author: RONEY, Circuit Judge:

text:
    RENUART-BAILEY-CHEELY LUMBER AND SUPPLY COMPANY, Plaintiff-Counter Defendant-Appellant, v. PHOENIX OF HARTFORD INSURANCE COMPANY, Defendant-Counter Claimant-Appellee.
    No. 71-3184.
    United States Court of Appeals, Fifth Circuit.
    Oct. 4, 1972.
    As Amended on Denial of Rehearing Feb. 8, 1973.

      Michael R. Storace, Miami, Fla., for appellant.
    Steven R. Berger, Miami, Fla., for ap-pellee.
    Before TUTTLE, MORGAN and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

In this diversity case the district court granted summary judgment for defendant, Phoenix of Hartford Insurance Company. The court held that Phoenix rightfully refused coverage under a policy of public liability insurance on the ground that the insurance company did not receive timely notice of an accident from its insured, Renuart-Bai-ley-Cheely Lumber and Supply Company (RBC). RBC settled the claim against it and then brought this separate action against Phoenix claiming insurance coverage. Our review is limited solely to the question of whether summary judgment was proper in the circumstances of this case. We hold that there were important issues of fact that should have been resolved, vacate the judgment, and remand the case for further proceedings.

On December 5, 1964, John S. Evans purchased a Dewalt table saw from the warehouse of RBC in Miami, Florida. He intended to take his purchase home in his own station wagon. At that point there arises a factual dispute which was not resolved by the district court but which may have substantial significance in our view of the case.

RBC asserts the following: the manager of the RBC warehouse, John Fuller, instructed Percy Brown, an employee of RBC, to assist Evans in carrying the saw to his station wagon. When they arrived at the automobile which was parked on the near side of the public street parallel to the entrance of RBC, Brown asked Evans if he wanted help putting the saw into the station wagon. Evans declined Brown’s assistance. Brown then left the immediate area of the automobile and went to a nearby coffee shop. As Brown emerged from the coffee shop, he saw Evans dismantling the legs from a table to which the saw was attached and observed the saw fall on Evans. No employee of RBC was assisting Evans.

Phoenix, however, claims that the employee, Brown, was ordered by the warehouse manager to place the saw inside the automobile and that he was in the active process of doing this when the saw fell on Evans, causing serious injuries which required hospitalization.

Upon the report of Brown to his supervisor and after making an investigation, the insurance department of RBC determined that the accident had not occurred on RBC property and that no employees of RBC had been involved. Considering itself in no way involved in the accident, RBC did not make a report of the incident at that time to its liability carrier, Phoenix.

Although Evans, the injured customer, was not interviewed by RBC when its non-involvement was determined, he subsequently became employed by RBC as a result of a merger with another company. At no time during such employment did he express to any RBC employees any thought that RBC was liable for his injuries.

Thereafter, Evans terminated his employment with RBC. He then sued for his injuries in a state court on the theory that RBC’s employees had negligently caused his injuries. The suit was filed two days short of the four year statute of limitations. When RBC received the suit papers it notified Phoenix of the accident and the pending litigation. RBC claims that that is the first time it knew there had been an occurrence for which it might be liable. Initially undertaking to defend the suit, Phoenix later declined coverage and two weeks before the trial date declined to defend. The suit was later settled in favor of Evans for $12,030.

Alleging diversity jurisdiction, RBC then sued Phoenix in federal court for the amount paid in settlement, plus attorneys’ fees and costs. A motion for summary judgment in favor of RBC was denied. After other pleadings were filed, Phoenix moved for summary judgment. The district court, in a brief order, granted summary judgment for Phoenix, apparently on the ground that, as a matter of law, the four year delay between the accident and the notice given Phoenix made the notice untimely under the requirements of the policy. From this judgment RBC appeals.

We think that summary judgment was improperly granted. The controlling determination is whether the notice was given “as soon as practicable” under the terms of the policy. As a condition to covering the insured’s liability to third parties, the policy provides:

“In the event of an occurrence, written notice . . . shall be given by or for the Insured to the company or any of its authorized agents as soon as practicable.”

The policy further provides that no action shall lie against the company unless there has been full compliance with this term of the policy. The term “occurrence” is defined in the definitions section of the policy as:

“Occurrence means an accident, including injurious exposure to conditions, which results, during the policy period, in bodily injury or property damage neither expected nor intended from the standpoint of the insured.”

In Hendry v. Grange Mutual Casualty Co., 372 F.2d 222, (5th Cir. 1967), we considered the application of Florida law to an insurance policy containing a similar notice provision. There we recited the applicable standard for a case of this kind:

“The Rule in Florida appears to be that the term ‘as soon as practicable’ as used in the notice provision of the insurance policy means that notice is to be given within a reasonable time in view of all the facts and circumstances of each particular case. Morton v. Indemnity Ins. Co. of North America, 137 So.2d 618 (Fla.2d Dist.Ct.App.1962), State Farm Mut. Auto. Ins. Co. v. Ranson, 121 So.2d 175 (Fla.2d Dist.Ct.App.1960).
: All of the Florida eases bearing upon the question of the requirement of notice being given to the insurer seem to be uniform in the proposition that what is a reasonable time depends upon the surrounding circumstances and is ordinarily a question of fact for the jury. Hartford Acc. & Indem. Co. v. Mills, 171 So.2d 190 (Fla.lst Dist.Ct.App.1965), American Fire & Cas. Co. v. Collura, 163 So.2d 784 (Fla.2d Dist.Ct.App.1964), Employers Cas. Co. v. Vargas, 159 So.2d 875 (Fla.2d Dist.Ct.App.1964).
Whether notice was given ‘as soon as practicable’ in view of all of the facts and circumstances of the instant case and whether there was a waiver of written notice were certainly questions of fact to be determined by the jury, and the able trial Judge was correct in submitting these issues to the jury in his well worded charge.”

372 F.2d at 225-226.

The primary determination to be made is the time when the insured is first charged with knowledge that there had been an “occurrence” in which it was involved. If the insured made a reasonable determination that there had been no such occurrence, then certainly it would have no duty to report the “non-occurrence” to the insurance company. The facts and circumstances as they were then known or could have been known to RBC upon such investigation as it should have made, as the situation then existed, should control the decision as to whether its actions were reasonable. The conduct of RBC should not be judged by the harsh standard of hindsight. It would not be “practicable” to report an occurrence until the company knew or, by doing those things that it should have done under the circumstances, would have known, that an occurrence within the terms of the policy had occurred. The reasonable time within which the report should have been made would not commence until then. RBC says that it had no occasion to report the occurrence, when it occurred, because it thought it was not involved. Phoenix says that RBC knew it was involved, and therefore should have reported the occurrence. It is this critical fact issue that must be resolved on remand.

It is important to distinguish this situation from a case in which an insured knows that it is involved in an accident but decides that it is not liable, and therefore does not report the occurrence to its insurance carrier. Such a determination by an insured does not relieve it of the obligation to report the occurrence. Florida law clearly provides that an insured cannot prevail where he has failed to render notice because of his own determination of non-liability. Niesz v. Albright, 217 So.2d 606 (Fla.App.1969); Deese v. Hartford Accident & Indemnity Co., 205 So.2d 328 (Fla.App.1967).

Phoenix argues that the four year delay in giving notice is not “as soon as practicable” as a matter of law. The short answer to this is that Florida does not have such a per se time rule but instead grounds each decision on the facts and circumstances of the particular case. Hendry v. Grange Mutual Casualty Co., supra; Tiedtke v. Fidelity & Casualty Co. of New York, 222 So.2d 206 (Fla.1969); Continental Casualty Co. v. Shoffstall, 198 So.2d 654 (Fla.App.1967); Employers Casualty Co. v. Vargas, 159 So.2d 875 (Fla.App.1964).

Vacated and remanded.


source: Caselaw Access Project

author: DUNIWAY, Circuit Judge:

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. W. S. HATCH CO., INC., Respondent.
    No. 71-2930.
    United States Court of Appeals, Ninth Circuit.
    Feb. 1, 1973.

      Robert Giannasi, Atty. (argued), Eugene B. Granof, Jan Weinberg, Attys., Marcel Mallet-Prevost, Asst. Gen. Counsel, Peter G. Nash, Gen. Counsel, NLRB, Washington, D. C., Roy O. Hoffman, Director, NLRB, San Francisco, Cal., for petitioner.
    Samuel L. Holmes (argued), of Angel, Adams & Holmes, San Francisco, Cal., for respondent.
    Kenneth Silbert, of Brundage, Ney-hart, Grodin & Beeson, San Francisco, Cal., for charging party.
    Before JERTBERG, DUNIWAY and TRASK, Circuit Judges.
   DUNIWAY, Circuit Judge:

The National Labor Relations Board petitions for enforcement of its order, 190 NLRB No. 122, requiring the W. S. Hatch Company (the Company) to bargain with the Union upon request, as required by section 8(a) (5) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5). We enforce.

On July 6, 1970, the Union petitioned •for an election among the employees at the Company’s Pittsburg, California plant. On July 23, the parties waived the representation hearing provided for by the Act, section 9, 29 U.S.C. § 159, and executed a Stipulation for Certification Upon Consent Election to be held at the Company’s plant on August 10. Because of the nature of the Company’s business — hauling—it could not estimate the number of employees who would be available to vote on August 10. The Acting Regional Director requested that the election be conducted by mail ballot. Not being compelled to agree, the Company refused, but gave its assurance that efforts would be made to have all employees available at the plant during the voting time. The Acting Regional Director approved the stipulation, and the election proceeded as scheduled. However, of the thirteen employees in the bargaining unit, only seven could vote on August 10, and only six voted. One employee had been transferred out of state and five others were away on work assignments. After the voting, the agents of the Acting Regional Director impounded the six ballots east without counting them. On August 19, being unable to obtain the Company’s consent to amend the stipulation to permit the remaining employees to vote by mail ballot, the Acting Regional Director rescinded his approval of the stipulation, vacated the election, and ordered a representation hearing pursuant to sections 3(b) and 9(c) of the Act, 29 U.S.C. §§ 153(b), 159(c).

Also on August 19, apparently before it received the Acting Regional Director’s order, the Company wrote to him protesting his refusal to tally the ballots. This letter was forwarded to the Board, which treated it as a request to review the order and denied it “without prejudice to renewal in the representation proceeding scheduled for hearing on September 3, 1970.” However, the Company refused to participate in that hearing, appearing for the sole purpose of contesting the Acting Regional Director’s authority to order it. The Regional Director affirmed the action of the Acting Regional Director and ordered a mail ballot election for October 26, 1970, which was won by the Union by a vote of 8 to 4.

On November 11, the Company filed a petition with the Board asking it to tally the votes of the first election. The petition admitted that five employees had been absent from the plant because of work assignments, alleged that the sixth employee had been transferred at his own request, and argued that the election was nonetheless valid. The Board denied this petition, and the Regional Director certified the Union as the bargaining representative of the employees.

The Company refused to bargain with the Union, which filed unfair labor practice charges against the Company. The Company’s answer admitted its refusal to bargain, but alleged that it had no duty to bargain, challenging the validity of the second election on the grounds set out in its November 11 petition. The Board’s General Counsel moved for summary judgment and the Board transferred the case to itself for consideration of this motion. In its response to the motion the Company alleged for the first time that three of the five employees absent on work assignment on August 10 had either requested such assignment or were prevented from returning to the plant by mechanical failures. Noting that this evidence was neither newly discovered nor unavailable at the time of the representation hearing, the Board refused to reopen the issue of the validity of the first election, and granted the General Counsel’s motion. Its subsequent order is the subject of this petition.

It is Board policy to set aside elections when a significant number of employees have not had the opportunity to vote, and its power to do so is beyond question. Congress has entrusted the Board with a wide discretion in conducting and supervising elections. See NLRB v. A. J. Tower Co., 1946, 329 U.S. 324, 330-331, 67 S.Ct. 324, 91 L.Ed. 322. This Court has held that:

“Such discretion includes the determination of whether or not the opportunity afforded all eligible voters to exercise their rights was sufficiently ‘adequate’ or ‘equal’ as to reflect accurately the ‘majority’ required by the statute.” International Telephone & Telegraph Corp. v. NLRB, 9 Cir., 1961, 294 F.2d 393, 395.

The Board has delegated broad authority to the Regional Director to conduct and supervise elections, see 29 C.F.R. § 101.21; thus he is vested with the same discretion.

The Company does not dispute these general principles. It argues that the Acting Regional Director had no authority to set the first election aside under the particular facts of this case. This is so, it' says, because that election was conducted pursuant to a Stipulation for Certification Upon Consent Election, and was therefore subject to the limitations provided in 29 C.F.R. § 102.62(b). That regulation states in relevant part:

“(b) Where a petition has been duly filed, the employer and any individuals or labor organizations representing a substantial number of employees involved may, with the approval of the regional director, enter into an agreement providing for a waiver of hearing and a consent election leading to a determination by the Board of the facts ascertained after such consent election, if such a determination is necessary.”

From this language the Company argues that the Acting Regional Director was “bound” by the terms of the stipulation, which said nothing regarding giving all employees an opportunity to vote, and that his role was limited to that of “an employee of the Board conducting the election.” It concludes that only the Board could set the election aside.

The Board has not taken such a circumscribed view of the role of the Regional Director in conducting consent elections. In Super Valu Stores, Inc., 1969, 179 NLRB 469, a union filed a petition for an election among certain employees only hours before a consent election was to be held pursuant to a stipulation between the employer and another union. Following the election, the Regional Director ordered the ballots impounded without tallying them. Later, he rescinded approval of the stipulation and vacated the election. In sustaining this action, the Board stated: “Implicit in the Regional Director’s authority to approve consent election agreements is his authority to revoke that approval when he determines that changed circumstances, discovered prior to the counting of the ballots, warrant such revocation.” 179 NLRB at 469. This interpretation of section 102.62(b) is not plainly erroneous, and we are therefore bound by it. See Immigration and Naturalization Service v. Stanisic, 1969, 395 U.S. 62, 72, 89 S.Ct. 1519, 23 L.Ed. 2d 101.

The Super Yalu Stores principle supports the Acting Regional Director’s action in this case. The stipulation expressly provided that the election was to be conducted “in accordance with the . applicable procedures and policies of the Board,” one of which was that all eligible employees should have an opportunity to vote. Cf. NLRB v. A. J. Tower Co., supra, 329 U.S. at 333-334, 67 S.Ct. 324. Furthermore, the Company had assured the Acting Regional Director that it would make every reasonable effort to have all of its employees at the plant during the voting period. Even if we were to assume that such efforts were made and that the specific reasons for the absence of some of the employees were facts which, if proved, would affect application of the Board’s policy, thus requiring a determination by the Board under the terms of section 102.62(b), the Company did not allege these facts until the unfair labor practice proceeding. The Acting Regional Director did not abuse his discretion in rescinding approval of the stipulation and vacating the first election without tallying the ballots.

Next, the Company argues that the Board should not have granted the General Counsel’s motion for summary judgment. Primarily, it attacks the Board’s use of its rule against re-litigation, 29 C.F.R. § 102.67(f), to prevent it from presenting to a trial examiner evidence that it failed to introduce in the representation hearing. It is settled in this Circuit that the Board may grant summary judgment in an unfair labor practice proceeding when no material factual issue exists. NLRB v. Red-More Corp., 9 Cir., 1969, 418 F.2d 890, 892; NLRB v. E-Z Davies Chevrolet, 9 Cir., 1968, 395 F.2d 191, 193. Thus, if section 102.67(f) is valid and was properly applied, the Company’s argument must fail.

The Company would draw a line between what it calls the “investigative” functions of the Board and its “adjudicatory” functions. Under its scheme, representation proceedings fall within the former category, and unfair labor practice proceedings within the latter. Because representation proceedings are specifically exempted from the formal requirements of the Administrative Procedure Act, see 5 U.S.C. § 554(a)(6), matters litigated there must always be re-litigated in an unfair labor practice hearing where a refusal to bargain is charged. Any other procedure would in essence deny the party charged a hearing and hence violate due process.

The argument is elaborately spun, but we- are not persuaded. The Board’s order relating to the Company’s August 19 letter specifically invited it to raise matters relating to the validity of the first election in the representation hearing. There it could have presented evidence, examined witnesses under oath, and submitted briefs. Establishing such a record would have fully preserved its right to judicial review of the Regional Director’s determination. Thus, the requirements of due process were more then satisfied. NLRB v. MarSalle, Inc., 1970, 138 U.S.App.D.C. 135, 425 F.2d 566, 571-573; NLRB v. Union Brothers, Inc., 4 Cir., 1968, 403 F.2d 883, 886-887.

Moreover, section 102.67(f) serves a valuable purpose in the Board’s administration of the Act. Contrary to the Company’s assertion, the series of proceedings designed to effectuate the employees’ right to bargain collectively through a representative of their own choosing, beginning with a representation hearing and concluding with an unfair labor practice proceeding if the employer refuses to bargain, cannot be neatly segmented into “investigatory” and “adjudicatory” stages. This is vividly illustrated by the present case, where the Company admits its refusal to bargain with the Union, but attacks the process by which it was selected. The rule against re-litigation was designed to insure that such issues will be resolved early in the game, rather than permitting parties to hold back evidence knowing that they will get a second bite at the apple should they lose. We therefore join the other Circuits which have approved the procedure employed by the Board in this case. NLRB v. Mar Salle, Inc., supra; NLRB v. Brush-Moore Newspapers, Inc., 6 Cir., 1969, 413 F.2d 809, 811-812; NLRB v. Union Brothers, Inc., supra.

The Company complains that the Board has “run roughshod” over it in this case. We are not moved. On the contrary, the Company has been playing cat-and-mouse with the Board, giving no ground when it did not feel absolutely compelled to do so. It must now suffer the consequences.

The Board’s order is enforced.

      . See Pepsi-Cola Bottling Co. of Princeton, Inc., 1969, 176 NLRB 716, 729; Yerges Van Liners, Inc., 1967, 162 NLRB 1259, 1260; Star Baking Co., 1957, 119 NLRB 835, 836; Alterman-Big Apple, Inc., 1956, 116 NLRB 1078.

      . That regulation provides in pertinent part:
      “(f) . . . Failure to request review shall preclude such parties from reliti-gating, in any related subsequent unfair labor practice proceeding, any issue which was, or could have been, raised in the representation proceeding. Denial of a request for review shall constitute an affirmance of the regional director’s action which shall also preclude reliti-gating any such issues in any related subsequent unfair labor practice proceeding.”

      . At one point in its brief, the Company asserts that section 102.67(f) has no application to this case. (Br. at 14.) Presumably this is to protect its argument that the Acting Regional Director had no authority to order the representation hearing. In view of our disposition of that issue, it is clear that section 102.67 (f) does apply.

      . Other Circuits have held that section 102.G7 (f) cannot be applied when the subsequent unfair labor practice proceeding concerns something other than a refusal to bargain. E. g., Heights Funeral Home, Inc. v. NLRB, 5 Cir., 1967, 385 F.2d 879, 881-882; Amalgamated Clothing Workers of America v. NLRB, 1966, 124 U.S.App.D.C. 365, 365 F.2d 898, 902-906. We are not faced with that issue in this case, and expressly decline to decide it.


author: PER CURIAM:

text:
    Roy Alphonso SMITH, Appellant, v. J. D. COX, etc., Appellee.
    No. 71-1715.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 2, 1972.
    Decided Feb. 14, 1973.
    Thomas B. Anderson, Jr., Durham, N. C. (Court-appointed counsel) (Loflin, Anderson & Loflin, Durham, N. C., on brief], for appellant.
    William A. Carter, III, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., of Virginia, on brief), for appellee.

      Before BOREMAN, WINTER, and RUSSELL, Circuit Judges.
   PER CURIAM:

The district court denied habeas corpus relief to Roy Alphonso Smith who alleged that his sixth amendment right to a speedy trial was denied him when, during a period of twelve months incarceration at the Lorton Reformatory, the Commonwealth of Virginia declined to act upon his repeated written requests that he be tried on pending state charges. The Lorton incarceration began in August, 1965, after conviction in the District of Columbia for housebreaking, and terminated a year later when Smith’s conviction was reversed on appeal. The Virginia charge was for armed robbery allegedly committed on February 23, 1965, while Smith was awaiting trial for housebreaking. A warrant for Smith’s arrest on the Virginia charge was issued on February 25, 1965, but it was not served until September 7, 1966, when Smith had been released from Lorton. Smith was indicted on January 3, 1967, and he was tried and convicted on March 14, 1967, and sentenced on May 9,1967.

The district court found that Smith had failed to show any prejudice resulting from the two year delay between the issuance of the warrant and trial. Specifically, it found that, although Smith alleged that he was unable to obtain certain out-of-state witnesses as a result of the delay, he was not prejudiced thereby. We issued a certificate of probable cause to examine the correctness of those findings and of the conclusion that Smith’s sixth amendment right to a speedy trial had not been denied him.

Since the decision by the district court, the Supreme Court has decided United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (December 20, 1971) and Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (June 22, 1972). Marion held that the sixth amendment right to a speedy trial “has no application until the putative defendant in some way becomes an ‘accused’ ” and that ordinarily “it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engages the particular protections of speedy-trial provision of the Sixth Amendment.” 404 U.S. at 313 and 320, 92 S.Ct. at 459 and 463.

While it may be argued that Marion, as applied here, would indicate that Smith’s right to a speedy trial did not come into being until the February 25, 1965 warrant was served, we are loath to give Marion this construction. Smith was aware of the warrant soon after its issuance and undoubtedly no attempt was made to serve the warrant since Smith was already in custody. We cannot equate the factual situation here, where an arrest warrant had been issued but not served because Smith was already incarcerated, with the factual situation in Marion where individuals enjoyed their freedom while an investigation to determine whether to accuse them ran its course.

Since we conclude that Marion does not foreclose Smith’s claimed denial of a speedy trial, we must look to Barker to determine the merits of the claim. Barker prescribes a balancing test where the conduct of the prosecution and the conduct of the defendant are to be weighed, one against the other, with due consideration to all of the factors set forth and discussed in Barker.

We deem it more appropriate that the balancing process be undertaken in the first instance by the district court than by us. The district court, if the need arises, can receive additional evidence with respect to any one or more of the relevant factors on which the record may not be complete. Accordingly, we have concluded to vacate the judgment denying habeas corpus relief and to remand the case to the district court for redetermination in the light of Barker.

Vacated and remanded.


author: RONEY, Circuit Judge: SIMPSON, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, and WISDOM, GOLDBERG and GODBOLD, Circuit Judges,

text:
    Joseph P. LUCIA, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees.
    No. 30342.
    United States Court of Appeals, Fifth Circuit.
    Feb. 2, 1973.
    Simpson, Circuit Judge, dissented in part and specially concurred in part and filed opinion in which John R. Brown, Chief Judge, and Wisdom, Goldberg and Godbold, Circuit Judges, joined.
    Ingraham, Circuit Judge, did not participate in En Banc decision.

      John G. Heard, Harry M. Reasoner, Thomas P. Marinis, Houston, Tex., Charles Alan Wright, W. Dean Hester, Austin, Tex., for plaintiff-appellant.
    Meyer Rothwacks, John M. Dowd, Joseph M. Howard, and John P. Burke, U. S. Attys., Lee A. Jackson, Atty., Tax Div., U. S. Dept, of Justice, Washington, D. C., William S. Sessions, U. S. Atty., Hugh P. Shovlin, Asst. U. S. Atty., San Antonio, Tex., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK and RONEY, Circuit Judges.

      Judge Ingraham did not participate in the en banc decision in this ease.

   RONEY, Circuit Judge:

Appellant Joseph P. Lucia seeks in-junctive and declaratory relief against an assessment of $2,653,640, plus interest, for unpaid wagering taxes. The District Court dismissed the complaint for lack of subject matter jurisdiction. A panel of this Court, relying on the principles set forth in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), reversed the dismissal on the ground that, absent the Government’s showing of taxpayer fraud, the statute of limitations would bar the assessment and appellant would be entitled, therefore, to injunctive relief.

On rehearing, the Court, sitting en banc, now decides that the assessment would not be barred by the statute of limitations. But we remand the case to the District Court for a factual determination of appellant’s allegation that the assessment was arbitrary, capricious, and without factual foundation.

The ultimate question in this case is whether the facts alleged in the complaint come within a narrow exception to the Congressional mandate which denies federal courts the jurisdiction to grant injunctive relief against the assessment or collection of federal taxes. Other than the statutory exceptions, which are not applicable here, the only basis for injunctive relief is that prescribed in Miller v. Standard Nut Margarine Co. of Florida, 284 U.S. 498, 52 S.Ct. 260, 76 L.Ed. 422 (1932), and Enochs v. Williams Packing & Navigation Co., Inc., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). Under the holdings of these two cases, a federal court may enjoin the collection of federal taxes if the taxpayer plaintiff can show (1) that “it is clear that under no circumstances could the Government ultimately prevail,” and (2) “that equity jurisdiction otherwise exists.” 370 U.S. at 7, 82 S.Ct. at 1129. Injunctive relief is permitted under this test only if the Government’s claim cannot be established “under the most liberal view of the law and the facts.”

To bring himself within this exception, plaintiff alleges, on two independent grounds, that the Government could not under any circumstances prevail in the collection of the taxes assessed: first, he contends that the Government’s assessment is barred by the statute of limitations; and second, he argues that the assessment is arbitrary, capricious, and without factual foundation.

I. Statute of Limitations Defense

Civil tax assessments, including the wagering excise tax, must be made within three years after the tax return is filed. If no return is filed, however, this three-year statute of limitations does not apply, and the assessment or collection proceedings may begin at any time. Taxpayer contends that, the latter provision notwithstanding, the three-year limitations period applies when the failure to file a return is constitutionally protected under Marchetti and Grosso. If the limitations statute is applicable here, then the assessment is barred because the assessment of $3,913,761.74 (including $1,260,121.74 interest) for wagering excise tax liability during the period March 1, 1959, through November 21, 1963, was not made until July 29, 1969, almost six years after the last transaction and more than ten years after the first transaction on which the assessment was made.

The validity of the wagering excise tax is not here in question. The courts have traditionally refused to challenge the federal government’s power to tax unlawful activities, so Congress undoubtedly has the power to assess and to collect taxes on unlawful gambling activities, including wagering. A tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed or because it affects activites which Congress might not otherwise regulate.

Several basic principles guide our decision that the statute of limitations is not here applicable.

First, there is no substantive or fundamental right to the shelter of a period of limitations. As a matter of constitutional law, statutes of limitations go to matters of remedy and do not involve the destruction of fundamental rights. Thus, the extent to which a tax assessment is barred by time is within exclusive Congressional control, unlimited by the Constitution. This principle is manifest in the cases recognizing Congress’ power to create a right with no time limitation on its exercise, and by those decisions holding that, in the enforcement of Government tax claims, the United States is not barred by a laches defense.

Second, limitations statutes barring the collection of taxes otherwise due and unpaid are strictly construed in favor of the Government. In effect, a period of limitations runs against the collection of taxes only because the Government, through Congressional action, has consented to such a defense. Absent Government consent, no limitations defense exists.

Third, Congress has clearly provided that time will not bar the collection of taxes for which no returns have been filed :

“In the case of failure to file a return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.”

The legislative intent to condition a limitations defense on the filing of a return is reflected in the provision that time begins to run not when the return could or should have been filed, but only when the return is actually filed.

The objective of this Congressional pattern- — to ensure that passage of time will not prevent collection of the tax unless the Government has been informed by the taxpayer that there is, or might be, tax liability- — is essential to our national tax system, which “is premised largely on the theory of self-assessment.”

Since Congress did not contemplate the frustration of the self-assessment system occasioned by Marchetti, Grosso, and United States Coin and Currency, there could have been no legislative intent as to the effect of these decisions on the limitations defense. Congress, in addressing specific situations involving a failure of the self-assessment pattern, however, consistently provided that time would not bar the collection of the tax. False or fraudulent returns, filed with an intent to evade tax, willful attempt to evade tax in any manner, and failures or delays in filing a return for any reason, justifiable or not, are specific instances where the self-assessment system is thwarted; and in each ease, Congress has provided that time will not bar assessment or collection proceedings until the return is filed. We cannot assume that Congress intended to accord any different treatment to the failure to file a return for Fifth Amendment reasons.

The constitutional dimensions of the federal wagering excise tax scheme, nevertheless, were dramatically affected by the United States Supreme Court’s holdings in Marchetti, Grosso, and United States Coin and Currency. In both Marchetti and Grosso, the Court reasoned that the tax statutes required gamblers to file forms containing possibly incriminating information and that the Fifth Amendment privilege against self-incrimination could be raised as a defense to a criminal prosecution charging failure to file the required forms.

In Marchetti, the Court held that a defendant’s proper assertion of his constitutional privilege against self-incrimination provided a complete defense to a criminal prosecution for willful failure to register and for willful failure to pay the occupational tax before engaging in the business of accepting wagers, and for conspiracy to evade payment of such tax.

In Grosso, the Court additionally held that the Fifth Amendment privilege against self-incrimination likewise prevented a prosecution for failure to pay the excise tax on wagering imposed by 26 U.S.C.A. § 4401, the statute under which the assessment in the case at bar has been made.

United States Coin and Currency was a forfeiture proceeding in which the respondent monies were declared forfeited pursuant to the provision that “no property rights shall exist in property” used “in violating the provision of the internal revenue laws.” Violations of the same statutes controlling in Marchetti supported the forfeiture. The Seventh Circuit concluded that the only apparent purpose of the forfeiture statutes under the circumstances was “to punish violators of [these statutes] by taking away money used in committing the violations.” The Court reasoned that, since Marchetti prohibits direct punishment of such violations, indirect punishment through forfeiture should similarly not be permitted. The Supreme Court, affirming, held that the Fifth Amendment privilege could be properly invoked in the case since the forfeiture statutes, when viewed in their entirety, are intended to impose a penalty only upon those taxpayers who are significantly involved in a criminal enterprise.

Delimiting the scope of these holdings, Mr. Justice Harlan’s language in United States Coin and Currency articulates the issue in the case at bar:

“The Government’s principal argument [that only criminal proceedings were proscribed, not civil proceedings such as forfeiture] turns upon an exceedingly narrow construction of our decisions in Marchetti and Grosso. In those eases, we took pains to make it clear that the Court in no way doubted the Government’s power to assess and collect taxes on unlawful gambling activities. It was only the method Congress had adopted in collecting the tax that raised the Fifth Amendment question. The statute commanded that gamblers submit special registration statements and tax returns that contained information which could well incriminate them in many circumstances. Because the risk of self-incrimination was substantial, we held that a Fifth Amendment privilege could be raised as a defense to a criminal prosecution charging failure to file the required forms. Since it was only this method, of tax collection which was subject to constitutional objection, we indicated that the Government remained free to collect taxes due under the statute so long as it did not attempt to punish the taxpayer for his failure to file the required documents.”

Herein lies the central issue: does the denial of the limitations defense constitute “punishment” of the taxpayer for failure to file a return? More specifically, has the exercise of the taxpayer’s constitutional right against self-incrimination been impermissibly burdened by the tax statute’s establishment of filing as requisite to a limitation period ?

We hold that the collection of legally owed taxes at any time, without regard to the three-year limitation period, is not punishment within the ambit of these decisions. The Government sought from Lucia only taxes and interest, not penalties, civil or criminal. In Marchetti, Grosso, and United States Coin and Currency, the Government sought to deprive the taxpayers of liberty or money, through sentence, fine, or forfeiture, that they could have retained had they complied with the revenue laws. Here, the Government seeks only to deprive Lucia of tax and interest, both lawfully accrued. Since this sum is nothing more than the cost he would have had to bear had he complied with the law, no “costly penalty” can be attributed to his failure to comply.

Lucia seeks support for his argument — that denial of the limitations defense constitutes a penalty — in a variety of cases which hold that an individual may not be deprived of either employment or a professional license simply because he asserts his privilege against self-incrimination in refusing to answer questions relating to his professional conduct. In each of those cases, the individual was deprived of employment or a professional status to which he would have otherwise been entitled were it not for the assertion of his Fifth Amendment privilege. Because there is no fundamental right to have taxes assessed and collected within any period of limitations, the taxpayer has not been penalized by being deprived of something to which he otherwise would have been entitled. The imposition of the tax was not the consequence of Lucia’s refusal to file a tax return. Thus, the assessment and collection of taxes do not constitute retributive action by the Government. Lucia’s treatment did not differ from that accorded any other taxpayer who fails to file returns, including those who obtain, as permitted by statute, an extension of time for filing, and those whose failure to file results from unavoidable circumstances or excusable neglect.

We hold that the period of limitations for the assessment of wagering excise taxes does not commence to run until a return has been filed, even though to require a return would violate the taxpayer’s constitutional right against self-incrimination. No return having been filed by Lucia for the period involved, the statute of limitations does not bar the assessment.

II. The Assessment

On Lucia’s allegations that the Government’s assessment is “arbitrary, capricious, and without factual foundation,” we remand the case to the District Court for a trial on the merits.

Following Pizzarello v. United States, 408 F.2d 579 (2d Cir. 1969), this Court holds that a taxpayer under a jeopardy assessment is entitled to an injunction against collection of the tax if the Internal Revenue Service’s assessment is entirely excessive, arbitrary, capricious, and without factual foundation, and equity jurisdiction otherwise exists. We hold that such a set of facts would bring the taxpayer within the narrow bounds of the exception to the anti-injunction statute designed by the United States Supreme Court in Standard Nut Margarine Co. and Enochs.

Inasmuch as Standard Nut Margarine Co. granted injunctive relief and Enochs denied it, the two cases together delineate the requirements for equity jurisdiction in tax cases.

An injunction barring tax assessment and collection was permitted in Standard Nut Margarine Co., despite the Commissioner’s argument that such relief was prohibited by the anti-injunction statute, on the finding that the excise tax there was assessed against a product that was not taxable at all under the governing Oleomargarine Tax Act. The Government had assessed the tax, in disregard of prior contrary determinations by three federal courts and the Commissioner of Internal Revenue, under circumstances that would have both destroyed the taxpayer’s business and caused it financial ruin.

In Enochs, the Court held that an injunction was barred by the statute, even though the District Court which enjoined the collection of social security and unemployment taxes had found that the taxes were not, in fact, payable and that collection would destroy the taxpayer’s business. The validity of the tax turned on the employer-employee relationship between the owners of shrimp boats and their fishermen crews. A review of the record revealed that the Government’s claim, that the fishermen were the corporation’s employees under the statutory definition, had some foundation, even though the District Court had found otherwise. From this, the Court reasoned that, because the taxpayer could not clearly show “that under no circumstances could the government ultimately prevail,” injunctive relief was improper.

The Court in Enochs specifically held that the mere showing that the tax is not due and that the legal remedy is inadequate is not sufficient to trigger the Standard Nut Margarine Co. exception. Speaking for the Court, Chief Justice Warren explained the manifest purpose of the anti-injunction statute:

“[T]o permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund. In this manner the United States is assured of prompt collection of its lawful revenue.
“To require more than good faith on the part of the Government would unduly interfere with a collateral objective of the Act — protection of the collector from litigation pending a suit for refund.”

The Standard Nut Margarine Co. principle was confirmed, nonetheless, by the Enochs Court:

“[If] it is clear that under no circumstances could the Government ultimately prevail, the central purpose of the Act is inapplicable and, under the Nut Margarine case, the attempted collection may be enjoined if equity jurisdiction otherwise exists. In such a situation the exaction is merely in ‘the guise of a tax.’ ”

The initial test for application of this standard was then articulated as

“[W]hether the Government has a chance of ultimately prevailing . [as] determined on the basis of the information available to it at the time of suit. Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained. Otherwise, the District Court is without jurisdiction, and the complaint must be dismissed.”

In Pizzarello, the Second Circuit, upon determining that the tax assessment in question was excessive and was based on entirely inadequate information, relied on Enochs in reversing the denial of an injunction. Pizzarello was a wagering tax case that involved a projection of wagering, computed from a small amount of known wagers, much like the case at bar. The tax liability for gross wagers for five years was computed by applying the amount of average wagers accepted for a three-day period to the total number of days of operation. The Court found “no proof in the record . . . that Pizzarello operated-as a gambler for five years or that, even if he did so operate, his three-day average represented his average daily business for the other 1,575 days.” The Second Circuit said that “[n]o court could properly make such inferences without some foundation of fact.”

The tax assessment against Lucia was based on a Revenue Agent’s calculation of gross wagers accepted by or on behalf of Lucia during the period March 1, 1959, to November 21, 1963. Available to the Agent was the bounty of a raid on Lucia’s alleged gambling establishment and a seizure of one day’s betting slips purportedly accepted during the 1962 football season. This evidence, by the Agent’s calculation, indicated a total of $28,780 in bets accepted for that day. Upon the premises that wagers in the Houston area were accepted on six days -per week and that the total suggested by the seized bet slips constituted a representative day, the Agent determined that gross wagers in the amount of $2,244,840 were accepted during the 13-week football season. Using this figure to represent 40% of the gross wagers during the entire year, the Agent projected annual gross wagers of $5,612,100. Eliminating one day per week, the Agent calculated that bets were accepted on 313 days annually and divided that number into the projected annual gross wagers, thereby computing the daily amount of gross wagers to be $17,930. From this figure and from his estimate of the number of days each month that wagers would be accepted, the Agent computed gross wagers on a monthly basis.

It is this method of computation which Lucia alleges to be “arbitrary, capricious, and without factual foundation.” He stands ready, his brief indicates, to demonstrate on remand the impropriety of the projection procedure employed by the Government in its assessment.

The panel of this Court which first heard this case found two decisions of this Circuit controlling on the point. Mersel v. United States, 420 F.2d 517 (5th Cir. 1969), and Pinder v. United States, 330 F.2d 119 (5th Cir. 1964).

Subjected to careful analysis, Mersel and Pinder do not conflict with either Pizzarello or our decision in the case at bar. Mersel was a refund case in which the Government employed a similar projection procedure to estimate the amount of wagering tax owed. But the method of computation was not challenged by the taxpayers. Their proof was confined to an attempt .to show that they had not engaged in wagering. This Court held that the District Court’s finding, that taxpayers were engaged in the business of accepting wagers, was not clearly erroneous. Pinder was also a refund suit in which we held that the taxpayer had failed to meet his burden of proving that the tax liability, based on a projected assessment, was improper. Thus, both eases turned on the taxpayer’s failure to carry his burden of proof. In this suit for in-junctive relief, the taxpayer, Lucia, will have to prove his case upon remand, and the extent of our holding goes no further than to give him that opportunity.

We do not regard this decision as conflicting with the line of cases holding that injunctive relief will be denied if it appears that the Government can make at least some recovery of the tax assessed. More fundamental considerations concern us here than a mere quarrel over the amount of the tax: Was the taxpayer accepting wagers dur-erations on remand will the District ing the entire period covered by the assessment? Are the Government’s figures based on realistic projections or were they merely derived, Mandrake-like, from a filament of evidence and subjected to a sleight-of-hand computation? Does the 40% factor used in the computation have any factual basis, or is it merely the product of an agent’s conjecture? Can the base day properly be assumed to be an average day for that week, much less for several years? Only after exploring all relevant consid-Court be able to determine whether the computative basis is so insufficient as to make the assessment an exaction in “the guise of a tax” rather than a legitimate tax on wagers.

III. Inadequate Remedy at Law

Even if it be shown that the assessment is merely an exaction in “the guise of a tax,” Lucia would still not be entitled to injunctive relief if he has an adequate remedy at law. In other words, even if the anti-injunction statute would not bar District Court jurisdiction, the Court would still have no equitable jurisdiction under traditional equity concepts unless there is available to the taxpayer no legal remedy adequate to protect him from irreparable harm.

The Government argues that Lucia has an adequate remedy at law in the form of a refund suit. Although no provision for tax court jurisdiction of wagering excise taxes enables taxpayers to litigate the validity of an assessment before payment, in the manner provided for income, profits, estate, gift, and certain excise taxes imposed under Chapter 42 of the Internal Revenue Code, the taxpayer need not pay the total tax assessed to bring a refund suit. He may instead pay a divisible portion of the tax, representing either a single wagering transaction or a number of wagering transactions but less than the totality assessed, and then test the validity of the entire assessment in a suit for refund brought in the Court of Claims or in the District Court.

Lucia argues that a refund suit is inadequate for two reasons: first, a refund suit will not stay collection proceedings against the remainder of the assessment, and he would suffer financial ruin from a levy during the pen-dency of a refund proceeding, and second, since the Commissioner’s assessment is presumed to be correct and the burden is on the taxpayer to show that the assessment is incorrect and to show the correct amount of tax owed, Lucia would be compelled to abandon his Fifth Amendment privilege against self-incrimination to meet this burden in a refund suit.

The Fifth Amendment argument is unpersuasive. First, Lucia has the burden of proving the allegations of his complaint in this equitable suit if he is to prevail. If he can carry the burden of proof in this injunctive suit, without incriminating himself, presumably he could carry it in the refund suit. Second, we have recently held in Urban v. United States, 445 F.2d 641 (5th Cir. 1971), that the refund procedure for litigating wagering excise taxes provides no basis for a broad constitutional attack on that tax, and we do not recede from that position.

We hold, nevertheless, that if Lucia can prove the allegations in his complaint, that there is a possibility of a financially ruinous levy during the pendency of a refund proceeding, then the legal proceeding offers him no adequate remedy at law. For the consideration of this point, we assume that, in the refund proceedings, Lucia would ultimately prevail on his proof that the assessment was arbitrary, capricious, and without foundation of fact, to wit, that it was not a tax at all but rather an exaction in “the guise of a tax,” and that he can show that in the meantime he would have suffered bankruptcy as a result of the levy and collection. Under these cir- , cumstances, Lucia would have shown the irreparable harm required for equitable jurisdiction, and he would be entitled to such relief as the District Court might determine to be necessary.

This holding does not conflict with the substantial precedent that hardship alone is insufficient to justify injunctive relief against the collection of taxes. The anti-injunction statute expressly forbids such relief, even where no adequate remedy at law is available to prevent such a disastrous result. As the Supreme Court stated in Enochs, “a suit may not be entertained merely because collection would cause an irreparable injury, such as the ruination of the taxpayer’s enterprise.” But a finding that the assessment is arbitrary, capricious, and without foundation in fact would free the Court of the constraint of the anti-injunction statute and would permit relief upon a showing by taxpayer that his legal remedy is inadequate to prevent irreparable injury.

The judgment of the panel is withdrawn but the decision of the District Court is reversed and remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

SIMPSON, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, and WISDOM, GOLDBERG and GODBOLD, Circuit Judges,

join, dissenting in part and specially concurring in part:

I

I respectfully dissent from Part I of the Court’s en banc opinion on rehearing,. ádhering to the views expressed in Part VI, pages 919-921, of my opinion for the original panel, Lucia v. United States, 5 Cir. 1971, 447 F.2d 912. This viewpoint is based upon the premise that Marchetti, Grosso, and United States Coin and Currency, introduced “an entirely new constitutional dimension to the administration of the federal wagering excise tax scheme” and the conclusion that “because of this radical alteration of the constitutional environment * * * decisions pre-Marchetti and Grosso dealing with injunctive relief against wagering excise tax assessments ■may not be relied upon to dispose of the issue presented here.”

The panel attempt to assay the effect of this new constitutional dimension on the issues presented by Lucia’s appeal led to this result: “ * * * that Lucia may not be deprived of the defense of the statute of limitations for failure to file the required federal wagering excise tax returns”, because of his exercise of his Fifth Amendment right against self-incrimination.

In any accommodation between statute and the Constitution, I remain convinced that the statute in question, Title 26, U. S.C., Section 6501(c)(3), must give way to the constitutional privilege explicated in Grosso and given retroactive application by United States Coin and Currency. This conclusion may not be entirely satisfactory. The en banc majority rejects it.

But my opinion for the panel majority at least recognized and met head-on the problem of the application of the constitutional privilege as expanded by Grosso in the framework of the statutorily required filing of excise tax returns and the statutes of limitation. It seems to me that the position Judge Roney expresses for the majority of the en banc Court fails realistically to come to grips with the problem, in the same way that his dissent to the panel majority opinion did. Both opinions rely on as controlling numerous pre-Grosso cases applying time tested rubrics of voluntary reporting and statute of limitation requirements. No meaningful accommodation into this framework of the Grosso principle emerges. This approach is the basis for holding that the statute of limitations cannot begin to run until a return is filed.

The majority is thus led inexorably to the remarkable conclusion at the end of Part I of the opinion, page 572, supra (page 8 of the typewritten copy):

“We hold that the period of limitations for the assessment of wagering excise taxes does not commence to run until a return has been filed, even though to require a return would violate the taxpayer’s constitutional right against self-incrimination. No return having been filed by Lucia for the period involved, the statute of limitations does not bar the assessment.” (Emphasis supplied.)

Faced with the problem of how to deal with the constitutional privilege as applied by the Supreme Court to federal wagering excise tax returns, the majority baldly asserts that the return must be filed even though in violation of the constitutional privilege. Absent such filing the statute of limitations is forever tolled. I should suppose, to the contrary, that when Title 26, Section 6501(c)(3) collides with the constitutional privilege, the statute, not the Constitution, must give ground. I adhere to the original panel solution as preferable on logical as well as legal grounds to the majority’s startling conclusion that the statute takes precedence over the constitutional privilege.

II

As to Part II of the majority opinion I concur in the result only: remand for a determination by a trial on the merits of the issue of whether the government’s assessment is as charged by Lucia, “arbitrary, capricious, and without factual foundation”.

For the majority of the original panel, I held in Part V of the panel opinion, 447 F.2d 918-919, that our decisions in Pinder and Mersel were indistinguishable on principle from the case at bar, and precluded the attempted arbitrariness attack on the assessment. The Second Circuit decision in Pizzarello v. United States, 2 Cir. 1969, 408 F.2d 579, was held to conflict with our Pinder and Mersel decisions.

The majority, by reasoning I am unable to follow, concludes that Pinder and Mersel are really not in conflict with Pizzarello after all and we are thus free to direct the lower court to apply Pizza-rello. Foreknowledge that this was the law would have simplified my task in writing for the original panel, but I deemed that we were restricted by controlling precedent.

My disposition would be to treat this problem by saying straight out that to the extent they conflict with Pizzarello, Pinder and Mersel are receded from. This action is appropriate for the en banc Court, whereas the original panel felt bound by these prior decisions.

The result, directions to the lower court to apply the teachings of Pizzarel-lo to the facts here, is the same in either event. For this reason, I concur in the result reached in Part II of the en banc majority opinion, although I would reach that result by a different route.

      . Lucia v. United States, 447 F.2d 912 (1971).

      . 26 U.S.C.A. § 7421(a).
      “Prohibition of suits to restrain assessment or collection
      (a) Tax. — Except as provided in sections 6212(a) and (e), 6213(a), and 7426(a) and (b) (1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.”

      . 370 U.S. at 7, 82 S.Ct. at 1129; see Bowers v. United States, 423 F.2d 1207 (5th Cir. 1970).

      . 26 U.S.C.A. § 4401(a).
      “Imposition of tax
      (a) Wagers. — There shall be imposed on wagers, as defined in section 4421, an excise tax equal to 10 percent of the amount thereof.
      (b) Amount of wager. — In determining the amount of any wager for the purposes of this subchapter, all charges incident to the placing of such wager shall be included; except that if the taxpayer establishes, in accordance with regulations prescribed by the Secretary or his delegate, that an amount equal to the tax imposed by this sub-chapter has been collected as a separate charge from the person placing such wager, the amount so collected shall be excluded.
      (c) Persons liable for tax. — Each person who is engaged in the business of accepting wagers shall be liable for and shall pay the tax under this sub-chapter on all wagers placed with him. Each person who conducts any wagering pool or lottery shall be liable for and shall pay the tax under this sub-chapter on all wagers placed in such pool or lottery. Any person required to register under section 4412 who receives wagers for or on behalf of another person without having registered under section 4412 the name and place of residence of such other person shall be liable for and shall pay the tax under this subchapter on all such wagers received by him.”

      . 26 U.S.O.A. § 6501(a).
      “Limitations on assessment and collection
      (a) General rule. — Except as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed (whether or not such return was filed on or after the date prescribed) or, if the tax is payable by stamp, at any time after such tax became due and before the expiration of 3 years after the date on which any part of such tax was paid, and no proceeding in court without assessment for the collection of such tax shall be begun after the expiration of such period.

      . 26 U.S.C.A. § 6501(c).
      “(c) Exceptions.—
      (1) False return. — In the case of a false or fraudulent return with the intent to evade tax, the tax may be assessed, or a proceeding in court for collection of such tax may be begun without assessment, at any time.
      (2) Willful attempt to evade tax.— In case of a willful attempt in any manner to defeat or evade tax imposed by this title (other than tax imposed bi-subtitle A or B), the tax may be assessed, or a proceeding in court for the collection of such tax may bo begun without assessment, at any time.
      (3) No return. — In the case of failure to file a return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.
      (4) Extension by agreement. — Where, before the expiration of the time prescribed in this section for the assessment of any tax imposed by this title, except tiie estate tax provided in chapter 11, botii the Secretary or his delegate and the taxpayer have consented in writing to its assessment after such time, the tax may be assessed at any time prior to the expiration of the period agreed upon. The period so agreed upon may be extended by subsequent agreements in writing made before the expiration of the period previously agreed upon. . . .”

      . See, e. g., License Tax Cases, 72 U.S. (5 Wall.) 462, 18 L.Ed. 497 (1866).

      . United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971).

      . United States v. Sanchez, 340 U.S. 42, 71 S.Ct. 108, 95 L.Ed. 47 (1950).

      . Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S.Ct. 1137, 89 L.Ed. 1628 (1945).

      . Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885); United States v. Nebo Oil Co., 190 F.2d 1003 (5th Cir. 1951).

      . Anderson v. United States Atomic Energy Commiss’n, 313 F.2d 313 (7th Cir. 1963); cf. Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946).

      . United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940); Olshausen v. C.I.R., 273 F.2d 23 (9th Cir. 1960), cert. denied, 363 U.S. 820, 80 S.Ct. 1256, 4 L.Ed.2d 1517 (1960).

      . McDonald v. United States, 315 F.2d 796, 801 (6th Cir. 1963); Pacific Coast Steel Co. v. McLaughlin, 61 F.2d 73 (9th Cir. 1932); Loewer Realty Co. v. Anderson, 31 F.2d 268, 269 (2d Cir. 1929).

      . 26 U.S.C.A. § 6501(c)(3); see Birmingham Bus. College, Inc. v. C.I.R., 276 F.2d 476 (5th Cir. 1960).

      . E. g., Automobile Club of Michigan v. C.I.R., 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957); United States v. Thompson, 262 F.Supp. 340 (S.D.Tex. 1966); Haring v. United States, 142 F.Supp. 782 (N.D.Ohio 1956).

      . 9 Mertens’ Law of Federal Income Taxation § 49.02, at 6, cited in United States v. Gilmore, 222 F.2d 167 (5th Cir. 1955).

      . See note 8, supra.

      . See, e. g., Forman v. United States, 361 U.S. 416, 80 S.Ct. 481, 4 L.Ed.2d 412 (1960); Toledano v. C.I.R., 362 F.2d 243 (5th Cir. 1966); Spriggs v. C.I.R., 290 F.2d 181 (9th Cir. 1961).

      . See, e. g., Jenkins v. United States, 313 F.2d 624 (5th Cir. 1963); Jaeger Motor Car Co. v. C.I.R., 284 F.2d 127 (7th Cir. 1960), cert. denied, 365 U.S. 860, 81 S.Ct. 826, 5 L.Ed.2d 823; Kalil v. C.I.R., 271 E.2d 550 (5th Cir. 1959).

      . See, e. g., Automobile Club of Michigan v. C.I.R., supra; Jones v. United States, 371 F.2d 442, 178 Ct.Cl. 16 (1967); Birmingham Bus. College, Inc. v. C.I.R., supra; West Coast lee Co. v. C.I.R., 49 T.C. 345 (1968).

      . 26 U.S.C.A. § 4412.

      . 26 U.S.C.A. § 4411.

      . 26 U.S.C.A. § 7302.

      . 26 U.S.C.A. §§ 4411, 4412.

      . United States v. United States Coin & Currency, 393 F.2d 499, 500 (7th Cir. 1968).

      . 401 U.S. at 717, 91 S.Ct. at 1043, 28 L.Ed.2d 434 (emphasis added).

      . We assume, for the purpose of decision, that the taxes assessed would be otherwise legally due.

      . Uniformed Sanitation Men’s Assn., Inc. v. Comm’r of Sanitation, 392 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968); Spevack v. Klein, 385 U.S. 511 (1967); Garrity v. New Jersey, 385 U.S. 493, 85 S.Ct. 616, 17 L.Ed.2d 562 (1967).

      . These cases, id., were not relied on or cited by the Supreme Court in Grosso, Marchetti, or Coin and Currency, although the opinion of the Seventh Circuit in United States v. United States Coin & Currency, supra, relied in part on Garrity.

      . 26 U.S.C.A. § 6501(c)(4).

      . 26 U.S.C.A. § 6651(a).

      . 26 U.S.C.A. § 7421(a) ; see note 2, supra.

      . 24 Stat. 209 (1886) as amended 82 Stat. 194 (1902).

      . Williams Packing & Navigation Co. v. Enochs, 176 F.Supp. 168 (1959).

      . 370 U.S. at 7, 82 S.Ct. at 1129, 8 L.Ed.2d 292.

      . Id. at 7, 82 S.Ct. at 1129.

      . Id. at 7, 82 S.Ct. at 1129.

      . 408 F.2d at 583.

      . Id. at 583.

      . Writing for this Court in Mersel, Judge Simpson pointed out that “the taxpayers’ ease in chief was devoted exclusively to proving that the plaintiffs had not engaged in gambling. . . .” He went on to note that “[the pre-trial order stated that one of the issues to be tried was whether the Commissioner’s determination of the amount of taxes due was correct, and the taxpayers were on specific notice thereby that they were required to present evidence in their case in chief regarding the method of assessment if they wished to challenge it.” 420 F.2d at 520.

      . Although Pinder partially rationalized the use of the projection method on the ground that the taxpayer failed to keep records required by Sections 4403 and 4423, a rationale probably abrogated by Marehettí and Grosso, Pinder is not authority for defending a projection that is arbitrary, capricious, and without factual foundation.

      . The attack on the projection and statistical computation does not relate to the tax on those wagers directly reflected by the seized betting slips or to any other portion of the assessment that liad an obvious factual basis. That portion of the assessment, however, can easily be extracted upon a proper showing by the Government in the early stages of remand proceedings. The matter on the record before us is not clearly divisible, so we leave to the District Court the task of determining such partial relief or denial thereof as may seem appropriate. Our holding here is limited to the proposition that the Government cannot, by coupling an arbitrary and capricious projection with an assessment that is obviously factual, escape the District Court’s jurisdiction outlined in Standard Nut Margarine Co..

      . See, e. g., Bowers v. United States, supra; Thrower v. Miller, 440 F.2d 1186 (9th Cir. 1971); Kelly v. Lethert, 362 F.2d 629 (8th Cir. 1966).

      . See 9 Mertens’ Law of Federal Income Taxation § 50.08 (1971).

      . 26 U.S.C.A. § 7422; Flora v. United States, 362 U.S. 145, 80 S.Ct. 630, 4 L.Ed.2d 623 (1960). “[Ejxcise tax assessments may be divisible into a tax on each transaction or event, so that the full-payment rule would probably require no more than payment of a small amount.” 362 U.S. at 175 n.3S, 80 S.Ct. at 646. See 362 U.S. at 171 n.37, 80 S.Ct. 630, for further discussion of this exception to the full-payment rule. See also Bowers v. United States, 423 F.2d 1207 (5th Cir. 1970); Cole v. Cardoza, 441 F.2d 1337 (6th Cir. 1971); Compton v. United States, 334 F.2d 212 (4th Cir. 1964), and District Court cases cited therein, 334 F.2d at 215 n.6; and Vuin v. Burton, 327 F.2d 967 (6th Cir. 1964).
      Of course, payment of the tax on wagering transactions directly represented by the betting slips held by the Government would not meet the taxpayer’s needs here. So that the computation could be tested, the divisible portion paid would have to include some of the alleged wagers encompassed by the Government’s challenged projection.

      . See Ianelli v. Long, 71-2 U.S.T.C. ¶ 16,021 (W.D.Pa.1971). Since Lucia is under a jeopardy assessment, the danger is accentuated by the fact that procedural delays may be occasioned in the pursuit of a refund suit. After payment of the tax, an administrative claim for refund must be filed, 26 U.S.O.A. § 7422(a) ; see Algonac Mfg. Co. v. United States, 428 F.2d 1241 (Ct.Cl.1970); National Newark and Essex Bank v. United States, 410 F.2d 789, 187 Ct.Cl. 609 (1969). Unless the Internal Revenue Service grants an exception, six months must pass from the administrative filing date until suit may be commenced. 26 U.S.C.A. § 6532(a) (1) and (3).

      . Our holding here does not conflict with Urban. In that tax refund suit, taxpayer’s brief pointed out that “[t]he sole question involved is whether or not the wagering excise tax and the wagering occupational stamp creating such tax are constitutional in that they violate the rights guaranteed under the Fifth Amendment.” Taxpayer had stipulated that the assessment against him was correct if the wagering tax scheme was constitutional. We merely held in Urban that, under that broad attack, Marchetti, Grosso, and United States Coin and Currency did not invalidate the wagering excise tax, 26 U.S.C.A. § 4401, and the wagering occupational tax, 26 U.S.C.A. § 4411.

      . See, e. g., California v. Latimer, 305 U.S. 255, 59 S.Ct. 166, 83 L.Ed. 159 (1938); Monge v. Smyth, 229 F.2d 361 (9th Cir. 1956), cert. denied, 351 U.S. 976, 76 S.Ct. 1055, 100 L.Ed. 1493; Reams v. Vrooman-Fehn Printing Co., 140 F.2d 237 (6th Cir. 1944).

      . 370 U.S. at 6, 82 S.Ct. at 1129, 8 L.Ed.2d 292.

        Enochs specifically contrasts § 7421(a), which prohibits injunctive relief against federal taxes without reference to the adequacy or inadequacy of a legal remedy, with 28 U.S.C.A. § 1341, which forbids the federal courts to entertain suits enjoining collection of state taxes “where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State.” 370 U.S. at 6, 82 S.Ct. at 1128, 8 L.Ed.2d 292.

      . Marchetti v. United States, 1968, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889.

      . Grosso v. United States, 1968, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906.

      . United States v. United States Coin and Currency, 1971, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434.

      . 447 F.2d at p. 922.

      . 447 F.2d at p. 922.

      . 447 F.2d at p. 923.

      . Compare 447 F.2d, pages 923-924, and cases there cited with the text of pages 568 and 569 of the en banc majority opinion and cases cited in the supporting notes.

      . From a practical standpoint, the effect of the original panel decision presents no particularly alarming prospects The Secretary would have three years after such a raid as occurred here within which to make his calculations and execute a return as provided by applying Title 26, U.S.C., Section 6020. I suggest that in the present ease this could as well have been accomplished in 1965, within three years of the raid, as in 1969, seven years thereafter.

      . Pinder v. United States, 5 Cir.1964, 330 F.2d 119.

      . Mersel v. United States, 5 Cir.1969, 420 F.2d 517.


author: CONTI, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wayne EIDUM, Defendant-Appellant.
    No. 72-1816.
    United States Court of Appeals, Ninth Circuit.
    Feb. 6, 1973.

      Kenneth Wayne Eidum, in pro. per.
    Stan Pitkin, U. S. Atty., Douglas D. McBroom, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.
    Before BROWNING and GOODWIN, Circuit Judges, and CONTI, District Judge.

       Honorable Samuel Conti, United States District Judge, Northern District of California, sitting by designation.

   CONTI, District Judge:

Kenneth Wayne Eidum pleaded guilty in December of 1970 in the Western District of Washington to an indictment for violation of 18 U.S.C. § 2312 (interstate transportation of a stolen motor vehicle). He was sentenced to three years imprisonment on January 22, 1971. He appeals to this court from a district court denial of his motion to vacate that sentence under 28 U.S.C. § 2255.

Petitioner alleges several grounds for reversal:

(1) Denial of right to speedy trial.

Appellant argues that the right to speedy trial attached when he was “accused by the Federal Bureau of Investigation agents at Omaha, Nebraska, on or about August 10, 1969”. (Page 3 of appellant’s opening brief.) Appellant’s 28 U.S.C. § 2255 petition reveals that he was arrested on a- state charge in Nebraska and was then questioned by F.B.I. agents about a federal charge. He was not indicted until September 30, 1970, pleaded guilty in December, 1970, and was sentenced on January 22, 1971. He argues that the failure to prosecute from August 10, 1969, until his indictment on September 30, 1970, constituted a denial of his right to a speedy trial. He alleges prejudice in that he was thus denied the opportunity of a concurrent sentence.

Petitioner’s argument on this issue must fail, however, because he has not shown that such delay occurred after he became an “accused” within the meaning of United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). That case held that the protection of the Sixth Amendment’s provision for a speedy trial is activated only when a criminal prosecution has begun and extends only to those persons who have been “accused” in the course of that prosecution. The court further stated that no conviction has been reversed on such constitutional grounds where only prein-dictment delay is involved.

In this case the record only shows that petitioner was “questioned by the F.B.I.” relative to this charge. Such questioning does not constitute initiation of prosecution so as to bring the right to speedy trial into play. The requirements of the Marion case have not been met, and appellant’s argument must be rejected as to this claim. The District Court’s order is affirmed as to this issue.

(2) 18 U.S.C. § 3568 requires that the time spent in state custody be credited against appellant’s federal sentence.

The above section gives credit for any time spent in custody “in connection with” the offense for which sentence was imposed. Petitioner argues that the case of Davis v. Attorney General, 425 F.2d 238 (5th Cir. 1970), granted such relief in a situation similar to this case. However, in the Davis ease the prisoner was denied bail on a state charge because a federal detainer was lodged against him. That detainer was issued upon the authority of the prisoner’s federal conviction and sentence. In the instant case, however, no federal process of any sort had issued against appellant until November, 1970, when his release was prevented by a federal de-tainer. Thus, no active involvement of the federal government was present which had an effect on appellant’s state custody until November, 1970. He pleaded guilty to the federal charge approximately a month later. Only this period of time after the federal detainer had issued should be credited, under 18 U.S.C. § 3568, against petitioner’s sentence on state charges.

Except for this period of time, the district court’s order is affirmed as to this issue.

(3) Petitioner argues that his guilty :plea was not voluntary and that his counsel was inadequate.

The record does not adequately show that petitioner’s plea was knowing and voluntary, nor does it reveal sufficient facts as to his claims of inadequate counsel.

Therefore, this matter is reversed and remanded for an evidentiary hearing as to these issues.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Wayne EIDUM, Defendant-Appellant.
    No. 72-2286.
    United States Court of Appeals, Ninth Circuit.
    Feb. 6, 1973.
    Kenneth Wayne Eidum, in pro. per. Stan Pitkin, U. S. Atty., Charles W. Billinghurst, Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.
    Before BROWNING and GOODWIN, Circuit Judges, and CONTI, District Judge.

       Honorable Samuel Conti, United States District Judge, Northern District of California, sitting by designation.

   CONTI, District Judge:

Kenneth W. Eidum pleaded guilty to violation of 18 U.S.C. § 2312 (Interstate Transportation of a Stolen Motor Vehicle). The trial judge sentenced him to three years. Eidum moved for modification of sentence under 28 U.S.C. § 2255, which motion was denied. He appeals to this court from that denial.

This court has held that when:

“There is a reasonable probability that the defective prior convictions may have led the trial court to impose a heavier sentence than it otherwise would have imposed . . . we are unable to conclude that the reception of such evidence was harmless beyond-a reasonable doubt.” United States v. Tucker, 431 F.2d 1292, 1294 (9th Cir. 1970) affirmed 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1971).

In the instant case, the trial judge, in his order denying appellant’s Motion for Modification of Sentence, stated:

“The three convictions to which defendant refers are a very insignificant part of a very long criminal record.”

This court will not refute the judge’s own estimation of the deleterious impact of the prior convictions on his determination of sentence. The record shows on its face that the judge did not consider those convictions in imposing- sentence. Therefore, we affirm.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carl SKOLEK, Defendant-Appellant.
    No. 72-1534.
    United States Court of Appeals, Tenth Circuit.
    Submitted Jan. 24, 1973.
    Decided Feb. 1, 1973.
    Rehearing Denied Feb. 28, 1973.

      James L. Treeee, U. S. Atty., and Paul D. Cooper, Asst. U. S. Atty., for plaintiff-appellee.
    Jerrold M. Ladar, San Francisco, Cal., and Marvin S. Cahn, Berkeley, Cal., for defendant-appellant.
    Before HILL, BARRETT and DOYLE, Circuit Judges.
   PER CURIAM.

Carl Skolek, charged with violating 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, was convicted by a jury and appeals.

A review of the trial transcript discloses that Special Agent David Hanks of the Bureau of Narcotics and Dangerous Drugs, together with a partner, Pas-sick, and pursuant to a pre-determined arrangement, proceeded to a room at the Ramada Inn in Denver, Colorado, on February 2, 1972, at approximately 7:00 p. m. to meet one Randall Caldwell. Caldwell appeared stating that he had recently arrived from California with his “connection” who was then en route to Caldwell’s residence on Chase Street in Denver. Caldwell handed Hanks eight ounces of a substance containing cocaine which was represented to be similar in quality to prior sales between the parties. Shortly thereafter another accomplice, Patrick Egan, arrived and was also asked about the quality of the cocaine which he also stated was the same as prior transactions. Caldwell and Egan were promptly placed under arrest.

Agent Hanks then took the cocaine to his office and proceeded with another agent, Castille, to the Chase Street residence to talk with the “connection”. They were met at the residence by a boarder, Robert Montoya, known through prior dealings, and informed him that they needed to talk with “Carl J. Stone” as to an alleged discrepancy in the amount of cocaine involved in the earlier transaction. Stone was an alias that the appellant, Skolek, had been using at that time, according to Hanks.

Montoya introduced the agents to Sko-lek who was asked whether he had sent Caldwell and Egan to the Ramada Inn with eight ounces of cocaine. Skolek responded that he had. When told that Caldwell and Egan had wanted to sell them six rather than eight ounces, Sko-lek replied: “Let me figure that out.” He then sat at a table with paper and pencil and began to write. Skolek then apparently suspected the circumstances for he abruptly stated, in effect, that he didn’t know anything and wasn’t going to say anything else. Skolek was also promptly taken into custody.

At trial, Egan, who had the same day entered a plea of guilty to one of the counts charged in the indictment, was called as a Government witness. A discussion followed with Egan’s attorney concerning Egan’s Fifth Amendment privilege against self-incrimination. The court denied Egan’s claim of privilege and he testified. The testimony showed that Skolek, a friend of Egan’s had been contacted by' telephone and agreed to bring the cocaine to Denver where he planned to vacation, in return for $300. Egan and Caldwell met Sko-lek at the Denver airport and proceeded to the Chase Street residence. Egan stepped out of the house momentarily and when he returned, the cocaine that he had discussed with Skolek had appeared on the table, at the same time Skolek appeared. Caldwell picked up the four ounces of cocaine to which Egan subsequently added four ounces of baking powder. Skolek had been informed that the cocaine he was to carry was intended for sale.

Three of the issues in this appeal are directed to the testimony of a witness, Patrick Egan, and Egan’s Fifth Amendment claim of privilege against self-incrimination. Basically, the argument is that Egan was compelled to testify without a grant of immunity and without a waiver of his privilege, an alleged denial of due process, and that Skolek was denied effective assistance of counsel and right to cross-examination by Egan’s “arrangement” to testify.

There is no constitutional right not to be incriminated by the testimony of another. Some constitutional rights may not be vicariously asserted. See Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). The privilege against self-incrimination is solely for the benefit of the witness and is purely a personal privilege of the witness, not for the protection of other parties. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344 (1951).

We have held that the protection against self-incrimination, a shield of silence, is a personal privilege for the sole benefit of the witness. Edwards v. United States, 131 F.2d 198 (10th Cir. 1942), cert. denied, 317 U.S. 689, 63 S.Ct. 262, 87 L.Ed. 552. This principle is well settled. Gollaher v. United States, 419 F.2d 520 (9th Cir. 1969), cert. denied, 396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424; United States v. Elliott, 418 F.2d 219 (9th Cir. 1969); United States v. Bruton, 416 F.2d 310 (8th Cir. 1969), cert. denied, 397 U.S. 1014, 90 S.Ct. 1248, 25 L.Ed.2d 428; Quintero v. United States, 409 F.2d 839 (9th Cir. 1969); Bowman v. United States, 350 F.2d 913 (9th Cir. 1965), cert. denied, 383 U.S. 950, 86 S.Ct. 1209, 16 L.Ed.2d 212; Poole v. United States, 329 F.2d 720 (9th Cir. 1964); United States v. Goldfarb, 328 F.2d 280 (6th Cir. 1964), cert. denied, 377 U.S. 976, 84 S.Ct. 1883, 12 L.Ed.2d 746.

Where the witness is not the party, the party may not claim the privilege nor take advantage of an error of the court in overruling it. Bowman v. United States, supra. Accord, Long v. United States, 124 U.S.App.D.C. 14, 360 F.2d 829 (1966), authored by Judge, now Chief Justice, Burger. The party, as contrasted to the witness, simply lacks standing. United States v. Ceniceros, 427 F.2d 685 (9th Cir. 1970); United States v. Elliott, supra; United States v. Bruton, supra; Lopez v. Burke, 413 F.2d 992 (7th Cir. 1969). See also Alderman v. United States, supra, and United States v. Galvez, 465 F.2d 681 (10th Cir. 1972).

The self-incrimination provision of the Fifth Amendment is to “be accorded liberal construction in favor of the right it was intended to secure”. Hoffman v. United States, 341 U.S. 479 at 486, 71 S.Ct. 814, at 818, 95 L.Ed. 1118 (1951). A defendant has a vested interest only in his own Fifth Amendment rights. Poole v. United States, supra. There is no violation of the privilege when the information elicited is used not against the witness but against another. Lopez v. Burke, supra. The privilege belonged to Egan, not to Skolek.

Egan did not undertake to test the validity of the court’s rulings by standing upon his claim of privilege and refusing to answer. It is for the trial court to say whether his silence is justified. Hoffman v. United States, supra. Nor are we convinced that the court ruling was anything but correct. Egan had earlier pleaded guilty to this same count in exchange for the dismissal of others. Having pleaded guilty, he could be compelled to testify. United States v. Hoffman, 385 F.2d 501 (7th Cir. 1967); United States v. Gernie, 252 F.2d 664 (2nd Cir. 1958), cert. denied, 356 U.S. 968, 78 S.Ct. 1006, 2 L.Ed.2d 1073; United States v. Romero, 249 F.2d 371 (2nd Cir. 1957); United States v. Cioffi, 242 F.2d 473 (2nd Cir. 1957), cert. denied, 353 U.S. 975, 77 S.Ct. 1060, 1 L.Ed.2d 1137. And having given the testimony under compulsion, Egan may well be protected against its use in other proceedings. Bowman v. United States, supra. See also C.R.S. § 48-5-21 (1963), which protects the substantial rights of Egan now that he has pleaded guilty to the federal charge.

The attorneys representing Skolek in this appeal succeeded the trial attorneys. They now contend that Egan and the prosecution made an “arrangement” for his testimony and that this should be the subject of meaningful cross-examination, an opportunity, they imply, not afforded Skolek at trial. While Egan’s credibility as a witness may have been an important issue in the case, together with any evidence of an agreement, see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), Skolek had ample opportunity to cross-examine in all respects, an opportunity never limited by the trial court. Failure to take advantage of that opportunity cannot seriously be urged as a ground for reversal. It may very well have been a part of their trial strategy since the testimony of Egan was not the only testimony linking Skolek with the crime. Furthermore, the trial court instructed the jury with regard to assessing the testimony of witnesses generally, and of accomplices specifically. See United States v. Plemons, 455 F.2d 243 (10th Cir. 1972); United States v. Holmes, 453 F.2d 950 (10th Cir. 1972), cert. denied, 406 U.S. 908, 92 S.Ct. 1618, 31 L.Ed.2d 819; United States v. Birmingham, 447 F.2d 1313 (10th Cir. 1971).

* * *

The Government rested its case at approximately 11:45 a. m. and a discussion immediately followed at the bench, out of the presence of the jury and off the record. The jury was then excused for lunch and a discussion concerning the admissibility of the cocaine exhibit followed. The concern was with the exhibit’s chain of custody, followed by motions to suppress the cocaine and for judgment of acquittal. The court determined that the chain of custody had been satisfactorily established and denied the motion to suppress, admitting the exhibit, and the motion for acquittal.

The appellant now contends that the exhibit, the contraband, was erroneously admitted after the close of the evidence. If we understand the argument, the evidence should not have been admitted after the Government rested. We have repeatedly held otherwise. United States v. Moehring, 446 F.2d 516 (10th Cir. 1971); United States v. Keine, 424 F.2d 39 (10th Cir. 1970), cert. denied, 400 U.S. 840, 91 S.Ct. 81, 27 L.Ed.2d 75; Massey v. United States, 358 F.2d 782 (10th Cir. 1966), cert. denied, 385 U.S. 878, 87 S.Ct. 159, 17 L.Ed.2d 105. Furthermore, the matter of the exhibit and admissibility had been discussed earlier in the trial and the parties agreed to delve into the matter during the recess, to conserve time. If the argument on this issue is directed to the chain of custody, we agree with the trial court that the chain was satisfactorily established.

* * •*

Other issues are raised. First the appellant complains that it is error for the court to permit the indictment to be taken into the jury room, without cautionary instructions and where an alias was used. Whether the indictment may be taken to the jury room is within the sound discretion of the trial court. Wall v. United States, 384 F.2d 758 (10th Cir. 1967); Little v. United States, 73 F.2d 861 (10th Cir. 1934); United States v. Davis, 437 F.2d 928 (7th Cir. 1971); United States v. Green, 433 F.2d 946 (5th Cir. 1970); United States v. Warner, 428 F.2d 730 (8th Cir. 1970), cert. denied, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191; Dallago v. United States, 138 U.S.App.D.C. 276, 427 F.2d 546 (1969); United States v. Marquez, 424 F.2d 236 (2nd Cir. 1970), cert. denied, 400 U.S. 828, 91 S.Ct. 56, 27 L.Ed.2d 58; American Bar Association Minimum Standards for Criminal Justice Relating to Trial by Jury, Section 5.1 (materials to jury room). In Little v. United States, supra, we held that if the indictment goes, the jury should be charged, upon request, that the indictment is not evidence of the facts charged therein. Such an instruction was given here.

The jury requested the indictment after they commenced deliberation. A copy of the indictment was prepared after shielding the other counts and the names of other defendants. The copy, thus shielded, reflected only the name of Skolek, with the alias Carl Stone, and the fourth count (but not designated as a fourth count). The use of the alias was permissible where there was testimony that Skolek had used such a name. Agent Hanks, when visiting the Chase Street residence after the sale, had informed the boarder, Montoya, that he needed to speak to Stone resulting in Hanks’ confrontation with Skolek. See United States v. Wilkerson, 456 F.2d 57 (6th Cir. 1972), cert. denied, 408 U.S. 926, 92 S.Ct. 2507, 33 L.Ed.2d 337. The proof thus conformed to the allegations in the indictment. See United States v. Lynn, 461 F.2d 759 (10th Cir. 1972). The trial court’s discretion in permitting the indictment to be taken into the jury room was properly exercised.

Finally, the failure to record the grand jury testimony is challenged. There is no requirement that the proceedings of a grand jury be recorded. United States v. Cooper, 464 F.2d 648 (10th Cir. 1972). cert. denied, 409 U.S. 1107, 93 S.Ct. 902, 34 L.Ed.2d 688; United States v. Hedges, 458 F.2d 188 (10th Cir. 1972); United States v. Quintana, 457 F.2d 874 (10th Cir. 1972); Nipp v. United States, 422 F.2d 509 (10th Cir. 1970), cert. denied, 397 U.S. 1008, 90 S.Ct. 1235, 25 L.Ed.2d 420. We find no merit to the claim that the appellant’s right to confront and cross-examine is violated when no record of a witnesses’ prior testimony before the grand jury is available. See United States v. Cooper, supra. The appellant also argues that the indictment was based on hearsay evidence before the grand jury. This claim is equally without merit. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

Affirmed.

      . “MR. WEED: Your Honor, may I respectfully request the Court’s permission to look at the exhibits that have been referred to as 7(A), 7(B), and 7(0), the envelopes?
      “THE COURT: Please.
      “MR. WEED: Could I take them over to the table?
      “THE COURT: Please. Lot’s proceed in this fashion, if we may. Mr. Cooper, who is your next witness, please?
      “MR. COOPER: Agent Hanks, Your Honor.
      “THE COURT : What the Court would suggest is to go into Agent Hanks’ testimony, then at recess, you can go into these exhibits.
      “MR. WEED: There will be legal— what I am concerned about, when he intends to offer it as evidence. If it is not going to be at this time, I don’t think it can be — I can—
      “THE COURT: To what witness do you intend to introduce these exhibits, please?
      “MR. COOPER: Agent nanks, and then Mr. Egan and Caldwell.
      “THE COURT: The Court will reserve ruling on any admissibility then at this time, counsel.
      “MR. WEED: And any other legal agents such as chain of custody.
      “THE COURT : That’s right.
      “MR. WEED: We will have more opportunity not to waste the Court’s time.
      “THE COURT : Mr. Ruybal, the Court will direct that Mr. Ruybal remain here, and then you may cross-examine.
      “Tho court reserves ruling on 7(A), (B), and (C). The Court will reserve ruling on these exhibits.”