author: TIMBERS, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Michael Reeves FLOYD et al., Appellants.
    Nos. 372, 376 and 378, Dockets 73-1957, 73-1969, 73-2009 and 73-2225.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 8, 1973.
    Decided April 25, 1974.

      Frederick P. Hafetz, New York City (Goldman & Hafetz, New York City, on the brief), for appellant Floyd.
    Harvey A. Silverglate, Boston, Mass. (Norman S. Zalkind, Boston, Mass., on the brief), for appellant Lesavoy.
    Jesse Berman, New York City, for appellant Miller.
    John J. Kenney, Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., and S. Andrew Schaffer, Asst. U. S. Atty., New York City, on the brief), for appellee.
    Before WATERMAN, FRIENDLY and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

Appellants Floyd, Lesavoy and Miller appealed from judgments of conviction entered upon jury verdicts after a seven day trial in the Southern District of New York, Charles M. Metzner, District Judge, finding the three appellants guilty on one count of conspiring to possess and distribute 1500 pounds of hashish, in violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 846 (1970), and finding Lesavoy guilty on a second count of possessing 1099 pounds of hashish with intent to distribute it, in violation of the same substantive provisions of the Act.

Of the numerous claims of error raised on appeal by appellants Floyd and Miller, we find the following to be the principal ones: (1) Floyd claims that there was no proof of an overt act in furtherance of the conspiracy prior to his withdrawal, and that the court erred in its charge on conspiracy; (2) Miller claims that certain of his incriminating statements were erroneously admitted in evidence because he was not given sufficient Miranda warnings, and that his sentence was based on improper considerations; and (3) both appellants claim that the court erred in discharging a juror and replacing him with an alternate part way through the trial. Other subordinate claims of error are also raised.

We affirm.

I.

In view of the issues raised on appeal, the following summary of the events in late October and early November 1972 which culminated in the arrest of appellants is believed necessary to an understanding of our rulings on those issues.

On October 30, a government informant introduced. Special Agent Hochman, of the Bureau of Narcotic and Dangerous Drugs (BNDD), to one James Krell at the latter’s home in New Jersey. The purpose of the introduction was to enable Hochman, who was acting in an undercover capacity, to purchase hashish from Krell. Although the meeting had been arranged for the purchase of three pounds of hashish, Hochman told Krell that he was interested only in a larger amount. Krell said that he had access to 900 pounds of hashish located in Manhattan which was under the control of one Peter Axelrod and appellant Floyd. At the conclusion of this meeting, Hochman and Krell agreed that any sale would take place in a Manhattan hotel, but that Krell would do nothing until he was assured of payment.

Later that evening after Hochman had departed, Krell called Floyd and informed him that he had a buyer for large quantities of hashish. Floyd agreed to arrange a meeting with “the people in New York” and to call Krell back.

On the following evening, October 31, Floyd picked up Krell and drove him from his home in New Jersey to 270 Riverside Drive in Manhattan where they met Axelrod in the latter’s apartment. There they discussed the terms of the sale of hashish to Hochman. Floyd then drove Krell back to his home in New Jersey.

Early the following morning, November 1, at 12:40 A.M., Hochman called Krell at his home. Krell stated that the price for the hashish would be $450 per pound and that his supplier wanted to sell only 100 pounds. The two agreed, however, that Hochman would bring enough money to buy 500 pounds; that Krell would see what he could do; and that Hochman would go to New York later that day and call Krell. Krell then called Floyd, told him that Hochman wanted to buy several hundred pounds of hashish, asked him to come to his house that morning, and told him that he was expecting a call from Hochman during the day.

At about noon on November 1, Hochman called Krell and told him that he had a room in a Manhattan hotel. They agreed to meet there an hour later. Floyd, Krell, appellant Miller and one Steve Abelman then drove to the hotel in Miller’s car. Floyd and Krell met Hochman and went with him to his room.

Once in the room it became clear that, although Hochman still wanted to buy 500 pounds, the suppliers for Floyd and Krell did not want to sell that much at the outset. Floyd told Hochman that, based on his conversation with Axelrod and one Steven Liebermann the day before, the initial delivery could not be more than 10 to 20 pounds.

In an attempt to break this impasse, Hochman agreed to “show” the money. He telephoned Special Agent Rottinger of the BNDD who entered Hochman’s room and handed Floyd an envelope containing $100,000 in cash. Floyd and Krell looked through the envelope and returned it to Rottinger. Floyd then telephoned Axelrod twice. Hochman finally agreed to accept a first shipment of 50 pounds. Floyd sent Krell for the hashish and told him to have Axelrod call the hotel room before they returned with the hashish. Floyd and Hochman waited in the room.

Krell drove to 270 Riverside Drive with Miller and Abelman who had been waiting outside the hotel. After Krell met Liebermann and Axelrod in the latter’s apartment, they went to a public phone booth from which Axelrod called Floyd and told him to call Axelrod back at the booth. He did. From a public phone in the lobby of Hochman’s hotel, Floyd called Axelrod and handed the receiver to Hochman. Axelrod told Hochman that he would make an initial delivery of 50 pounds and then three or four subsequent trips, for a total of 400-500 pounds. He told Hochman that Krell would have the 50 pounds when h,e returned to the hotel. Floyd took the receiver and spoke to Axelrod. Floyd then told Hochman that Krell would arrive in half an hour with 50 pounds of hashish.

After this telephone conversation, Krell, Miller, Abelman, Liebermann and Axelrod drove to Columbus Avenue and 71st Street in Manhattan where Axelrod left the car. He returned a few minutes later carrying a plaid suitcase which he and Krell placed in the trunk. Krell, Miller and Abelman then returned to Hochman’s hotel. Krell told Miller and Abelman to drive around the corner with the “hash” until he determined that it was safe for them to enter. Krell went into the hotel, saw Hochman and was told that Floyd would meet them in the room. Krell said that the hashish was in the car circling around until he gave the word. They went to Hochman’s room to wait for Floyd.

Meanwhile, Floyd had seen two men standing on the fire stairs outside Hochman’s room and became suspicious. He left the hotel to telephone Axelrod. Floyd never returned to the room. Krell left Hochman to look for Floyd, found him outside the hotel and then called Hochman to tell him the deal was off for that day. Floyd called Axelrod to tell him what had happened.

Five days later, on November 6, Hochman again called Krell at his home. This started a new series of negotiations which culminated in a meeting between Hochman and Axelrod at a Manhattan restaurant on November 10. There emerged an agreement by Axelrod to sell 500 pounds of hashish to Hochman at Krell’s house in New Jersey the following day in three shipments of 50, 150 and 300 pounds. Axelrod told Hochman that the hashish would be packed in seven to ten suitcases which would be supplied along with the hashish.

On November 11, Hochman went to New Jersey and called Krell to get the sale, under way. Krell sent Miller and Abelman to New York in separate cars. The plan was that Miller would drive the second shipment of 150 pounds of hashish to New Jersey, but would not leave New York until after he was informed that the first 50 pounds had arrived and that payment had been received. Abelman received a 50 pound suitcase of hashish from Axelrod and drove to Krell’s house. Upon Hochman’s arrival at Krell’s house, he saw the hashish and persuaded Krell to call Axelrod and tell him he had seen the money (although in fact he had not.) Hochman then called “his man” in Krell’s presence and told him to bring half the money. Upon the arrival of Hochman’s “man”, Krell’ and Abelman were arrested.

Meanwhile, Axelrod, Lesavoy and Miller drove in the latter’s car to 229 Columbus Avenue in Manhattan. Axelrod and Lesavoy entered an apartment at that address and joined Liebermann there. While they were inside, Miller opened the trunk of his car. When the three others came out of the building, each carrying a 50 pound suitcase of hashish, all four were arrested.

Later, a search of Liebermann’s Manhattan apartment pursuant to a warrant revealed fourteen additional suitcases containing more than 800 pounds of hashish. Half-filled suitcases of hashish also were found in Axelrod’s apartment and in the apartment at 224 Columbus Avenue. Furthermore, Miller admitted after his arrest that he had 50 pounds of hashish in his car on November 1 and would have delivered it to the hotel if the.delivery had not been called off.

On April 6, 1973, a two count indictment was returned in the Southern District of New York charging Floyd, Lesavoy and Miller with violating the controlled substances provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970, as stated above.

On April 27, 1973, after a seven day trial, the jury convicted the three appellants on the conspiracy count and, in addition, convicted Lesavoy on the substantive count, the court having dismissed the substantive count as against Floyd and Miller at the close of the government’s case.

On June 8, 1973, the following sentences were imposed: Floyd was sentenced to a one year term of imprisonment, to be followed by a two year period of special parole; Lesavoy was sentenced on count one to a three year term of imprisonment, to be followed by a two year period of special parole, and on count two imposition of sentence was suspended and a three year term of probation was imposed to run consecutively to the sentence imposed on count one; Miller was given an effective sentence of six months imprisonment, to be followed by a two year period of special parole. Appellants have been enlarged on bail pending appeal.

II.

Floyd’s essential claims of error are that the evidence did not establish an overt act in furtherance of the conspiracy prior to his asserted withdrawal and that the court erroneously charged the jury as to the requisite sequence of the agreement and the overt act. We disagree.

It is axiomatic that the essential elements of a conspiracy are an unlawful agreement and an overt act in pursuance of the agreement. United States v. Agueci, 310 F.2d 817, 828 (2 Cir. 1962), cert. denied, 372 U.S. 959 (1963). Floyd argues that there was no proof of an overt act prior to the formation of the unlawful agreement at the November 1 meeting between Floyd, Krell and Hochman in the latter’s hotel room. And, since he claims to have terminated his involvement after this meeting, Floyd argues that an overt act was not proven while he was a member of the conspiracy. This argument misconstrues the evidence.

Viewing the evidence in the light most favorable to the government, as we must at this stage, United States v. McCarthy, 473 F.2d 300, 302 (2 Cir. 1972), there was ample evidence from which the jury could have found that a conspiracy existed on October 30 when Krell called Floyd to tell him he had a buyer for large quantities of hashish and Floyd agreed to arrange a meeting with “the people in New York”, which he did the following night. In fact, Floyd and Miller were among those who went to Hochman’s hotel on November 1 to transfer hashish to Hochman; and the hashish was in Miller’s car trunk when the deal was postponed.

Since the conspiracy charged in the indictment was not an agreement with Hochman but an agreement among the defendants to engage in the sale of hashish, there was ample evidence from which the jury could have found the existence of such an agreement prior to November 1 and that the meeting in the hotel on that day was a step in carrying it out.

Floyd’s related argument is that the court’s charge permitted the jury to find that the November 1 meeting constituted proof of both the first overt act and the conspiratorial agreement itself. This not only ignores the evidence to which we have referred above, but it misinterprets the court’s charge.

We hold, based upon our careful examination of the court’s conspiracy charge as a whole, that the jury was clearly instructed that, before they could convict Floyd on the conspiracy count, they would have to find that the conspiracy existed prior to the commission of the first overt act, i. e. the November 1 meeting. The court charged that to prove a conspiracy the evidence must show that the defendants knowingly and willfully joined the conspiracy and that “one of the conspirators thereafter knowingly committed at least one of the overt acts charged in the indictment . . . .” (emphasis added). And, as to Floyd, the court specifically charged that “to convict defendant Floyd of the crime of conspiracy, you must find that the Government has proved overt act No. 1 beyond a reasonable doubt”.

We are satisfied that the charge cannot fairly be said to have permitted the jury to find that the November 1 meeting constituted proof of both the overt act and the conspiratorial agreement.

III.

Miller’s chief claims of error are that certain statements he made to government agents after his arrest were erroneously admitted in evidence because he was not given sufficient Miranda warnings and that his sentence was based on improper considerations.

Following a pretrial suppression hearing, the court found that, after Miller had been arrested, handcuffed and placed in a government vehicle, a government agent advised him that “[h]e had a right to remain silent, anything he said can and would be jised in a court of law, that he had a right to an attorney, if he could not afford an attorney, an attorney would be appointed for him by the court.” Miller stated that he understood his rights. The government agent admitted at the suppression hearing that he had not expressly informed Miller that he had a right to have an attorney present before any questioning began. After the warnings stated above had been given to Miller at BNDD headquarters, he made certain incriminating statements to the agent. The court, relying upon United States v. Lamia, 429 F.2d 373, 376-77 (2 Cir.), cert. denied, 400 U.S. 907 (1970), held that these statements had been voluntarily given and were admissible.

Miller contends that because the warnings given him departed from those prescribed in Miranda v. Arizona, 384 U.S. 436, 467-79 (1966), his statements were inadmissible. We disagree. We hold on the particular facts of this case that Miller was adequately informed of his right to counsel and that the Miranda warnings were sufficient.

We have held that “words of Miranda do not constitute a ritualistic formula which must be repeated without variation”, but that “ [w] ords which convey the substance of the warning along with the required information are sufficient.” United States v. Vanterpool, 394 F.2d 697, 698-99 (2 Cir. 1968). In United States v. Lamia, supra, 429 F.2d at 376, defendant was told that he had the “right to an attorney” and if he was not able to afford an attorney one would be appointed by the court. On appeal Lamia contended, as Miller does here, “that this warning did not apprise him that he had the right to the ‘presence’ of an attorney during questioning.” Ibid. We rejected this contention and held that the warning given adequately informed Lamia of his rights under Miranda:

“Lamia had been told without qualification that he had the right to an attorney and that one would be appointed if he could not afford one. Viewing this statement in context, Lamia having just been informed that he did not have to make any statement to the agents . . ., [he] was effectively warned that he need not make any statement until he had the advice of an attorney.” 429 F.2d at 376-77.

Similarly in United States v. Pacelli, 470 F.2d 67, 72 (2 Cir. 1972), cert. denied, 410 U.S. 983 (1973), and in United States v. Carneglia, 468 F.2d 1084, 1092 (2 Cir. 1972), cert. denied, 410 U.S. 945 (1973), we rejected almost identical challenges to the admission of certain incriminating statements. In Pacelli, for example, we rejected a claim that appellant was not informed of his right to the presence of an attorney:

“[t]he arresting officer warned Pacelli that he had a right to remain silent, that he did not have to make any statements to the officer, that he had a right to an attorney and that if he couldn’t afford one the court would appoint an attorney for him. The instructions fully informed appellant of his rights.” 470 F.2d at 72.

Here, since Miller also was informed of his rights to remain silent and to have an attorney, including an appointed one, we hold that he was adequately informed of his rights, that the district court correctly found a voluntary waiver, and that Miller’s statements were properly admitted in evidence.

Miller further contends that the district court, in imposing upon him a six month jail sentence under a statute that authorized a maximum five year term of imprisonment, improperly commented to Miller that “[y]ou exercised your right, which you have a right to do, to stand trial, but you didn’t take the first step toward rehabilitation which was coming forward and telling the truth.”

Although Judge Metzner should have carefully avoided any suggestion in his comments at the sentencing hearing that he was taking into account the fact that Miller had not pleaded guilty but had put the government to its proof, we are satisfied that the comment to Miller reflected no more than the judge’s eonsideration of whether Miller had taken the first step toward rehabilitation by recognizing that he was at fault. As the court said in Gollaher v. United States, 419 F.2d 520, 530 (9 Cir.), cert. denied, 396 U.S. 960 (1969):

“the first step toward rehabilitation of an offender is the offender’s recognition that he. was at fault [N]o fault can be found of the judge who takes into consideration the extent of a defendant’s rehabilitation at the time of sentence.”

Upon the record as a whole, including Miller’s lenient sentence, we hold that the judge did not penalize him for standing trial or for remaining silent, but that he did properly consider his need for rehabilitation.

IV.

Appellants claim that the district court erred in discharging a juror who informed the court during the trial that he had a strong prejudice against wiretapping and felt that he could not render a fair judgment.

On the voir dire in empaneling the jury, the court informed the prospective jurors that part of the government’s proof would consist of tape recordings, pursuant to a wiretap order, of conversations between a federal agent and the defendants, without the latters’ knowledge. The court asked the veniremen whether “any of you object to the Government making such recordings, and would the fact that they made such recordings in any way affect your ability to render a true and just verdict in this case.” No prospective juror responded.

On the fifth day of the trial, however, one juror sent a letter to the judge stating that, because he had a strong prejudice against the use of wiretapping devices, he could not render a fair judgment. After conferring with counsel and questioning the juror in their presence, the court discharged the juror and replaced him with an alternate, on the ground that the juror had “misled counsel” at the time of his selection and “feels that ‘[he] cannot render a fair judgment in this case.’ ” Appellants contend that the court’s discharge of the juror under these circumstances constitutes error. We disagree.

The court is authorized, pursuant to Fed.R. Crim.P. 24(c), any time before the jury retires to consider its verdict, to replace jurors with alternates if the court finds that jurors are “unable or disqualified to perform their duties.” This substitution of an alternate juror for reasonable cause is the prerogative of the court and does not require the consent of any party. United States v. Ellenbogen, 365 F.2d 982, 989 (2 Cir. 1966), cert. denied, 386 U.S. 923 (1967). A juror may be discharged for misleading the court or when facts are presented which convince the court that a juror’s ability to perform his duty has become impaired. United States v. Maxwell, 383 F.2d 437, 443 (2 Cir. 1967), cert. denied, 389 U.S. 1057 (1968); United States v. Gottfried, 165 F.2d 360 365 (2 Cir.), cert. denied, 333 U.S. 860 (1948); United States v. Cameron, 464 F.2d 333, 335 (3 Cir. 1972).

By replacing the juror here in question with an alternate, after conferring with the juror and with counsel, the court acted well within its discretion. Absent a clear showing of prejudice, we will not presume it. United States v. Maxwell, supra, 383 F.2d at 443; United States v. Ellenbogen, supra, 365 F.2d at 989; United States v. Zambito, 315 F.2d 266, 269 (4 Cir.), cert. denied, 373 U.S. 924 (1963).

Here there was no showing whatsoever of prejudice. The juror had failed to respond to the court’s voir dire question relating to wiretaps. He thereafter informed the court that he could not render a fair judgment. Under these circumstances, we hold that the district court properly discharged the juror. Indeed, we fail to see how the court could have done otherwise.

We have considered appellants’ other claims of error and we find them without merit.

Appellants were convicted a year ago after a fair trial on the basis of overwhelming, uncontroverted evidence of serious crimes committed a year and a half ago. We order that the mandate issue forthwith.

. We affirm the convictions of appellants Floyd and Miller. We vacate the conviction of the deceased appellant Le-savoy and remand his case to the district court with directions to dismiss the indictment as to him.

      . The indictment charged, and there was expert testimony at trial, that the Schedule I controlled substance here involved contained tetrahydrocannabinol and marihuana. 21 U.S.C. § 812 (1970). We refer to it as hashish in this opinion.

      . We have been informed that appellant Le-savoy died on March 12, 1974, after the argument of his appeal but before the filing of this opinion. We therefore vacate his judgment of conviction and remand his case to the district court with directions to dismiss the indictment as to him. Durham v. United States, 401 U.S. 481, 483 (1971).

      . Hochman recorded this telephone call to Krell. He also recorded subsequent meetings and telephone calls. Tapes and transcripts of these conversations were admitted in evidence at the trial,

      . Appellants originally were indicted on November 20, 1972. That indictment was superseded by the instant indictment returned on April 6, 1973.

      . In addition to the three appellants, the indictment named as co-defendants Abelman, Axelrod, Krell, Liebermann and Paul Chaleff. Prior to trial, Abelman and Krell entered pleas of guilty to both counts. Axelrod and Liebermann were found guilty on both counts. The jury could not agree as to Chaleff and the court declared a mistrial as to him.

      . The same sentence as that imposed on Le-savoy was imposed on Axelrod and Liebermann, both of whom are serving their sentences.
      Imposition of sentence on Abelman was suspended and he was placed on probation for a term of five years pursuant to 18 U.S.C. §§ 5010(a) and 4209 (1970).

      . Viewing the conspiracy in this manner also disposes of Miller’s similar claim, since the November 1 meeting referred to in the first overt act was subsequent to the formation of the conspiracy.

      . United States v. Abelman, 73 Cr. 297 (S.D.N.Y., filed April 18, 1973) at 10 (unreported).

      . Implicit in our holding that the district court correctly found that Miller had knowingly waived his rights, is the further holding that the court’s factual finding that alleged coercion “did not affect the voluntariness of [Miller’s] statements”, United States v. Abelman, supra note 8, at 11, was not erroneous.

      . We also reject Floyd’s claim that, as to him, there was a “contextual inculpation” in the statements of Miller in violation of Bruton v. United States, 391 U.S. 123 (1968). Miller’s statements, before being admitted, were redacted so that there was no reference to any person other than Miller.

      . Miller actually was sentenced to seven months with the provision that he be confined in a jail type institution for six months. The remainder of the sentence was suspended.

      . The juror’s letter which was handed to Judge Metzner stated:
      “I am wrestling with a matter of conscience in connection with this trial that I feel I should call to your attention.
      During the screening of jurors, you asked us to so state if there was any reason we felt we could not render a fair judgment. At the time, I was not aware that wiretapping and use of Kells (sic) would play the role in the trial that they have thus far.
      Despite the apparent legality of the use of such devices — as the legality has been attested to in this trial — I have such a strong prejudice against their use that, as the trial has worn on, I’ve begun to recognize that I’m having difficulty suppressing my prejudice. It is clearly affecting my judgment and my attitude towards the evidence that is being presented.
      I now feel that I cannot render a fair judgment in the case.
      I don’t know what the propriety is of my calling this to your attention but I feel compelled to do so.”


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America ex rel. Lonnie Leston GIBBS, Petitioner-Appellant, v. John L. ZELKER, Superintendent of Green Haven Correctional Facility, Stormville, New York, Respondent-Appellee.
    No. 75, Docket 73-1391.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 7, 1973.
    Decided April 23, 1974.
    Michael Young, New York City (Robert Kasanof, The Legal Aid Society, New York City, on the brief), for petitioner-appellant.
    Gene B. Mechanic, Asst. Atty. Gen. of the State of New York, New York City (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., and Stanley L. Kantor, Deputy Asst. Atty. Gen., New York City, on the brief), for respondent-appellee.
    Before WATERMAN, FRIENDLY and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

Petitioner Gibbs, a New York state prisoner now incarcerated at the Green Haven Correctional Facility, appeals from an order entered February 28, 1973 in the Southern District of New York, Lee P. Gagliardi, District Judge, dismissing without a hearing Gibbs’ second petition for a writ of habeas corpus. We affirm the dismissal of the petition on the ground that Gibbs has not exhausted state remedies as required by 28 U.S.C. § 2254(b) and (c) (1970). Specifically, we hold that, since he did not raise in the New York state courts the same federal constitutional claims which he now urges upon the federal courts, the New York courts did not have a fair opportunity to consider those claims. Picard v. Connor, 404 U.S. 270, 276 (1971); United State ex rel. Nelson v. Zelker, 465 F.2d 1121, 1123-25 (2 Cir.), cert. denied, 409 U.S. 1045 (1972).

Gibbs and his co-defendant Navarro were convicted of second degree murder on September 30, 1966 in the Rockland County Court after a 10 day jury trial before Judge (now Justice) Morton B. Silberman. On October 24, 1966, Gibbs was sentenced to a term of 20 years to life. His conviction was affirmed on direct appeal by the Appellate Division on July 7, 1969, 32 App.Div.2d 1028, 303 N.Y.S.2d 836 (2nd Dept. 1969) (mem.), and by the New York Court of Appeals on November 17, 1971, 29 N.Y.2d 754, 276 N.E.2d 236, 326 N.Y.S.2d 402 (1971) (mem.). While Gibbs’ direct appeals were pending in the New York courts, he filed in the Rockland County Court two coram nobis petitions which were denied by Judge Silberman on July 8, 1967 and by Judge Kelly on February 17, 1971, respectively.

The crime of which Gibbs was convicted occurred on April 4, 1966. Late that day the body of Archie Loper was found in a parking lot in Spring Valley, New York. He had been stabbed to death. Shortly after the discovery of Lo-per’s body, the Spring Valley police arrested Navarro in connection with the murder. Navarro was a friend and roommate of Gibbs.

Later on the evening of April 4, Gibbs was taken to the Spring Valley police station for questioning concerning the death of Loper. He was questioned by the chief of police and several policemen, as well as by the district attorney and several members of his staff.

The next day, April 5, he was taken before an acting police justice who ordered him confined as a material witness. He was so confined until April 28 when he was indicted, along with Navarro, for the Loper murder.

On April 7, after consulting with his girlfriend who previously had spoken with the police, Gibbs led the police to a vacant lot where they found hidden among the bushes a small knife which belonged to Navarro and was said to be the murder weapon.

During this entire period, beginning with his initial questioning on April 4 until his indictment on April 28, Gibbs was held without the assistance of counsel; nor was he informed that he was entitled to counsel.

It is the propriety of the introduction of the knife and the testimony about Gibbs leading the police to the knife that is the subject of the instant habeas corpus petition.

Cutting through the procedural morass which has ensued in the federal courts since Gibbs filed his first petition for a writ of habeas corpus in the Southern District of New York on January 27, 1972, we focus upon the essential claim that has now emerged, namely, whether certain of his federal constitutional rights were violated by the admission in evidence at his state trial of the knife and testimony concerning Gibbs leading the police to the knife. Despite Gibbs’ assertion before us and the district court’s finding below that Gibbs had exhausted state remedies, our threshold inquiry must be directed to that issue, for absent compliance with the exhaustion requirement of § 2254(b) and (c), the district court would have had no jurisdiction to grant habeas corpus relief to this state prisoner upon a claim of denial of federal constitutional rights raised in the federal court for the first time.

Gibbs argues that admission of the challenged evidence violated his constitutional rights on two grounds. First, he claims that his detention as a material witness was constitutionally impermissible because the order confining him was illegal under New York law, having been signed by an acting police justice rather than by a judge of a court of record. Gibbs asserts that, since the evidence concerning the knife and his knowledge of its whereabouts was a fruit of this illegal detention, it was inadmissible at trial. Secondly, Gibbs claims that he was interrogated while in custody without having been given the Miranda warnings and that this illegal questioning led directly to the discovery of the knife. Accordingly, Gibbs contends that, since his rights under the Fourth, Fifth and Sixth Amendments were violated during his illegal detention between April 4 and April 28, 1966, the admission in evidence of the knife and related testimony as the tainted product of that detention and the questioning resulted in a constitutionally infirm conviction,

While we do not reach the merits of Gibbs’ constitutional claims in view of our holding that he has not exhausted state remedies, we do note in passing that at least the Fifth Amendment claim is a most serious one. Although Miranda is notably silent on the question of the fruits of proscribed interrogation, we see no tenable distinction between a question requesting Gibbs to tell what happened after the killing and a request by the police that he show them where the knife had been discarded. The latter would seem to be as much within the scope of the privilege against self-incrimination as the former, even recognizing as we do that the privilege protects only against the giving of testimony.

The only indications in the papers before us that have any bearing upon exhaustion of state remedies are the affidavit of Gibbs in support of an unsigned order to show cause by which he sought to bring on a motion in the County Court to suppress the knife as evidence at trial, and Gibbs’ brief in the New York Court of Appeals on his direct appeal. Our careful examination of both documents leaves us with the firm conviction that neither presented Gibbs’ constitutional claims, which are now urged upon the federal courts, to the New York courts in such a manner as to afford the state courts a fair opportunity to consider them as required by Pi-card and Nelson.

The affidavit attached to the proposed order to show cause relies almost entirely on the asserted invalidity of Gibbs’ detention under state law because the confinement order was signed by an acting police justice. There is no mention whatever of any Fifth Amendment claim such as that here raised, either denominated as such or spelled out in substance. The general assertion that “the search and resulting seizure of the aforementioned knife was in violation of my constitutional rights” was an even less adequate presentation to the state courts of the claim we consider Gibbs’ strongest than was the presentation which we found inadequate in United States ex rel. Nelson v. Zelker, supra, 465 F.2d at 1125, while acknowledging there that “a general due process argument was made in the state court . . . .” Ibid.

Gibbs’ brief in the New York Court of Appeals — a most puzzling document — is likewise inadequate to exhaust state remedies on the issues here sought to be raised. We are told that this brief is supposed to have presented both the Fourth and Fifth Amendment issues to New York’s highest court. True, it does talk about the signature of the detention order by an acting police justice who is said to have lacked authority to confine a material witness under New York law. The brief also makes some mention of lack of counsel and warnings — but all in the context of the requirements of New York law. The Court of Appeals could well have read the entire document and never have realized that a Fifth or Sixth Amendment claim was being made. Indeed, there is not a single reference to the Miranda decision in Gibbs’ brief, although by the time the brief was filed Miranda had been on the books for five years.

In short, we hold that the federal constitutional claims which Gibbs now seeks to have adjudicated in the federal courts were never “fairly presented to the state courts”. Picard v. Connor, supra, 404 U.S. at 275. While we would hardly insist that the asserted inadequacy of the acting police justice’s signature be raised in the state court in the specific garb of a federal constitutional question, so long as it had been adequately litigated there as a state question and the Fourth Amendment claim rested entirely on alleged violation of state procedural requirements, still in the circumstances here presented it cannot be said that to raise the detention question and to omit the more clearly appealing Miranda claim which is similarly directed to the circumstances of discovery of the knife gave the state courts a fair chance at resolving the constitutional problems of petitioner’s ease. Cf. Schiers v. People of State of California, 333 F.2d 173, 175-76 (9 Cir. 1964).

Paraphrasing Judge Mulligan’s observation in United States ex rel. Nelson v. Zelker, supra, which we find equally applicable here:

“appellant has been convicted of murder in the [second] degree by a state court and has been sentenced to [20 years to] life imprisonment in a state institution. His attack is upon the conduct of the [police] and of the [state court judge] who participated in that trial. It would indeed be violative of § 2254(b) as construed in Picard v. Connor to deny the state court the opportunity to review the propriety of the actions of its court . . . , under attack here, in a constitutional posture never fairly or substantially presented to it. United States ex rel. Rogers v. LaVallee, 463 F.2d 185 (2 Cir. 1972).” 465 F.2d at 1124-25.

We agree.

Accordingly, we affirm the dismissal of the petition on the ground that petitioner has not exhausted state remedies.

      . The record before us does not include Gibbs’ coram nobis petitions, nor the written opinions denying them. Counsel for neither side has furnished us with citations to these opinions, if they are reported, nor have we been informed whether appeals were taken from the orders denying the petitions. Since both were denied while the direct appeals were pending, we assume that the coram nobis petitions and the orders entered thereon contributed no more to the exhaustion of state remedies than did his brief on direct appeal to the New York Court of Appeals, referred to below.

      . Miranda v. Arizona, 384 U.S. 436 (1966).
      While the interrogation of Gibbs took place in April 1966, prior to the Miranda decision on June 13, 1966, the Miranda rule with respect to the admissibility of evidence applies to all trials subsequent to the date of that decision. Johnson v. New Jersey, 384 U.S. 719, 734 (1966). The trial of Gibbs began September 9, 1966.

      . The district court likewise did not reach the merits of Gibbs’ constitutional claims. It held that, if there was error in the admission of the knife and testimony concerning it, such error was harmless beyond a reasonable doubt. While we would have difficulty, on the record before us, in justifying denial of the petition on that ground, it is unnecessary for us to reach that issue in view of our holding that state remedies have not been exhausted.

      . We do not comment on the merit of his Fourth Amendment claim beyond noting that clearly there was probable cause for detaining Gibbs under the principle stated in Bacon v. United States, 449 F.2d 933 (9 Cir. 1971), and that there would have been no violation of the Fourth Amendment if New York had conferred the power of confinement on police justices as well as on judges of courts of record. Gibbs’ argument under the Fourth Amendment therefore reduces itself to reliance on a dictum for four Justices in Ker v. California, 374 U.S. 23, 37 (1963), where the holding was that the arrest was within the California statute.
      In a letter addressed to the Court subsequent to argument, Gibbs’ counsel has added a citation to Beightol v. Kunowski, 486 F.2d 293 (3 Cir. 1973); but we do not read that case as standing for any general proposition that a search or seizure violative of state law violates the Fourth Amendment. Gibbs’ reliance in the same letter on the “sham detention” doctrine of United States v. Edmons, 432 F.2d 577 (2 Cir. 1970), is plainly inappropriate, since whatever Gibbs may have been in addition, he was certainly a material witness — a matter of real and legitimate interest to the police.

      . This material is relied on by Gibbs on the instant appeal primarily to negate the State’s claim of a deliberate by-pass by Gibbs of adequate state procedures available to test the constitutional claims now raised in the instant federal habeas corpus proceeding.

      . New York provides an adequate post-conviction procedure to adjudicate previously unconsidered constitutional claims. N.Y. Criminal Procedure Law § 440.10(1) (h) (McKinney 1971).
      Based on our holding above, we need hardly add that in our view Gibbs’ constitutional claims referred to herein have not been previously determined on the merits by the New York state courts upon direct appeal from the judgment of conviction. See N.Y. Criminal Procedure Law § 440.10(2) (a) (McKinney 1971).


author: COLEMAN, Circuit Judge:

text:
    WINTERS COAL CO., INC., Petitioner-Appellant-Cross Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee-Cross Appellant.
    No. 73-1077.
    United States Court of Appeals, Fifth Circuit..
    July 5, 1974.
    John Y. Merrell, McLean, Va., Went-worth T. Durant, Dallas, Tex., H. A. Street, Grundy, Va., for petitioner-appellant-cross appellee.
    Scott P. Crampton, Asst. Atty. Gen., Tax Div., U. S. Dept, of Justice, Washington, D. C., Lee H. Henkel, Jr., Chief Counsel, Raymond W. Sifly, Internal Revenue Service, Washington, D. C., Wesley J. Filer, Tax Div., Dept, of Justice, Washington, D. C., for respondentappellee-cross appellant.
    Before BELL, COLEMAN and RONEY, Circuit Judges.
   COLEMAN, Circuit Judge:

This is an appeal from an order of the United States Tax .Court denying petitioner’s request for a redetermination of a deficiency in its taxes for its taxable years ending March 31, 1965 and 1966, as assessed by the Commissioner of Internal Revenue. The primary issue is: Did the Tax Court err when it held that the taxpayer, Winters Coal Co., Inc., had no economic interest in the coal in place, mined under a lease with Alabama By-Products Corporation, which would have entitled Winters to a deduction for percentage depletion under Sections 611 and 613 of the Internal Revenue Code, 26 U.S.C. § 611 and § 613? The answer moots the other issues raised by the appeal and the cross appeal.

This case was tried upon stipulated facts; therefore, only questions of law are presented by the appeal. The Tax Court denied the depletion allowance, a judgment which we find must be reversed.

Analyzing the Commissioner’s argument in its basic essentials, he contends that although Winters has a valid lease for the minerals and mining rights on particular pieces of property, it does not have the required economic interest in the coal in place to allow it to claim the percentage depletion simply because the lease was terminable on short notice.

The cogent clauses of the leases provided that ABC, as lessor, for the consideration and subject to the terms and conditions of the lease, did “demise and let” to the lessee, P. L. Winters, certain specified lands for the purpose of removing by the strip mining method coal from the “Black Creek” seam.

Beside the normal boiler-plate clauses, the other pertinent clauses involved the payment of royalties to ABC, the termination of the leases, and certain requirements concerning surface rights. The clauses dealing with the royalty payments provided that the petitioner would pay ABC $.50 a ton with a minimum of $50.00 per month on the coal mined from property ABC owned in fee simple; otherwise, where ABC owned only the mineral and mining rights, the royalty was $.40 per ton with no minimum monthly payment.

As for the termination of the lease, the pertinent clauses show that it was automatically renewable every year, and, in order to terminate, the party wishing to do so had to give the other 30 days notice' of intent. The all-important clause here, according to the Commissioner, was a clause giving either party the right to terminate the lease at will upon 60 days notice. This 60 day requirement was reduced to 30 days in the second lease.

“(a) General Rule. — In the case of mines, oil and gas wells, other natural deposits, and timber, there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion and for depreciation of improvements, according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under regulations prescribed by the Secretary or his delegate. For purposes of this part, the term ‘mines’ includes deposits of waste or residue, the extraction of ores or minerals from which is treated as mining under section 613(c). In any case in which it is ascertained as a result of operations or of development work that the recoverable units are greater or less than the prior estimate thereof, then such prior estimate ' (but not the basis for depletion) shall be revised and the allowance under this section for subsequent taxable years shall be based on. such revised estimate.”

The lease also contained a provision requiring the lessee to obtain rights from the surface owner before the lease could become effective.

In addition to the aforementioned clauses, another important proviso of the lease should be mentioned:

“It is understood that we make no representation or warranty whatsoever that there is "any coal in the above described lands, that any coal therein is mineable or merchantable, that any coal therein, if mineable or merchantable, would be suitable for our use, or that we shall purchase any coal mined from said lands.”

In February of 1958, apparently before the first lease, Mr. Winters and ABC entered into a contract whereby Mr. Winters would sell to ABC 100 tons of coal per day for its coking operations. The contract price varied somewhat during the tenure of the contract but was originally set at $5.50 a ton.

As previously mentioned, this case involves a claim for a percentage depletion allowance under Sections 611 and 613 of the Internal Revenue Code of 1954. Section 611 provides that in the case of mines there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion in accordance with regulations prescribed either by the Secretary of the Treasury or his delegate, the Commissioner of Internal Revenue. According to Section 613, the petitioner would be entitled to claim a 10% deduction from his gross income.

Pursuant to the power granted by section 611(a), the Commissioner has promulgated certain regulations to determine when one can claim the allowable deduction. In this opinion we are primarily concerned with one such regulation and its interpretation in light of the facts of the case at bar. It provides the following:

“(b) Economic interest. (1) Annual depletion deductions are allowed only to the owner of an economic interest in mineral deposits or standing timber. An economic interest is possessed in every case in which the taxpayer has acquired by investment any interest in mineral in place or standing timber and secures, by any form of legal relationship, income derived from the extraction of the mineral or severance of the timber, to which he must look for a return of his capital. But a person who has no capital investment in the mineral deposit or standing timber does not possess an economic interest merely because through a contractual relation he possess [sic] a mere economic or pecuniary advantage derived from production. For example, an agreement between the owner of an economic interest and another entitling the latter to purchase or process the product upon production or entitling the latter to compensation for extraction or cutting does not convey a depletable economic interest. Further, depletion deductions with respect to an economic interest of a corporation are allowed to the corporation and not to its shareholders.”

Treas.Reg. § 1.611-1 (b) (1965).

In essence we are called upon to determine whether Winters Coal acquired an economic interest in the minerals in place. This necessitates a determination of what interest, if any, was obtained by Winters, and, when viewed in light of the United States Supreme Court decisions on the point, whether the short notice terminability provisions of the leases are sufficient in themselves to reduce Winters’ interest to a mere economic advantage, and if so, whether the acquisition of surface rights was sufficient to create an economic interest as required by the law.

The writer of this opinion would ground the decision of this case on the lease alone, as developed under the following Part I of this opinion. The majority of the panel consisting of Judges Bell and Roney are concerned, however, that the one-year lease terminable at will by either party on 30 days notice might be a mere usufruct as compared to the lease in Lynch v. Alworth-Stephens Co., 267 U.S. 364, 45 S.Ct. 274, 69 L.Ed. 600 (1925), and did not, standing alone, convey an economic interest under the Treasury Regulations, Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489 (1933), and Parsons v. Smith, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747 (1959). They find all doubts as to the requisite economic interest resolved, however, by the requirement in the lease that the taxpayer acquire surface rights and the acquisition of those rights by the taxpayer, following the authority of Commissioner v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347 (1956), as developed in Part II of the opinion prepared by the majority members of the panel.

I. The Lease

The Alabama Supreme Court has been called upon to determine the validity of a lease quite similar to the one now under consideration. In Adams v. Riddle, 233 Ala. 96, 170 So. 343 (1936), Judge Bouldin, speaking for that Court, held that the lease there in question gave the lessee a possessory interest in the land by conveying to him ownership pf the minerals.

“All the cases agree that such a lease passes a property right in the minerals, the right to locate, sever, and convert to personalty.”

170 So. at 345.

There is little conflict or disagreement with the old hornbook principle that a lease is a conveyance and creates in the lessee an estate which entitles him to exclusive possession unless certain rights are reserved by the lessor. Moynihan, Introduction to the Law of Real Property, 63-85, (1962).

We believe that the case of Lynch v. Alworth-Stephens Co., 267 U.S. 364, 45 S.Ct. 274, 69 L.Ed. 660 (1925), is controlling on the issue of a lease transferring an economic interest. There the Court held:

“It is, of course, true that the leases here under review did not convey title to the unextracted ore deposits (United States v. Biwabik Mining Co., 247 U.S. 116, 123, 38 S.Ct. 462, 62 L.Ed. 1017); but it is equally true that such leases, conferring upon the lessee the exclusive possession of the deposits and the valuable right of removing and reducing the ore to ownership, created a very real and substantial interest therein. See Hyatt v. Vincennes Bank, 113 U.S. 408, 416, 5 S. Ct. 573, 28 L.Ed. 1009; Ewert v. Robinson, 10 Cir., 289 F. 740, 746-750. And there can be no doubt that such an interest is property. Hamilton v. Rathbone, 175 U.S. 414, 421, 20 S.Ct. 155, 44 L.Ed. 219; Bryan v. Kennett, 113 U.S. 179, 192, 5 S.Ct. 407, 28 L.Ed. 908.”

As to the short notice terminability effect on the lease, the U. S. Court of Claims, in a case on all fours with the one at bar, held that “the property interest ... is not varied or diminished simply because the authority is subject to the possibility of extinction in the future by a termination of the leases on short notice”. Bakertown Coal Co., Inc. v. United States, 485 F.2d 633 (Ct. Cl., 1973).

Akin to this short notice clause is a tenancy terminable at will.

“An estate at will is an estate which is terminable at the will of either landlord or tenant and has no other specified perior of duration. Such a tenancy is properly an estate since the tenant has an exclusive right to possession and may maintain an action of trespass or ejectment against persons interfering with his possessory interest.”

Moynihan, supra, at 83.

Applying these precedents to the lease now under consideration, the writer of this opinion sees no room for doubt that the lease did convey to Winters the leasehold rights to the coal in place. This reduces us to the issue of whether the short notice terminability provisions denigrate a valid conveyance to a mere economic advantage.

The Supreme Court in Parsons v. Smith, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747 (1959), first examined and rejected the depletion claims of mining contractors who contended that:

“. . . their contractual right to mine coal from the designated lands and the use of their equipment, organizations, and skills in doing so, should be regarded as the making of a capital investment in, and the acquisition of an economic interest in, the coal in place.”

359 U.S. at 224. In its holding, the Court enumerated seven factual bars to entitlement, as follows:

“To recapitulate, the asserted fiction is opposed to the facts (1) that petitioners’ investments were in their equipment, all of which was moveable —-not in the coal in place; (2) that their investments in equipment were recoverable through depreciation — not depletion; (3) that the contracts were completely terminable without cause on short notice; (4) that the landowners did not agree to surrender and did not actually surrender to petitioners any capital interest in the coal in place; (5) that the coal at all times, even after it was mined, belonged entirely to the landowners, and that petitioners could not sell or keep any of it but were required to deliver all that they mined to the landowners; (6) that petitioners were not to have any part of the proceeds of the sale of the coal, but, on the contrary, they were to be paid a fixed sum for each ton mined and delivered, which was, as stated in Huss [v. Smith] [255 F.2d 599, 600], agreed to be in ‘full compensation for the full performance of all work and for the furnishing of all [labor] and equipment required for the work’; and (7) that petitioners, thus, agreed to look only to the landowners for all sums to become due them under their contracts.”

359 U.S. at 225.

The important distinction in these cases is that which exists between a mere contractor who removes the coal and a sublessee who has a leasehold interest before removal and owns the product after removal. This appears abundantly clear from the decision of the Supreme Court in Paragon Jewel Co. v. C. I. R., 380 U.S. 624, 85 S.Ct. 1207, 14 L.Ed.2d 116 (1965) and the decision of this Court in United States v. Wade, 5 Cir., 1967, 381 F.2d 345.

We have been unable to find any case, other than a Tax Court decision, in which the courts have held that a valid lease failed to convey an economic interest solely because one of the parties could terminate the arrangement on short notice. A careful scrutiny of the cases cited by the Commissioner reveals that these cases involved contracts merely for the removal of coal and not a lease of the minerals in place such as we have here.

Taking the seven point criteria as enumerated by the Supreme Court and applying them to the case at bar, we hold as to five of them:

(2) That this investment could not be recovered by depreciation; thus leaving only depletion;

(3) That the leases were terminable on short notice;

(5) That the coal at all times, even after it was mined, belonged entirely to the petitioner, and that he could sell or keep any of it and was not required to deliver all that was mined to the lessor — although as a matter of fact, it did sell all that was mined from these lands to the lessor;

(6) That the petitioner was to have all of the proceeds of the sale of the coal; and

(7) That petitioner, thus, did not agree to look only to the lessor for all income.

As to (1) and (4) of the seven criteria under Parsons, Judges Bell and Roney are uncertain that the lease, terminable on short notice, by itself, constituted a capital investment in the coal in place or a surrender by the owner of a capital interest in the minerals, and would not decide that point in this case. The opinion writer would hold, however, that the lease constituted an investment by the taxpayer in the coal in place, and a surrender to petitioner of a capital interest in that coal by the owner, and would reach the inescapable result that the only point in the Commissioner’s favor is the short notice termination clause. This being the only contra point to the vesting of an economic interest in the petitioner, to say that ABC had not passed an economic interest to Winters pursuant to the leases gallops beyond all reason and logic.

II. Surface Rights

The majority of the Court have no difficulty in deciding that the acquisition of surface rights by the taxpayer, coupled with the lease which requires such acquisition, was sufficient in the aggregate to constitute an economic interest for depletion purposes. The lease provided :

In the event the Lessor is the owner of the minerals and mining rights only in the above described lands the rights herein granted shall be limited to such as the Lessor has in connection with the. mining of said coal, and this lease shall not be effective unless and until an appropriate lease or release, acceptable to Lessor has been obtained from the surface owner by the Lessee and furnished to Lessor. In the event of any dispute as to the ownership of or rights in any surface lands leased hereunder, or as to the ownership of or extent of the mineral and mining rights in any lands leased hereunder, the Lessee shall discontinue the u.se of said surface or of said mineral, either or both, as the case may be, until such dispute shall have been settled.

The cost of the various surface rights was substantial. No leases are involved that did not require the acquisition of the surface.

Commissioner v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347 (1956), involved the relative rights in the depletion allowance of the lessee of an offshore oil tract and the owners of the land from which the lessee slant drilled to develop the deposit. State law permitted extraction of offshore oil only by slant drilling from upland drill sites and the lease from the State provided accordingly. The Supreme Court held that the upland owners were entitled to deplete their contractual interest in the drilling company’s net profits from the tract. The Court pointed out that the state law requirement that the driller obtain the use of upland drilling sites made the upland owners indispensable parties to production of offshore oil. The Court found that the upland owners acquired an economic interest in the oil in place by contributing the use of their indispensable real estate. The Court noted that the value of their land adjacent to the offshore oil tract, which had been increased by its potential use in oil production, was reduced by each barrel of oil extracted.

The case at bar is factually close to Southwest Exploration. Coal could only be extracted from ABC’s deposits by stripmining. The law of real property required the permission of the surface owners before the overburden could be removed to reach the coal. The lease, according to its terms, did not become effective until taxpayer had obtained that permission. Like Southwest Exploration, state law and the leasing arrangement required that the producer cooperate with certain property owners. Once the taxpayer had acquired the interests it purchased from the surface owners, it was in the same position as the upland property owners in Southwest Exploration. It became an indispensable party to the exploitation of ABC’s coal. Use of the land was not only legally indispensable as in Southwest Exploration, but physically essential. Neither ABC nor any other party could extract the coal without taxpayer’s permission to remove the overburden. Moreover, as in Southwest Exploration, the value of the essential land reflected its indispensability, and its value decreased as the underlying mineral wealth was extracted.

III. Conclusion

In summary, albeit by different routes, this Court is unanimous in the decision that the taxpayer is entitled to claim depletion on its interest in the leased coal deposits. Accordingly, the judgment of the Tax Court is

Reversed.

      . There were two leases actually executed between the petitioner and ABO, one on December 1, 1959, and another on August 31, 1964. Both of the documents contained virtually the same language and provisions except those discussed later in the text of the opinion.

      . Winters Coal Co., Inc., was formed as an Alabama Corporation in 1964 to engage in a coal mining business which had been operated previously as a sole proprietorship by P. L. Winters. It was assumed by the parties that the leases and contracts held by Mr. Winters were assigned to the corporation upon its commencement and thereafter acted for the company in its contractual negotia- - tions.

      . These clauses contained provisions regarding the payment of taxes, indemnity of the lessor, the lessee as an independent contractor, and the effectiveness of the lease on property which ABC owned only the mineral and mining rights.

      . 26 U.S.C. § 611. Allowance of Deduction for Depletion.

      . 26 U.S.O. § 613. Percentage depletion.

      “(a) General Rule. — In the case of the mines, wells, and other natural deposits listed in subsection (b), the allowance for depletion under section 611 shall be the percentage, specified in subsection (b), of the gross income from the property excluding from such gross income an amount equal to any rents or royalties paid or incurred by the taxpayer in respect of the property. Such allowance shall not exceed 50 percent of the taxpayer’s taxable income from the property (computed without allowance for depletion). For purposes of the preceding sentence, the allowable deductions taken into account with respect to expenses of mining in computing the taxable income from the property shall be decreased by an amount equal to so much of any gain which (1) is treated under section 1245 (relating to gain from disposition of certain depreciable property) as gain from the sale or exchange of property which is neither a capital asset nor property described in section 1231, and (2) is properly allocable to the property. In re case shall the allowance for depletion under section 611 be less than it would be if computed without reference to this section.
      “(b) Percentage Depletion Rates. — The mines, wells, and other natural deposits, and the percentages, referred to in subsection (a) are as follows:
      ****** “(4) 10 percent — asbestos (if paragraph (2) (B) does not apply), brucite, coal, lignite, perlite, sodium chloride, and wollastonite.
      í!í ¡¡i sfs % *
      “(c) Definition of Gross Income From Property. — For purposes of this section—
      “(1) Gross income from the property.— The term ‘gross income from the property’ means, in the case of a property other than an oil or gas well, the gross income from mining.”

      . The sections having pertinence to the case at bar are as follows :
      “Parties of the first part, in consideration of the sum of one dollar and other valuable consideration do hereby grant, demise and let unto the party of the second part and assigns, all the minerals in and under the following described tract of land, and also the said tract of land for the purpose and with the exclusive right of mining and operating thereon, also such other provisions as are necessary for conducting said operations (then follows a description of the tract, 1360 acres).
      “To have and to hold the same unto the party of the second part, his heirs and assigns," for the term of five (5) years from date hereof and as much longer as minerals are found in paying quantities thereon, allowing and paying to the party of the first part as Royalty 10% of all monies received from sale of such minerals; payments to be made within 30 days after shipments are marketed.
      “Lessee agrees to enter upon said lands and begin operation within sixty days from date hereof. It is further agreed that failure to operate for sixty consecutive days without the consent of lessor shall act as forfeiture.”

      . Bolling V. C. I. R., 37T.C. 754 (1962).


author: MORGAN, Circuit Judge:

text:
    John BETONIE, USN, Petitioner-Appellee, v. Captain W. G. SIZEMORE, USN, Commanding Officer, Naval Station, Jacksonville, Florida, et al., Respondents-Appellants. Christopher P. TIMMONS, USN, Petitioner-Appellee, v. Captain CARRIER, USN, Commanding Officer, NATTC, Jacksonville, Florida, Respondent-Appellant. Phillip J. de LA TOVA, USN, Petitioner-Appellee, v. Captain CARRIER, USN, Commanding Officer, Naval Air Technical Training Center, Jacksonville, Florida, Respondent-Appellant. Dennis Michael LYNCH, TM3, USN, Petitioner-Appellee, v. W. G. SIZEMORE, Captain, USN, Commanding Officer, Naval Air Station, Jacksonville, et al., Respondents-Appellants.
    No. 73-3015.
    United States Court of Appeals, Fifth Circuit.
    July 5, 1974.

      Robert S. Yerkes, Asst. U. S. Atty., John L. Briggs, U. S. Atty., Jacksonville, Fla., Lieutenant Ralph B. Levy, JAGC, USNR Staff, Commander Fleet Air, Jacksonville, Fla., for respondents-appellants.
    Kathryn L. Powers, Jacksonville, Fla. (Court-appointed), in forma pauperis as to petitioners-appellees only.
    Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.
   MORGAN, Circuit Judge:

The main question presented in these cases is whether the Sixth Amendment’s guarantee of assistance of counsel protects enlisted military personnel brought before summary courts-martial in cases which may result in imprisonment. We hold that it does, and affirm the judgment of the district court granting writs of habeas corpus to the four petitioners.

Certain facts are common to all four cases. All petitioners are enlisted men in the United States Navy who were referred to summary courts-martial in the fall of 1972. All four consented to being tried by summary courts, and were found guilty and sentenced to terms of imprisonment at hard labor. The sentences were approved on review by the respective convening and supervisory authorities. None of the petitioners claims that the proper procedures of the Uniform Code of Military Justice (UCMJ) were not complied with in these cases. See, 10 U.S.C. § 801 et seq.

John Betonie was found guilty of the offense of unauthorized absence after a plea of guilty, and was sentenced to 25 days confinement at hard labor. Phillip J. de La Tova entered a plea of not guilty to a charge of possession of marihuana, but was found guilty and sentenced to 10 days confinement at hard labor. Christopher P. Timmons plead not guilty to two specifications of one charge of possession of marihuana. He was found not guilty of one specification and guilty of the other, and was sentenced to 10 days confinement at hard labor. Dennis Michael Lynch entered a plea of guilty to a charge of unauthorized absence and was sentenced to 25 days confinement at hard labor.

Each of the four men filed a petition for a writ of habeas corpus in the District Court for the Middle District of Florida before the end of his term of confinement, and the court granted all four petitions. In its order granting the petitions, the court made the following rulings:

(1) No commanding officer or officer-in-eharge of a Navy or Marine Corps command or activity within this district shall refer any charge to a summary court-martial without an instruction that confinement may not be ordered thereunder unless the accused is:

(a) Advised of his right to counsel,

(b) Afforded an opportunity for counsel both prior to and during the summary court-martial proceeding,

(c) Advised that if indigent, counsel must be provided without cost, and

(d) After he has been so advised, the accused may execute a knowing and intelligent waiver of his right to counsel.

(2) The accused shall be afforded counsel having the qualifications of 10 U.S.C. § 827(b) unless counsel having such qualifications cannot be obtained on account of physical conditions or military exigencies. If counsel having such qualifications cannot be obtained, the court shall state in writing the reasons therefor.

(3) If the summary court or trial counsel is qualified to act as counsel in a general court-martial, the defense counsel detailed by the convening authority must be similarly qualified.

(4) If the summary court or trial counsel is a commissioned officer, the defense counsel detailed by the convening authority must also be a commissioned officer of at least equal rank.

(5) No accused shall be denied the right to retain civilian legal counsel if he so requests unless military exigencies or physical conditions require such a denial. An accused is “indigent” when, given his total financial situation by comparing assets and liabilities, he is unable to retain an attorney.

The court based its ruling on Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S. Ct. 2006, 2012, 32 L.Ed.2d 530 (1972), which held that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial [footnote omitted].”

The court ordered respondents either to retry petitioners under its guidelines, or to expunge petitioners’ military records of the court-martial convictions, and in addition, to implement the guidelines of the opinion within 30 days of the date of the order. Respondents have reported to the court that they have complied with its order by expunging the records of the convictions and now conduct summary courts-martial in compliance with the order.

It will not be necessary for the purposes of this opinion to describe in detail the sometimes exceedingly complex intricacies of the UCMJ, but a simplified outline of the procedures will facilitate understanding of the issues involved. Military courts-martial have jurisdiction only over offenses made punishable by the UCMJ committed by members of a regular component of the armed forces (and certain others with intimate connections with the armed forces) when those offenses are “service connected.” 10 U.S.C. § 802, O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969).

There are three types of court-martial. A general court-martial may try any person subject to the Code for any offense made punishable by it, and may impose any penalty not proscribed by the Code, including the death penalty. 10 U.S.C. § 818. A special court-martial may try any person subject to the Code for any non-capital offense made punishable by the Code, and may prescribe any punishment not forbidden by the Code except “death, dishonorable discharge, dismissal, confinement for more than six months, hard labor without confinement for more than three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than six months.” 10 U.S.C. § 819. A summary court-martial consisting of one commissioned officer has jurisdiction over non-capital offenses committed by those subject to the Code, except officers, cadets, aviation cadets, and midshipmen. The maximum possible punishments in a summary court-martial are confinement for up to one month, hard labor without confinement for up to 45 days, restriction to specified limits for up to two months, or forfeiture of up to two thirds of one month’s pay. 10 U.S.C. § 820. In Article 15, 10 U.S.C. § 815, the Code authorizes a commanding officer to impose non-judicial punishment for “minor offenses” committed by members of his command. The punishments authorized by Article 15 are even more limited than those authorized for summary courts-martial. 10 U.S.C. § 815.

At one end of the spectrum, the general court-martial embodies most of the attributes of a civilian criminal trial, although many commentators have criticized the differences that do exist. At the other end of the spectrum, the summary court consists merely of one officer who is authorized, even duty-bound, to protect both the prosecution and the defense, as well as acting as the judge and jury. There is, in effect, a trade-off between the severity of the sentence which may be imposed and the informality and speed permitted in the proceedings.

In light of this trade-off, it is important to note that no person may be subjected to either non-judicial punishment or summary court-martial unless he or she consents thereto. A person threatened with non-judicial punishment may request instead a summary court-martial, and a person threatened with a summary court-martial, even by reason of having refused Article 15 punishment, may demand instead a special court-martial. 10 U.S.C. §§ 815(a), 820. By doing so, that person both gains the advantage of increased regularity of proceedings and procedural protection, and incurs the disadvantage of being subjected to greater potential maximum punishments.

One of the most important procedural variations among the different types of courts-martial is the presence or absence of counsel to represent the defendant. The UCMJ provides that the convening authority shall detail both trial counsel (i. e., a prosecutor) and defense counsel in all special and general courts-martial. 10 U.S.C. § 827(a). However, the Code makes no mention of counsel in summary courts-martial or Article 15 proceedings, and it is clear that the Code does not require such counsel. The common practice has been not to allow the attendance of counsel at summary court proceedings and that practice was followed in these cases, even though at least two of the petitioners here specifically requested such counsel.

The first question, as always, is: Did the district court have jurisdiction conferred by a statute to issue the writs? Ex parte Bollman, 8 U.S. (4 Cranch) 75, 2 L.Ed. 554 (1807). The answer is that the court did have jurisdiction under the general habeas corpus statute, 28 U.S.C. § 2241. The petitioners are questioning the validity of the judgments which led to their, confinement, alleging that the military proceedings leading to their sentences were fatally defective because they were deprived of the basic constitutional guarantee of assistance of counsel. See, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1920).

Although it has traditionally been thought that the only questions open to consideration by a federal court on an application for a writ of habeas corpus from a military prisoner were jurisdictional, Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691 (1950); United States v. Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636 (1890), the scope of review has been considerably broadened. Burns v. Wilson, 346 U.S. 137, 139, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953); United States ex rel. Innes v. Hiatt, 141 F.2d 664, 666 (3rd Cir. 1944). See, Thomas v. Davis, 249 F.2d 323 (10th Cir. 1957). It is now clear that civilian courts have jurisdiction to review a petitioner’s claim that he is imprisoned in violation of his basic constitutional rights.

In addition, the fact that petitioners have served their sentences and have been released from confinement does not affect their right to challenge the allegedly illegal sentences. Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1948).

At trial, the government argued that the petitions should be dismissed because petitioners had failed to exhaust remedies available to them within the military system. The district court correctly held that “no other judicial appellate tribunals established to hear appeals in court-martial cases are available to these petitioners to which they could present their serious constitutional claim as a matter of right under the Uniform Code of Military Justice. 10 U.S.C. §§ 866, 867.” To the argument that petitioners should have been required to seek extraordinary administrative remedies before asking a federal court for relief, the court correctly responded, “such relief is too remote and speculative when considered in the face of the substantial constitutional claim herein presented,” citing Noyd v. Bond, 395 U.S. 683, 89 S. Ct. 1876, 23 L.Ed.2d 631 (1969), and Cole v. Laird, 468 F.2d 829 (5th Cir. 1972).

The government also argued at trial that petitioners had waived their right to counsel, either by pleading guilty or by failing to demand a special court-martial. However, these issues have apparently been abandoned on appeal. In any case, we think that reliance on these arguments would be futile. See, United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968); Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367 (1945).

We come now to the heart of the matter: Does there exist a right to counsel in summary court-martial proceedings which result in imprisonment? It is clear that if such a right exists, it is grounded in either the Fifth or Sixth Amendments to the Constitution, since the UCMJ provides for no such right.

The Fifth Amendment provides:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It is obvious that the military exception clause in the amendment limits the right to a grand jury. Kahn v. Anderson, 255 U.S. 1, 41 S.Ct. 224, 65 L.Ed. 469 (1921). However, normal rules of construction would indicate that the military exception does not apply to the rest of the amendment, and a simple reading of the sentence using ordinary rules of grammar and punctuation supports this view. For example, it has been held that the protection against double jeopardy does apply to military proceedings. Sanford v. Robbins, 115 F.2d 435 (5th Cir. 1940), cert. den., 312 U.S. 697, 61 S.Ct. 737, 85 L.Ed. 1132 (1941). See, Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 93 L.Ed. 974 (1949).

It is true that some early cases can be cited for the proposition that military personnel have no constitutional rights whatsoever. Whatever validity this view may have had in the past, it has been true for at least two decades that military personnel are entitled to some form of due process. As the Supreme Court held in Burns v. Wilson, supra,

[T]he constitutional guarantee of due process is meaningful enough, and sufficiently adaptable, to protect soldiers — as well as civilians — from the crude injustices of a trial so conducted that it becomes bent on fixing guilt by dispensing with rudimentary fairness rather than finding truth through adherence to those basic guarantees which have long been recognized and honored by the military courts as well as the civil courts. 346 U.S. at 142-143.

See also, Gallagher v. Quinn, 124 U.S. App.D.C. 172, 363 F.2d 301, cert. den., 385 U.S. 881, 87 S.Ct. 167, 17 L.Ed.2d 108 (1966); McCurdy v. Zuckert, 359 F.2d 491 (5th Cir.), cert. den., 385 U.S. 903, 87 S.Ct. 212, 17 L.Ed.2d 133 (1966). Cf., Gibbs v. Blackwell, 354 F. 2d 469 (5th Cir. 1965); Shapiro v. United States, 107 Ct.Cl. 650, 69 F.Supp. 205 (1947); United States ex rel. Innes v. Hiatt, supra at 664.

The requirements of due process may not be precisely the same in a military setting as they would be in a comparable civilian setting. Gallagher v. Quinn, supra; Bisson v. Howard, 224 F.2d 586 (5th Cir.), cert. den., 350 U.S. 916, 76 S.Ct. 201, 100 L.Ed. 803 (1955). Nevertheless, the due process clause of the Fifth Amendment does provide some protection to those in the military, and it is necessary to determine whether the procedure used by the Navy in these cases passes constitutional muster.

Petitioners also allege that the summary courts-martial in question violated their rights under the Sixth Amendment. That amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the Assistance of Counsel for his defence.

The major problem in interpreting this amendment is that, although there is no military exception, as there is in the Fifth Amendment, it is accepted that the right to a jury trial does not apply to courts-martial, and never has. See, e. g., United States v. Brown, 7 U. S.C.M.A. 251, 22 C.M.R. 41 (1956). The status of other Sixth Amendment rights in military proceedings has been much debated, and even the traditional meaning of the amendment is not clear. For example, compare Henderson, Courts-Martial and the Constitution: The Original Understanding, 71 Harv.L.Rev. 293, 304 (1957), with Weiner, Courts-Martial and the Bill of Rights: The Original Practice I, 72 Harv.L.Rev. 1 (1958). Some courts have held that the Sixth Amendment does not protect defendants in courts-martial. Daigle v. Warner, 490 F.2d 358 (9th Cir. 1974); LeBallister v. Warden, 247 F.Supp. 349 (D.Kan.1965). But the weight of authority seems to be strongly in favor of the proposition that, although the perameters of the rule may not be identical to those in civilian proceedings, there is a right to counsel in courts-martial. Smith v. McNamara, 395 F.2d 896 (10th Cir. 1968), cert. den., 394 U.S. 934, 89 S.Ct. 1211, 22 L.Ed.2d 466 (1969); Kennedy v. Commandant, 377 F.2d 339 (10th Cir. 1967); Henry v. Warner, 357 F.Supp. 495 (C.D.Cal.1973); Application of Stapley, 246 F.Supp. 316 (D. Utah 1965); Denton v. United States, 144 Ct.Cl. 840, 863, cert. den., 361 U.S. 821, 80 S.Ct. 70, 4 L.Ed.2d 68 (1959); Gallagher v. United States, 191 Ct.Cl. 546, 423 F.2d 1371, cert. den., 400 U.S. 849, 91 S.Ct. 58, 27 L.Ed.2d 86 (1970); Shapiro v. United States, supra; United States v. Culp, 14 U.S.C.M.A. 199, 33 C. M.R. 411 (1963); United States v. Alderman, 22 U.S.C.M.A. 298, 46 C.M.R. 298 (1973).

We find the differences between courts-martial and civilian criminal trials to be much less significant than the similarities between the two types of proceedings, at least with respect to the Sixth Amendment. Both types of proceedings may lead to deprivations of liberty as well as property. Both generate potentially severe social stigma. Both have significant repercussions far beyond their immediate impact, in particular in the area of future employment. We have been pointed to no convincing reason why Argersinger v. Hamlin, supra, with its rejection of the distinction between petty and serious crimes, should not establish the framework for Sixth Amendment analysis of military proceedings.

Particularly significant is the fact that both the Army and the Air Force have already begun to apply Argersinger in all court-martial proceedings. See, Daigle v. Warner, 348 F.Supp. 1074 (D. Haw.1972), rev’d., Daigle v. Warner, supra. The Navy, however, argues that it should not be compelled to abide by the Argersinger decision.

Counsel for appellants argues that because the penalties imposed by a summary court-martial are minor, counsel should not be required. Nevertheless, imprisonment is a possibility, as these cases demonstrate, and Argersinger holds that in all such cases, counsel is required. The Navy also argues that imprisonment is not as much of a burden for military personnel as it is for civilians. However, it. defies common sense to think that incarceration in a military prison is not a sufficiently serious punishment to require the presence of counsel.

Appellants further argue that defendants in courts-martial do not need counsel because they are thoroughly versed in the applicable law by reason of their military training, and, in addition, that most offenses tried before courts-martial are purely military, and the applicable law is much less complex than civilian law. However, this court notes that there have been many disputes about the meaning of the various provisions of the Uniform Code of Military Justice, both procedurally and substantively, and that an accused confronted with this unique system of justice is likely to need counsel as much, if not more, than his civilian counterpart. The Navy presents other arguments in an attempt to distinguish military from civilian criminal justice, but we find all of these attempted distinctions unconvincing. The fact remains that an accused entering into a court-martial faces potentially serious punishments of the type which Argersinger holds may not be imposed unless the accused has the assistance of counsel. We thus conclude that both the Fifth and Sixth Amendments require counsel in any court-martial proceeding in which incarceration is to be imposed as a punishment.

Having decided that the Fifth and Sixth Amendments require the presence of counsel in summary courts-martial which result in imprisonment, we now must face the question of whether the right to counsel was violated in the proceedings herein. It is undisputed that two of the petitioners asked for and were refused counsel, and the other two were not advised of their right to counsel, and would have been refused counsel had they requested it. Nevertheless, the Navy argues that the fact that the summary court officer is charged with the duty of representing both the prosecution and the defendant fulfills the requirements of the right to counsel. This argument is, to say the least, unconvincing. An advocate may not properly fulfill his responsibility to defend a person accused of a crime and represent the prosecution at the same time. The potential conflicts of interest in such a situation are legion. The accused in a summary court-martial is entitled to the assistance of his own counsel, and that counsel may not be charged with the duty of representing an adversary party in the same proceeding. See, Henry v. Warner, supra at 504; In re Gault, 387 U.S. 1, 34-42, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Thus, we conclude that petitioners’ right to counsel was violated by the convictions in 'these cases.

We come now to the question of remedy. Appellants argue that because it is only the imposition of incarceration which brings into play the requirements of Argersinger, supra, the district court should not have required appellants to either retry appellees under its guidelines or expunge appellees’ records of the results of these courts-martial. However, in that appellees had already served the sentences imposed by the couz'ts-martial, we can see no alternative to the remedy ordered by the district court, and conclude that the court property issued the requested writs.

Appellants also argue that the court improperly required them to carry out its guidelines, supra, in all summary courts-martial. On this point, we agree with appellants. This suit was not a class action, and we can find no justification for the broad-based order of the district court establishing a procedural framework for all summary courts-martial. This case was simply one involving four petitioners and their courts-martial. There is no indication what role, if any, military necessity might play in future actions of this kind, since there was not even any allegation that any peculiar or difficult military circumstances existed in these cases. Neither was there any question of what kind of counsel would suffice to fulfill the requirements of the Fifth and Sixth Amendments. See, Argersinger, supra (Powell, J., concurring); United States v. Culp, supra. That is, the district court was not called upon to decide whether, or under what circumstances legally trained counsel would be required, or whether defense counsel must meet precisely the same standards as any prosecution counsel participating in the court-martial proceedings. Therefore, although the district court properly granted the petitions for writs of habeas corpus in the eases of the four petitioners, we hold that the mandatory guidelines of the district court are not supported by the record in this case, and must be vacated.

Affirmed in part, reversed and remanded in part.


author: GOLDBERG, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jesse VELASQUEZ and Francisco Reyes, Defendants-Appellants.
    No. 74-1262
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 5, 1974.
    Raul A. Gonzalez, Jr., Brownsville, Tex., for defendants-appellants.
    Anthony J. P. Farris, U. S. Atty., Charles F. Sandoval, James R. Gough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

      Before WISDOM, GOLDBERG and GEE, Circuit Judges.

       Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, 5 Cir. 1970, 431 F.2d 409, Part I.

   GOLDBERG, Circuit Judge:

Defendants Jesse Velasquez and Francisco Reyes appeal from their convictions by a jury for conspiring to import marijuana into the United States unlawfully, a violation of 21 U.S.C. § 963, and for actually importing some 21 pounds of the substance in violation of 21 U.S. C. § 952(a). They urge before this Court: (1) that insufficient evidence of their guilt was presented at trial; (2) that inadmissible hearsay was introduced; (3) that the trial judge improperly interjected himself into the proceedings and inaccurately instructed the jury; and (4) that the prosecutor stated his personal belief as to defendants’ guilt in his closing argument. On the basis of these points, appellants contend that the convictions deserve reversal. We disagree.

In their contention of insufficient evidence, defendants labor from the outset under a serious misapprehension of the law of this Circuit on appellate review of jury determinations in criminal cases. They begin correctly enough by recognizing the general rule that “the verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it.” Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680. But appellants proceed to argue that there exists in this Circuit a much more stringent rule for application in cases such as this, where the conviction rests largely, if not entirely, on circumstantial evidence.

Language in certain of our opinions supports this proposition, and, indeed, goes far toward the notion of a trial de novo on appeal. In Surrett v. United States, 5 Cir. 1970, 421 F.2d 403, however, we addressed ourselves explicitly to those decisions and to the proper interpretation of their language.

“In [Vick v. United States, 5 Cir. 1954, 216 F.2d 228] and in other decisions this Court concluded that in criminal cases based upon circumstantial evidence, a special rule requires that inferences reasonably to be drawn from the evidence must not only be consistent with guilt of the accused, but inconsistent with every reasonable hypothesis of his innocence, 216 F.2d at 232. The Supreme Court, however, has held that it is ‘confusing and incorrect’ to instruct the jury • that a special rule applies to cases based on circumstantial evidence in that an acquittal must be ordered unless the circumstantial evidence excluded every hypothesis except that of guilt. Holland v. United States, 1954, 348 U.S. 121, 139 [75 S.Ct. 127, 99 L. Ed. 150]. ... To reconcile the decisions of the Fifth Circuit with Holland, we construe them as holding that ‘the test is not whether the evidence is inconsistent with the hypothesis of innocence but rather whether reasonable minds could so conclude.’ Wright, 2 Federal Practice and Procedure § 467. . . .”

421 F.2d at 405. Judged by that standard, ample evidence supports these convictions.

The testimony showed that two Mexican youths, Juan Resendez and Adalberto Guerra, were hired by an American citizen in Reynosa, Mexico to drive an automobile into the United States and leave it at the El Rio parking lot just across the border in Hidalgo, Texas. When they arrived at the Hidalgo crossing early on the morning of September 29, 1973, the two young Mexicans informed border officials that they were delivering the car to Guerra’s cousin in McAllen; but, unable to identify that cousin from memory, Guerra presented a piece of paper containing defendant Reyes’ name, telephone number, and Michigan address — information admittedly written in Reyes’ own hand. When Resendez and Guerra realized that their story had aroused suspicion and that further inspection was imminent, they attempted to flee into Mexico on foot. Resendez did not succeed. A subsequent search of the car revealed the marijuana; and additional questioning of Resendez disclosed the El Rio drop point. A narcotics agent proceeded in that car to make a controlled delivery of the drug. While on the road, he was pulled over by defendants, who were riding in another vehicle.

Velasquez and Reyes attempted to explain their conduct on the grounds that the car, which they had used for a trip to Mexico the previous day, had been stolen or perhaps misplaced in that country . At the time they halted the narcotics agent, defendants contend, they were innocently reclaiming stolen property.

The effect of this explanation was seriously weakened — -and the Government’s case strengthened — by the evidence of Ronald Warthen and Joseph Conine, friends of defendants who had been chauffeuring them in search of the misplaced car. These witnesses testified that defendants had made two previous trips to the El Rio parking lot to pick up the vehicle; that they had never indicated that the car was either stolen or lost; and that, at the time they spotted the car and strange driver on the road, defendants seemed pleased and entirely unsurprised. Indeed, Warthen testified that Velasquez and Reyes exited his car to enter the other without any sign that they anticipated having to dislodge a thief.

On the basis of this evidence the jury was not required to accept defendants’ hypothesis of an innocent search for a stolen car. A substantial basis existed for the belief that Velasquez and Reyes had entered into an agreement with others to import marijuana into the United States and that in furtherance of the conspiracy Resendez and Guerra had effected such importation, which was both an overt act and the substantive crime. See United States v. Fontenot, 5 Cir. 1973, 483 F.2d 315.

Defendants’ remaining arguments call for no great elaboration of the facts. Certain statements made by a Mexican cabdriver to Government agents, tending to link defendants to a conspiracy, did find their way to the jury in the course of an agent’s testimony. The hearsay aspect of the agent’s evidence was relatively limited, however; and whatever prejudice might have arisen was adequately cured when the cabdriver himself was placed on the stand as a Government witness and subjected to searching cross-examination. Cf. California v. Green, 1970, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489.

The attacks on the trial conduct of the judge and prosecutor are likewise insufficient to win reversal. The record discloses that in his comments and questions the district judge did not go beyond his right and responsibility “to expedite the proceedings and to prevent any misunderstanding of a witness’s testimony.” United States v. Hill, 5 Cir. 1974, 496 F.2d 201. Concerning the court’s charge to the jury, defendants raise objections to the summary of the evidence and to the instructions on circumstantial evidence and the responsibility of principals for the actions of their agents. At trial, however, defense counsel did not challenge any of the court’s statements on the applicable law and explicitly informed the court that its synopsis of the evidence would be adequately balanced by an additional reminder to the members of the jury that they had sole responsibility for determining the facts. The court accepted that suggestion. Having let the proper moment for objection and correction pass, defendants can obtain a reversal here only by showing an exceptional situation “involving serious deficiencies which affect the fairness, integrity, or public reputation of the judicial proceedings, . . . or which constitute obvious [mistake].” United States v. Jacquillon, 5 Cir. 1972, 469 F.2d 380, 386, cert. denied, 410 U.S. 938, 93 S.Ct. 1400, 35 L.Ed.2d 604. We find no such plain error in this charge.

Counsel for defendants did raise timely objection to the comment of the United States Attorney during closing argument that “the real facts are that these two men are guilty beyond a reasonable doubt.” The court responded with an admonition to the jury that the statements of counsel were not evidence and that the jurors remained the “ultimate judges.” The court ruled, however, that the remark did not warrant a mistrial. We agree.

The standard in this Circuit for the permissible scope of prosecutorial comment on the guilt of the accused appears succinctly in United States v. Martinez, 5 Cir. 1972, 466 F.2d 679, 683.

“The law is clear that' a prosecutor’s remarks cannot imply that evidence not before the jury implicates the defendant. Nor can a prosecutor vouch for a witness by suggesting that the government would not use a witness unless his credibility was confirmed. [A] prosecutor may express his belief in the guilt of a defendant if such belief is based solely on the evidence introduced and the jury is not led to believe that other evidence justifies that belief.” [citations omitted]

Read in its context the prosecutor’s statement in this case amounts to no more than such a sanctioned opinion on the evidence produced at trial. A rea-' sonable juror could not have concluded that the United States Attorney was relying either on undisclosed information or supposed law enforcement expertise.

Defendants received fair treatment at the hands of judge, jury, and prosecutor. This Court therefore has no warrant to disturb the result below.

Affirmed.

      . To the extent that any of our decisions have strayed from this interpretation, they are at odds not only with the Supreme Court’s ruling in Holland, but also with the appellate standard decreed in Vick itself:
      “In [circumstantial evidence cases] the test to be applied on motion for judgment of acquittal and on review of the denial of such motion is not simply whether in the opinion of the trial judge or of the appellate court the evidence fails to exclude every reasonable hypothesis, but that of • guilt, but rather whether the jury might reasonably so conclude.”
      216 F.2d 232.

      . The car belonged to one Margaret Sevilla, Velasquez’ aunt.

      . Defendants were more than a little vague and contradictory in explaining precisely how all those who had traveled to Mexico in the car had managed to return to the United States without noticing its absence.

      . The challenged statement follows the prosecutor’s request that the jury study the evidence :
      “Ladies and gentlemen of the jury, judge the credibility of this evidence. Put the pieces together. Don’t expect to see a group of people sitting around a table like they are signing the Declaration of Inde-
      pendence entering into some sort of agreement. It is not there. That kind of agreement, that kind of picture, is not there. But you can take the pieces that we have given you and put them together and you are going to see the picture that comes out loud and clear beyond a reasonable doubt . . . .”