source: Caselaw Access Project

author: CLARK, Circuit Judge: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Herbert BEASLEY, Defendant-Appellant.
    No. 72-2197
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 13, 1973.
    Rehearing Denied June 4, 1973.

      Herbert Beasley, pro se.
    William H. Stafford, Jr., U. S. Atty., Pensacola, Fla., Stewart J. Carrouth, Asst. U. S. Atty., Tallahassee, Fla., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N.Y. 431 F.2d 409, Part I (5th Cir. 1970).

   CLARK, Circuit Judge:

On December 21, 1971, the Leon Federal Savings and Loan Association, University Branch, in Tallahassee, Florida, was robbed at gunpoint of 1,313 dollars. Herbert Beasley was first tried on the charge of robbing this federally-insured savings and loan association in February 1972. The first prosecution ended in a mistrial. Beasley was subsequently retried and convicted. He appeals. We affirm.

Double Jeopardy

Beasley contends that his second trial should have been barred by the Fifth Amendment protection against double jeopardy. Beasley’s first trial ended in a mistrial as a result of a single question put to the defendant’s chief alibi witness during cross-examination. On direct examination, Rebecca McCardell, Beasley’s sister, testified that she regularly knew of the defendant’s whereabouts and, in fact, had seen him in Houston, Texas, at the exact hour when, according to the government’s case, Beasley was engaged in robbing Leon Federal in Tallahassee. During cross-examination the prosecutor closely questioned Mrs. McCardell concerning her claim that she normally knew of her brother’s whereabouts. Among the questions posed to Mrs. McCardell was the following: “On October 27, 1971, did the FBI visit you and advise you of the Harboring Statute?” The defendant promptly objected to the question on the ground of relevancy. The court ruled the question inadmissible and promised to give an admonitory instruction to the jury. Defense counsel then moved for a mistrial on the basis that the prosecutor’s question was already in the record and “is so highly prejudicial to the defendant that I do not believe he can get a fair trial from this jury.” Thereupon, a mistrial was granted.

We note at the outset that the mistrial was granted in response to defendant’s motion. “[A] motion by the defendant for mistrial is ordinarily assumed to remove any barriers to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error.” United States v. Jorn, 400 U.S. 470,. 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971); United States v. Iacovetti, 466 F.2d 1147 (5th Cir. 1972), cert. denied, 410 U.S. 908, 93 S.Ct. 963, 35 L.Ed.2d 270 (1973); Vaccaro v. United States, 360 F.2d 606 (5th Cir. 1966). An exception to the waiver of the right against reprosecution exists, however, when the mistrial motion is the product of prosecutorial overreaching, United States v. Jorn, supra; Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). The accused has a “valued right to have his trial completed by a particular tribunal.” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949). It would be offensive to the fundamental constitutional guarantee against successive, oppressive prosecutions, if the government, at a trial in which its case is going badly, could by gross misconduct precipitate a mistrial and thereby gain “another, more favorable opportunity to convict the accused.” Gori v. United States, 367 U.S. 364, 369, 81 S.Ct. 1523, 1526-1527, 6 L.Ed.2d 901 (1961). At the same time, Wade v. Hunter, supra, makes it clear that when a mistrial results from prosecutorial error which does not amount to gross negligence or intentional misconduct, the state is not barred from reprosecuting the defendant.

The double-jeopardy provision of the Fifth Amendment . . . does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed.

336 U.S. at 688-689, 69 S.Ct. at 837.

The appellant argues that the prosecutor by asking a baseless and inflammatory question, precipitated a mistrial to rescue an inadequate prosecution before the ease went to the jury. Our review of the record discloses no evidence of gross negligence or intentional misconduct such as would bar reprosecution. The question directed to Mrs. McCardell, although undoubtedly improper because it suggested that the defendant had been a fugitive from justice as a result of some undisclosed crime two months prior to the Tallahassee robbery, was part of a legitimate line of cross-examination calculated to impeach the witness’s testimony that she regularly knew of the defendant’s whereabouts. The fact that the government attorney later stated to defense counsel that he was not displeased with a mistrial does not prove that the prosecutor intended to abort the proceedings in order to improve the chance of a conviction on retrial. The record as a whole indicates that the district attorney preferred to continue with the first trial. Since the prosecution presented virtually the same witnesses and evidence at both trials, there is no evidence that the mistrial allowed the state an opportunity to strengthen its case. Compare Downum v. United States, supra.

Our decision that a second trial of the defendant is not barred by the Fifth Amendment is supported by the recent opinion in Somerville v. Illinois, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973). The Court there upheld a second-trial conviction where the first jury had been dismissed at the insistence of the state, over defendant’s objection, following the discovery of a defect in the drafting of the indictment. Somerville stands for the proposition that mistrial which is the result of official error not involving “prosecutorial manipulation”, 410 U.S. at 464, 93 S.Ct. at 1070, does not bar retrial even where the defendant does not consent to the termination of the first trial short of judgment. In the present case the defendant moved for a mistrial, and since this motion was not the product of pros-ecutorial manipulation or overreaching, we find no constitutional barrier to retrial and conviction.

The Search

The appellant also contends that a silver-plated cap pistol found in his overcoat pocket at the time of his arrest was improperly admitted into evidence.

Beasley’s arrest occurred on a frosty January night in a roadside park near Wichita, Kansas. A state highway patrolman, having observed the defendant’s automobile parked overnight in the rest area, made a routine check of its license number through the National Crime Information Center computer. The cheek revealed that the tag number and description corresponded to those of the vehicle used in the Tallahassee robbery and that an arrest warrant had been issued for its owner, Herbert Beasley. Having summoned assistance, the patrolman approached the car and arrested the defendant who was asleep in the front seat. While questioning the suspect at the scene of the arrest, one of the officers reached into the backseat and obtained the defendant’s overcoat to protect him from the night’s chill. Before placing the coat over the handcuffed suspect’s shoulders, the patrolman searched the pockets and discovered the pistol.

We have no difficulty in upholding the search procedures which led to the seizure of the pistol. According to testimony of the arresting officer, which we credit here over a conflicting version told by the defendant, the coat was in plain view, the night was cold, and the suspect had asked for his overcoat. At the time of the arrest the patrolmen knew that they were dealing with an individual wanted for armed robbery. A limited search for weapons prior to handing the garment to the defendant was completely reasonable for the officers’ self-protection. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Edwards, 469 F.2d 1362,1366 (5th Cir. 1972).

The Second Trial

Beasley also complains of several alleged errors relating to his second trial. First, he asserts that he was denied the right to subpoena essential witnesses at government expense. Prior to the second trial the defendant sought to subpoena 16 witnesses. After a hearing, the court agreed to permit him to subpoena five individuals who could furnish alibi testimony. The court denied subpoenas for six additional witnesses who as-sertedly could testify to Beasley’s general residency in Houston, Texas, but who could add nothing to his specific alibi. Four custodial witnesses were sought for the purpose of introducing exculpatory evidence seized during the Kansas arrest. Although these witnesses were not subpoenaed, such favorable evidence as they could have produced was introduced through an FBI agent who testified as a defense witness. The motion also sought to subpoena the attorney who had represented Beasley at the first trial to testify on his double jeopardy motion. The record shows that Beasley’s present counsel abandoned this request and that the testimony had already been presented to the court in affidavit form.

District courts have wide discretion to determine which witnesses requested by an indigent defendant should be subpoenaed at government expense and its decision will not be disturbed except in cases of clear abuse. Taylor v. United States, 329 F.2d 384, 386 (5th Cir. 1964). In the present ease, the court granted subpoenas for the primary witnesses sought by the defendant. Those not subpoenaed would have provided testimony which was cumulative or immaterial to the defense. Thus there was no violation of F.R.Crim.P. 17(a) or the Sixth Amendment. United States v. Deaton, 468 F.2d 541, 544 (5th Cir. 1972); Thompson v. United States, 372 F.2d 826, 828 (5th Cir. 1967).

Beasley next contends that the jury charge was defective because the court failed to instruct the jury that the presence of the defendant at the time and place of the offense was an essential element to be proved by the government, thereby placing the burden of proof in regard to alibi on the defendant. To the contrary, the jury was generally instructed that the government must prove beyond a reasonable doubt that the defendant committed the robbery at the Leon Federal. Furthermore, the court’s express instructions on the alibi defense required the jury to find beyond a reasonable doubt that the defendant was present at the time and place of the alleged crime. The charge included proper instructions on each essential element of the offense.

The appellant’s further allegations of improper jury instructions, prejudicial intrusions by the court during the trial, and testimonial argument by the prosecutor are without merit.

Finally, Beasley asserts that he was denied effective assistance of counsel. At several points, both before and during the trial, the defendant requested the court to dismiss his counsel and to allow him to proceed pro se. However, on each occasion after consultation with the court, the defendant expressed confidence in his appointed counsel and withdrew his request for dismissal. There is no evidence to support the allegation that the court forced the defendant to accept counsel against his will.

It is clear that effective counsel includes a right to more than pro forma or perfunctory representation. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). However, effective counsel does not mean “errorless counsel” but rather “counsel reasonably likely to render and rendering reasonably effective assistance.” MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.), modified 5 Cir., 289 F.2d 928, cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed. 78 (1960); Brown v. Beto, 377 F.2d 950, 957-958 (5th Cir. 1967); King v. Beto, 429 F.2d 221, 225 (5th Cir. 1970).

Appellant’s principal contentions are that his court-appointed attorney failed to adequately prepare for trial, followed a trial strategy with which the defendant disagreed, and did not present the defense case in its best possible light in argument to the jury. Beasley also alleges that he was prejudiced because his court-appointed counsel failed to consult with him prior to the hearing on the motion to subpoena essential witnesses and that counsel permitted the introduction of inadmissible search evidence. The trial record not only refutes each of Beasley’s allegations, but convincingly demonstrates that appellant’s appointed counsel presented an adequate defense for a difficult client.

Affirmed.

ON PETITION FOR REHEARING

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied. The alternative petitions for appointment of counsel to perfect a petition for a writ of certiorari and for stay of mandate pending petition for a writ of certiorari is denied. See Fifth Circuit Local Rule 15.

      . The Supreme Court frequently explained that the double jeopardy clause protects two important intei’ests of the criminal defendant: (1) the right to have guilt or innocence determined by the particular jury then empanelled, and (2) the right to be free from harassing multiple prosecutions for the same offense.
      The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
      Green v. United States, 355 U.S. 184, 187-188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1958).

      . In Tateo v. United States, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.23 448 (1964), the Supreme Court commented:
      Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendant’s rights as well as society’s interest.
      Similar policy considerations apply to the decision of a trial court to grant a mistrial at the request of the defendant.

      . The cap pistol was subsequently identified by the victimized teller as similar in appearance to the weapon employed by the robber of Leon Federal. No other evidence found on the defendant’s person or vehicle at the time of his arrest was introduced into evidence by the government.

      . We find no merit to appellant’s suggestion that, in view of the available alternative of placing him in the heated patrol car, obtaining his overcoat was a pretextual subterfuge to conduct a war-rantless search of his personal effects. The officer is entitled to have his actions judged in the light of reasonableness under the existing circumstances rather than in the light of hindsight. It was not in the slightest degree unreasonable to grant the request for the warmth of the coat without suggesting that entering the patrol car might be a less intrusive means of achieving comfort.

      . In light of our holding in regard to the legality of the search, this latter allegation cannot form, the basis for a claim of ineffective representation.


author: PER CURIAM:

text:
    Anne KUSZYNSKI et al., Plaintiffs-Appellants, v. CITY OF OAKLAND, a municipal corporation Acting By and Through the BOARD OF PORT COMMISSIONERS, et al., Defendants-Appellees.
    No. 71-1566.
    United States Court of Appeals, Ninth Circuit.
    May 31, 1973.
    Charles C. Marson (argued), Paul N. Halvonik, of ACLU, Donald Yank, Serra & Perelson, San Francisco, Cal., for plaintiffs-appellants.
    Wilson Wendt (argued), J. Kerwin Rooney, Port Attorney, Oakland, Cal., for defendants-appellees.
    Charles C. Marson (argued), ACLU, San Francisco, Cal., for amicus curiae.
    Before DUNIWAY and KILKENNY, Circuit Judges, and SMITH, District Judge

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

   OPINION

PER CURIAM:

This is an appeal from an order denying a preliminary injunction, 322 F. Supp. 689. Appellants sought to enjoin the enforcement of ordinances regulating the distribution of written material at the Oakland airport. The ordinance provides:

1.151. The use of the Airport for the purpose of exercising the right of free expression and communication, including but not limited to the distri bution of non-commercial, non-obscene, non-subversive literature and to picket, demonstrate or display signs, shall not be allowed to impair or interfere with the transportation function of the Airport. The exercise of such rights shall be in accordance with the following rules and regulations: . (Emphasis added.)

The rules and regulations provide that materials to be distributed be first submitted to the airport manager at a time prior to distribution; that the identity of the distributors and the purpose of the distribution be revealed. Distribution in some areas of the airport is forbidden, and the number of persons who may distribute is limited. The time of distribution is limited to four hours.

((Since the airport is public property we think that this case is governed by Marsh v. Alabama, 326 U.S. 501, 66 S.Ct 276, 90 L.Ed. 265 (1946), and Amalgamated Food Employees Union v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968), rather than Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). So governed, the applicable law is that free speech may be abridged only by regulations narrowly drawn to serve legitimate interests of the general public who use the airport. Wolin v. Port of New York Authority, 392 F.2d 83 (2d Cir. 1968), cert. denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275 (1968).) The ordinance here does place limitations upon the dissemination of ideas in a public place and is on its face a violation of the first amendment unless the limitations are justified by the needs of the airport. The port commissioners offered no evidence indicating the need for the restrictive provisions of the ordinance or the reasonableness of them. In the absence of such showing the ordinance is invalid.

We note specifically the emphasized language in the quoted portion of the ordinance. The port commissioners concede that if this language gives to the airport manager a right to precensor obscene and subversive material it would be invalid, but contend that the language does not have that effect. Even if the port commissioners’ interpretation is correct the language could certainly be thought by an airport official to justify acts of censorship, and it should be stricken from the ordinance.

The case is remanded to the district court with directions to vacate the order denying the preliminary injunction and, following a hearing, to enjoin the enforcement of those portions of the ordinance not found to be reasonably necessary for the management of the airport.


text:
    SOMMER CORPORATION, Plaintiff, v. UNITED FRUIT COMPANY, Defendant-Third Party Plaintiff-Appellee, v. PANAMA CANAL COMPANY, Third Party Defendant-Appellant.
    No. 73-1147
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 23, 1973.

      5 Cir., 475 F.2d 292, and D.C., 335 F.Supp. 412.
    Dwight A. McKabney, Gen. Counsel, John L. Haines, Jr., Earl R. McMillin, Attys., Balboa Heights, C. Z., for defendant-appellant.
    Roy Phillipps, Balboa, Canal Zone, C. Brooks Morris, New Orleans, La., for plaintiff-appellee.
    Henry L. Newell, Balboa, Canal Zone, for Sommer Corp.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

       Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Sommer Corporation sued United Fruit Company to recover damages to cargo shipped aboard United’s vessel, the HAR BOKER. Damage to at least one piece of cargo occurred during loading operations by stevedores and longshoremen in the employ of the Panama Canal Company. United tendered defense of Sommer’s suit to the Canal Company but this offer was rejected. United then impleded the company as third party defendant.

The United States District Court for the Canal Zone ruled that under the Carriage of Goods at Sea Act United’s liability was limited to $500.00, and further held that United was entitled to recover any amount due Sommer from the Canal Company. As part of these indemnity damages, the district court allowed United to recover a reasonable attorney’s fee of $500.00.

The Panama Canal Company appeals from that part of the district court’s judgment which permitted United to recover attorney’s fees. In support of its position, the company relies solely on the prohibition in 28 U.S.C. § 2412 which forbids the awarding of attorney’s fees as costs against the United States. We affirm the district court.

It is well-established that attorney’s fees are a part of the damages in a ship owner’s indemnity action. Strachan Shipping Co. v. Koninklyke Nederlandsche S.M., N.V., 5 Cir. 1963, 324 F.2d 746; T. Smith & Son v. Skibs A/S Hassel, 5 Cir. 1966, 362 F.2d 745. Furthermore, the Panama Canal Company is obligated to indemnify a ship owner for its negligence just as a private stevedore would be. Sandoval & Panama Canal Co. v. Mitsui, 5 Cir. 1972, 460 F.2d 1163.

Thus, the attorney’s fees allowed in this case were damage items arising from an indemnity obligation, not fees taxed as “costs” within the meaning of that term in 28 U.S.C. § 2412. The bar to the recovery of attorney’s fees found in that section is therefore inapplicable and the order of the district court requiring the Canal Company to pay United a reasonable figure for attorney’s fees is

Affirmed.


author: PER CURIAM.

text:
    James D. HODGSON, Secretary of Labor, United States Department of Labor, Appellant, v. EARNEST MACHINE PRODUCTS, INC., Appellee.
    No. 72-1963.
    United States Court of Appeals, Sixth Circuit.
    Argued April 11, 1973.
    Decided June 8, 1973.
    Ruth Hart Stromberg, Cleveland, Ohio, Richard F. Schubert, Sol. of Labor, Aaron A. Caghan, Regional Atty., U. S. Dept, of Labor, Washington, D. C., Sylvia S. Ellison, U. S. Dept, of Labor, for appellant; Carin Ann Clauss, Associate Sol., Helen W. Judd, U. S. Dept, of Labor, on brief.

      F. Wilson Chockley, Jr., Cleveland, Ohio, for appellee; Walter, Haverfield, Bueseher & Chockley, Michael T. Mc-Menamin, Cleveland, Ohio, on brief.
    Before McCREE and KENT, Circuit Judges, and CECIL, Senior Circuit Judge.

       Judge Kent participated in the decision in this case and concurred in this opinion prior to his death on May 28, 1973.

   PER CURIAM.

This is an appeal from an order dismissing the Government’s complaint at the conclusion of the Government’s proofs in an action for back pay, pension payments, and reinstatement. The action was brought under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., and § 17 of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.

The undisputed evidence showed that the employee, Helen Wagner, the subject of this action, had been a part-time employee of the appellee for approximately five years when she was suddenly terminated, allegedly for refusal to work full-time.

The theory of the Government was that had Helen Wagner continued to be employed for five additional months she would have been eligible for substantially higher retirement benefits because she would have attained the age of 65 years. It was the Government’s contention that Helen Wagner was discharged because of the proximity of her 65th birthday. For reasons not apparent to this Court, Government’s counsel not only failed to introduce any evidence that the employer had actual knowledge of Helen Wagner’s approximate age, but did not offer any evidence which would suggest or imply that the employer had any reason to be aware of the age of Helen Wagner. We may reasonably assume that her appearance was such that it should have been obvious to the employer that Helen Wagner was beyond the age of 40 years. This is not enough to place upon the appellee the burden of establishing by evidence the details of the reasons for discharge.

After a careful examination of the entire record we are forced to the conclusion that the District Judge’s dismissal of the action at the conclusion of the Government’s proof because he could find no evidence to establish that the dismissal of Helen Wagner was because of age was a permissible result on the evidence as presented.

Judgment affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Edgar Elton LANE, Defendant-Appellant.
    No. 72-1987.
    United States Court of Appeals, Sixth Circuit.
    Submitted April 16, 1973.
    Decided May 22, 1973.

      Martin Reisig, Detroit, Mich, (court appointed), Thomas Jackson, Research Asst., for defendant-appellant; Edgar Elton Lane, pro se.
    Ralph B. Guy, Jr., U. S. Atty., Kenneth J. Haber, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee.
    Before WEICK, EDWARDS and Me-CREE, Circuit Judges.
   PER CURIAM.

Appellant appeals after a jury verdict of guilty to a charge of possessing, selling, and conspiring to sell counterfeit federal reserve notes, in violation of 18 U.S.C. §§ 472, 473 and 371 (1970). He was sentenced to 15 years imprisonment.

The proofs viewed from the point of view favorable to the government’s case, which the jury accepted, show that appellant was arrested in possession of identifiable United States currency (bait money) which he had received in exchange for counterfeit federal reserve notes. The details of the transaction were testified to by the purchaser — a federal Secret Service Agent named Lucas, who at the time in question was operating under cover.

The principal issue argued on this appeal concerns whether or not this court’s opinion in United States v. Lonardo, 350 F.2d 523 (6th Cir. 1965), requires reversal of this case. In Lonardo a government agent a week and a half before trial deliberately destroyed a stenographic transcript of a witness interview. In addition, the record indicated that there was a major discrepancy between the destroyed transcript and the report which was furnished.

In the instant case Lucas’ report was furnished to appellant’s counsel in accordance with the Jencks Act, 18 U.S. C. § 3500 (1970). What appellant asserts should have been furnished also were Lucas’ rough notes which he employed in drafting his report and then destroyed.

This report discloses no material discrepancies in the report furnished from the original rough notes. Nor do we have here, as in Lonardo, deliberate destruction of arguably important evidence “in the possession” of the government on the eve of trial. The report which was prepared and “adopted” by agent Lucas was furnished to appellant. On these facts the controlling case for this circuit is United States v. Fruchtman, 421 F.2d 1019 (6th Cir. 1970):

Appellant also raises a Jencks Act question. After Smeraldi and an agent for the Internal Revenue Service testified for the Government, appellant moved for production of all statements available to him under the Jencks Act, 18 U.S.C. § 3500. He requested in particular the handwritten notes of interviews conducted by these agents. Both Smeraldi and the IRS agent testified that their notes had been destroyed several months before trial. There was no evidence that they were destroyed to prevent their examination by appellant, and the reports which had been compiled from the handwritten notes were made available to appellant’s counsel. Since it is not shown that the notes were destroyed for an ulterior purpose and the same information was available to appellant in the reports themselves, the trial judge correctly refused to strike the agents’ testimony. Killian v. United States, 368 U.S. 231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961); Rosenberg v. United States, 360 U.S. 367, 371, 79 S.Ct. 1231, 3 L.Ed.2d 1304 (1959); United States v. Greco, 298 F.2d 247 (2nd Cir. 1965). United States v. Fruchtman, supra at 1021-1022.

An additional appellate issue is presented concerning the application of Rule 23(b) of the Federal Rules of Criminal Procedure. This rule, by its terms, requires that any waiver of a 12-man jury be stipulated in writing. Here a juror took ill and the District Judge consulted counsel in open court with appellant present as to how to proceed. The District Judge offered appellant the alternative of seating an alternate juror, conducting a new trial, or proceeding with an 11-man jury. In open court defendant, by counsel and through his own voice in a colloquy with the Judge, agreed to the latter proposal. Since this was immediately recorded in the reporter’s shorthand notes, we believe that it meets the test of “stipulate [d] in writing” of Rule 23(b).

Alternatively, it seems clear that the facts in this case comply fully with the waiver rule previously announced in the Ninth Circuit in United States v. McCurdy, 450 F.2d 282 (9th Cir. 1971), and Bayless v. United States, 381 F.2d 67 (9th Cir. 1967). The Ninth Circuit in Bayless held as follows:

Rule 23 also requires that an agreement to be tried by a jury of fewer than twelve jurors be in writing. In Rogers v. United States, 319 F.2d 5 (CA 7, 1963), cert. den. 375 U.S. 989, 84 S.Ct. 524, 11 L.Ed.2d 475, and in Horne v. United States, 264 F.2d 40 (C.A. 5, 1959), cert. den. 360 U.S. 934, 79 S.Ct. 1460, 3 L.Ed.2d 1549, it has been held that an oral agreement in open court is sufficient to validate a trial with such a jury. In the instant case the appellant, in order to obtain a substantial advantage for himself, knowingly and intelligently agreed that one of the several issues in the case should be decided by the court. We think he thereby validly waived whatever right he might, in the absence of that agreement, have had. Bayless v. United States, supra at 75.

The defendant in this case in person intelligently and knowingly expressed consent to the District Judge in open court to proceed with the 11-man jury. See Rogers v. United States, 319 F.2d 5 (7th Cir. 1963). We agree with the Seventh and Ninth Circuits that such express consent by the defendant in person in open court and on the record constitutes a valid waiver of the express terms of Rule 23(b).

The judgment of the District Court is affirmed.


text:
    Alson T. WAHRLICH, Petitioner-Appellant, v. STATE OF ARIZONA, A. E. “Bud” Gomes, Superintendent, Arizona State Prison, Respondent-Appellee.
    No. 72-1638.
    United States Court of Appeals, Ninth Circuit.
    Argued Feb. 7, 1973.
    Decided June 4, 1973.
    Andrew Silverman (argued), Post Conviction Legal Assistance Clinic, Tucson, Ariz., for petitioner-appellant.
    Thomas A. Jacobs, Asst. Atty. Gen. (argued), Gary K. Nelson, Atty. Gen., Phoenix, Ariz., for respondent-appellee.
    Before CHAMBERS and HUFSTEDLER, Circuit Judges, and FERGUSON District Judge.

       Honorable Warren J. Ferguson, United States District Judge for the Central District of California, sitting by designation.

   OPINION

PER CURIAM:

Wahrlich’s petition for federal habeas relief from a conviction for kidnapping in a state court in Arizona was denied, and he appeals. He contends that the state court’s refusal to receive psychiatric testimony offered to prove that he was incapable of forming the specific intent that is an element of the offense denied him due process and equal protection secured by the Federal Constitution.

Wahrlich did not rely on an insanity defense, and the evidence was not offered to prove either insanity or diminished capacity. His theory is that the expert testimony offered was relevant to show that he could not have harbored the requisite “intent to hold or detain” the victim and that the rejection of the testimony deprived him of his due process right to introduce all evidence tending to disprove an essential ingredient of the offense. The argument is logical, and it has been skillfully presented, but we reject it.

We do not admit all evidence that is competent and probative in a criminal trial. A wide assortment of relevant evidence is deliberately excluded by reason of counterbalancing factors that are believed to be of greater moment than the unfettered admission of relevant testimony. Among the considerations that we have taken into account in refusing to accept Wahrlich’s argument are these: (1) in the interest of harmonious federal-state relations, federal courts should not unnecessarily interfere with the state’s trial of criminal cases; (2) courts should be extremely reluctant to constitutionalize rules of evidence; (3) the state of the developing art of psychiatry is such that we are not convinced that psychiatric testimony directed to a retrospective analysis of the subtle gradations of specific intent has enough probative value to compel its admission.

Alternatively, Wahrlich contends that Arizona’s admission of the evidence of age and of intoxication for the purpose of determining specific intent and its exclusion of psychiatric evidence offered for the same purpose create an unreasonable or arbitrary classification. We think not. Exposure to the effects of age and of intoxicants upon state of mind is a part of common human experience which fact finders can understand and apply; indeed, they would apply them .even if the state did not tell them they could. The esoterics of psychiatry are not within the ordinary ken. The differences are sufficiently manifest to thwart constitutional attack.

Affirmed.


author: CRAVEN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Michael D. WILLIAMS, Appellant.
    No. 73-1145.
    United States Court of Appeals, Fourth Circuit.
    Argued May 9, 1973.
    Decided June 13, 1973.

      Robert M. Harvey, Dunbar, W. Va. [Court-appointed counsel], for appellant.
    John A. Field, III, U. S. Atty., for ap-pellee.
    Before HAYNSWORTH, Chief Judge, BRYAN, Senior Circuit Judge, and CRAVEN, Circuit Judge.
   CRAVEN, Circuit Judge:

Michael Williams appeals his conviction by a jury in district court for distributing heroin in violation of 21 U.S.C. § 841(a) (1). Three of the several points of assigned error are worth discussion: the admissibility of a confession, the in-court identification of defendant’s “girlfriend,” and remarks made by the prosecutor in his closing statement to the jury.

The government’s case rests primarily on the testimony of Melvin Lee. The evidence tended to show that special narcotics agent Rinehart observed Lee going to the doorway of defendant Williams’s apartment and then returning with 18 bags of heroin purchased with $200 furnished by Rinehart. Lee testified that he bought the heroin from defendant Williams and that Williams’s girlfriend, Madonna Breeden, was present in the apartment at the time of the purchase. Lee also pointed out Madonna Breeden, in the presence of the jury, as being then present in the courtroom. Defendant Williams is black; Madonna Breeden is white.

The only other evidence of consequence is a confession by Williams obtained under allegedly improper eircum-stances. Williams was twice given the Miranda warnings, and on the second occasion signed a waiver of his rights. He then indicated a willingness to talk, at which time special agent Rinehart suggested that he “try to help himself.” Williams supposedly responded, “You mean by introducing you around to people[,] like Melvin [Lee] introduced you to me.” Rinehart then asked him, “Do you mean to say you are now telling me you sold me heroin?” Williams replied, “Yes.”

Once conversations lawfully begin, we believe a law enforcement officer may properly tell the truth to the accused, and we think it is a fact of criminal life that accused persons can and often do help themselves by cooperating with the police, e.g., if he testifies about the criminal activity of others, he may be granted immunity for his testimony, obtain a dismissal of cumulative counts, or at the very least obtain a recommendation of leniency from the prosecutor. The timing of a conversation such as this one is of controlling importance. Here, the suggestion of cooperation came only after full Miranda warnings had twice been given and after Williams had waived his right against self-incrimination. Thus, we are not presented with the question whether the warnings may have been diluted by advice that it is better to cooperate than to exercise one’s constitutional rights.

Upon the facts of this case we hold that Williams’s admission of the sale of heroin was neither induced nor obtained by any direct or implied promise. See United States v. Springer, 460 F.2d 1344 (7th Cir. 1972); United States v. Glasgow, 451 F.2d 557 (9th Cir. 1971); United States v. Ferrara, 377 F.2d 16 (2d Cir. 1967); Martin v. United States, 166 F.2d 76 (4th Cir. 1948).

Of greater concern to us are the defendant’s points of error concerning the prosecutor’s statements to the jury and the identification of Madonna Breeden. In his closing argument to the jury, the Assistant United States Attorney said that the government’s evidence was the only evidence in the case, that it “is uncontradicted and undenied and unrefuted.” It is urged upon us that this was a comment on the failure of the defendant to testify in violation of the fifth amendment as interpreted in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).

It is true that the overwhelming weight of authority, even after Griffin, is to the effect that the prosecutor may point out that the defense did not offer evidence to contradict the government’s case, United States v. Lipton, 467 F.2d 1161, 1168 (2d Cir. 1972); United States v. Hager, 461 F.2d 321, 324 (7th Cir. 1972); United States v. Lepiscopo, 458 F.2d 977, 979 (10th Cir. 1972); United States v. Smith, 421 F.2d 1229, 1230 (3d Cir. 1970); United States v. Johnson, 337 F.2d 180, 203 (4th Cir. 1964), aff’d, 383 U.S. 169, 86 S.Ct. 749, 15 L.Ed.2d 681 (1966); Davis v. United States, 279 F.2d 127 (4th Cir. 1960), at least where it is apparent that witnesses other than the defendant might have been offered by the defense. Desmond v. United States, 345 F.2d 225 (1st Cir. 1965). The test adopted by several circuits is: “Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?”

The argument to a jury that the government’s evidence is “undenied,” although sometimes approved, see 53 Am. Jur. Trial 378n.6 (1945), seems to us to skirt the precipice of reversible error. The very entry of a not-guilty plea is an effective denial of all of the government’s evidence. That evidence may be unrefuted and uncontroverted certainly does not mean that the defendant fails to deny its truth. But in context with the words “uneontroverted” and “unre-futed,” we are unable to say with any degree of assurance that the jury was misled.

In United States v. Weems, 398 F.2d 274, 275-276 (4th Cir. 1968), we held that a “single statement by the prosecutor, in the course of his closing argument to the jury, to the effect that certain evidence and testimony was ‘uncontradicted and undisputed’ ” was not plain error. We then admonished “United States Attorneys in this circuit to observe the spirit of Griffin and to avoid jeopardizing otherwise certain convictions by arguments that border on forbidden ground.” We repeat the monition.

As to Lee’s in-court identification of Madonna Breeden, we are gravely concerned with Williams’s assertion that it was a blatant and unnecessary injection of a matter (race) calculated to inflame the jury. If we were convinced of invidious purpose we would reverse. But the government urges plausibly that Madonna Breeden was identified before the jury in order to establish a basis for the prosecutor’s later comment during his jury argument that the government’s evidence was “uncontradicted,” i.e., to show on the record that the defendant could have called another witness and did not do so. It is beyond argument that showing the availability of such a witness is material and competent even in those jurisdictions that require no such foundation for the comment, and as we have noted, it is essential in the First Circuit. See Desmond, supra. Although we cannot help wondering if the reason advanced by the government for her identification is not a pretentious afterthought, we think we should not impute the worst motive the facts will support when a perfectly lawful reason for the identification of Madonna Breeden is equally supportable.

We have considered the other assignments of error and find them to be without merit. The conviction is, therefore,

Affirmed.

It has been said that it is neither charity, nor common sense, nor law, to infer tke worst intent which the facts will admit of; the reverse being the true rule both of justice and of law.

      . In Desmond the First Circuit announced a rule that comment concerning lack of contradiction is improper “[U]nless it is apparent on the record that there was someone other than himself whom the defendant could have called.” [Emphasis added]. Desmond v. United States, 345 F.2d 225, 227 (1st Cir. 1965).

      . See United States v. Follette, 418 F.2d 1266, 1269 (2d Cir. 1969), and the cases therein cited.

      . See State v. Hill, 181 N.C. 558, 560, 107 S.E. 140, 141 (1921):


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Rudolph R. ZAWADZKI d/b/a Marla Security Service, Respondent.
    No. 73-1194.
    United States Court of Appeals, Sixth Circuit.
    June 5, 1973.

      Marcel Mallet-Prevost, Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Bernard Gottfried, Acting Director, Region 7, N.L.R.B., Detroit, Mich., for petitioner.
    Rudolph R. Zawadzki, pro se.
    Before CELEBREZZE, PECK and LIVELY, Circuit Judges.
   ORDER

PER CURIAM.

This cause came on to be considered on Petitioner’s application for the summary entry of judgment enforcing its Order of January 14, 1972 against Respondent, adopting with modification the findings, conclusions, and recommendations of the Trial Examiner’s decision and ordering appropriate relief thereunder. Respondent has filed no response to this application.

Upon review of the record filed with this Court by Petitioner it appears that Respondent failed to file timely objections to the Trial Examiner’s decision, as required under Section 10(c) of the Act and under Sections 102.46 and 102.48 of the Rules and Regulations of the National Labor Relations Board, Series 8. Respondent has failed to show this Court any extraordinary circumstances which might excuse this failure, and it is therefore precluded under Section 10 (c) of the Act from raising any objections to Petitioner’s Order before this Court.

It is therefore ordered that said application for summary entry of judgment enforcing Petitioner’s Order be and the same is hereby granted and that said Order be and the same is hereby enforced.


author: WISDOM, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John William WOKKOPICH, Defendant-Appellant.
    No. 72-2676.
    United States Court of Appeals, Fifth Circuit.
    June 5, 1973.

      J. V. Eskenazi, Federal Public Defender (court-appointed but not under Act), Theodore J. Sakowitz, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., J. Daniel Ennis, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and WISDOM and AINS-WORTH, Circuit Judges.
   WISDOM, Circuit Judge:

John William Workopich was indicted and convicted on four counts of violating the Controlled Substances Law, 21 U.S. C. § 841. Court I charged that he possessed “about” 1 gram of heroin on June 2, 1972, with the intent to distribute it, and Count II charged its actual distribution on that date. Counts III and IV asserted a similar type possession and distribution of “about” 1.15 grams of heroin on June 9, 1972. On appeal he argues several grounds for reversal: first, that he had established entrapment as a matter of law; second, that the evidence was sufficient to require the district judge to charge the jury on entrapment ; third, that he was merely ah agent for a government informer and had no dominion or control over the drugs; and, fourth, that a charge of possession with intent to distribute merges into a charge of distribution, and is therefore multiplicitous. We hold that the defendant did not establish en» trapment as a matter of law but that the evidence created a question of fact as to entrapment. The defendant was therefore entitled to a charge explaining entrapment to the jury and he was entitled to have 'the jury decide the issue. Due process is not satisfied with less. We reverse and remand for a new trial.

I.

Workopich was a twenty year old heroin addict who lived with another addict in the hippie enclave in Coconut Grove, a section of Miami, Florida. At the time of his arrest he had been a user of heroin for seven years, an addict for four years.

On June 2, 1972, special agents Walde and Dodge of the Bureau of Narcotics and Dangerous Drugs, and detectives D’Ambrosia and Wrightson, two local policemen, arrived at 2 p. m. by automobile in Coconut Grove. Each was dressed to pass unnoticed in a hippie area. By arrangement they met Guy-man, a government informer. They observed Workopich “milling” around near Lum’s Restaurant “doing nothing”. Guyman, who had met the defendant three weeks earlier, spoke with Worko-pich intermittently during the afternoon. At 4 p. m. Guyman asked Worko-pich to sell him some drugs for friends who were addicts. Workopich replied that he did not have any heroin and did not sell it but that he knew someone who did and that person was scheduled to arrive in twenty minutes and perhaps the purchase could be made from him.

“(a) Except as authorized by this sub-chapter, it shall be unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense a controlled substance; ”

Shortly afterwards, the informer introduced agent Walde to the defendant. The three were together when Worko-pich’s supplier arrived. The defendant approached the supplier and asked if he had any drugs he could sell to Guyman and agent Walde. The supplier told Workopich to ask them how much they wanted. The defendant then asked the informer, standing only ten paces away, how much he wanted. The reply was thirty dollars worth and agent Walde gave the thirty dollars to Workopich. The defendant and the informer then walked the ten paces back to the supplier and made the transaction. Worko-pich kept no money nor any drugs. He immediately returned and delivered the drugs to the agent. All of these acts took place in close proximity to and in clear vision of the agents, except for a short moment when Workopich stepped behind Lum’s with the informer and the supplier to make the exchange.

One week later informer Guyman again approached Workopich at Lum’s. Guyman told the defendant that his two friends were suffering withdrawal symptoms and needed to purchase heroin quickly. Workopich then entered an automobile with Guyman and the two agents and drove down the street until he spotted his supplier. The agents gave him thirty dollars of recorded government money with which to buy two bags of heroin. Workopich stepped out of the car, purchased two bags of heroin, and handed them to the agents. In this transaction the defendant, then suffering the onset of withdrawal symptoms, also purchased a bag for himself on credit. He told the agents this heroin was for his own use and as soon as possible he found a quiet place where he injected the heroin into his arm.

Six days later he was arrested.

At the trial the court refused to instruct the jury on the defense of entrapment. The jury found the defendant guilty on all four counts and he was sentenced under 18 U.S.C. § 4253(a) to treatment for .an indeterminate period not to exceed ten years. Prior to this case the defendant had no history of dealing in drugs.

II.

The defendant argues that because government agents solicited his criminal activity and because they provided him with currency without which the purchase could not have been made, that entrapment had been proved as a matter of law under this Court’s decision in United States v. Bueno, 5 Cir. 1971, 447 F.2d 903.

In Bueno the defendant was induced by a government informer to sell heroin to a government agent. The informer, compensated by the government, had imported the heroin into the United States from Mexico. Because the government failed to produce the informer at the trial, the defendant’s testimony of inducement was uncontested. In granting a new trial, the court concluded that unless the government could produce contradictory testimony on remand, the defendant would be entitled to acquittal as a matter of law.

In the present case the government did not call the informer as a witness to challenge' the testimony of the defendant. But, unlike Bueno where the government supplied contraband, the government here supplied a commodity legal in itself, United States currency. Furthermore, whereas in Bueno the defendant was merely the conduit between two government employees, here the defendant actually arranged the purchase from one illegally dealing in heroin.

Subsequent to the briefs and argument in this case, the Supreme Court issued its opinion in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366, 1973. There a government agent approached the defendant and offered to supply him with a chemical essential to the illegal manufacture of amphetamines. This ingredient was legal in itself to possess, in contrast to the contraband supplied in Bueno.

In Russell the Court noted the decision in Bueno but neither expressly approved or disapproved of its holding. The Court did not reach a review of the principle in Bueno because it concluded that even if such a principle were adopted the defendants there would not come within its scope. In fact the defendants had previously acquired the ingredient for the production of amphetamines before the time they were approached by the government agent. Though the Supreme Court noted that it might “some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction,” the Court concluded that this was not the day.

In holding that there was not an “intolerable degree of governmental participation” in the government solicitation in Russell, the Court reaffirmed the entrapment doctrines enunciated in Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, and Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848. Noting that “entrapment is a relatively limited defense” the Court emphasized that the focus of the entrapment defense is upon the predisposition of the defendant. “[T]he fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution.” Sorrells, 287 U.S. at 441, 53 S.Ct. at 212; Sherman, 356 U.S. at 372,. 78 S.Ct. 819. Both in Sorrells and in Sherman the government activity went beyond merely affording an opportunity for crime. In Sorrells a jury issue was created and in Sherman entrapment was established as a matter of law because of the repeated entreaties to the defendants, coupled with persuasive argument of an informant to enter into criminal activity. In Sherman the informant was met with “refusal,” then with “evasiveness,” then with “hesitancy” before eventually cooperating. Furthermore, these requests were “predicated on [the agent’s] suffering.” Sherman, 356 U.S. at 371, 373, 78 S.Ct. 819. Similarly in Sorrells, there were multiple requests before the defendant complied and provided the agent with illegal liquor. This “repeated and persistent solicitation in which [the agent] succeeded by taking advantage of the sentiment aroused by the reminiscences of their experiences as companions in arms in the World War” constituted an issue of entrapment for the jury to determine. Sorrells, 287 U.S. at 441, 53 S.Ct. 210. See Henderson v. United States, 5 Cir. 1958, 261 F.2d 909.

Here the defendant testified that the informer approached him twice prior to June 2 and asked to purchase heroin; he was refused. The defendant testified that on June 2 the informant stated the heroin was for friends who were suffering from withdrawal symptoms. The informer did not take the stand to contradict this testimony. When counsel for the defendant asked agent Walde if he had told the defendant why he needed the drugs, the trial judge sustained an objection by the government. He concluded that the question was “totally irrelevant to the offenses charged” and “it wouldn’t be entrapment.” When the defense questioned the defendant as to what agent Walde had told him, the court overruled a government objection. The court found that “the evidence in this case, giving the defendant the benefit of it, is that he thought these people were users and were about to be subjected to withdrawals pains [sic] and that he out of a desire to help them, made the purchase. . . .”

In Sorrells the Court concluded that a jury issue had been created, but in Sherman the Court concluded that entrapment was established as a matter of law. The Court noted in Sherman that in finding entrapment as a matter of law it was “not choosing between conflicting witnesses, nor judging credibility. Aside from recalling [the informer] who was the Government’s witness, the defense called no witnesses. We reach our conclusion from the undisputed testimony of the prosecution’s witnesses.” Sherman, 356 U.S. at 373, 78 S.Ct. at 821. In a companion case of the same day the Court dealt with an alignment of testimony more similar to our present facts, Masciale v. United States, 1958, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859. The defendant there was introduced to a government agent by a government informer. The defendant testified that the informer had lured him into crime by promises of an easy income, but the informer himself did not testify. The Court rejected the argument of the defendant that his uncontradicted testimony of conversations with the informer could establish entrapment as a matter of law. “While the petitioner presented enough evidence for the jury to consider, they were entitled to disbelieve him in regard to [the informer] and so to find for the Government on the issue of guilt. Therefore the trial court properly submitted the case to the jury.” Masciale, 356 U.S. at 388, 78 S.Ct. at 829. Thus, when the undisputed testimony of a defendant is the sole basis for an entrapment defense, entrapment is not established as a matter of law but rather is an issue for the jury to decide. Accord, United States v. Burgess, 5 Cir. 1970, 433 F.2d 987. Cf. United States v. Bueno, 5 Cir. 1971, 447 F.2d 903, where, when the government supplied contraband to the defendant, his uncontradicted testimony established entrapment as a matter of law.

Here, the defendant’s uncontradicted testimony is that he was approached several times before he capitulated. He further testified that he was told that the drugs were for addicts, like himself, who were suffering the pain of withdrawal. On the other hand, the relationship of the defendant and the informant was ephemeral and transitory. Though he had no drugs for sale, the defendant had no resistance in assisting a purchase through his connection. The defendant was compliant but not eager.

In these circumstances entrapment was not established as a matter of law, but was a question for the jury to resolve. The burden of proving entrapment is upon the defendant and the burden of proving predisposition is upon the government. Pierce v. United States, 5 Cir. 1969, 414 F.2d 163. “If there is any evidence in the record that, if believed by the jury would show that the government’s conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it, then, as in all other cases involving questions of guilt or innocence, the jury must be permitted to resolve the matter.” Pierce, 414 F.2d at 168. Paralleling the result in Sorrells, we hold that the defendant was entitled to have his defensive theory of the case explained to the jury by an appropriate charge on entrapment. We remand for a new trial.

III.

The defendant also contends that his activity as an intermediary between a government informant and his connection was not a “distribution” under 21 U.S.C. § 841(a)(1). The definitional section, 21 U.S.C. § 802(11) reads: “The term ‘distribute’ means to deliver . a controlled substance.” That definitional section at 21 U.S.C. § 802(8) states: “The term ‘deliver’ or ‘delivery’ means the actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship.” Thus a “sale” is not required and the issue of agency is irrelevant. Cf. Adams v. United States, 5 Cir. 1955, 220 F.2d 297. The acts of the defendant here clearly fall within the plain meaning of those words.

IV.

Finally, the appellant contends that the convictions of possession with intent to distribute and of distribution are multiplieitous. The defendant was sentenced under the provisions of 18 U. 5. C. § 4253 to treatment for a period not to exceed ten years. The court could have imposed this sentence for any of the four counts of which the defendant was convicted. Thus, under the concurrent sentence doctrine we need not now reach the issue of multiplicity. United States v. Vasquez, 2 Cir. 1972, 468 F.2d 565. Indeed, the sentence received is a shorter period than the fifteen years confinement which could have been imposed for a single count under 18 U.S.C. § 841(b)(1)(A).

Reversed and remanded for proeeed-ings not inconsistent with this opinion.

      . 21 U.S.C. § 841(a)(1) reads as follows:

      . The contents of the two bags transferred on June 2 weighed .27 grams of which .03 grams was heroin. The packets on June 9 weighed .52 grams of which .03 grams was heroin.

      . In contrast to the present case, the district court in Russell charged the jury on the entrapment issue. The issue on appeal was whether an absolute defense was available because of the creative activity of the government, regardless of predisposition of the defendant to commit the crime.

      . Note Section 531 of the President’s version of the Revised Criminal Code, 13 Cr.L.Rep. 3001, April 4, 1973: “[T]he provision of a facility or an opportunity for commission of an offense or mere solicitation which would not induce an ordinary law-abiding person to commit an offense, does not in itself constitute unlawful entrapment.”

      . In restating the opinion of the majority in Russell, Mr. Justice Stewart in a dissenting opinion noted: “And in the absence of a conclusive showing one way or the other, the question of the defendant’s ‘predisposition’ to the crime is a question of fact for the jury. The Court today adheres to tins approach.”

      . These definitions were promulgated by the Comprehensive Drug Abuse Prevention and Control Act of 1970, effective October 27, 1970; 1970 U.S.Code Cong. & Admin.News p. 4566. That act, in describing unlawful acts, makes illegal the broader inclusive acts of “distribution” or “dispensing”, and does not use the more restrictive term “sell”. Cf. Palmer v. United States, 5 Cir. 1964, 340 F.2d 48.


author: HASTINGS, Senior Circuit Judge.

text:
    Curtis T. BUSSE and Myrtle Busse, Petitioners-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
    No. 72-1957.
    United States Court of Appeals, Seventh Circuit.
    Argued April 12, 1973.
    Decided June 1, 1973.

      Scott P. Crampton, Asst. Atty. Gen., William S. Estabrook, III, Atty., Tax Div., U. S. Dept, of Justice, Washington, D. C., for respondent-appellant.
    John S. Best, Robert A. Schnur, Milwaukee, Wis., for petitioners-appellees.
    Before HASTINGS, Senior Circuit Judge, CUMMINGS, Circuit Judge, and CAMPBELL, Senior District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   HASTINGS, Senior Circuit Judge.

Pursuant to § 7483 of the Internal Revenue Code of 1954, the Commissioner of Internal Revenue brings this appeal from a decision and order of the United States Tax Court, 58 T.C. 389 (1972), holding that he erroneously determined a deficiency in the 1967 federal income tax of Curtis T. Busse (the taxpayer) and Myrtle Busse of Randolph, Wisconsin. The parties stipulated all the facts.

Sometime before March 20, 1958, taxpayer invented a method and machine for stacking cans on pallets. On that date, he assigned an undivided one-half interest in the invention to his brother. A patent covering the invention issued to taxpayer on August 16, 1960. By reason of the assignment, taxpayer and his brother each owned one-half of the patent. When the brother died on July 10, 1962, his interest passed to his widow. Taxpayer and the widow organized Busse Bros., Inc., a Wisconsin corporation, on January 2, 1966, in which at all relevant times each owned 50 per cent of the issued and outstanding stock. On the same day the corporation was organized, taxpayer, his sister-in-law and the corporation entered into an oral agreement by which each shareholder sold his entire interest in the patent to the corporation. In return, the corporation agreed to pay taxpayer and his sister-in-law quarterly installments, during the life of the patent, equal to five per cent of the corporation’s net selling price (as that term was defined in the agreement) of devices covered by the patent claims.

During 1967 the corporation paid taxpayer $36,029.01 as his one-half share of the payments required under the agreement. Although taxpayer’s 1966 assignment to the corporation was plainly “[a] transfer * * * of property consisting of * * * an undivided interest [in all substantial rights to a patent] which includes a part of all such rights, by any holder ,” as described in § 1235(a) of the Code, taxpayer was not able to treat the 1967 payments as long-term capital gain under § 1235. Such treatment was precluded by the operation of § 1235(d), because taxpayer’s assignment to the corporation was a transfer between related persons, speei-fically, in the words of § 267(b) (2) as modified by § 1235(d)(1), between “[a]n individual and a corporation 25 percent or more in value of the outstanding stock of which is owned * * * by * * * such individual.” However, taxpayer was able to and did report the entire amount of the 1967 payments as long-term gain received upon the sale of a capital asset, under the general provisions of §§ 1221 and 1222. The Commissioner, pursuant to the appropriate regulations under § 483, nevertheless concluded that only $33,011.81 of the 1967 payments constituted capital gain, while the remaining $3,017.20 was unstated interest on an installment sale, taxable at ordinary income rates. In line with this analysis, the Commissioner determined an income tax deficiency for 1967 of $1,659.47. He rejected taxpayer’s contention that § 483(f)(4) protected the 1967 payments from unstated interest treatment. Taxpayer petitioned the Tax Court for a redetermination, and that court determined that there was no 1967 deficiency. This appeal followed.

The Tax Court’s decision was of a narrow legal question: Given a patent transfer which is described in § 1235(a) of the Code but which does not receive its capital gain treatment under § 1235, should some part of the payments received pursuant thereto be treated as unstated interest under § 483, or is such treatment precluded by the exception contained in § 483(f)(4)? We agree with the Tax Court that such payments do qualify for the statutory exception and, accordingly, affirm the decision and order.

Section 483, “Interest on certain deferred payments,” was added to the Code by the Revenue Act of 1964, Pub.L.No. 88-272, § 224(a), 78 Stat. 19, 77. The section provides, in pertinent part:

“(a) * * * [I]n the case of any contract for the sale or exchange of property there shall be treated as interest that part of a payment * * * which bears the same ratio to the amount of such payment as the total unstated interest under such contract bears to the total of the payments * * * which are due under such contract.
•X* •X* *X* if "X1 •}£
“(c) * * *
“(1) * * * Except as provided in subsection (f), this section shall apply to any payment on account of the sale or exchange of property which constitutes part or all of the sales price and which is due more than 6 months after the date of such sale or exchange under a contract—
“(A) under which some or all of the payments are due more than one year after the date of such sale or exchange, and “(B) under which * * * there is total unstated interest.”

. The report of the Committee on Ways and Means of the House of Representatives, which accompanied the Revenue Act of 1964 on its sojourn through the Congress, explained the general reasons for the new provisions:

“Your committee sees no reason for not reporting amounts as interest income merely because the seller and purchaser did not specifically provide for interest payments. This treats taxpayers differently in what are essentially the same circumstances merely on the grounds of the names assigned to the payments. In the case of depreciable property this may convert what is in reality ordinary interest income into capital gain to the seller. At the same time the purchaser can still recoup the amount as a deduction against ordinary income through depreciation deductions. Even where the property involved is a nondepreciable capital asset, the difference in tax bracket of the seller and buyer may make a distortion of the treatment of the payments advantageous from a tax standpoint. Your committee believes that manipulation of the tax laws in such a manner is undesirable and that corrective action is needed.”

As specifically mentioned in subsection (c)(1), supra, subsection (f) contains outright exceptions to the applicability of § 483. There are five exceptions in all, of which only that contained in subsection (f)(4) concerns us:

“(4) Sales or exchanges of patents. —This section shall not apply to any payments made pursuant to a transfer described in section 1235(a) (relating to sale or exchange of patents).’,’

On brief, the Commissioner agrees that the payments made pursuant to the 1966 assignment “appear to fall within the literal language of Section 1235(a).” It would seem, then, that taxpayer is entitled to be excepted from the operation of § 483 by the “plain, unambiguous and understandable” words of the statute. United States v. Chused, 8 Cir., 209 F.2d 548, 550 (1954). This situation calls to mind the words of the late Circuit Judge Major for our court in Durkee Famous Foods, Inc. v. Harrison, 136 F.2d 303, 307 (1943), rev’d on other grounds, 320 U.S. 718, 64 S.Ct. 367, 88 L.Ed. 422:

“This clear and unambiguous language calls for the application of another rule, long recognized by the courts but too often, we fear, honored only by lip service. In United States v. Standard Brewery, 251 U.S. 210, 217, 40 S.Ct. 139, 140, 64 L.Ed. 229, the court said: ‘Nothing is better settled than that in the construction of a law its meaning must first be sought in the language employed. If that be plain, it is the duty of the courts to enforce the law as written, provided it be within the constitutional authority of the legislative body which passed it.’ Again, in United States v. Merriam, 263 U.S. 179, 187, 44 S.Ct. 69, 71, 68 L.Ed. 240, 29 A.L.R. 1547, the court said: ‘But in statutes levying taxes the literal meaning of the words employed is most important, for such statutes are not to be extended by implication beyond the clear import of the language used.’ Again, in United States v. Missouri P. R. Co., 278 U.S. 269, 277, 49 S.Ct. 133, 136, 73 L.Ed. 322, the court said: ‘We are therefore bound by the words employed and are not at liberty to conjure up conditions to raise doubts in order that resort may be had to construction. * * * Construction may not be substituted for legislation.’
“Another rule often overlooked in construing a revenue statute is that in a doubtful situation the taxpayer is entitled to the benefit of the doubt. As was said by the court in United States v. Merriam, supra, 263 U.S. at page 188, 44 S.Ct. at page 71, 68 L. Ed. 240, 29 A.L.R. 1547: ‘If the words are doubtful, the doubt must be resolved against the government and in favor of the taxpayer.’ ”

We do not consider that the law in this area of statutory construction has changed appreciably since Judge Major expressed it.

Nevertheless, the Commissioner seeks to avoid the consequences of strict construction by invoking the judicially developed rule which justifies “a departure from the letter of the law” when adherence to the letter would cause an absurdity “so gross as to shock the general moral or common sense” and when it is plain that Congress intended “that the letter of the statute is not to prevail.” Crooks v. Harrelson, 282 U.S. 55, 60, 51 S.Ct. 49, 50, 75 L.Ed. 156 (1930).

The best indication of the intent of Congress is, of course, the literal wording of the statute itself, which we have held is not ambiguous. Discussion of subsection (f) (4) in the congressional committee reports is minimal and perfunctory, shedding no light on the intent the Commissioner purports to see of avoiding the result the Tax Court decision dictates. Contemporaneous agency interpretation of the statute, as represented by Treas.Reg. § 1.483-2(b) (4), is largely a restatement of the statute and, when considered in the light most favorable to the Commissioner’s position, is ambiguous in a way that the statute is not. To turn from a clear statute to an unclear regulation for guidance is hardly an accepted method of interpretation.

To support his contention that the plain language of the statute leads to absurd results, the Commissioner cites two examples of what he terms “anomalous situation[s].” The first of these examples proceeds from the Commissioner’s assumption that Congress created a favored class of taxpayers in enacting § 1235, a class of which the present taxpayer is not a member. Characterizing the exception of § 483(f)(4) as “a benefit essentially ancillary to the benefits provided by Section 1235,” the Commissioner is disturbed by the specter of the present taxpayer obtaining some of the benefits of class membership without qualifying for actual membership in the class.

The second example springs from the interrelationship of words and phrases within the various subsections of § 1235. The word “holder” in subsection (a) is defined in subsection (b). As we have noted previously, taxpayer qualifies as a holder under subsection (b) (1) because he “created” the property transferred. The Commissioner points out, however, that subsection (b)(2)(B) makes eligibility for holder status by persons other than “creators” turn on their not being related to the creator within the meaning of subsection (d). Thus, for example, should Busse Bros., Inc., assign the patent rights to a third party at some future time, it may not claim the benefit of the § 483(f)(4) exception even if, like taxpayer, it can qualify the transfer for capital gain treatment under §§ 1221 and 1222. Or, as the Commissioner states the situation in his brief:

“Put another way, Section 1235-type transactions disqualified because of an unauthorized ‘transfer’ would not be subject to imputed interest, but Section 1235-type transactions disqualified because of failure to meet the definition of ‘holder’ would be so subject. The proper distinction should lie, in our view, not in how the transaction became disqualified, but rather in whether the transaction was disqualified under Section 1235.” (Emphasis in original.)

However much the statute, in operation, may offend the Commissioner’s sense of symmetry and propriety, we cannot say that the results it causes are either absurd or unintended by Congress. Courts have no power (just as the Commissioner has no power in his capacity as an administrative official) “to rewrite legislative enactments to give effect to” their “ideas of policy and fitness or the desirability of symmetry in statutes.” United States v. Shirah, 4 Cir., 253 F.2d 798, 800 (1958). The powers of repeal and amendment are uniquely legislative in their nature. See Lang v. Commissioner, 289 U.S. 109, 113, 53 S.Ct. 534, 77 L.Ed. 1066 (1933) ; Iselin v. United States, 270 U.S. 245, 250-251, 46 S.Ct. 248, 70 L.Ed. 566 (1926); Arkansas Valley Industries, Inc. v. Freeman, 8 Cir., 415 F.2d 713, 718 (1969). We find additional support for our position in the opinion of the Eighth Circuit in Helvering v. Rebsamen Motors, Inc., 128 F.2d 584, 587-588 (1942):

“It is not our understanding that a taxing statute is only to be read literally when a literal reading favors the Government. * * *
“One may honestly and reasonably believe that in drafting a taxing act Congress uses the language which most nearly expresses the legislative intent, and that if the language used fails properly to express that intent, corrections should be made by Congressional action and not by Treasury regulations or by judicial construction. This is not to say that the language of such an act should not be accorded its full meaning or should be given an unduly restricted interpretation or one which will defeat a clearly apparent Congressional purpose. It seems to us, however, that neither the taxing authorities nor the courts are justified in virtually amending a taxing act because they are of the opinion that Congress may have had or should have had a different intention than that which was expressed in the act. There would seem to be nothing unreasonable in a rule of construction which requires legislative bodies, in enacting taxing statutes, to use language of sufficient clarity to be understood by an ordinarily intelligent taxpayer as well as by those who are required to administer and to interpret the statutes.”

In sum, taxpayer’s 1966 assignment to the corporation was “a transfer described in section 1235(a).” Payments received pursuant to the assignment thereby qualified for the exception from unstated interest treatment contained in § 483(f)(4). Since there is every reason to give effect to the plain language of the latter statute, the Commissioner erred in determining a deficiency in taxpayer’s 1967 income tax. The United States Tax Court was correct in so holding, and we affirm its decision and order.

Affirmed.

      . Myrtle Busse is the wife of Curtis T. Busse and is a party to these proceedings solely because she filed a joint income tax return with her husband.

      . The oral agreement was reduced to writing by an assignment executed April 28, 1967.

      . As an “individual whose efforts created sucli property,” taxpayer comes within the definition of “holder” for purposes of § 1235. Code, § 1235 (b) (1).

      . Rev.Rul. 69-482, 1969-2 Cum.Bull. 164.

      . In so holding, the Tax Court specifically adhered to its prior decision in Floyd G. Paxton, 53 T.C. 202 (1969). Although the Commissioner did not elect to appeal Paxton, he expressed his disagreement with the result by means of a nonacquiescence, 1971-2 Cum.Bull. 4.

      . “[T]he term ‘total unstated interest’ means, with respect to a contract for the sale or exchange of property, an amount equal to the excess of—
      “ (1) the sum of the payments * * * which are due under the contract, over
      “(2) the sum of the present values of such payments and the present values of any interest payments due under the contract.” Code, § 483(b).

      . H.R.Rep. No. 749, 88th Cong., 1st Sess. (1964).

      . 1964-1 Cum.Bull. (Part 2) 125, 196. The Senate’s Committee on Finance agreed completely with the views of the House committee. S.Rep. No. 830, 88th Cong., 1st Sess. (1964), 1964-1 Cum.Bull. (Part 2) 505, 606.

      . The entire discussion in the House report follows:
      “The bill specifies five situations in which this provision [§ 483] is not to apply: * * * Fourth, this provision is not to apply in the case of payments with respect to patents, which are treated as capital gain under present law.” 1964-1 Cum.Bull. (Part 2) 125, 197-198.
      The Senate report is identical. 1964-1 Cum.Bull. (Part 2) 505, 607. Moreover, as the Tax Court pointed out, 58 T.C. at 394 n.5, Congress has used the phrase “described in section 1235” elsewhere in the Code without mentioning subsection
      (a), thus indicating that it is aware of a distinction between the two references. See Code, §§ 871(a)(1)(B) and 1441(b) and (c)(5).

      . “Section 483 does not apply to any payments made pursuant to a transfer described in section 1235(a) (relating to sale or exchange of patents). The preceding sentence does not apply to transfers which are not described in section 1235(a) but which receive capital gain treatment under another section of the Code.” The regulations under § 483 were adopted on January 24, 1966. T.D. 6873, 1966-1 Cum.Bull. 101.

      . See note 3, supra.

      . Congress has delegated to the Commissioner the task of prescribing “all needful rules and regulations for the enforcement” of the internal revenue laws. Code, § 7805(a). See Bingler v. Johnson, 394 U.S. 741, 749-751, 89 S.Ct. 1439, 22 L.Ed.2d 695 (1969); United States v. Correll, 389 U.S. 299, 307, 88 S.Ct. 445, 19 L.Ed.2d 537 (1967). It is nevertheless true that in so doing he may not act unreasonably and unrealistically in the light of the statute he purports to interpret. United States v. Cartwright, 411 U.S. 546, 93 S.Ct. 1713, 36 L.Ed.2d 528 (May 7, 1973). In view of the foregoing discussion of the Commissioner’s position in this case, we have no difficulty in holding that Rev.Rul. 72-138, 1972 Int.Rev.Bull. No. 13, at 16, insofar as it embodies that position, is of no effect and force. United States v. Eddy Bros., Inc., 8 Cir., 291 F. 2d 529, 531 (1961).