Pat Presley were allowed to withdraw their pleas of “Not Guilty” and enter pleas of nolo contendere. Pursuant to Fed.R.Crim.P. II the court addressed each defendant personally in an effort to determine that the nolo con-tendere pleas were made voluntarily and with understanding of the nature of the charge and the consequences of the plea. Based upon the pleas of nolo contendere, and satisfied as to compliance with Rule 11, the court made a finding of “Guilty,” passed the case for sentencing at a future date, and requested a pre-sentence report.

On April 5, 1971, the United States Supreme Court by its opinion in Rewis v. United States, 1971, 401 U.S. 808, 91 S.Ct. 1056, 28 L.Ed.2d 493; interpreted Section 1952 as applying to situations which involved more than “merely conducting the illegal operation,” not where the interstate activity was purely incidental to the illegal operation. 401 U.S. at 813, 91 S.Ct. at 1060, 28 L.Ed.2d at 497. When Rewis came to the attention of their counsel, appellants filed a motion in the district court to dismiss the indictment on the ground of failure to charge a federal offense, relying on Rew-is. Hearing on the motion was set for November 8, 1971. In the meantime, notice was sent to each defendant to appear for sentencing November 9, 1971.

The hearing on the motion to dismiss was held as scheduled and the district court ruled the next day that appellants’ reliance on Rewis was misplaced and thus denied the motion. Immediately thereafter, still prior to sentencing, each defendant requested leave of court to withdraw his plea of nolo contendere substitute the plea of not guilty and an opportunity to present facts and legal argument in support of his motion. These requests were denied on the apparent basis that the assertion that a recent decision might affect the legality of the indictment was not sufficient ground to warrant further delay or withdrawal of pleas knowingly and voluntarily entered. Sentence was then imposed.

Following sentencing appellants filed a number of motions, of which the most significant here was a request for the court to reconsider its denial of their motions to substitute pleas of not guilty for their nolo contendere pleas. The district judge denied all motions and appellants appeal. We reverse.

Rule 32(d), Fed.R.Crim.P., provides safeguards against the consequences of an improvident plea of guilty or nolo contendere, as follows:

“Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.”

This rule does not confer an absolute right to withdraw a plea of guilty or nolo contendere before the imposition of sentence, but leaves to the sound discretion of the trial judge the decision whether a defendant has met his burden of showing adequate cause for permitting withdrawal of the plea, as we have held in a number of cases. United States v. Valdez, 5 Cir. 1971, 450 F.2d 1145; United States v. Arredondo, 5 Cir., 1971, 447 F.2d 976; Kirshberger v. United States, 5 Cir. 1968, 392 F.2d 782. We have adhered nonetheless to the general principle that Rule 32(d) should be construed liberally in favor of the accused when a motion is made to withdraw before sentence is imposed. Kirshberger v. United States, supra, at 784, and cases cited therein. The right of jury trial is involved and that right has long held a favored place in our law.

As the rule itself implies, there is a different standard for granting the motion prior to sentencing as compared to after sentencing. Wrote Chief Judge Haynsworth of the Fourth Circuit in United States v. Roland, 4 Cir. 1963, 318 F.2d 406, 409:

“Such motions before sentence should be allowed with great liberality, but after judgment and the imposition of the sentence, the Rule gives the Court the power to grant such a motion if such action appears to be necessary ‘to correct manifest injustice’ ”.

We do not have a case where a defendant based his i*equest to change his plea on a mistake of fact, e. g. Arre-dondo, or on mere indecisiveness, e. g. Valdez, or on an intuitive skepticism as to whether a conviction could be obtained, or for alleged promises that remained unfulfilled when the defendant earlier assured the court that no promises had ever been made, e. g. Kirshberger. In these and similar situations reversals of the trial judge’s discretion are rare. Rather, this appeal goes to right of the district court even to hear the case. If the Rewis holding governs appellants’ factual situation then their offenses were beyond the limits of the criminal jurisdiction which Congress intended to confer on the federal courts. The Legislative history of Section 1952, commonly referred to as the Travel Act, has been interpreted to mean that sensitive federal-state relationships were not to be altered and that essentially minor state offenses were not to be transformed into federal felonies and thus over-extend federal police resources. The purpose of Congress, instead, was to reach criminal activities extending beyond the borders of a single state by providing federal assistance in situations where local law enforcement is likely to prove ineffective. Rewis, supra; United States v. Altobel-la, 7 Cir. 1971, 442 F.2d 310; United States v. McCormick, 7 Cir. 1971, 442 F.2d 316. In short, if this interpretation of Section 1952 fits appellants’ situation, they were refused their expressed desire to withdraw their plea of nolo contendere and to plead not guilty and thereupon sentenced for acts which may not have constituted a federal offense.

While guilty or nolo contendere pleas are generally viewed as a waiver of non-jurisdictional defects, including the right to assert certain constitutional rights, “[f]or this waiver to be valid under the Due Process Clause, it must be ‘an intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).” McCarthy v. United States, 1969, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418. In De Leon v. United States, 5 Cir. 1966, 355 F.2d 286, 289, we said:

“Courts must always be diligent to ascertain whether a plea of guilty was understandingly made, and when it appears before sentencing that such a plea was entered by a defendant who did not understand the charges or acted as a result of mistake, it is an abuse of discretion not to permit the plea to be withdrawn.” (Emphasis in the original.)

When the Rewis interpretation of the Travel Act was brought to the attention of the trial judge, it should have been clear that the admitted facts may not have been sufficient to warrant a federal charge of violation of Section 1952. There was no admission as to the nature or extent of appellants’ reliance on the use of the interstate facility in aid of their unlawful conduct. Altobella, supra, holds that the use of the interstate collection process for cheeks must be more than “purely incidental” to appellants’; illegal state activities. 442 F.2d at 315. Here, prior to sentencing, appellants called to the district court’s attention a Supreme Court decision which may substantially affect their legal rights, but was unknown to them— because not yet rendered — at the time they pleaded nolo contendere. This did not constitute such an “intentional relinquishment or abandonment of a known right or privilege” as to overcome the presumption against waiver of fundamental constitutional rights.

Upon a jury trial appellants may be able to persuade the court as a matter of the law that they come under the Rewis protective umbrella. Failing that, they would be entitled to have the question submitted for jury determination under appropriate instruction. At the least they were entitled to try to make a record in this respect.

Appellants raised the issue of the extent of coverage of Section 1952 at the earliest possible time after that defense became available to them, before sentence was actually imposed. There is no indication that the Government has been substantially prejudiced by reliance upon their pleas. We hold therefore that appellants should have been permitted to withdraw their pleas of nolo contendere and to go to trial before a jury on pleas of not guilty. The district court is reversed for its refusal to permit this to be done.

The indictment is not susceptible to outright dismissal at this stage because the facts have not been sufficiently developed to determine the extent and significance of the crossing of state lines to the furtherance of the operations of the illegal gambling casino. The gambling operation in Rewis was frequented by out-of-state bettors; there was no evidence that the operators had themselves used an interstate facility to further their activities. However, the Supreme Court said, “Still, there are cases in which federal courts have correctly applied Section 1952 to those individuals whose agents or employees cross state lines in furtherance of illegal activity. . . .” 91 S.Ct. at 1060. The Seventh Circuit in Altobella, 442 F.2d at 313, found there was “no evidence in the record of any actual or intended use of the mails by appellants with the single exception of their acceptance of their victim’s offer to cash a check for $100 at his hotel.” Thus, it is for the jury to weigh the number of incidents proved in which appellants employed interstate commerce to advance illegal activities and the degree of their significance to the operation of the casino. When those facts are developed, the trial court may be able to determine as a matter of law that no offense is made out under Section 1952, or it may be necessary to submit this issue to the jury.

Appellants raise several other grounds of appeal, none meritorious. We make brief reference to two of these contentions for the guidance of the trial court in the event of re-trial.

The claim is made that prejudicial error occurred in the denial below of motions to suppress statements given by appellants Sam Presley, Sr., Machefsky and Charles Ray Presley to agents of the Internal Revenue Service.

Machefsky and Charles Ray Presley appeared in response to administrative subpoena, under Sec. 7602 of the Internal Revenue Code of 1954, to testify as to Sam Presley, Sr.’s tax liability. The district court correctly held on the evidence produced that the statements were given voluntarily and in the presence of retained counsel. They were not misled as to the nature of the investigation. Donaldson v. United States, 1971, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580, United States v. Tonahill, 5 Cir. 1970, 430 F.2d 1042, 1044-1045. Nor were the agents under duty to warn these appellants of the possibility of their prosecution under Section 1952 when the possible use of interstate facilities became apparent during the interview. Hoffa v. United States, 1966, 385 U.S. 293, 303, 87 S.Ct. 408, 17 L.Ed.2d 374. United States v. Prudden, 5 Cir. 1970, 424 F.2d 1021, 1025-1033; United States v. Stribling, 6 Cir. 1971, 437 F.2d 765, 772; United States v. Squeri, 2 Cir. 1968, 398 F.2d 785, 788.

As to Sam Presley, Sr. he attended the August 11 meeting of his own volition, accompanied by his accountant, as he had several other meetings with Internal Revenue Service agents earlier. He was not under compulsion either to attend or to 'make any statement. No Fifth Amendment Miranda situation was present. See United States v. Prudden, supra, 424 F.2d at 1025-1031.

Appellants further complain on Sixth Amendment speedy trial grounds, of the more than four years delay occurring between the date alleged as the end of the conspiracy as well as the dates of the substantive offenses, and the date of indictment.

This point is not well taken, inasmuch as no attempts were ever made by appellants to seek speedier trial, no prejudice is shown from delay, and the offenses occurred well within the statute of limitations. Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101; United States v. Marion, 1971, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; Kroll v. United States, 5 Cir. 1970, 433 F.2d 1282, 1286, cert. denied 1971, 402 U.S. 944, 91 S.Ct. 1616, 29 L.Ed.2d 112; United States v. Seay, 5 Cir. 1970, 432 F.2d 395, 403; United States v. Grayson, 5 Cir. 1969, 416 F.2d 1073, 1076-1077, cert. denied, 396 U.S. 1059, 90 S.Ct. 754, 24 L.Ed.2d 753 (1970) ; Bruce v. United States, 5 Cir. 1965, 351 F.2d 318, cert. denied, 384 U.S. 921, 86 S.Ct. 1370, 16 L.Ed.2d 441 (1966).

Reversed.

      . Miss.Code 1942 Ann. tit. 11, eh. 1, Sections 2190 & 2192, classifies gambling as a misdemeanor.

      . § 1952. Interstate and foreign travel or transportation in aid of racketeering enterprises
      (a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to—
      (1) distribute the proceeds of any unlawful activity; or
      (2) commit any crime of violence to further any unlawful activity; or
      (3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity,
      and thereafter performs or attempts to perform any of the acts specified in sub-paragraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both.
      (b) As used in this section “unlawful activity” means (1) any business enterful activity” means (1) any business prise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of the State in which they are. committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.
      te) Investigations of violations under this section involving liquor or narcotics shall bo. conducted under the supervision of the Secretary of the Treasury.
      Added Pub.L. 87-228, § 1(a), Sept. 13, 1961, 75 Stat. 498, and amended Pub. L. 89-68, July 7, 1965, 79 Stat. 212.
      Subsequent to appellants’ indictment, Section 1952 was amended to cover the Controlled Substances Act, Title 21» U.S.C. Chapter 13, Subchapter I, Secs. 801-904, inclusive. The amendment in no way affects this case. It reads :
      § 1952. Interstate and foreign travel or transportation in aid of racketeering enterprises * * * * *
      (b) As used in this section “unlawful activity” mean (1) any business enterprise involving gambling, liquor on which the Federal excise tax has not been paid, narcotics or controlled substances (as defined in section 102(6) of the Controlled Substances Act), or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.
      (c) Investigations of violations under this section involving liquor shall be conducted under the supervision of the Secretary of the Treasury. As amended Pub.L. 91-513, Title II, § 701 (i) (2), Oct. 27, 1970, 84 Stat. 1282.

      . Rule 11, Federal Rules of Criminal Procedure :
      A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the idea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.
      As amended Feb. 28, 1966, Eff. July 1, 1966.