author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Blanca PENA-OZUNA, Defendant-Appellant.
    No. 74-2713.
    United States Court of Appeals, Ninth Circuit.
    Feb. 18, 1975.

      Federal Defenders, Inc., San Diego, Cal., for defendant-appellant.
    Peter K. Nunez, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

       Honorable William J. Jameson, United States District Judge, District of Montana, sitting by designation.

   OPINION

Before CARTER and WALLACE, Circuit Judges, and JAMESON, District Judge.

PER CURIAM:

Pena-Ozuna appeals from her conviction of conspiracy to distribute and distribution of heroin in violation of 21 U.S.C. §§ 846, 841(a)(1). Her trial defense was entrapment. On appeal she questions only whether the jury instruction on that issue was erroneous. We affirm.

The instruction was taken, with minor modifications, from a book of suggested jury instructions and read as follows:

The defendant asserts that she was the victim of entrapment as to the crime charged in the indictment. The Government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped.
Where a defendant has no previous intent or purpose to violate the law, but is induced or persuaded by law-enforcement officers or their agents to commit a crime, she is the victim of entrapment, and the law, as a matter of policy, forbids her conviction in such a case.*
On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that Government agents provided what appears to be a favorable opportunity is not entrapment. For example, when the Government suspects that a person is engaged in the illicit sale of narcotics, it is not entrapment for a Government agent to pretend to be someone else and to offer, either directly or through an informer or other decoy, to purchase narcotics from such suspected person.
If, then, the jury should find beyond a reasonable doubt, from the evidence in the case, that before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit the crimes as charged in the indictment, whenever opportunity was afforded, and the Government officers or their agents did no more than offer the opportunity, then the jury should find the defendant is not a victim of entrapment.
On the other hand, if the evidence does not convince you beyond a reasonable doubt that the defendant had the previous intent or purpose to commit the offense of the character here charged, and did so without being induced or persuaded by some officer or agent of the Government, then it is your duty to acquit her.

(Asterisk and emphasis added.) PenaOzuna claims that the trial court should have deleted the italicized language or, alternatively, added the following after the asterisk:

For example, where a Government agent pretending to be someone else, either directly or through an informer or other decoy, induces or persuades a person who does not have a previous intent or purpose to violate the law to distribute narcotics, this constitutes entrapment.

Pena-Ozuna does not contend that the instruction misstates the law of entrapment. She admits that the standard instruction upon which it was patterned “might .be considered ‘appellate-approved’ in light of United States v. Griffin, 434 F.2d 978 (9th Cir. 1970).” Accord, United States v. Watson, 489 F.2d 504, 506, 510-11 (3d Cir. 1973); United States v. Pollard, 483 F.2d 929, 932 (8th Cir. 1973), cert. denied, 414 U.S. 1137, 94 S.Ct. 882, 38 L.Ed.2d 762 (1974). She argues instead that the suggested modifications would not only be an improvement, but that without these modifications the instruction cannot fairly be applied to her case. Specifically, she contends that the instruction must contain examples of both successful and unsuccessful entrapment defenses, or no examples at all.

We do not require trial judges to use standard jury instructions or specific language approved in prior cases. Indeed, we have indicated that standard instructions may not always pass muster. See United States v. Cummings, 468 F.2d 274, 281 (9th Cir. 1972). The critical question is, considering the instruction as a whole, was the jury fairly instructed on the issue of entrapment. Northern Cal. Pharmaceutical Ass’n v. United States, 306 F.2d 379, 388 (9th Cir.), cert. denied, 371 U.S. 862, 83 S.Ct. 119, 9 L.Ed.2d 99 (1962); Beck v. United States, 298 F.2d 622, 634-35 (9th Cir.), cert. denied, 370 U.S. 919, 82 S.Ct. 1558, 8 L.Ed.2d 499 (1962); Benatar v. United States, 209 F.2d 734, 742-43 (9th Cir.), cert. denied, 347 U.S. 974, 74 S.Ct. 786, 98 L.Ed. 1114 (1954); cf. Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973).

We find here that it was. Therefore, we need neither determine whether there is a better way of instructing the jury on the issue of entrapment nor hold that only standard language may be used. Here, the jury was fairly informed of the law of entrapment and that is all to which Pena-Ozuna was entitled.

Affirmed.

      . E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 13.13 (Supp.1974).


source: Caselaw Access Project

author: LIVELY, Circuit Judge.

license: Public Domain

text:
    Shiah M. ARSHAM, Plaintiff-Appellant, v. Walter BANCI et al., Defendants-Appellees.
    No. 74-1673.
    United States Court of Appeals, Sixth Circuit.
    Feb. 24, 1975.

      Samuel T. Gaines, Gaines & Stern, Charles Auerbach, Cleveland, Ohio, for plaintiff-appellant.
    Avery S. Cohen, Charles M. Rosenberg, Gottfried, Ginsberg, Gurren & Merritt, Cleveland, Ohio, David A. Botwinik, Pavia & Harcourt, New York City, for defendants-appellees.
    Before LIVELY, Circuit Judge and McALLISTER and O’SULLIVAN, Senior Circuit Judges.
   LIVELY, Circuit Judge.

In this diversity action the plaintiff Arsham sought damages from the defendants (hereafter collectively referred to as Banci) for breach of an alleged oral contract. Banci manufactures textile fabrics in Italy for sale to the clothing industry in the United States and elsewhere. In 1967 Banci’s primary outlet for fabrics used in women’s sportswear was Russ Togs, and Banci was actively seeking another major customer for such fabrics. Lawrence Pleet, an employee of Banci at the time, suggested Arsham as one who could “open the door” to Bobbie Brooks, Inc., a major manufacturer of women’s sportswear. Arsham was an experienced operator in the field of clothing fabrics who had a close personal and business relationship with Maurice Saltzman, the president of Bobbie Brooks.

Both Arsham and Saltzman were residents of Cleveland, Ohio, the headquarters of Bobbie Brooks. Banci maintained a permanent office in New York City. At Banci’s direction, Pleet contacted Arsham and a meeting was arranged between Arsham and Banci. The parties met in the New York office of Banci on June 19, 1967 and it was at this meeting that Arsham claims an oral contract was made. According to Arsham’s testimony, Banci told him that he knew of Arsham’s relationship with Bobbie Brooks and that he had a proposition that would benefit both of them. The testimony of Arsham continued:

And he proposed selling his line to Bobbie Brooks. And he wanted to know if I could open the door and get started. That were the words he used, could I get him started in there, and I said yes.
Q. Now, prior to that time had you contacted anybody at Bobbie Brooks in an effort to open the door for Banci? A. No, not at all. Before this meeting? No. .
******
A. Now, will you get back to this talk you had with Mr. Banci? You told us that he wanted you to open the door for Banci with Bobbie Brooks. Anything else said at that time? A. Well, I asked him what’s in it for me, if I can do this. He said he would give me 5 percent and I agreed with him that my compensation was to be 5 percent of the first year’s sales. And I told him at that time that it would take that long before — before that he asked me how long it would be, I said it could be a day, a week, a month, 6 months, a year, but I will certainly finish it before the year is up, and we settled at May 31st. I remember that very clearly.
Q. Now, you settled what as of May 31st? A. Pardon? That our agreement would be finished May 31st, 1968.
Q. And what did that mean to you? A. It means I had a year in which to open the door and I would get 5 percent of the sales written in that year.

Shortly thereafter Arsham met with Maurice Saltzman in Cleveland, told him about Banci’s operations and showed him several samples of fabrics which Banci was manufacturing for Russ Togs. Saltzman was interested and turned the matter over to the vice-president of Bobbie Brooks in charge of merchandising. As the result of this meeting, a showing of Banci’s fabrics was arranged. This took place in the New York office of Bobbie Brooks. After looking at several suitcases of Banci samples, the designer for Bobbie Brooks stated that his company was not interested because the fabrics “had too much of a men’s look.” Although Banci knew that Bobbie Brooks manufactured only women’s wear, about 40% of the samples which he displayed at this meeting in August 1967 were designed for use in men’s clothing. Arsham, Banci and Pleet were all present at this showing.

After this rejection, Banci stated that he would return to Italy and “put together a line more in keeping with what Bobbie Brooks wanted . . ..” According to Arsham he kept in touch with the New York buyer and the merchandising vice-president of Bobbie Brooks and passed along to Banci suggested patterns and colors which Bobbie Brooks wanted Banci to supply. Arsham did not discuss the matter further with Maurice Saltzman or attend any other meetings between Banci and Bobbie Brooks personnel. In December 1967 or January 1968 Banci did display a new line of fabrics to Bobbie Brooks. This line suited the needs of Bobbie Brooks, and substantial orders were placed with Banci for these fabrics.

The testimony of Lawrence Pleet, who was no longer with Banci at the time of the trial, supported that of Arsham. His description of the discussion between Arsham and Banci at the August meeting, and his understanding of their arrangement are contained in the following excerpts from his testimony:

Q. In your presence what did you hear Mr. Banci say to Mr. Arsham, and what did Mr. Arsham say to Mr. Banci? A. Mr. Banci told Mr. Ar-sham that he wanted to open up the Bobbie Brooks account as quickly as possible. Mr. Arsham agreed to try to do so, felt that he could do so. And Mr. Arsham brought out the fact that although of his friendship — he mentioned the friendship — but he also said due to the business situation in that he was busy, Mr. Saltzman, whom he was going to see, was also busy and he couldn’t promise any specific time that he could get to it, get a meeting of the two of them together, but he would do it as fast as humanly possible, make a meeting and find out if Mr. Saltzman would be interested in going further and he would report back.
He said, though, I remember he said he would try to do it as fast as possible, but he didn’t pinpoint any particular time. Mr. Banci at that time said, “Go to it, do the best you can as fast as you can.” And that is where that left.
Mr. Arsham asked him how did he fit into the overall picture if he were successful in doing this, and Mr. Banci told him that he would. receive a 5 percent commission for doing this, and that was it. It took a little more time than that, but that was the essence of the meeting.
Q. I am sorry. I forgot a question in terms of the meeting. I am going back now to the meeting when the three of you, Mr. Arsham, Mr. Banci and yourself, and you testified that Mr. Arsham was to act as — would you define for me what it was Mr. Arsham was to do? A. Mr. Arsham merely was to — again in the trade we call it open the door- — was to set up the channel for Walter Banci and our organization to have the opportunity to meet with the proper people to display our products. It was a “a door opening situation.”
Q. And I understand that what you say by door opening, that his responsibility ended at the moment the door opened? A. I don’t know whether that is defined as such. Basically someone that opens the door tries to follow it through until the parties get together, and then he steps aside and leaves the work to the two parties.
Q. He was not really to negotiate the transaction? A. That is correct, sir. He was just to get us together and get us with the proper people and get us the opportunity.
Q. And he wouldn’t have to service the account in any way? A. No. That is correct. I stated at that meeting Mr. Arsham stated that he was not in a position to service the account, he had obviously other things that he was working on, and he definitely stated that he was not going to service it at all, that his function was to be as I just mentioned^

Banci was not asked to give his version of the meeting of June 19, 1967. His testimony of contacts with Arsham and with Bobbie Brooks is, in pertinent part, set out below:

Q. Did there come a time when you discussed Bobbie Brooks with Mr. Ar-sham? A. Yes. Mr. Arsham speak to me about Bobbie Brook.
Q. When was this? A. In 1966. And he say that he can get business for me from Bobbie Brook.
Q. Did you have any further conversations with Mr. Arsham about Bobbie Brooks? A. Yes. Several time I say when you put me in business with Bobbie Brook, when I can get my orders. And he reply wait, can’t be the moment. Finally one day he came saying that he got the appointment with Bobbie Brook. And I remember that we go together at Bobbie Brook, 1 Park Avenue, and we meet there Mr. Glen Bruce, that this time was the chief stylist of the entire line of Bobbie Brook. And I also meet Marshall.
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Q. Now, prior to that meeting did you have any discussion with Mr. Ar-sham with regard to the compensation he would receive if he obtained orders from Bobbie Brooks or— A. No, we do not speak about this, because naturally if he got for me sign order from Bobbie Brook, I must to pay commission.
Q. And there was no specific discussion of any percentage as far as you can remember? A. No.
Q. O.K. Now, at that meeting you said you met several people. Did you show a line of goods? A. I showed a 1967 line both for men that came University Mills line made from me, and also the ladies’ line, 1967 ladies’ line. But Mr. Bruce do not found nothing interesting, and I do not get business.
Q. O.K. Now, did Bobbie Brooks give you any orders arising from the goods which you showed at that meeting? A. No. Absolutely no.
Q. When was your next contact with Bobbie Brooks? A. I remember that at the end of 1967, around December, my mill made a new line that got new revolutionary items, the turbo acrylics. Only America make this time this fabric. And my mill was the second in the entire world, and is very hot items. And every pieces that we can produce we sell immediately.
At this point I say now I got the possibility to get Bobbie Brook account. And I know that in this company we got this time a big buying change. Mr. Maurice Saltzman the president is no more president, and Mr. Adler take his place. Mr. Bruce is no more the stylist, but Mr. Pezor, Larry Pezor take his place. Mr. Marshall is no more with the company. I call Mr. Adler’s secretary, and I say I am Walter Banci from Italy, et cetera, et cetera, and I got the new turbo acrylic for immediate delivery.
The day after the secretary called back and say Mr. Adler wanted to speak with you, to make an appointment. And she ask to bring the line of turbo, I mean the line of turbo and also the other line of fabric, but they are interested say only turbo, and he look at the line and they immediately give me business, sample pieces, and they want the option to get turbo order. And I was in business with Bobbie Brook.
Q. Now, at that meeting that you had with Mr. Adler, was Mr. Arsham present? A. No. Mr. Arsham disappear. I don’t saw no more Mr. Ar-sham from the meeting with Mr. Bur-stein no more.
Q. Was Mr. Arsham’s name mentioned at that meeting? A. No, absolutely no.
Q. Did Mr. Arsham bring you any orders out of that meeting? A. No.
* * * * * *

Banci testified that he had never paid anyone just for introducing him to a possible customer and that he paid commissions to agents and salesmen only after the customers had paid for the goods ordered through such persons. In other words, no commission was due unless the salesman procured a signed order and the purchaser paid for the merchandise. An Internal Revenue agent who was trying to collect past due taxes from Ar-sham in the fall of 1967 testified by deposition. He stated that Banci told him that Arsham would be paid some money if he was successful in obtaining orders from Bobbie Brooks for Banci fabrics.

On May 3, 1968'Arsham sent a letter to Banci advising that he knew of large sales by Banci to Bobbie Brooks and demanding that he be paid a commission on them. Banci did not respond to the letter, but Arsham testified that he saw Banci in New York a few days later at which time Banci agreed to pay 5% on all orders received from Bobbie Brooks through May, 1968, with one-half the payment deferred until a later time. Arsham stated that he received several checks totaling about $3,500.00 from Bobbie Brooks during 1968. It was shown that Banci reduced the price of some of the goods sold to Bobbie Brooks by four cents per yard. Banci denied that he made any agreement to pay Ar-sham and said that Bobbie Brooks requested the price reduction in order to make a “gift” to Arsham. The district court found that the price reduction took place prior to the meeting between Ar-sham and Banci in May, 1968 and that Banci did not renegotiate the terms of a previous agreement at that time.

The district court rendered judgment for the defendants. It found (Finding of Fact No. 23) that “Banci obtained Bobbie Brooks as a . . . customer independently of Arsham’s efforts. Ar-sham did not procure any signed orders from Bobbie Brooks.” The court concluded that New York was the place where the purported contract was made and where Banci ultimately accepted orders from Bobbie Brooks. From this it was determined that New York law should be applied in deciding whether a valid contract existed between the parties. Citing New York cases the court held:

According to plaintiff’s evidence, Banci made an offer for a unilateral contract. Arsham did not successfully complete the necessary activity which would have contractually bound the defendants. There being no binding offer and acceptance, a contract did not exist between the parties. (Conclusion of Law No. 4.)

The court further concluded that Ar-sham was not entitled to recover on a quantum meruit basis because his efforts did not result in the sale of goods to Bobbie Brooks, or in quasi contract, because “Banci did not derive a benefit from Arsham’s efforts.”

On appeal we are urged to hold that several of the key findings of fact are clearly erroneous. It is also contended that the conclusions of law which the court adopted relate directly to erroneous findings of fact and do not accurately state the rules of law which control this case. In addition to disputing these arguments. Banci argues that whatever arrangement was made between the parties was invalid under the New York statute of frauds. The statute of frauds was pled as a defense in Banci’s answer, but the district court did not rule on it. We will consider this issue first.

The district court was required to apply the conflict of laws rule of Ohio in this case. Klaxon Co. v. Stentor Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); MacPherson v. MacPherson, 496 F.2d 258, 261 (6th Cir. 1974). Ohio follows the traditional rule of lex loci. Under this rule, the law of the place of making governs the validity of a contract. Heaton v. Eldridge & Higgins, 56 Ohio St. 87, 97-98, 46 N.E. 638 (1897); Sheerin v. Steele, 240 F.2d 797 (6th Cir.), cert. denied, 353 U.S. 938, 77 S.Ct. 816, 1 L.Ed.2d 760 (1957). Even though Ohio treats its own statute of frauds as procedural, Heaton v. Eldridge & Higgins, supra, 56 Ohio St. at 100-102, 46 N.E. 638, if the statute of the state where a contract is made declares it to be “void” if not in writing, the courts of Ohio will .not enforce the agreement. The Detroit & Cleveland Navigation Co. v. Hade, 106 Ohio St. 464, 140 N.E. 180 (1922). As stated in 9 Ohio Jurisprudence 833, Conflict of Laws § 116, “The theory of such a case is that a contract void where made is void everywhere.”

Whatever agreement existed between Arsham and Banci was clearly made in New York. The statute of frauds of that state (Section 5-701, New York General Obligation Law, McKinney’s Consol. Laws, c. 24-A) provides in part:

Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking: ...
(1) By its terms is not to be performed within one year from the making thereof . . .. (23A McKinney’s Consolidated Laws of New York.)
10. Is a contract to pay compensation for services rendered in . negotiating the purchase, sale, exchange of a business opportunity, business, its good will, inventory . or an interest therein . . . ‘Negotiating’ includes procuring an introduction to a party to the transaction or assisting in the negotiation or consummation of the transaction. This provision shall apply to a contract implied in fact or in law to pay reasonable compensation . . . (23A McKinney’s Consolidated Laws of New York.)

Since this statute makes non-complying contracts “void,” if the transaction between Arsham and Banci was included within its provisions, Arsham’s claim must fail even if his version of the agreement is accepted.

The testimony does not support Banci’s contention that the “agreement” was one which “[b]y its terms is not to be performed within one year from the making thereof.” The fact that payment for Arsham’s services might take place more than one year after June 19, 1967 is not controlling. The only evidence of the duration of performance is that Arsham was to be paid a commission on all orders received by Banci through May 31, 1968, a time less than one year from the date of the alleged agreement. This transaction does not fall within Subsection 1 of Section 5-701.

Though the literal language of Subsection 10 of the New York statute appears to cover the transaction between Arsham and Banci, a number of decisions from New York courts have limited its application to situations where all or a substantial part of the assets of a business are involved, or control of a business will pass to the purchaser. Pass v. B.S.F. Co., 40 A.D.2d 813, 338 N.Y.S.2d 295 (1972); Clivner v. Ackerman, 51 Misc.2d 856, 274 N.Y.S.2d 112 (1966); Lounsbury v. Bethlehem Steel Corp., 53 Misc.2d 151, 277 N.Y.S.2d 700 (1967). Though the highest court of New York has not ruled on this question, the United States District Court for the Southern District of New York, in Atlas Steamship Chartering Corp. v. Dillingham Corp., D.C., 314 F.Supp. 1118, adopted the construction placed upon the statute by the lower courts of the State. We find this construction persuasive and hold that the transaction between the parties herein was not within Subsection 10 of Section 5-701.

Arsham asserts that there was no evidence to support that portion of a finding of fact in which the district court set forth Banci’s understanding of the discussion which took place on June 19, 1967. While it is true that Banci did not testify directly on this point, the court could properly infer from other positive testimony that Banci did not understand that he had made an agreement to pay a commission unless Arsham produced signed orders. The finding is not clearly erroneous. The other crucial finding which Arsham maintains is clearly erroneous is No. 23, heretofore quoted. It is undenied that Arsham obtained no signed orders from Bobbie Brooks. However, Arsham claims this is immaterial, and that the relationship of seller-purchaser which ultimately came into being between Banci and Bobbie Brooks resulted from his “opening the door.” There is certainly evidence to support this position, and if the district court had made such a finding, this court would not be permitted to set it aside. Rule 52(a), Fed.R.Civ.P. However, the evidence also shows that the only meeting between Banci and Bobbie Brooks personnel ended in a rejection of the Banci line. It further discloses that Arsham did not again contact Maurice Saltzman on behalf of Banci after the failure of the first showing. On the other hand, Banci redesigned his line, introduced a new fibre, and arranged a showing with different personnel of Bobbie Brooks who had replaced those who had agreed to and attended the first showing. None of the Bobbie Brooks people who were involved in exploring the possibility of purchasing fabrics from Banci as a result of Arsham’s conversation with Maurice Saltzman were involved in the second showing or the subsequent purchase, so far as the record discloses. Finding of Fact No. 23 is not clearly erroneous.

The district court correctly held that, rather than a bilateral agreement being entered into, Banci made an offer in return for an act. The only mode of acceptance by which a contract would have come into existence was for Ar-sham to perform the act upon which the offer was conditioned. In referring to the first meeting with Arsham, Banci testified, “[a]nd he say that he can get business for me from Bobbie Brook.” Arsham’s efforts did not produce “business” from Bobbie Brooks and thus there was no acceptance, and no contract. Huntington Pennysaver, Inc. v. Tire Supply Corp., 59 Misc.2d 268, 298 N.Y. S.2d 824 (D.C.Suffolk Co. 1969); Restatement of Contracts, § 59.

Having found that there was no contract between Arsham and Banci and that Banci obtained Bobbie Brooks as a customer independently of Arsham’s efforts, the district court correctly concluded that Arsham was not entitled to recover in quantum meruit or under a theory of quasi contract. An unsuccessful broker may not recover in quantum meruit when the principal subsequently sells to the same person whom the broker has contacted. Lounsbury v. Bethlehem Steel Corp., supra, 277 N.Y.S.2d at 706, quoting Levy v. Hayman, 8 A.D.2d 854, 190 N.Y.S.2d 152 (1959). Of course, the finding of no benefit to Banci precludes recovery in quasi contract, the purpose of which is to prevent unjust enrichment. Bradkin v. Leverton, 26 N.Y.2d 192, 197, 309 N.Y.S.2d 192, 257 N.E.2d 643 (1970), Restatement of Contracts, § 348.

We find no merit in the arguments of Arsham that Banci was guilty of bad faith or fraud.

Affirmed.

      . The Court of Appeals did discuss the legislative history and purpose of subsection 10, but did not construe the particular language here involved, in Intercontinental Planning, Ltd. v. Daystrom, Inc., 24 N.Y.2d 372, 300 N.Y.S.2d 817, 248 N.E.2d 576 (1969).


author: ALFRED T. GOODWIN, Circuit J udge: FRED M. TAYLOR, District Judge

text:
    Colin F. MacCOLLOM, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1659.
    United States Court of Appeals, Ninth Circuit.
    Aug. 2, 1974.
    Rehearing and Rehearing En Banc Denied Feb. 26, 1975.
    John A. Strait (argued), Public Defender, Seattle, Wash., for appellant.
    Charles F. Mansfield (argued), Asst. U. S. Atty., Seattle, Wash., for appellee.
    Before HUFSTEDLER and GOODWIN, Circuit Judges, and TAYLOR District Judge.

       The Honorable Fred M. Taylor, Senior United States District Judge for the District of Idaho.

   ALFRED T. GOODWIN, Circuit J udge:

Colin F. MacCollom appeals from the dismissal of his action for declaratory and injunctive relief. He seeks preparation, at government expense, of a verbatim transcript of his criminal trial to assist him in the preparation of a postconviction motion under 28 U.S.C. § 2255. We hold that he has the right to such a transcript, reverse, and remand the case.

MacCollom was convicted in the United States district court and was confined in 1970. Because he took no appeal, MacCollom did not request a transcript until March 1972, when he filed a “motion for transcript in forma pauper-is.” The clerk of the court notified MacCollom that until he filed a motion under 28 U.S.C. § 2255, the court had no power to act on his request. MacCollom then filed his complaint for declaratory and injunctive relief. His motion to proceed in forma pauperis was granted, and an attorney was appointed to assist him; but, on the government’s motion, the district court dismissed the action for failure to state a claim upon which relief could be granted. Counsel has candidly argued that he cannot represent to the court that specific constitutional grounds for relief exist until after he has seen a transcript. The present state of the law seems to tell him that he must discover some constitutional claim and assert it before he can see the transcript.

The right of an indigent to receive at government expense a stenographic transcript of his criminal trial has been the subject of a number of Supreme Court decisions over the past eighteen years. Beginning with Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Court has consistently held that “[ destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.” 351 U.S. at 19, 76 S. Ct. at 591. Later cases, reasoning from equal-protection and due-process principles have expanded the indigent’s right to a free transcript for use in a direct appeal. Eskridge v. Washington State Board of Prison Terms & Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958) (per curiam), held that a trial transcript, which under Washington procedure had to be filed with an appeal, could not be denied merely because the trial judge did not believe that an appeal would promote justice. Five years later, in Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963), a revised Washington procedure came up for review. There, the Court held that a trial judge’s determination that an indigent’s appeal was frivolous could not be substituted for appellate examination of a record full enough for the appellate court to draw its own conclusions. The next year, in Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964), the Court held on statutory grounds that in the federal courts an attorney newly appointed on appeal was entitled to a full trial transcript. Five years later, the Court extended Griffin to include an appeal from a drunken-driving conviction. Williams v. Oklahoma City, 395 U.S. 458, 89 S.Ct. 1818, 23 L.Ed.2d 440 (1969) (per curiam). Finally, in Mayer v. City of Chicago, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971), the Court reaffirmed its earlier holdings, stating that though a state need not provide an indigent with a trial transcript if other alternatives would provide him with adequate and effective appellate review, when the appellant shows a colorable need for the full transcript, the state has the burden of showing that only part of it or some substitute would be adequate.

Meanwhile, Griffin’s constitutional principle was being extended to appeals from the denial of collateral relief. In Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963), the Court held that a state prisoner was entitled to an appeal from the denial of a writ of error coram nobis in state court, even though the public defender who represented him at the time that the writ was denied believed that an appeal was useless and refused to order the required transcript. Two years later, in Long v. District Court of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966), the Court held that an indigent state habeas petitioner was entitled to a transcript of the hearing on his petition in order to appeal a denial of the writ. (Because a full transcript of the hearing was available, the Court did not consider whether a substitute would suffice.) Finally, in Gardner v. California, 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601 (1969), the Court held that where state law did not permit an unsuccessful habeas applicant to appeal directly but did permit him to file a new petition at the next appellate level, the state must furnish a verbatim record of the first habeas hearing, absent a showing that an alternative would be an adequate substitute.

Other Supreme Court decisions conferred the rights to a free transcript of a preliminary hearing, Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L. Ed.2d 41 (1967) (per curiam), and stated that where an adequate alternative did not exist the defendant was entitled to a transcript of a mistrial. Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971).

Where a state prisoner petitions federal courts for habeas corpus relief, the federal district court must hold an evidentiary hearing to make its own findings of fact and conclusions of law, if the petitioner did not receive a full and fair hearing on the merits of his claim in state court. In order to determine whether such a hearing was provided, the district court has the power to compel production of the complete state-court record, including a transcript of the testimony. Hence, a state prisoner who files a federal habeas petition is entitled to that portion of the state-court transcript relevant to a determination of the facts contested by him. See Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); 28 U.S.C. § 2254(e).

The Supreme Court has not specifically decided whether an indigent state prisoner, who has not stated precisely what errors he claims in his state-court conviction, must be provided with a free transcript of his original trial for use in a collateral proceeding. That question was raised, but not reached, in Wade v. Wilson, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970). There, the petitioner had used a borrowed transcript on his direct appeal, and, before the Court would decide whether a free copy must be supplied for purposes of the habeas proceeding, it required him to show that a transcript could not again be borrowed.

The precise question before this court —whether an indigent federal prisoner is entitled to a free transcript of his criminal trial to assist him in the preparation of a postconviction motion under 28 U.S.C. § 2255 — has not been decided by the Supreme Court. Other federal appellate courts, however, have held that a federal prisoner is not entitled to a free transcript under these circumstances, in the absence of a showing of need for the specific portion of the transcript which he requests. See, e. g., Cowan v. United States, 445 F.2d 855 (5th Cir. 1971); Bentley v. United States, 431 F.2d 250 (6th Cir. 1970), cert. denied, 401 U.S. 920, 91 S.Ct. 907, 27 L.Ed.2d 823 (1971); Benthiem v. United States, 403 F.2d 1009 (1st Cir. 1968), cert. denied, 396 U.S. 945, 90 S.Ct. 384, 24 L.Ed.2d 247 (1969); United States v. Shoaf, 341 F.2d 832 (4th Cir. 1964) .

This circuit did hold in Wilson v. Wade, 390 F.2d 632 (9th Cir. 1968), that an indigent state prisoner was not entitled to a free transcript in order to search for some basis for postconviction relief. We relied then upon what we conceded may have been dicta in McGarry v. Fogliani, 370 F.2d 42, 44 (9th Cir. 1967). See Wilson v. Wade, 390 F.2d at 634 n. 1. However, our judgment in Wilson v. Wade was vacated by the Supreme Court, and the case was remanded to the district court for further proceedings. 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970).

Taylor v. United States, 238 F.2d 409 (9th Cir. 1956), cert. denied, 353 U.S. 938, 77 S.Ct. 817, 1 L.Ed.2d 761 (1957), is the only decision of this court involving the right of an indigent prisoner to obtain a free transcript for use in a 2255 proceeding. We denied the petitioner’s request there, but that decision was handed down in 1956 only months after Griffin v. Illinois had been decided and before most of the case law in the free-transeript field had been developed. To the extent that Taylor may have been stating a constitutional doctrine, it has been thoroughly undercut by subsequent higher authority.

Moreover, Taylor is inconsistent with the prevailing rule in other circuits that an indigent prisoner in a 2255 proceeding is entitled to a free transcript if he can make a particularized showing of need. In Taylor the petitioner alleged that the government knowingly used perjured testimony to procure his conviction and that he was denied the effective assistance of counsel. Under current practice at least the first allegation probably would be sufficient to require production of the relevant portions of the transcript. Cf. United States v. McDowell, 305 F.2d 12, 14 (6th Cir.), cert. denied, 371 U.S. 927, 83 S.Ct. 296, 9 L.Ed.2d 508 (1962).

Congress had endorsed the rule, initially adopted by the Fourth Circuit, that an indigent federal prisoner must make a particularized showing of need before he can obtain a free transcript of his criminal trial. Title 28 U.S.C. § 753(f) provides:

“ * * * Fees for transcripts furnished in criminal proceedings to persons proceeding under the Criminal Justice Act (18 U.S.C. 3006A), or in habeas corpus proceedings to persons allowed to sue, defénd, or appeal in forma pauperis, shall be paid by the United States out of moneys appropriated for those purposes. Fees for transcripts furnished in proceedings brought under section 2255 of this title to persons permitted to sue or appeal in forma pauperis shall be paid by the United States out of money appropriated for _ that purpose if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal * *

However, for us to grant MacCollom the relief he seeks would not require us to declare section 753(f) unconstitutional. The second quoted sentence merely authorizes under certain circumstances the payment of fees for transcripts furnished in § 2255 proceedings. The section does not prohibit courts from also requiring the government to supply an imprisoned indigent with a free transcript before he files a 2255 motion. Such a court order would simply fill a constitutional deficit not addressed by the statute.

The sentence in 28 U.S.C. § 753(f) referring to proceedings brought under § 2255 was added in 1965 (Act of Sept. 2, 1965, Pub.L.No.89-167, 79 Stat. 647) to resolve a division of opinion among the circuits as to whether federal courts had the power, under the preceding sentence referring to habeas corpus petitions, to order transcripts for use in section 2255 proceedings. Compare United States v. Glass, 317 F.2d 200 (4th Cir. 1963), with United States v. Stevens, 224 F.2d 866 (3rd Cir. 1955). (See Sokol, The Availability of Transcripts for Federal Prisoners, 2 Am.Crim.L.Q. 63 (1964), which traces the history of section 753(f).) Notably, however, the § 2255 provision, unlike the habeas corpus provision, requires certification by the trial judge or a circuit judge that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal.

At the time that this certification requirement was codified, it probably was an accurate reflection of Supreme Court case law. See Benthiem v. United States, 403 F.2d at 1011. The requirement that the judge certify that the suit or appeal was nonfrivolous was hardly more than a requirement that he state affirmatively what he necessarily held by implication when he granted leave to proceed in forma pauperis. After Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 88 L.Ed.2d 21 (1962), anyone allowed to proceed in forma pauperis can be presumed to have asserted nonfrivolous grounds. The second requirement —that the judge certify that the transcript was needed to decide the issue tendered by the prisoner — was more significant, but probably rested on the line of Supreme Court cases which appeared to condition an indigent’s right to a free transcript on a successful showing of need. See Draper v. Washington, 372 U.S. at 496, 83 S.Ct. 774; Lane v. Brown, 372 U.S. at 480, 83 S.Ct. 768; Eskridge v. Washington State Board of Prison Terms & Paroles, 357 U.S. at 215-216, 78 S.Ct. 1061; Griffin v. Illinois, 351 U.S. at 16, 76 S.Ct. 585.

In recent years, however, the requirement of a particularized showing of need has been severely undercut both by the march of events and by decisions of the Supreme Court. In 1964, even before the sentence referring to the provision of free transcripts in § 2255 proceedings was added to section 753(f), four members of the Supreme Court advocated that full transcripts be provided in all federal criminal cases to indigent defendants who seek to prosecute an appeal. Hardy v. United States, 375 U.S. at 282, 84 S.Ct. 424 (concurring opinion). In an opinion concurred in by three other justices, Mr. Justice Goldberg emphasized:

“As any effective appellate advocate will attest, the most basic and fundamental tool of his profession is the complete trial transcript, through which his trained fingers may leaf and his trained eyes may roam in search of an error, a lead to an error, or even a basis upon which to urge a change in an established and hitherto accepted principle of law * * *. Anything short of a complete transcript is incompatible with effective appellate advocacy.” 375 U.S. at 288, 84 S.Ct. at 431.

Five years later, in Gardner v. California, supra, which held that an indigent California habeas applicant was entitled to a transcript of a previous habeas hearing for use in preparing his second habeas petition, the Court did not require the petitioner to show specifically why and how he needed a full transcript. A close reading of the opinion strongly suggests that the court’s holding rests not on any assumption that some particular portion of the transcript might be essential to the second habeas application, but rather on the concession that adequate preparation requires a complete review of the transcript of all prior relevant proceedings.

Finally, in Britt v. North Carolina, supra, the Court expressly questioned the constitutional validity of requiring an indigent to make a showing of need before the transcript of a mistrial must be provided at state expense. A majority of the Court, speaking through Mr. Justice Marshall, said:

“We agree with the dissenters that there would be serious doubts about the decision below if it rested on petitioner’s failure to specify how the transcript might have been useful to him. Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case * * * ” 404 U.S. at 228, 92 S.Ct. at 434.

The Court went on to observe that in Griffin v. Illinois, supra, it had been able to rely on a concession of need by the state, and, in subsequent cases, it had taken judicial notice of the importance of a transcript in a variety of circumstances. The Court then cited Long v. District Court of Iowa, supra, and Roberts v. LaVallee, supra, as examples of cases in which it had “simply found it unnecessary to discuss the question * * 404 U.S. at 228, n. 3, 92 S.Ct. at 434.

Thus, the clear trend of recent cases —Hardy, Gardner and Britt — has been away from the requirement that, before an indigent can obtain a free transcript of prior proceedings, he must make a showing of need tailored to the facts of a particular case. For us to rest the denial to MacCollom of a trial transcript on the ground that he failed to specify precisely why he needed it would be to revive a rule rapidly losing favor before the Supreme Court.

In rebuttal, the government contends that the three Supreme Court opinions allegedly discounting the need for a preliminary showing of need are all distinguishable from this case: Hardy involved a direct appeal; Gardner, the equivalent of an appeal from a prior denial of a petition for habeas corpus (see Hoover v. United States, 416 F.2d 431, 432 (6th Cir. 1969)), and Britt, a prior mistrial. Unlike the transcripts at issue in these cases, the government continues, a transcript of MacCollom’s original trial would be of relatively little value to him at this time. Quoting from the opinion of the Court of Appeals for the Fourth Circuit in United States v. Shoaf, supra, the government argues:

“In collateral proceedings * * * most of the trial errors warranting attention in direct appeals are not reviewable. Unless there has been such essential unfairness as to constitute a deprivation of a constitutionally protected right, the right to review trial errors is lost when a direct appeal is voluntarily foregone * * *.
“The usual grounds for successful collateral attacks upon convictions arise out of occurrences outside of the courtroom or of events in the courtroom of which the defendant was aware and can recall without the need of having his memory refreshed by reading a transcript or a partial transcript to support some ground of collateral attack, but rarely, if ever, would the defendant, himself, need a transcript of the trial to become aware of the events or occurrences which constitute a ground for collateral attack.” 341 F.2d at 835.

Assuming that the “usual” grounds for collateral relief do involve either events outside the courtroom or events inside the courtroom which some defendants might recall without the aid of a transcript — and we are aware of no empirical study to support this assumption —we have no reason to know whether a particular transcript would contain a basis for collateral attack, not obvious to a layman with even a good memory. No one has seen MacCollom’s trial transcript, and some statistical probability concerning the content of most trial transcripts seems a poor reason to deny MacCollom access to his own.

The Fourth Circuit rule requires an imprisoned indigent to remember constitutional deficiencies and to relate them to an attorney or directly to the court, neither of whom may have had any previous contact with the prisoner or his trial, with sufficient clarity and accuracy to establish a particularized need for part or all of his trial transcript. Meanwhile, his wealthy cellmate is permitted to purchase a trial transcript and hire an attorney to peruse it at his leisure in search of ground for collateral relief. The Fourth Circuit has said that an indigent is not entitled to a transcript at' government expense “merely to comb the record in the hope of discovering some flaw.” United States v. Glass, 317 F.2d at 202. However, we do not read the Supreme Court’s opinions nor the Constitution itself to require paupers to have better memories than the affluent. See Bentley v. United States, 431 F.2d at 253.

The principle established by Griffin and its progeny does not guarantee indigents the same treatment afforded wealthy defendants; rather, it is only necessary that they be given equivalent and fundamentally fair treatment. See Kamisar & Choper, The Right to Counsel in Minnesota: Some Field Findings and Legal Policy Observations, 48 Minn.L.Rev. 1, 10 (1963). In Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), the Supreme Court held that neither the due-process clause nor the equal-protection clause requires a state to provide an indigent with counsel either on his discretionary appeal to the state supreme court or on his petition for certiorari in the United States Supreme Court. However, the Court also observed that the equal-protection clause requires that “indigents have an adequate opportunity to present their claims fairly within the adversarial system.” 417 U.S. at 612, 94 S.Ct. at 2444-2445. A rule which demands that an indigent establish his need for a trial transcript, which he has never seen, before the government will produce it for his assistance in preparing a post-conviction motion under 28 U.S.C. § 2255 may completely deny the indigent the opportunity to present a valid claim which he was not fortunate enough to remember. This rule seems to us to be a short-sighted approach that elevates economy over equality.

The increased cost to the government of providing free transcripts to all imprisoned indigents for use in preparing § 2255 motions should not be overestimated. Title 28 U.S.C. § 753(b) already requires that a verbatim record be kept of all proceedings in open federal court. Those indigents who have appealed their convictions routinely obtain complete or relatively complete trial transcripts for use on appeal. Since Hardy v. United States, swpra, decided in 1964, where a new counsel has been appointed for the appeal, he has been able to obtain a full transcript. Even where the trial lawyer is also appointed for the appeal, in some districts he is able to obtain a full transcript as a matter of form. See Note, The Indigent’s Right to a Transcript of Record, 20 Kan.L.Rev. 766 n. 135. In this circuit, except in very rare cases, a full trial transcript is prepared for any appellant who requests one, whether or not his retained or appointed trial attorney continues to serve him for the appeal. Also, since most criminal defendants plead guilty rather than are found guilty after trial, the cost of many of the requested transcripts will be minimal. Finally, of the relatively few federal prisoners who have not already obtained a trial transcript, many or even most will have no wish to file a motion to vacate sentence and, hence, will not even seek a transcript.

Even more to the fiscal point is the cost of litigating transcript questions. In Hardy v. United States the government conceded that in one district requests for transcripts for use on appeal were not even opposed where the cost of the transcript would not exceed $200.00. The United States Attorney observed that in these cases the cost of opposing the motion would exceed the cost of preparing the transcript. 375 U.S. at 279, n. 1, 84 S.Ct. 424. See also Hardy v. United States, 375 U.S. at 289-292, 84 S.Ct. 424 (concurring opinion of Goldberg, J.).

The present statutory scheme requires prisoners and their attorneys to assert § 2255 claims in the hope that they will be supported by the transcript once it has been prepared. If a free transcript were prepared on demand, the transcript may well reveal no colorable grounds for collateral attack, and the court will be spared the time consumed in a transcript hearing and a frivolous 2255 motion. See generally Jacob & Sharma, Justice after Trial: Prisoners’ Need for Legal Services in the Criminal-Correctional Process, 18 Kan.L.Rev. 493, 496-497, 509 (1970).

Thus, having surveyed many of the costs associated with the present system of requiring a court to certify that a particular portion of the record is needed to decide a specific point raised by a § 2255 motion, we are far from convinced that a rule entitling an indigent prisoner to a free transcript upon request would greatly increase the overall cost to the federal judicial system. However, even if we concede that there will be a net increase in cost, there is good authority for looking beyond the dollar sign: “An affluent society ought not be miserly in support of justice, for economy is not an objective of the system * * Mayer v. City of Chicago, 404 U.S. at 201, 92 S.Ct. at 418 (concurring opinion of Burger, C. J.). See also Mayer v. City of Chicago, 404 U.S. at 196-197, 92 S.Ct. 410.

We hold then that an indigent federal prisoner, permitted to proceed in forma pauperis, who has not yet obtained a transcript of his criminal trial, is entitled to such a transcript, upon request, in order to assist him in the preparation of a postconviction motion under 28 U.S.C. § 2255.

Reversed and remanded.

FRED M. TAYLOR, District Judge

(dissenting):

Appellant was convicted and sentenced to imprisonment for violation of (Title 18 U.S.C. § 472 (passing forged currency) on June 4, 1971, from which conviction and sentence no appeal was taken. Appellant has never filed an application for post-conviction relief under and pursuant to 28 U.S.C. § 2255, nor made any showing that he is entitled to any such relief.

On June 23, 1972, appellant, proceeding in forma pauperis, filed the present action against the United States seeking a verbatim transcript of his criminal trial, at government expense, to aid him in the preparation of a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The complaint was dismissed by the district court for failure to state a claim on which relief could be granted and this appeal followed.

The issue presented on this appeal is whether appellant, as an indigent prisoner, has a constitutional or statutory' right to a free transcript in order to search for error upon which to base a Sec. 2255 petition. The majority of the panel has concluded that he has such a constitutional right, with which conclusion I respectfully disagree.

In the majority opinion it seems to be admitted that thus far all federal courts have consistently held that an indigent prisoner has no constitutional or statutory right to a free transcript for use in preparing a collateral attack on his conviction or sentence. These authorities are cited in the majority opinion. In Wilson v. Wade, 390 F.2d 632, 634 (1968), this court indicated it would adhere to the general rule of denying a transcript which would enable the petitioner to “comb the record in hope of discovering some flaw.” However, the judgment in Wade was vacated for a different reason and the Supreme Court declined to pass on the precise question of whether the petitioner, a state prisoner, was entitled to a transcript for use in petitioning for a writ of habeas corpus. Wade v. Wilson, 396 U.S. 282, 286, 90 S.Ct. 501, 24 L.Ed.2d 470 (1969). This court in United States ex rel. Nunes v. Nelson, 467 F.2d 1380 (1972), was presented with a somewhat similar, although not identical, issue. In that case, a state prisoner sought to “inspect certain items of evidence . . . for use in preparing a future petition for a writ of habeas corpus . . .” The relief sought was denied with the observation that “[w]hat Nunes apparently wants is a license to enable him to search through a wide variety of items in order either to discover whether he has grounds for a collateral attack or to facilitate preparing a petition for collateral relief.”

Although the majority opinion appears to recognize that federal court precedent is contrary to what is being held in this ease, it is reasoned that the current trend is contrary to the prior decisions and that this court should follow the trend and make some new law. I am unable to agree with this theory. I submit that the authorities relied on by the majority do not compel a decision contrary to the weight of precedent.

Apparently appellant did not consider it necessary to appeal from the judgment of conviction, even though he no doubt was advised by the trial court of his right to do so and knew he could exercise such right. He has not made any claim or showing which would indicate that he may have been convicted of a • crime of which he is innocent or that any of his rights were violated. He only asserts a desire to review the record to find some legal point which he can argue as a basis for release from confinement. He should not need a transcript to know whether he was convicted erroneously or whether some new circumstances have arisen to show some fatal constitutional error in the prior proceedings.

I submit that the mere fact the appellant is indigent does not entitle him to a free transcript upon request for the mere purpose of searching the record in an attempt to find possible grounds to assert a claim for post-conviction relief.

Since the action brought by appellant against the United States is for a declaratory judgment and injunctive relief, it occurs to me that there is an immunity question to be considered even though it has not been specifically raised. It does not appear that there is any statutory authority authorizing such an action and it is my understanding that absent a waiver of sovereign immunity by specific congressional consent, the federal district courts have no jurisdiction over claims against the United States.

I would affirm the Order of Dismissal.

ORDER

The panel as constituted in the above case having voted to deny the petition for rehearing, the full court was advised of the suggestion for en banc rehearing and of the panel’s vote. Circuit Judge Wallace requested a vote of all regular active judges of the court. The request for en banc consideration failed to obtain a majority of the votes.

Accordingly, the petition for rehearing is denied, and the suggestion for rehearing en banc is rejected. The mandate will issue forthwith.

WALLACE, Circuit Judge, with whom Circuit Judges EUGENE A. WRIGHT, TRASK, CHOY and SNEED concur, dissenting from Order Denying Petition for Rehearing En Banc:

Our failure to take this case en banc is unfortunate. Not only do I believe the decision wrong on the merits but it is directly contrary to prior Ninth Circuit precedent which should not be overruled other than by our court sitting en banc.

First, although justice should not be determined by the size of a poeketbook, an indigent is not entitled to any more than an average defendant who is able to pay his own way. As the Supreme Court recently stated in a case denying indigents a constitutional right to counsel on discretionary appeals:

The duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process.

Ross v. Moffitt, 417 U.S. 600, 616, 94 S.Ct. 2437, 2447, 41 L.Ed.2d 341 (1974). The MacCollom majority compares the indigent to “his wealthy cellmate.” Ante at 1122. That is not the test. The Supreme Court rejected this view in Ross v. Moffitt, id. I do not believe the average defendant would purchase a transcript in order to comb through it for possible error. The majority opinion thus places the indigent in a more favorable position than the average defendant who pays his own way.

The MacCollom opinion acknowledges that other circuits deciding this issue come out diametrically opposed to the majority. Ante at 1118 and n.3. Indeed, the majority can find no circuit case in accord with its holding. Before we create inter-circuit conflicts, here between us and the First, Fourth, Fifth and Sixth and Tenth Circuits, we should be persuaded the rest are wrong. I, for one, am not.

Second, the MacCollom decision is directly contrary to prior Ninth Circuit cases. Wilson v. Wade, 390 F.2d 632 (9th Cir. 1968), vacated, 396 U.S. 282, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970), explicitly held that a state prisoner is not entitled to a free transcript “to comb the record in the hope of discovering some flaw.” Id. at 634. Although Wade concerned habeas corpus rather than section 2255, it decided the same constitutional issue as MacCollom. See id. at 633-34; MacCollom v. United States, Ante at 1119. The majority declines to follow Wade because the Supreme Court vacated judgment and remanded to the district court. The vacation, however, did not concern the merits of our holding. See Wade v. Wilson, 396 U.S. 282, 286-87, 90 S.Ct. 501, 24 L.Ed.2d 470 (1970). It is interesting to note that Wade has been used as authority by our court in spite of the vacation by the Supreme Court. See MaGee v. Nelson, 455 F.2d 275, 276 (9th Cir.), cert. denied, 405 U.S. 1070, 92 S.Ct. 1517, 31 L.Ed.2d 802 (1972).

In Taylor v. United States, 238 F.2d 409 (9th Cir. 1956), cert. denied, 353 U.S. 938, 77 S.Ct. 817, 1 L.Ed.2d 761 (1957), we denied a trial transcript in a section 2255 case. The majority contends that Taylor need not be followed because it was decided “only months” (actually seven months) after Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L. Ed. 891 (1956). Ante at 1119. This is not persuasive. I assume the Taylor panel was aware of Griffin but even if it were not, the denial of certiorari in Taylor may be some indication that the Supreme Court did not believe that Griffin required a different result. Although Taylor did not discuss the constitutional issue raised in MacCollom, I think an en banc hearing is necessary to overrule it.

The majority’s opinion also does not present adequate grounds for disapproving McGarry v. Fogliani, 370 F.2d 42, 44 (9th Cir. 1966). McGarry held that a state prisoner does not have a right to a trial transcript when he petitions for habeas corpus in federal court. Id. at 44. The MacCollom majority construes this holding to be dictum, Ante at 1119, relying on the following language in Wade, supra, 390 F.2d at 634 n.l:

Such authority as is available is in accord with what was stated in McGarry, see footnote 7' [of McGarry], where the court cites United States v. Glass, 4th Cir., 317 F.2d 200, 202. Although the language there is in accord with the McGarry decision, under the circumstances of that case it may be dictum. (Emphasis added.)

This argument fails for several reasons. First ' MacCollom’s use of the passage quoted above is just erroneous. The footnote refers to a dictum in United States v. Glass, 317 F.2d 200, 202 (4th Cir. 1963), not in McGarry. A reading of Glass bears this out. Id. at 202-03. Furthermore, Wade relied upon McGarry as requiring the result held. The footnote quoted above is appended to the following sentence in the text of the Wade opinion:

So far as the district court’s findings are concerned, our holding in McGarry v. Fogliani, supra, would require us to say that Wade was not entitled to demand a transcript merely to enable him to comb the record in the hope of discovering some flaw.

390 F.2d at 634. Moreover, even if the majority were correctly interpreting the footnote in Wade, it would not be persuasive. Regardless of how Wade interprets McGarry, a reading of McGarry reveals it to hold that state habeas petitioners are not entitled to a transcript as of right. McGarry, swpra, 370 F.2d at 44.

The final argument advanced by the MacCollom, majority for abandoning the prior Ninth Circuit decisions contra is that they have been undercut by subsequent Supreme Court decisions. I disagree. As late as its decision in Wade in 1970, the Supreme Court was willing to avoid the issue of the right to a transcript on collateral review, describing it as “a question of first impression.” 396 U.S. at 286, 90 S.Ct. 501. The only subsequent decisions cited in MacCollom, are at best inconclusive on this issue. Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971), held that a state criminal defendant need not receive a transcript of his mistrial before he is tried again if a substantially equivalent alternative is available. In dicta, the Court both questioned the constitutionality of requiring a particularized showing of need for transcripts and admitted that the “outer limits” of the right to a transcript remain unclear. 404 U.S. at 227-28, 92 S.Ct. 431. The other decision cited in MacCollom, is Ross v. Moffitt, supra, 417 U.S. 600, 94 S.Ct. 2437, which denied a constitutional right to counsel on discretionary appeals to a state’s highest court. As argued above, this case undermines rather than strengthens the reasoning of the MacCollom majority. These cases, therefore, do not require abandonment of our prior holdings.

      . See generally Note, The Indigent’s Right to a Transcript of Record, 20 Kan.L.Rev. 746 (1972). This opinion has drawn heavily on the research and analysis of this excellent student note.

      . “Petitioner argues that in any event, contrary to the Court of Appeals, the District Court was correct in holding that because ‘it may not be possible to pinpoint . . . alleged errors in the absence of a transcript,’ petitioner was entitled to a transcript for use in petitioning for habeas corpus even though he did not specify what errors he claimed in his conviction. To pass on this contention at this time would necessitate our decision whether there are circumstances in which the Constitution requires that a State furnish an indigent state prisoner free of cost a trial transcript to aid him to prepare a petition for collateral relief. This is a question of first impression which need not be reached at this stage of the case * * *.” Wade v. Wilson, 396 U.S. at 286, 90 S.Ct. at 504.

      . Other federal appellate courts have held that a state prisoner is not entitled to a free transcript, without a showing of need, for use in preparing a petition for collateral relief. See, e. g., Jones v. Superintendent, 460 F.2d 150, 153, petition for rehearing denied, 465 F.2d 1091, (4th Cir. 1972), cert. denied, 410 U.S. 944, 93 S.Ct. 1380, 35 L.Ed.2d 611 (1973) ; Ellis v. State of Maine, 448 F.2d 1325, 1327 (1st Cir. 1971) ; Chavez v. Sigler, 438 F.2d 890 (8th Cir. 1971) ; Hines v. Baker, 422 F.2d 1002, 1006-1007 (10th Cir. 1970).

      . What Congress intended by this certification qualification is not clear. While the bill was under consideration, then Deputy Attorney General Ramsey Clark, in a letter to the Chairman of the Committee on the Judiciary, questioned this distinction between habeas corpus and 2255 proceedings: “The reason for this distinction is not apparent if the motion remedy under section 2255 is to be a remedy commensurate with a writ of habeas corpus.” S.Rep.No.617, 89th Cong., 1st Sess., 1965 U.S.Code Cong. & Admin. News 2916, 2920-2921. Mr. Justice Blackmun has suggested that the Committee apparently gave little consideration to the distinction. Blackmun, Allowance of In Forma Pauperis Appeals in § 2255 and Habeas Corpus Cases, 43 F.R.D. 343, 357 (1967).

      . See Smith, Title 28, Section 2255 of the United States Code — Motion to Vacate, Set Aside or Correct Sentence: Effective or Ineffective Aid to a Federal Prisoner?, 40 Notre Dame Law 171, 183-85 n. 52 (1965), for a list of the grounds relied on most frequently in motions to vacate brought under section 2255. See also A.B.A. Project on Minimum Standards for Criminal Justice, Post-Conviction Remedies § 2.1 (Commentary), at 33 (1968 approved draft) ; Orfield, Motion to Vacate under 28 U.S.C. Section 2255; Part Two, 2 Creighton L.Rev. 213 (1969) ; 2 C. Wright, Federal Practice and Procedure § 594, at 595-606 (1969).

      . See also R. Sokol, Federal Habeas Corpus 219-20 (2d ed. 1969) :
      “ * * * Does a prisoner have a constitutional right ‘merely to comb the record in the hope of discovering some flaw’? Why doesn’t he? A wealthy prisoner, James Hoff a for example, no doubt has this advantage. Why should not a poor prisoner? How great after all would be the cost of furnishing to every indigent convicted prisoner a trial transcript automatically regardless of whether requested or not? Allegations of ineffective assistance of counsel present more difficult problems. It is inherently impossible to assure that everyone has a lawyer of equal ability, although it is feasible to attempt to assure that everyone has a lawyer whose competence is above a certain minimum level. This kind of problem is not relevant, though, to the furnishing of transcripts where it is no difficult matter to put both indigent and non-indigent on the same plateau * *

      . Although the equal-protection clause of the Fourteenth Amendment is not directly applicable to the federal government, the due process clause of the Fifth Amendment is broad enough to encompass Fourteenth Amendment equal protection and due process, at least in transcript cases. As the Court of Appeals for the Fourth Circuit has said,
      “ * * * [U]nder the due process clause the minimal standards of justice ought not to be appreciably lower in the federal courts than the Federal Constitution requires in state courts.” United States v. Shoaf, 341 F.2d at 835-836.

        See generally Schneider v. Rusk, 377 U.S. 163, 168, 84 S.Ct. 1187, 12 L.Ed.2d 218 (1964) ; Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

      . The ABA Project on Standards for Criminal Justice, The Prosecution Function and the Defense Function pt. VI, at 244 (1971 approved draft), states that “the overwhelming percentage of criminal cases in all state and federal courts, something on the order of 90 per cent, are disposed of by pleas of guilty * * In the district of Oregon, for example, figures prepared for the Administrative Office reveal that during calendar year 1973, of the 212 defendants found guilty, 176 (or approximately 83 per cent) pleaded guilty, and only 36 were found guilty after trial.

      . Our holding that the government must supply a free transcript to an indigent, convicted, federal prisoner for the purpose of preparing a 2255 motion does not necessarily mean that we also would require the government to supply a free transcript to an indigent who has been convicted but is no longer in prison. We have before us only a federal prisoner seeking a transcript, and we pass only on his claim. Bee Hardy v. United States, supra; Smith v. Bennett, 365 U.S. 708, 713, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961).

        . I cannot understand how the MacGollom majority can on one hand dismiss the holding of Wade on the ground that the Supreme Court vacated the judgment and, on the other hand, salvage a footnote from that opinion in order to show that the language in McGarry was dictum.


author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Emery H. JOYCE, Defendant-Appellant.
    No. 72-2002.
    United States Court of Appeals, Ninth Circuit.
    Nov. 18, 1974.
    As Amended Feb. 10, 1975.

      Charles E. Watts (argued), Moriarty, Long, Mikkelborg & Broz, Seattle, Wash., for defendant-appellant.
    Richard J. McCarthy (argued), Admiralty & Shipping, U. S. Dept, of Justice, San Francisco, Cal., for plaintiff-appellee.
    Before HAMLIN BROWNING and WALLACE, Circuit Judges.

       Honorable Oliver D. Hamlin was on the original panel and agreed to the disposition but died prior to the filing of the opinion.

   OPINION

WALLACE, Circuit Judge:

Joyce was employed as a pilot by the United States to maneuver its vessel, the S.S. Lindenwood Victory, from Pier 91 to Pier' 90 in the Seattle, Washington harbor. During this maneuver, the Thor, one of two tugs assisting in the operation, collided with the Lindenwood Victory, capsized and sank. In a separate lawsuit involving this collision, the Thor and the Lindenwood Victory were both held mutually at fault and, under the divided damages rule, the United States was required to pay the owners of the Thor $28,553.46. Puget Sound Tug & Barge Co. v. United States, 305 F.Supp. 570 (W.D.Wash.1969). The United States instituted this indemnity action against Joyce to recover the amount it was required to pay for damage to the Thor. The district judge, sitting in admiralty without a jury, found Joyce negligent and awarded judgment in favor of the United States. Joyce appeals and we affirm.

I. PACTS

In the move from Pier 91 to Pier 90, Joyce directed the tug Retriever to make up on the port bow of the Lindenwood Victory and directed the Thor to make up on the stern. There was no radio communication between Joyce and the Thor; Joyce was to use the ship’s whistle for signals to the Thor in the moving operation. Joyce intended to use the engines of the Lindenwood Victory during the operation but in the discussion prior to the maneuver, he failed to tell representatives of the tugs of his intention.

After the last line of the Lindenwood Victory was cast off, Joyce ordered the engines of the ship slow astern. Approximately four minutes later, he ordered them half speed astern. Joyce gave no signals from the Lindenwood Victory to either tug that the engines were being used. There was a short tow line between the Lindenwood Victory and the Thor. The stern of the Thor was facing the stem of the Lindenwood Victory causing its wash to approach the Lindenwood Victory. Because of this and because the propeller of the Linden-wood Victory was wholly submerged, the Thor was unable to detect that the engines of the Lindenwood Victory were in operation. Approximately one to two minutes after the engines were ordered half speed astern, the Thor, which had been pulling astern in an easterly direction, changed positions to the west of the axis of travel of the Lindenwood Victory. The force exerted on the short tow line by the astern movement of the Lindenwood Victory pulled the Thor up against the side of the Lindenwood Victory and the Thor capsized and sank. The approximate time between the ordering of the engines half speed astern and the capsizing of the Thor was two minutes.

The district court found that Joyce was negligent in ordering the engines astern with a tug towing astern on a short tow line without advising the operators of the tugs either beforehand or by signaling.

II. THE PENNSYLVANIA RULE

The district court made a finding of fact that the captain of the Lindenwood Victory failed to station a ship’s officer at the stem of the vessel during the re-docking maneuver. Joyce argues that this conduct constitutes a violation of both 33 U.S.C. § 221 and 46 U.S.C. § 223. Because these rules are intended to prevent collisions, he asserts, the United States should be subject to the heavy burden imposed by the rule of The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874):

[W]hen, as in this case, a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute.

Id. at 136, 22 L.Ed. 148 (emphasis added).

If the Pennsylvania Rule applies, the United States, to recover fully from Joyce, must show that the violation of the statute “could not reasonably be held to have been a proximate cause of the collision.” States Steamship Co. v. Permanente Steamship Corp., 231 F.2d 82, 87 (9th Cir. 1956). Joyce contends that the United States failed to meet this burden because the district court found that “[t]he presence of such an officer on the stern during [the redocking operation] might have made it possible for LINDENWOOD VICTORY to cut or cast off the tow line, or initiate an engine maneuver” in time to prevent the accident.

The district court did not find the Pennsylvania Rule applicable, however, and we agree. There was no statutory violation of either 33 U.S.C. § 221 or 46 U.S.C. § 223. Section 221 states: “Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences . of any neglect to keep a proper lookout . . . .” The evidence was undisputed, however, that crew members were posted at the stern acting as lookouts. Failure to station an officer rather than a crewman at the stern does not violate section 221.

Section 223 specifies the minimum number of officers to be carried aboard a ship the size of the Lindenwood Victory. Joyce contends that the Lindenwood Victory was short one licensed mate and that for this reason, no officer was stationed at the stern in a position to avoid the accident by ordering the cutting of the tow line. However, section 223 was not violated in this case. It does not require the full complement of licensed mates if the vessel is engaged in a run of less than four hundred miles. The accident occurred while the Linden-wood Victory was being transferred from Pier 91 to Pier 90. The United States is thus not subject to the great burden imposed by the Pennsylvania Rule.

Although failure to station an officer on the stern may well have amounted to negligence, the district court specifically found “that the failure to station such an officer on the stern of LINDEN-WOOD VICTORY did not contribute to the collision between LINDENWOOD VICTORY and THOR.” This finding is not clearly erroneous.

III. EXPERT TESTIMONY

The district court found that Joyce was negligent in failing to advise the tug operators that he was going to use the engines of his vessel and in failing to foresee that the astern movement of the Lindenwood Victory under its own power would cause it to overtake and collide with the Thor. Joyce contends that this finding is erroneous because there was no expert testimony that Joyce committed professional malpractice.

We have said that:

Expert testimony is appropriate when the factual issue is one which jurors would not ordinarily be able to determine without technical assistance. E. L. Farmer & Co. v. Hooks, 10 Cir., 239 F.2d 547, 553. On the other hand, when the subject of inquiry is one which common knowledge would enable one to decide, it is not a proper subject for expert testimony. Schillie v. Atchison, Topeka & Santa Fe Ry. Co., 8 Cir., 222 F.2d 810, 814. It is for the trial court in the exercise of a sound discretion to determine whether expert testimony is appropriate uhder the particular circumstances of the case.

Duff v. Page, 249 F.2d 137, 140-141 (9th Cir. 1957) (dictum). Similarly, a commentator has stated:

[The expert has] a power to draw inferences from the facts which a jury would not be competent to draw. To warrant the use of expert testimony, then, two elements are required. First, the subject of the inference must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman.

C. McCormick, Handbook of the Law of Evidence 13, at 29 (2d ed. E. Cleary general editor 1972) (footnote omitted).

A trier of fact of common experience, education and training could decide the negligence question presented by this case without the benefit of expert testimony. This issue does not involve technical aspects of a pilot’s trade, such as wind and tide currents, hidden obstacles in the harbor or navigation through perilous waters. The issue was whether a reasonable pilot should have forewarned the operators of the two tugs that he was going to use his engines and should have foreseen that the tug pulling on the stern of the vessel with a short tow line would be endangered by use of the engines half speed astern. The need for expert testimony does not arise in this case.

IV. EYAN INDEMNITY THEORY

Joyce also alleges that the district court erroneously applied the indemnity principle of Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). The district judge held that Joyce must indemnify the United States because he breached “his implied warranty of workmanlike service to provide skilled, expert, and professional pilotage services” but he did not cite any authority for this conclusion. Both parties argue the relative merits of applying the Ryan indemnity theory to a pilotage case but we need not determine whether Ryan should be extended this far. The issue can be resolved by application of negligence law. City of Long Beach v. American President Lines, Ltd., 223 F.2d 853 (9th Cir. 1955); cf. Matheson v. Norfolk & North American Steam Shipping Co., 73 F.2d 177 (9th Cir. 1934).

In City of Long Beach, we applied traditional negligence concepts to a compulsory pilotage case. (Joyce was a compulsory pilot, as distinguished from a hired pilot.) We held that while the pilot and his employer might not be liable in contract to the piloted vessel, they owed a “duty of care” to the vessel owner. We also held that the pilot’s employer “could be held in tort for negligence of the pilot.” In applying these common law concepts we said:

We believe that the foregoing principles are universally applicable on land. We see no reason to apply any other rules in admiralty.

223 F.2d at 857 (footnote omitted).

Here, the district court found that Joyce was negligent and therefore must indemnify the United States. Our holding in City of Long Beach requires that we affirm this ruling.

Y. COLLATERAL ESTOPPEL

Joyce was not a party to the suit between the United States and the Thor, although he was called as a witness. Much of the evidence introduced in that case was also introduced in the instant case. In his memorandum opinion, the district judge said:

I considered all the evidence, which included much of the evidence introduced in Puget Sound Tug and Barge Co. v. United States, 305 F.Supp. 570 (W.D.Wash.1969). The additional evidence adduced here does not affect the soundness of the findings and conclusions of Judge Beeks as set forth in his opinion. I adopt them in so far as they are applicable here.

Joyce argues that the district court erroneously applied the doctrine of collateral estoppel or res judicata when it “adopted” the findings of fact from Puget Sound because Joyce was not a party to that suit. We disagree. Had collateral estoppel or res judicata been applied, the trial judge would not have heard evidence in this case. The district judge conducted a complete trial and, after reviewing all the evidence submitted, found for the United States. He cannot be charged with erroneously applying res judicata or collateral estoppel simply because he reached the same conclusion as the trial judge reached in Puget Sound.

Although the district judge stated that he “adopted” the findings from Puget Sound to the extent of their applicability, we have carefully examined the record, including the findings in both cases, and conclude that this was not the type of “adoption” that requires reversal. It is true that the facts found in one case are not evidence of those same facts in another case. Maekay v. Easton, 86 U.S. (19 Wall.) 619, 632, 22 L.Ed. 211 (1873). Here they were not used as evidence. In Ball v. Paramount Pictures, Inc., 67 F.Supp. 1, 5 (W.D.Pa. 1946), rev’d on other grounds, 169 F.2d 317 (3d Cir. 1948), counsel attempted to use the facts found in one case as evidence in another. In the instant case no such attempt was made. The trial judge had before him much of the evidence that was introduced in Puget Sound. The record indicates that he made his own decision and did not abdicate his judicial responsibility. We find no grounds for reversal in his statement that he “adopted” the findings of the earlier case when it appears he meant that he agreed with them. .

Affirmed.

      . Joyce also alleges a violation of 46 U.S.C. § 222, but this issue is not included in the pretrial order which lists the issues of fact and law remaining for trial. The pretrial order controls the subsequent course of the action and the parties are bound by their agreement to limit the issues to be tried. Fed. R.Civ.P. 16; see Fowler v. Crown-Zellerbach Corp., 163 F.2d 773, 774 (9th Cir. 1947) (alternate holding). Since this issue was not listed in the pretrial order or raised later at trial (where error might have been avoided), we choose not to entertain it on appeal. Westinghouse Elec. Corp. v. Weigel, 426 F.2d 1356 (9th Cir. 1970).

      . Joyce cites several Fifth Circuit cases in which expert testimony was received regarding pilot negligence. Bethlehem Steel Corp. v. Yates, 438 F.2d 798 (5th Cir. 1971) ; Mariblanea Navegación, S.A. v. Panama Canal Co., 298 F.2d 729 (5th Cir. 1962) ; Panama Canal Co. v. Sociedad de Transportes Maritimos, S.A., 272 F.2d 726 (5th Cir. 1959) ; Victorias Milling Co., Inc. v. Panama Canal Co., 272 F.2d 716 (5th Cir. 1959) ; Seaboard Airline B. Co. v. Pan American Petroleum & Transport Co., 199 F.2d 761 (5th Cir. 1952), cert. denied, 345 U.S. 909, 73 S.Ct. 649, 97 L.Ed. 1344 (1953). We have examined these cases. They do not alter our view that there was no need for expert testimony in the instant case.

      . In Gilmore and Black’s admiralty treatise the authors state that the “pilot, of course, is personally liable for his own negligence . . . . ” G. Gilmore & O. Black, The Law Of Admiralty § 7-16, at 430 (1957). Similar statements may be found elsewhere:
      To hold the pilot liable, he must be shown to have been negligent, since negligence is the sine qua non of liability.
      A. Parks, Law of Tug, Tow and Pilotage 482 (1971).
      But a pilot is responsible only for his personal negligence, and that must be affirmatively shown.
      The Manchioneal, 243 F. 801, 806 (2d Cir. 1917). The Fifth Circuit has also applied negligence concepts to pilotage cases. Bethlehem Steel Corp. v. Yates, 438 F.2d 798 (5th Cir. 1971) ; Panama Canal Co. v. Sociedad de Transportes Marítimos, S.A., 272 F.2d 726 (5th Cir. 1959).


text:
    UNITED STATES of America and Donald C. Taylor, Special Agent, Internal Revenue Service, Appellants, v. William L. NELSON, Appellee.
    No. 74-1784.
    United States Court of Appeals, Fourth Circuit.
    Argued Jan. 8, 1975.
    Decided Feb. 10, 1975.

      Daniel F. Ross, Atty., Tax Div., U. S. Dept, of Justice (Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews and Crombie J. D. Garrett, Attys., Tax Div., U. S. Dept, of Justice, and Norwood C. Tilley, Jr., U. S. Atty., on brief), for appellants.
    Norwood Robinson, Winston-Salem, N. C. (Hudson, Petree, Stockton, Stockton & Robinson, Winston-Salem, N. C., on brief), for appellee.
    Before BRYAN, Senior Circuit Judge, and WINTER and FIELD, Circuit Judges.
   PER CURIAM:

The existence of an attorney-client privilege vel non in this income tax matter is the gravamen of this appeal.

Special Agent Donald Taylor of the Internal Revenue Service on September 24, 1973 summoned appellee William Nelson, an attorney, pursuant to 26 U.S.C. § 7602, to give testimony and produce documents relating to all financial transactions of Madge Lee Belk Roberts, Nelson’s client. He declined to appear and relinquish the papers, interposing the attorney-client privilege on behalf of Roberts.

On the petition of the United States and Special Agent Taylor the District Court ordered Nelson to come before it and show cause why he should not be compelled to submit this data to the Special Agent. 26 U.S.C. § 7604(a). Appearing, Nelson brought with him a sealed envelope containing all of his records of Roberts’ finances and an affidavit spelling out the relationship between him and his client. Over Nelson’s objection the District Judge inspected the contents of the envelope in camera. He determined that the material was privileged.

Appellants, Taylor and the United States, now press upon this court that the in camera inspection of the papers was improper and that Nelson’s testimony should have been taken at the show cause hearing with respect to each and every document asserted to be privileged. Actually, however, Taylor’s lawyer at no time during the hearing sought to elicit the testimony of Nelson. Indeed, Taylor impliedly consented to the procedure adopted by the District Court by providing photostatic copies of certain records in his possession to compare with those submitted by Nelson.

The ruling of the District Court will be affirmed for the reasons stated in its opinion, United States of America and Taylor v. Nelson, 65 F.R.D. 563 (M.D.N.C. 1974).

Affirmed.