author: ELY, Circuit Judge: SOLOMON, District Judge

text:
    UNITED STATES of America, Appellee, v. Charles Anthony HARTFIELD, Appellant.
    No. 74-2191.
    United States Court of Appeals, Ninth Circuit.
    March 12, 1975.

      Alvin S. Michaelson (argued), Los An-geles, Cal., for appellant.
    William D. Keller, U. S. Atty. (argued), Los Angeles, Cal., for appellees.
    Before DUNIWAY and ELY, Circuit Judges, and SOLOMON, Senior District Judge.

       The Honorable Gus J. Solomon, Senior United States District Judge, District of Oregon, sitting by designation.

   OPINION

ELY, Circuit Judge:

Appellant Hartfield appeals from his conviction by a jury on one count of an indictment charging him with the attempted robbery of a savings and loan association while armed with a dangerous weapon, a violation of 18 U.S.C. § 2113(a) and (d). Sentenced to the custody of the Attorney General for a period of ten years, Hartfield is currently confined.

The evidence adduced at trial indicated that Hartfield entered a branch of the California Federal Savings and Loan Association (hereinafter “the Association”) in Ontario, California at 9:30 a.m. on September 5, 1974. Pointing a gun at one of the Association’s employees, Hart-field demanded, “Give me the money.” It was explained to Hartfield that the particular Association office was strictly a loan branch and that no money was kept there. After repeating several times that he wanted the safe opened, Hartfield accepted the explanation and asked the employees who were present to give him the money from their pockets. Hartfield was in the Association office for approximately five to ten minutes and was described by the assistant vice president and manager of the loan office as appearing “hopped up” during the time.

Approximately fifteen minutes after the foregoing incident occurred at the loan office, a patrolman from the Upland Police Department observed a vehicle driven by a person matching the description of Hartfield, and the patrolman stopped the vehicle. Hartfield was placed under arrest and taken to the Ontario Police Station. During Hartfield’s trial, his attorney offered to prove certain subsequent events, hereinafter described, but the trial judge refused to admit the proffered testimony.

The testimony sought to be introduced was as follows:

After arriving at the Ontario Police Station Hartfield was observed by Police Officer Chavis to be slumping out of his chair. Several officers attempted to keep Hartfield sitting upright in his chair and could not do so; consequently, Hartfield was placed on the floor to keep him from falling. According to Officer Chavis the appellant “went comatose.” The Fire Department Rescue Service was summoned, arrived within several minutes, and spent about five minutes unsuccessfully attempting to revive Hartfield. Hartfield was then taken to the San Antonio Community Hospital, where he was admitted at 10:57 a.m. Hospital records were offered to prove that Hartfield was hospitalized for about one week, that he stated that he had possibly been given some LSD in something to drink, that he was admitted as the victim of a possible drug overdose, and that during the evening of the day of his admission he began to suffer hallucinations. Counsel for Hartfield also offered to produce Drs. Williamson and Campbell to testify as to their diagnosis and treatment of Hartfield at the hospital. All of this proffered testimony relating to Hart-field’s condition after the time of his arrest was excluded by the trial judge and therefore never considered by the jury.

I. The Court’s Denial of the Appellant’s Request for an Order Authorizing the Administration of an Electroencephalogram.

Hartfield’s first contention relates to the denial of defense counsel’s motion requesting an order authorizing an examination of Hartfield by means of an electroencephalogram (hereafter “EEG”). After Hartfield had entered an initial plea of not guilty, the trial court, pursuant to 18 U.S.C. § 4244, appointed Dr. Marcus Crahan, a psychiatrist, to examine Hartfield to determine the latter’s competency to stand trial. At the subsequent competency hearing, the court considered the report of Dr. Crahan, in which the psychiatrist had concluded that the defendant was in fact competent to stand trial. In questioning the doctor’s conclusions, defense counsel referred the court to the following facts from the report:

1. “Defendant basically has no reflexes. He does not react to light when light is shown into his eyes. He has no response to the usual tests for reflex action.”
2. “Knee jerks do not respond even by reinforcement. He is congenitally deaf in his left ear. He has a swollen right jaw and a history of head injury and convulsions. He denies knowledge of the robbery or the attempted robbery.”
3. “He also seems to have comprehensive difficulties and appears to be a mental defective.”
4. “He gives a history of a head injury in his youth in Texas. He felt that this may have affected his hearing and caused him to have blackouts. . . . ”
5. “His pupils are fixed and his palle-tar reflexes are nonresponsive and this may suggest congenital syphilis.”

After questioning Hartfield personally, the court ruled that he was competent to stand trial. Subsequently, the court inquired whether the appellant had any history of “Jacksonian epilepsy” and questioned him as to whether he had a history of convulsions. The district judge also asked whether Hartfield had been given an EEG examination. Since none had been conducted, government counsel agreed that a “brain wave test” would be appropriate to determine the existence, vel non, of epilepsy. It was stipulated and agreed that Dr. Malcolm Valentine would be appointed to conduct a neurological examination of Hartfield. The district judge referred to his prior experience concerning some “encephalo-grams” that he had once had made on one of his clients and agreed that “. it would be pointless to have a trial if all the reasonable indicia point to lack of awareness.”

Nevertheless, although there was considerable discussion in court concerning the appropriateness of an EEG test, Dr. Valentine neglected to conduct one. Rather a report was filed in which Dr. Valentine concluded:

“There were no complaints of other previous lapses of consciousness and there is no history of convulsive episodes or anything suggesting psycho-motor episodes. . . . Although unhandicapped by an independent history, there is nothing to suggest from what the defendant tells me of a seizure disorder .or anything remotely suggestive of temporal lobe epilepsy If there are any doubts, an EEG in both the sleeping and waking states might be helpful. One cannot help noticing, however, similarity of the previous robbery with the present charge.” (emphasis added).

In view of the district judge’s earlier statements indicating the appropriateness of an EEG, and Dr. Valentine’s statement that an EEG “might be helpful,” Hartfield’s counsel moved pursuant to 18 U.S.C. § 3006A(e) for an order authorizing the administration to Hart-field of the EEG examination. The court denied the motion, indicating that Dr. Valentine’s report had not suggested the “necessity” of an EEG and that the report indicated there was “no doubt” as to the absence of an epileptic condition. Hartfield vigorously contends that the denial of this motion was error which seriously prejudiced him in his plans to offer a defense predicated upon a showing that he was suffering from a mental defect or incapacity that precluded criminal responsibility for the offense.

We consider. the correctness of the court’s ruling in light of the language of 18 U.S.C. § 3006A(e) and our decisions interpreting it. The relevant portion of the statute provides:

“Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary to an adequate defense may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court . shall authorize counsel to obtain the services.”

18 U.S.C. § 3006A(e)(1). Since Hart-field’s indigence is not contested, the “financially unable to obtain them” requirement of the statute is clearly satisfied. The critical question is whether or not the administration of an EEG was reasonably “necessary” to Hartfield’s defense.

The test for deciding whether the district judge should have granted such a motion in these circumstances was set forth by our court in United States v. Bass, 477 F.2d 723 (9th Cir. 1973). There, the opinion reads:

“A clear standard for deciding what constitutes ‘necessity’ under § 3006A(e) has not yet been stated in this circuit. We agree with the views of Judge Wisdom, concurring in United States v. Theriault, 440 F.2d 713, 716-717 (5th Cir. 1971). The statute requires the district judge to authorize defense services when the defense attorney makes a timely request in circumstances in which a reasonable attorney would engage such services for a client having the independent financial means to pay for them.” (emphasis added).

477 F.2d at 725.

In light of the district judge’s own.suggestion that an EEG would be appropriate, the additional comment of Dr. Valentine, a court-appointed physician, .that an EEG would be “helpful,” Dr. Crahan’s detailed findings as to lack óf reflexive responses and in the further light of Hartfield’s unconsciousness and lengthy hospitalization shortly after the offense in question, we think it undeniable that any “reasonable attorney would engage such services for a client having the independent financial means to pay for them.” This is particularly true when the relatively minimal cost of such an examination is considered in the context of an offense which, in this case, carried a possible penalty of ten years imprisonment. In fact, once the court-appointed physician had reported that an EEG would be “helpful” in arriving at a proper diagnosis, Hartfield’s attorney, had Hartfield possessed the necessary financial means, might have been charged with legal incompetency had he failed to resort to the EEG and all other sophisticated diagnostic aids.

The absence of an electroencephalographic examination could have seriously prejudiced the defendant, because the only defense available to him was a defense that turned on his mental condition. The extent of such possible prejudice was magnified when subsequent rulings of the trial court excluded virtually all of Hartfield’s evidence revealing his collapse and other symptomology immediately following the commission of the offense. The ruling of the District Court on the motion for a test by means of an EEG stripped him of his only plausible defense and was error under the test we enunciated in Bass, supra.

As Judge Wisdom said, concurring in United States v. Theriault, 440 F.2d 713, 717 (5th Cir. 1971), (an opinion that we expressly approved in Bass):

“The trial judge should tend to rely on the judgment of the attorney, who has the primary duty of providing an adequate defense. Such reliance is recommended by the difficulty of requiring the trial judge to take an adversary view of the case. Additionally it avoids forcing the defendant to reveal private information to the court in order to support the request for such services. Further it comes close to putting the indigent defendant in the same position as a non-indigent defendant, where the defense attorney would determine whether to engage the services.” (citations omitted).

Here, the trial judge erred in rejecting the judgment and the request of the defense attorney. This error was of such consequence that it, in and of itself, would compel the reversal of Hartfield’s conviction.

Our determination of this issue is reinforced by a consideration of the Congressional purpose in enacting 18 U.S.C. § 3006A(e) and the due process requirement of fair administration of justice, guaranteeing the crucial right of an indigent to reasonably fair equality with those who have adequate financial means to protect their rights. If the fairness of our system is to be assured, indigent defendants must have access to minimal defense aids to offset the advantage presented by the vast prosecutorial and investigative resources available to the Government. A contrary position might well result in a system wherein the outcome of criminal trials would be determined by the poverty of the accused rather than the integrity of the fact-finding process. While it is true that an indigent defendant is not entitled to everything that a very wealthy defendant might muster in his defense, here an indigent defendant sought an examination of such minimal expense that any defendant of even modest financial means would certainly have secured the benefit of such a diagnostic tool for himself.

II. The Court’s Exclusion of the Evidence Relating to Hartfield’s Physical and Mental Condition.

Hartfield’s second argument relates to the district judge’s decision to exclude all testimony relating to Hart-field’s physical and mental'condition immediately following the commission of the offense. The judge refused to admit this evidence as proof of drug intoxication rendering Hartfield incapable of forming specific intent, because the judge determined that “diminished capacity [is] not . . . the law of this Circuit.” The trial judge refused to consider the evidence as proof of insanity on grounds that the testimony was immaterial unless the defense offered expert testimony to connect what happened to the defendant following the event to his mental competence at the precise time of the alleged crime. We conclude that while the proffered evidence may not have been admissible for the purpose of disproving the existence of specific intent, it should, under the law of our Circuit and the virtually uniform law of the other circuits, have been admitted on the issue of insanity and that the District Court committed reversible error in refusing to allow the jury to consider it.

Turning our attention first to the question of whether the evidence was properly admissible to show that Hartfield lacked the mental capacity to form a specific criminal intent, it appears that the law of our Circuit was misapplied. It is clear that we follow the rule that in a prosecution for a specific intent crime, intoxication (although voluntary) which precludes the formation of the necessary intention may be established as a defense. Henry v. United States, 432 F.2d 114, 119 (9th Cir. 1970), opinion modified, 434 F.2d 1283 (9th Cir.), cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1971). The same rule is recognized in most other jurisdictions. See generally Annot. 8 A.L.R.3d 1236, 1246-57 (1966). Although it is therefore clear that the voluntary intoxication defense is recognized in this Circuit, here we are obliged to follow our court’s decision in United States v. Porter, 431 F.2d 7 (9th Cir.), cert. denied, 400 U.S. 960, 91 S.Ct. 360, 27 L.Ed.2d 269 (1970), which holds, apparently contrary to the position of several other circuits, that the portion of 18 U.S.C. § 2113(a) involved in the indictment before us does not require proof of a specific intent. Therefore evidence of voluntary drug intoxication could not be considered in this case to demonstrate lack of capacity to form specific intent because such an intent is not an element of the crime in question under our decision in Porter. But cf. United States v. Lilly, 512 F.2d 1259 (9th Cir. 1975).

However, the proffered evidence was nevertheless relevant to the issue of Hartfield’s sanity at the time of the offense and should have been admitted for that reason. Hartfield’s attorney indicated to the court that Drs. Williamson and Campbell could testify to Hartfield’s condition forty-five minutes after the offense but that they could not state with medical certainty any conclusion as to Hartfield’s mental condition at the time of the offense. Since Hartfield offered no testimony from Dr. Coburn, the one psychiatrist appointed in his behalf, the district judge held that the proffered evidence was immaterial since it was unconnected with any expert testimony as to Hartfield’s insanity at the precise time the alleged offense occurred.

When an. accused offers some evidence to raise the issue of insanity, his sanity at the time of the offense becomes an element of the crime which, like all other elements of the crime, must be proved by the Government beyond a reasonable doubt. Doyle v. United States, 366 F.2d 394 (9th Cir. 1966). Only slight evidence is sufficient to raise the issue as to sanity for submission to the jury. Hall v. United States, 295 F.2d 26, 28 (4th Cir. 1961) quoted with approval in our case of Doyle v. United States, supra). “[W]hen insanity is in issue, ‘any and all conduct of the person is admissible in evidence.’” United States v. Brawner, 153 U.S.App.D.C. 1, 471 F.2d 969, 976-77 (1972) (en banc) (quoting A. Goldstein, The Insanity Defense 54 (1967), which cites to “1 Wigmore Evidence § 228 (1940) and numerous cases”). “Any evidence of aberrant conduct or action, whether before or after the act charged, is accordingly admissible under the plea,” United States v. James Edwin Smith, 507 F.2d 710 (4th Cir. 1974) (emphasis added), and the trial judge should be free in his admission of all possibly relevant evidence. Pope v. United States, 372 F.2d 710, 736 (8th Cir. 1967) (en banc), remanded on other grounds, 392 U.S. 651, 88 S.Ct. 2145, 20 L.Ed.2d 1317 (1968). We believe that Hartfield’s offer of proof of his mental symptomology and subsequent hospitalization was abundantly sufficient to raise the issue of his sanity so as to bring this case within the rule requiring the admission of such evidence. See also Gordon v. United States, 438 F.2d 858, 883—86 (5th Cir. 1971), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 56 (1972), United States v. Chandler, 393 F.2d 920 (4th Cir. 1968) (en banc). We have found no authority for the proposition that so-called expert testimony is required as indispensable to rebutting prosecution proof of sanity.

In Davis v. United States, 364 F.2d 572 (10th Cir. 1966), the appellant offered evidence that she had periods of blackout from time to time, but none of her witnesses testified as to her condition at the particular time of the several offenses in question. An instruction given in that case was held to be “too restrictive in that it limits the accused’s evidence as to her mental condition at the time of the commission of the crimes charged. Such evidence may instead relate to conditions existing both before and after the crime as held in Phillips v. United States, 311 F.2d 204 (10th Cir. [1962]). 364 F.2d at 574-75 (emphasis added).

Expert testimony as to the defendant’s mental condition at the exact time of the offense, while desirable from the defendant’s standpoint, is not necessarily essential. Evidence of a defendant’s mental condition reasonably near the time when the offense is committed, whether before or after, is also admissible and may be sufficient to support an inferential conclusion as to the defendant’s mental status at the critical time. Here, the evidence offered by Hartfield was sufficient to raise the insanity issue; therefore, the evidence should have been received. The exclusion of all the proffered testimony relating to Hartfield’s mental symptomology and his hospitalization immediately following the robbery prejudicially deprived Hartfield of material evidence critical to his only possible defense, evidence which, once exposed, might possibly have created a foundation for favorable defense testimony by other medical experts given the opportunity to review the precise sworn testimony along with other relevant history.

Reversed and remanded.

SOLOMON, District Judge

(concurring):

I concur in the result.

      . See United States v. Theriault, 440 F.2d 713, 716 (5th Cir. 1971) (Wisdom, J., concurring), for a more extensive analysis of the legislative history underlying 18 U.S.C. § 3006A(e).

      . Hamilton v. United States, 475 F.2d 512 (6th Cir. 1973); Caples v. United States, 391 F.2d 1018, 1022-23 (5th Cir. 1968).

      . We also find no authority for the proposition that expert psychiatric testimony is required to raise the issue of insanity. Indeed, cases can easily be imagined wherein the degree of mental impairment is so grave and manifest that any layman who had been exposed to the accused could testify to the fact of undeniable insanity. Here, in addition to lay testimony, Hartfield offered the testimony of two physicians whom, although not purporting to be psychiatrists, were entirely competent to testify as to the authenticity of Hartfield’s hospitalization and the general nature of his mental condition.


source: Caselaw Access Project

author: HAYS, Circuit Judge:

license: Public Domain

text:
    AH LOU KOA, Plaintiff-Appellant, v. AMERICAN EXPORT ISBRANDTSEN LINES, INC., Defendant-Appellee.
    No. 219, Docket 74-1306.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 23, 1975.
    Decided March 27, 1975.
    Herbert Zelenko, New York City (Abraham E. Freedman, New York City, on the brief), for plaintiff-appellant.
    Stephen K. Carr, New York City (Haight, Gardner, Poor & Havens, New York City, on the brief, John A. Andui-za, New York City, of counsel), for defendant-appellee.
    Before LUMBARD, HAYS and MULLIGAN, Circuit Judges.
   HAYS, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Southern District of New York, dismissing plaintiff’s complaint after a jury trial. The plaintiff, Ah Lou Koa, is a seaman seeking damages for personal injuries suffered on board the S.S. Export Champion, owned by the defendant. The court dismissed a cause of action for negligence under the Jones Act, 46 U.S.C. § 688 (1970), and the jury found for the defendant on a second cause of action for unseaworthiness under general maritime law. We reverse.

I.

Plaintiff was employed as a messman aboard the defendant’s ship. Part of his job was to prepare the evening meal for the crew. At about 4 P.M. on January 18, 1971, the plaintiff began to dish out salad from a large serving bowl into several individual bowls. The weather was rough and he eventually fell and slid across the room, with the impact causing knee injuries.

There are conflicts in the testimony as to the cause of plaintiff’s fall, the condition of the deck at the time of the accident, and the role of plaintiff’s superior officers, the chief steward and the cook, who were seated in the room when the accident occurred. Plaintiff testified that his fall was caused by a heavy roll of the ship and a rush of water under his feet. He claimed that the deck was wet because water generally overflowed from a nearby drinking fountain in rough weather. Plaintiff also testified that although the chief steward and the cook were present, neither told him to stop working until the rough weather subsided.

The defense introduced testimony that the deck was dry at the time of the accident. It also introduced a written statement, signed by both the plaintiff and his brother, to the effect that the deck was “dry and clean” when he fell. According to the statement the subscribers to the statement had read the statement before signing it. The investigator who took the statement also testified that he had read the statement to Koa and his brother. Koa denied that the statement had been read to him. Finally, the defense introduced evidence that the chief steward and cook had indeed warned the plaintiff to stop working on account of the rough weather.

After unsuccessfully objecting to the introduction of the written statement, counsel for the plaintiff attacked its accuracy on the ground that the plaintiff and his brother, both of Chinese extraction, could not read and had a great deal of difficulty understanding English. Counsel argued, in effect, that they had been overreached by John A. Anduiza, the investigator who took the statement on behalf of the defendant when the vessel arrived in New York.

At the conclusion of the plaintiff’s case, the court dismissed the negligence count of the complaint on the ground that even if the deck was wet, plaintiff had failed to establish that the defendant, or its employees, had notice of the dangerous condition. After the defendant had presented its case, the court submitted the remaining count of unseaworthiness to the jury, which found for the defendant.

II.

Appellant claims that in his charge to the jury, the district judge exceeded the bounds of fair comment on the evidence.

A major issue in the trial was the accuracy of the statement signed by the appellant. If the jury believed that the appellant had indeed told Anduiza that the deck was dry, not only would it be likely to reject his trial testimony that the deck was wet and therefore unseaworthy but it might also dismiss his entire testimony as unreliable. The jury’s attitude toward Anduiza and his role in the case was certainly crucial to its determination of this issue. In his summation, counsel for the appellant argued, based on evidence in the record, that Anduiza had been working as an investigator for the company and that his purpose was not to protect the seaman. Based on this and the evidence of appellant’s problems with English, counsel asked the jury to conclude that appellant did not tell Anduiza or knowingly sign a statement that the deck was dry at the time of the accident.

In his charge to the jury, the district judge made several comments which-could only have left the impression that the judge viewed appellant’s arguments as implausible. He stated flatly that Anduiza was “not obliged to go up there to protect the defendant.” Shortly thereafter, the judge expressed his disbelief of the notion that Anduiza and the company would act less than honorably:

“You would assume from that (plaintiff’s argument) that everyone is a crook and he is going to go up there to get a statement to trip him up so he can hurt him in some way. Sailors sail on these ships all the time and they sail on them from year to year, and the company needs sailors as much as sailors need the company. Do you think a company would last very much in business if they went around taking statements from people and in effect putting them out of court if they had a proper claim. I suppose it could happen, I don’t know.”

The court pointed out that Anduiza had afterwards become a lawyer, and suggested that it was unlikely that he would have done anything unethical at the time of the investigation to prejudice his future career. And finally, the court emphasized the testimony of the cook and the steward, favorable to the defendant, by noting that they came from the same union hall as the plaintiff, an observation not based on the record.

In the federal courts, the trial judge in a jury trial does not act simply as a moderator. He is expected to summarize the evidence for the jury, and to comment on it, if he chooses. However, there are limitations to the judge’s right to comment. See Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). The judge is not to impose his own opinions on the jury, nor is he to assume the role of an advocate by making arguments to the jury. United States v. Tourine, 428 F.2d 865, 869 (2d Cir. 1970), cert. denied, 400 U.S. 1020, 91 S.Ct. 581, 27 L.Ed.2d 631 (1971); United States v. Sowards, 339 F.2d 401, 403 (10th Cir. 1964); Buchanan v. United States, 244 F.2d 916, 920 (6th Cir. 1957); 9 C.A. Wright and A.R. Miller, Federal Practice and Procedure: Civil, § 2557 (1971). He is certainly not permitted to add to the facts, or to present his own theories when they are not strongly grounded in the evidence. Quercia v. United States, supra, 289 U.S. at 470, 53 S.Ct. 698; United States v. Cisneros, 491 F.2d 1068, 1074-75 (5th Cir. 1974).

The district judge’s comments on An-duiza’s role in procuring the written statement and on the probable posture of the company in such situations amounted to an argument that the plaintiff’s account of the incident was farfetched and false. The court’s statement that the steward and cook came from the same union hall as the plaintiff called on the jury to credit their testimony based on an inference from facts outside the record. We hold that these statements were beyond the realm of permissible comment on the evidence.

The appellee argues that the trial judge’s charge was fair because he stated several times that the jury and not the court must resolve questions of credibility. It is well-settled, however, that such an instruction is not necessarily sufficient to cure an improper charge. Que-rica v. United States, supra, 289 U.S. at 472, 53 S.Ct. 698; United States v. Tou-rine, supra, 428 F.2d at 870; Gordon Mailloux Enterprises, Inc. v. Firemen’s Ins. Co., 366 F.2d 740, 742-43 & n.3 (9th Cir. 1966). Here the district judge made it quite clear that in his opinion Anduiza was telling the truth about the statement. He argued that point to the jury in several different forms. He also reached outside the record for facts to support the credibility of other defense witnesses. The instruction that it was for the jury to resolve questions of credibility could not undo the prejudicial effect of such comments.

III.

Appellant also argues that the judgment should be reversed and a new trial ordered because the district judge erred in dismissing his negligence claim. He claims that even if there was insufficient evidence to show that his superiors had notice of water on the deck, there was ample evidence to show that they had notice of the rough weather. Therefore, if the jury believed the plaintiff that there had been no warning from them, it could have found negligence regardless of whether there was water on the deck.

We agree that there was sufficient evidence to go to the jury on the issue of negligence. The plaintiff presented two theories of negligence, one based on water on the deck and the other based on the rough weather. Even if there was insufficient evidence to support the first theory, there was clearly ample evidence to support the second. On the evidence presented, the plaintiff was entitled to a jury finding on the issue of negligence.

Reversed and remanded.

      . The comment was made in the following context:
      “It’s very well in argument, for example, to say well, now, this fellow went up there to take a statement from you, do you think he went up there to protect the defendant? He was not obliged to go up there to protect the defendant. He was obliged by the company to go there and make an investigation. Is there anything sinister or nefarious about a company trying, to protect its rights in getting statements after the accident happened when the memories are fresh so that they can have accounts of it?” (emphasis added)

      . The judge’s comments on Anduiza’s career were as follows:
      “On the other side of the coin, Anduiza, he was an investigator, he has since become a lawyer. Well, this is a fact for you to consider, whether a fellow who’s got a career to go on and is now presently a lawyer is going to go around and do [t]his kind of thing, put words into mouths of somebody who never said that at all. These are judgments for you to make.”

      . The judge said:
      “The interest of every witness in the case, including the plaintiff, is of interest to you in evaluating the testimony. You look into the background of each of the witnesses, determine what their position is, and then based upon your analysis of it, you come to a judgment as to how much you believe and what you believe.
      “Of course, the cook and the steward are fellow employees of the plaintiff. They come out of the same union hall. So that you consider their interest as company employees and also their interest as fellow colleagues who work with him.” (emphasis added)


author: GEE, Circuit Judge:

text:
    Chester McKINNEY, Petitioner-Appellant, v. James C. PARSONS, Chief of Police, etc., Respondent-Appellee.
    No. 74-2106.
    United States Court of Appeals, Fifth Circuit.
    May 23, 1975.
    Rehearing Denied June 20, 1975.

      Ferris S. Ritchey, Jr., Birmingham, Ala., D. Freeman Hutton, Robert E. Smith, Gilbert H. Deitch, Atlanta, Ga., for petitioner-appellant.
    William J. Baxley, Atty. Gen., Montgomery, Ala., Herbert Jenkins, Jr., Asst. City Atty., Birmingham, Ala., for respondent-appellee.

      Before BELL, THORNBERRY and GEE, Circuit Judges.
   GEE, Circuit Judge:

In May of 1971, Chester McKinney was convicted by the Circuit Court of Jefferson County, Alabama, of six violations of the obscenity ordinance of the City of Birmingham. He appeals the Northern District of Alabama’s second denial of habeas corpus relief. Since we find no constitutional infirmity in his convictions, we affirm.

Upon first filing his habeas corpus petition McKinney advanced three grounds upon which the writ should issue. It was his contention (1) that the four magazines and two films involved in the case are not, as a matter of constitutional law, obscene but rather are protected by the First and Fourteenth Amendments, (2) that the trial court denied him due process of law by convicting him without having received any expert testimony on the question of whether the magazines and movies were obscene and (3) that the trial court violated his First, Fifth and Fourteenth Amendment rights by applying a local community standard rather than a national community standard in determining the obscenity vel non of the materials. McKinney now complains, in addition, (4) that the ordinance under which he was convicted is incurably void for vagueness, (5) that it is repugnant to Article 1, § 4 of the Constitution of the State of Alabama, and, also, (6) that the district court, upon reconsideration following remand, failed to follow the instructions of this court.

We deal but briefly with four of these six contentions. The want-of-expert-testimony argument is answered by Paris Adult Theatre I. v. Slaton, 413 U.S. 49, 56, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) and Kaplan v. California, 413 U.S. 115, 121, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973). The local-versus-national community standards question has been resolved against McKinney by Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), and by Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). As federal courts, neither we nor the district court has habeas corpus jurisdiction to consider whether McKinney’s convictions violated rights secured to him by the Constitution of the State of Alabama. 28 U.S.C. § 2241. Finally, the district court correctly interpreted and followed our remand instructions.

Only rarely does a state conviction for distributing or exhibiting obscene material arrive for review, via habeas corpus proceedings, on the doorstep of a United States Court of Appeals. So far as we know, this is only the second post-Miller instance of such an occurrence, and the first in our circuit. Not only is this our first post-Miller habeas/obscenity case, it is also the first time we have been called upon to review, post-Miller, a conviction which was final pre-Miller. We have held that a federal defendant indicted, tried and convicted pre-Miller is, on direct appeal, entitled to all of the benefits of the Miller definition of obscenity but is free of its detriments. United States v. Thevis, 484 F.2d 1149, 1155, fn. 7 (5th Cir. 1973), cert. denied, 418 U.S. 932, 94 S.Ct. 3222, 41 L.Ed.2d 1170 (1974), explained in United States v. Wasserman, 504 F.2d 1012, 1014 (5th Cir. 1975). The Supreme Court has similarly ruled that state court defendants whose convictions were on direct appeal at the time that the Miller series was handed down are due any benefits of those decisions. Jenkins v. Georgia, supra. Moreover, we have concluded that a federal defendant indicted pr e-Miller but prosecuted post-Miller must be tried under the Roth-Memoirs definition of obscenity, at least insofar as it is more restrictive than the Miller definition. United States v. Wasserman, supra. None of these cases decides what substantive definition of obscenity should apply when a state-court defendant attacks a final, pre-Miller conviction via federal habeas corpus, the more restrictive Roth-Memoirs definition or the current Miller definition.

This case does not require us to decide whether the Miller series’ interpretation of what is obscene and thus without the protection of the First and Fourteenth Amendments may, in its more expansive aspects, be applied retroactively to uphold a final, pr e-Miller state conviction which might be judged valid under that test (as well as the given state’s statute), but invalid under Roth-Memoirs. Here, in convicting McKinney, the state trial court viewed the magazines and films involved and found each obscene within the words of the Birmingham ordinance and that the dominant theme of each

. appeals to the prurient interest of the average person within the meaning of the U.S. Supreme Court test when taken as a whole, applying contemporary community standards, and is patently offensive to community standards in that . . . [each] goes beyond the customary limits of candor and explicitness in its representation of sexual matters, and is utterly without any redeeming social value or importance.....

Both we and the district court, as required, have viewed the materials to test whether, in our independent judgment, they are constitutionally protected. Ja-cobellis v. Ohio, 378 U.S. 184, 190, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); United States v. Thevis, supra, 484 F.2d at 1155; cf. Jenkins v. Georgia, supra. And both we and the district court agree with the Alabama trial court that these wretched and pathetic materials are well without the broadest reading of the pro-. tection afforded by the Roth-Memoirs formulation of obscenity. That is, (a) the dominant themes of the materials taken as a whole appeal to the prurient interests in sex, (b) the materials are patently offensive because they affront the contemporary standards relating to the description or representation of sexual matters of any and all American communities and (c) they are utterly without redeeming social value.

There remains only the problem of whether a state defendant whose conviction was final prior to the Miller series is entitled to the benefits of those decisions, if any. We conclude, in the spirit of Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), Jenkins, Thevis and Wasserman, that he is. This does not mean, however, as he strenuously maintains, that McKinney’s conviction was illegal as based upon a statute void for vagueness. McKinney asserts Miller promises that no conviction can be sustained unless based upon a statute which, prior to conviction, whether as written or construed, proscribes only works depicting or describing, in a patently offensive way, sexual conduct which has been specifically defined. Miller, supra, 413 U.S. at 24, 27, 93 S.Ct. 2607. He points out that the Birgmingham ordinance had never been authoritatively construed before his conviction and is not, on its face, limited to specifically-defined sexual conduct. He concludes from this that Miller’s promise has been breached, that he was convicted under a vague statute, and that his conviction, therefore, must be overturned. This analysis, however, reflects the hope of McKinney and not the promise of Miller

In deciding Amato v. Divine, 496 F.2d 441 (7th Cir.), vacated, 419 U.S. 1014, 95 S.Ct. 487, 42 L.Ed.2d 288 (1974), the Seventh Circuit adopted almost exactly the line of reasoning advanced by McKinney on the vagueness issue. Its decision, however, was vacated by the Supreme Court, and the case was remanded for reconsideration in light of Hamling v. United States, supra, and the decision of the Supreme Court of Wisconsin in State ex rel. Chobot v. Circuit Court, 61 Wis.2d 354, 212 N.W.2d 690 (1973). Chobot is a case which, long after Amato’s conviction for selling obscene material in violation of Wisc.Stat. § 944.21(1)(a), construes the words “lewd, obscene, or indecent,” which are undefined in the statute, as restricted to sexual conduct “defined to be acts of sexual intercourse between humans, normal or perverted, actual or simulated, acts of masterbation, fellatio, cunnilingus, and acts of excretory function, lewd exhibition of the genitals especially in a stimulated condition and sexual relations between humans and animals.” Chobot, supra, 61 Wis.2d at 370, 212 N.W.2d at 698.

Hamling, in an extended discussion of Miller and the relationship of that decision to the issue of the vagueness of a given obscenity statute, points out that

At no point does Miller or any of the other obscenity decisions decided last term intimate that the constitutionality of pre-Miller convictions under statutes such as 18 U.S.C. § 1461 was to be cast in doubt. Indeed, the contrary is readily apparent from the opinions in those cases. We made clear in Miller, 413 U.S., at 24, n. 6, 93 S.Ct. [2607], at 2615 [37 L.Ed.2d 419], that our decision was not intended to hold all state statutes inadequate, and we clearly recognized that existing statutes “as construed heretofore or hereafter, may well be adequate.” That recognition is emphasized in our opinion in United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973).

Hamling, 418 U.S. at 112, 94 S.Ct. at 2905, 41 L.Ed.2d at 617-18, and that

Miller, in describing the type of material which might be constitutionally proscribed, 413 U.S., at 25, 93 S.Ct. [2607], at 2615 [37 L.Ed.2d 419], was speaking in terms of substantive constitutional law of the First and Fourteenth Amendments. See Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642. While the particular descriptions there contained were not intended to be exhaustive, they clearly indicate that there is a limit beyond which neither legislative draftsmen nor juries may go in concluding that particular material is “patently offensive” within the meaning of the obscenity test set forth in the Miller cases. And, while the Court in Miller did refer to “specific prerequisites” which “will provide fair notice to a dealer in such materials,” 413 U.S., at 27, 93 S.Ct. [2607], at 2616 [37 L.Ed.2d 419], the Court immediately thereafter quoted the language of the Court in Roth v. United States, 354 U.S., at 491-492, 77 S.Ct. [1304], at 1312-1313 [1 L.Ed.2d 1498], concluding with these words: “That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. ...” 413 U.S., at 28 n. 10, 93 S.Ct. [2607], at 2617 [37 L.Ed.2d 419].

Hamling, 418 U.S. at 114, 94 S.Ct. at 2906, 41 L.Ed.2d at 619. Moreover, in Hamling, the Court states that the seeming dictate of Miller that statutory proscriptions of obscenity be made explicit, either by their own language or by judicial construction, was an adjuration, an earnest or solemn urging or advising, and not a constitutional command. Hamling, 418 U.S., at 114, 94 S.Ct. at 2906, 41 L.Ed.2d at 619. The Court construed 18 U.S.C. § 1461, a statute which prohibits the use of the mails for transmitting, etc. “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance” as “limited to the sort of ‘patently offensive representations or descriptions of that specific “hard core” sexual conduct given as examples in Miller v. California’ ”, Hamling, 418 U.S. at 114, 94 S.Ct. at 2906, 41 L.Ed.2d at 618, just as it had previously so construed 18 U.S.C. § 1462 in United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130 n. 7, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973). It then held that “as so construed, we do not believe that petitioners’ attack on the statute as unconstitutionally vague can be sustained.” Hamling, 418 U.S. at 114, 94 S.Ct. at 2906, 41 L.Ed.2d at 619. The Court continued:

It is plain from the Court of Appeals’ description of the brochure involved here that it is a form of hard-core pornography well within the types of permissibly proscribed depictions described in Miller, and which we now hold § 1461 to cover. Whatever complaint the distributor of material which presented a more difficult question of obscenity vel non might have as to the lack of a previous limiting construction of 18 U.S.C. § 1461, these petitioners have none.

The convictions of all petitioners were affirmed.

Several lessons about the vagueness of obscenity statutes are to be drawn from Hamling and from the vacating of Amato v. Divine, supra. Traditionally, statutes purporting to restrict conduct eolorably within protection of the First Amendment have been found vague for any of three reasons. These are that the law, because of its indefiniteness, (1) either fails to give fair notice to those persons potentially subject to it, or (2) fails to guard adequately against arbitrary and discriminatory enforcement, or (3) fails to provide sufficient “breathing space” for First Amendment rights. See W. LaFave and A. Scott, Handbook on Criminal Law, § 12 (1972). It has been the rule that one attacking his conviction on the ground that the statute under which he was convicted was overbroad or vague and thus failed to provide sufficient breathing room for First Amendment rights, need not show that his individual conduct could not have been regulated by a properly drawn statute, Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). Hamling now teaches that such a “defense” to conviction or the affirmance of conviction is not available once the statute under consideration has been authoritatively construed so as to render it constitutionally acceptable, even if the construction occurred after the original conviction. The vacating of Amato indicates that this principle is applicable to habeas corpus attacks on state statutes authoritatively construed subsequent to conviction. Another lesson of Hamling is that subsequent construction of a seemingly indefinite statute adequately allows an appellate court to determine whether a particular conviction was arbitrary or discriminatory. Finally, Hamling re-emphasizes the general principle that, when the vagueness attack centers on want of fair notice, the person convicted must, to prevail, demonstrate that the statute as written or construed at the time of his conviction would fail to alert the average man that what he was convicted of was proscribed. Applying these principles to the case at bar, we affirm the district court’s denial of McKinney’s request for habeas corpus relief.

The Birmingham ordinance has been authoritatively construed as limited to materials depicting or describing the type of hard-core sexual conduct described in Miller. McKinney v. City of Birmingham, 52 Ala.App. 605, 296 So.2d 197, 201 (Ct.Crim.App.1973), cert. denied, 292 Ala. 726, 296 So.2d 202, cert. denied, - U.S. -, 95 S.Ct. 1335, 43 L.Ed.2d 429 (1975). As so construed, it is constitutional, leaves adequate breathing space for First Amendment rights, and adequately advises juries and courts, both nisi prius and appellate, of the type of conduct which it regulates. Neither McKinney nor any other soul has or could demonstrate that the statute as written might fail to notify the average man that the revolting and often pitiful magazines and films involved in this case were prohibited by it.

Affirmed.

      . ORDINANCE NO. 67-2
      AN ORDINANCE TO MAKE UNLAWFUL THE POSSESSION, PUBLISHING, PRINTING, MANUFACTURING, SALE, DISTRIBUTION, ADVERTISEMENT OR EXHIBITING OF OBSCENE MATTER IN THE CITY OF BIRMINGHAM OR THE POLICE JURISDICTION THEREOF AND PRESCRIBE PENALTIES THEREFOR BE IT ORDAINED by the Council of the City of Birmingham as follows:
      Section 1. The following words and terms, when used in this Ordinance, shall for the purpose of this ordinance have the meanings respectively ascribed to them by this section:
      A. “Obscene” means that to the average person, applying contemporary standards, the predominant appeal of the matter, taken as a whole, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters. If it appears from the character of the material or the circumstances of its dissemination that the subject matter is designed for a specially susceptible audience, predominant appeal shall be judged with reference to such audience. If the subject matter is distributed to minors under 18 years of age, predominant appeal shall be judged with reference to an average person of the actual age of the minor to whom such matter is distributed.
      B. “Matter” means any book, magazine, newspaper or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statute or other figure, or any recording, transcription, or mechanical, chemical or electrical reproduction, or any other articles, equipment, machines or materials.
      C. “Person” means any individual, partnership, firm, association, corporation or other legal entity.
      D. “Distribute” means to transfer possession of, whether with or without consideration.
      E. “Knowingly” means having actual or constructive knowledge of the character and content of the subject matter. A person has constructive knowledge if a reasonable inspection under the circumstances would disclose the nature of the subject matter and the failure to inspect it for the purpose of avoiding such disclosure.
      F. “City” means City of Birmingham, Alabama.
      Section 2. It shall be unlawful for any person to knowingly send or cause to be sent or bring or cause to be brought into this City or the police jurisdiction thereof, for the sale or distribution, any obscene matter.
      Section 3. It shall be unlawful for any person to knowingly publish, print, exhibit, distribute or have in his possession with intent to distribute, exhibit, sell or offer for sale, in the City of the police jurisdiction thereof, any obscene matter.
      This ordinance is no longer in effect, having been replaced by City of Birmingham Ordinance No. 73-93.

      . See McKinney v. Parsons, 488 F.2d 452 (5th Cir. 1974).

      . Trial was to the court. Evidence concerning the nonpandering nature of distribution was stipulated. Virtually the only evidence received was the materials themselves.

      . We see no distinction, helpful to McKinney, in regard to the need for expert testimony, between a case tried to a jury and one tried to the court.

      . We doubt seriously, however, that they did. See McKinney v. City of Birmingham, 292 Ala. 726, 296 So.2d 236 (1974).

      . The first was Amato v. Divine, 496 F.2d 441 (7th Cir.), vacated, 419 U.S. 1014, 95 S.Ct. 487, 42 L.Ed.2d 288 (1974), concerning which, more later.

      . Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966).

      . McKinney contends that this definition of obscenity has been rejected by the Supreme Court and thus, although stricter than the current standard, may not now be utilized to test the constitutional validity of his conviction. We have considered this argument previously and have rejected it. United States v. Groner, 494 F.2d 499 (5th Cir. 1974), United States v. Thevis, supra.

      . See Detco, Inc. v. McCann, 380 F.Supp. 1366 (E.D.Wis.1974), in which a three-judge district court held that Wisc.Stat. § 944.21 as construed prior to Court v. State, 63 Wis.2d 570, 217 N.W.2d 676 (1974), a case which followed Chobot, was unconstitutional and enjoined prosecution under that statute for conduct occurring prior to the date of the later decision.


author: MURRAH, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LEATHERWOOD DRILLING COMPANY, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BRAHANEY DRILLING COMPANY, Respondent.
    Nos. 74-2415, 74-2421.
    United States Court of Appeals, Fifth Circuit.
    May 27, 1975.
    Rehearing Denied July 24, 1975.

      Elliott Moore, Deputy Associate Gen. Counsel, Bert Bisgyer, N.L.R.B., Washington, D. C., W. Edwin Youngblood, Director, Region 16, N.L.R.B., Ft. Worth, Tex., for petitioner.
    Brooks L. Harman, Odessa, Tex., for respondents.
    Before BROWN, Chief Judge, and MURRAH  and WISDOM, Circuit Judges.

       Of the Tenth Circuit sitting by designation.

   MURRAH, Circuit Judge:

This consolidated appeal is before the Court on petition of the National Labor Relations Board to enforce the Board’s orders finding that the Leatherwood and Brahaney Drilling Companies each violated §§ 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(5) and (1), by withdrawing recognition from and refusing to bargain with Local 826, International Union of Operating Engineers, AFL-CIO (the Union). Both drilling companies challenge the sufficiency of the evidence to support the Board’s conclusion that neither could assert good faith doubt of the Union’s majority status as a justification for refusal to bargain. We enforce the Board’s orders.

Leatherwood and Brahaney are two of the fifty to sixty oil well drilling companies who operate in the Permian Basin, an area of 95,000 square miles in Western Texas and Eastern New Mexico. Companies in this area normally take less than twenty days to drill a well, then move the rig to a new site where a substantially new crew may be hired or the old crew rehired, resulting in high employee turnover. Taking this employment pattern into account, the Board fashioned and we approved a special voter-eligibility formula for elections to certify the employee bargaining representatives in this particular area. Hondo Drilling Co., 164 N.L.R.B. 416 (1967); affirmed, N.L.R.B. v. Hondo Drilling Co., 428 F.2d 943 (5th Cir. 1970). The Union was certified in 1969 pursuant to a Hon-do election conducted among the employees of each of the two companies. The validity of those elections is not questioned here.

It is settled that in the absence of special circumstances, a union’s majority status, once established by a valid election, is irrebuttably presumed for a reasonable period, ordinarily one year, following the Board’s certification of the union. Brooks v. N.L.R.B., 348 U.S. 96, 98, 75 S.Ct. 176, 99 L.Ed. 125 (1954); N.L.R.B. v. Anvil Products, Inc., 496 F.2d 94, 96 n.3 (5th Cir. 1974); N.L.R.B. v. Gulfmont Hotel Co., 362 F.2d 588, 589 (5th Cir. 1966). Since the certification year has expired in our case, the presumption of the Union’s' continued majority ■ status is rebuttable. N.L.R.B. v. Anvil Products, Inc., supra at 96 n.3; N.L.R.B. v. Gulfmont Hotel Co., supra at 589; Terrell Machine Co. v. N.L.R.B., 427 F.2d 1088, 1090 (4th Cir. 1970), cert. denied, 398 U.S. 929, 90 S.Ct. 1821, 26 L.Ed.2d 91 (1970); N.L.R.B. v. Frick Co., 423 F.2d 1327, 1330-1331 (3rd Cir. 1970); N.L.R.B. v. Little Rock Downtowner, Inc., 414 F.2d 1084, 1090-1091 (8th Cir. 1969). And Leatherwood and Brahaney can lawfully refuse to bargain with the Union if and only if at the time of their refusal they had reasonable and good faith grounds for doubting the Union’s continued majority status. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 597 n.11, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); N.L.R.B. v. A. W. Thompson, Inc., 449 F.2d 1333, 1336 (5th Cir. 1971), cert. denied, 405 U.S. 1065, 92 S.Ct. 1497, 31 L.Ed.2d 795 (1972); N.L.R.B. v. Gulfmont Hotel Co., supra at 589; N.L.R.B. v. Frick Co., supra at 1331; N.L.R.B. v. Little Rock Downtowner, Inc., supra at 1091. The sole issue for our review is whether “substantial evidence on the record considered as a whole” supports the Board’s findings that neither Leatherwood nor Brahaney had reasonable grounds for such doubt. 29 U.S.C. § 160(e). We know, of course, of the Board’s “very broad” discretion in the administration of the Act particularly with respect to the appropriateness of bargaining units and the certification of bargaining representatives. N.L.R.B. v. Bogart Sportswear Mfg. Co., 485 F.2d 1203, 1206 (5th Cir. 1973). A reviewing court will give “special respect” to the Board’s findings and disturb them only upon a showing of abuse of discretion. N.L.R.B. v. Muscogee Lumber Co., 473 F.2d 1364, 1366 (5th Cir. 1973); Golden State Bottling Co. v. N.L.R.B., 414 U.S. 168, 172, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); Universal Camera Corp. v. N.L. R.B., 340 U.S. 474, 491, 71 S.Ct. 456, 95 L.Ed. 456 (1951).

At the administrative hearing, the companies argued that the facts support doubt of the Union’s majority status, based upon (1) the employee turnover rate; (2) the five to ten month Union silence immediately preceding withdrawal of recognition; and (3) in the case of Brahaney, evidence of employee indifference to the Union.

The Administrative Judge who presided over both cases found the following facts. The Union had not communicated with either Brahaney or Leatherwood for five to ten months immediately preceding withdrawal of recognition, but this silence, together with other delays in the two-year history of the bargaining, was caused by the Union’s low manpower, the geographic dispersal of all the Basin drilling companies, and the Union’s belief that Leatherwood and Braha-ney had reduced operating levels. Although employee turnover had reached 900% during the last period of Union silence and Brahaney and Leatherwood each employed less than four of the original certification voters out of the present work force of eligible voters numbering as high as seventy-seven, such turnover was not uncommon among Basin companies and had been assumed to be inherent in the industry under the Hondo formula. Harman, the attorney for both Leatherwood and Brahaney, was “highly familiar with the history of organization by this Union in the Permian Basin,” and, as attorney for other Basin drilling companies, had met with a Union representative on numerous occasions during the period of Union silence toward Leatherwood and Brahaney. The sole evidence of employee indifference was testimony by a Brahaney manager that he did not hear employees speak of the Union.

The Administrative Judge concluded that (1) even 900% employee turnover did not support doubt of majority, in view of Hondo’s recognition of inherent turnover in this industry; (2) occasional Union silences were known by the companies to be the result of the Union’s low manpower and not any erosion of Union support; and (3) there is no substantial evidence of employee indifference to the Union. Accordingly, he found that none of the claimed grounds supported a reasonable doubt of majority and recommended that the two companies be ordered to bargain with the Union representatives and to desist from unfair labor practices. The Board adopted these findings as well as the proposed order.

The appellants do not dispute the factual data in the Board’s order; but they cite other facts on the record to argue that other inferences should have been drawn or that, at the least, the burden of proof was necessarily shifted to the Union and not met by it. They emphasize the magnitude of 900% employee turnover. But in our view, this only reargues what has been decided in Hon-do, i. e., that turnover is inherent in this industry and cannot be given independent significance as a sign of Union weakness. N.L.R.B. v. Hondo Drilling Co., supra at 944—946.

Disputing that the Union’s low manpower and the companies’ dispersal were the evident causes of the Union silence, appellants point out that other union assistants were available to the two Union negotiators and that the Union’s negotiations followed the same pattern in the case of at least five Basin companies. Nevertheless, we agree with the Board that such a negotiating team, faced with over fifty companies in a 95,000 square mile area, would necessarily fail to communicate with one or more companies at intervals without raising doubt of its majority status.

Finally, appellants challenge the basis for distinguishing other Board cases in which the Board found that the facts supported reasonable and good faith doubt of majority status. See Taft Broadcasting, WDAF—TV, 201 N.L.R.B. 113 (1973); Southern Wipers, Inc., 192 N.L.R.B. 135 (1971); Viking Lithographers, Inc., 184 N.L.R.B. 16 (1970). In the findings adopted by the Board, these cases are said to be “inapposite,” and it is not our province to weigh the imponderables and reconcile the considerations which prompt the Board to fashion an appropriate remedy peculiar to each case. It suffices that none of the cases involved an industry with inherent turnover and lack of Union manpower.

On the record as a whole and given the province of the Board, we agree that the appellants have not overcome the presumption of continuity of majority status and, therefore, have no room for good faith doubt of the viability of the Union’s continued representation of the bargaining unit.

Enforced.

      . The formula grants voting eligibility to the following workers:
      “All roughnecks who have been employed by [a drilling company] for a minimum of 10 working days during the 90 calendar-day period preceding the issuance of [the Board’s] Decision and Direction of Election herein, and who have not been terminated for cause or quit voluntarily prior to the completion of the last job for which they were employed, as well as all roughnecks whose names appear on [the drilling company’s] payroll list immediately preceding the issuance of the Regional Director’s notice of election . . ”
      N.L.R.B. v. Hondo Drilling Co., supra at 945.


author: GODBOLD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Henry Forrest MARSHALL and Robert Dempsey, III, Defendants-Appellants.
    No. 74-2203.
    United States Court of Appeals, Fifth Circuit.
    May 27, 1975.
    Rehearing and Rehearing En Banc Denied Aug. 7, 1975.

      Bernard A. Horton, New Orleans, La., for Marshall.
    George M. Papale, Gretna, La. (Court-appointed), for Dempsey.
    Robert Habans, Asst. U. S. Atty., Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellee.
    Before AINSWORTH, GODBOLD and SIMPSON, Circuit Judges.

      . It is worth noting that at trial the government did not introduce the record of Dempsey’s prior guilty plea and conviction. Dempsey introduced it in support of his effort to convince the jury that he had been punished once and that once was enough.

   GODBOLD, Circuit Judge:

Count I of the indictment in this case charged appellants Dempsey and Marshall and defendant Howard, who pleaded guilty and did not appeal, with conspiracy to possess cocaine with intent to distribute and to cause distribution. Count II charged Marshall with distribution of cocaine with Howard as an aider and abettor, and Count III charged Marshall and Howard with distribution of another quantity of cocaine. Dempsey was not charged in Count II or III.

The convictions of both Dempsey and Marshall are affirmed.

Count I, the conspiracy count, alleged 27 overt acts of which seven involved Dempsey. Three of these seven were the same acts that had been charged in three substantive counts of an earlier indictment against Dempsey, to which Dempsey had pleaded guilty and the sentence under which he had begun to serve. Dempsey timely asserted in the District Court the claim that he was entitled to dismissal of the instant indictment against him, alleging as grounds collateral estoppel and double jeopardy. Also he alleged that he would not have pleaded guilty in the earlier case against him if he had known or anticipated that the government would follow up with a conspiracy indictment, and that he could not effectively defend himself against the conspiracy charge because the earlier plea made conviction of conspiracy automatic.

Dempsey relies upon the concurring opinion of Justices Brennan, Douglas and Marshall in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), to the effect that the double jeopardy clause requires the government to join in one trial all charges against a defendant that grow out of a single criminal act, occurrence, episode or transaction. Id. at 453 — 454, 90 S.Ct. 1189, 25 L.Ed.2d at 481. In Ashe the petitioner had been charged with armed robbery of one of several players in a poker game and found not guilty, and subsequently was charged, tried and convicted of robbery of another of the players. The only rationally conceivable issue in dispute before the jury in the first trial was whether the petitioner had been one of the robbers, and the jury by its verdict had found that he was not. The same issue was before the second jury, with only the identity of the victim changed. In the instant situation Dempsey does not claim the benefit, under the principle of double jeopardy with the Ashe gloss, of a prior acquittal. He was convicted in his first trial rather than acquitted. Pared to its real content, his argument is that as a policy matter there should be a single trial of a person with respect to all issues arising out of a single transaction, occurrence etc. That may be a desirable prosecutorial aim for an overburdened court system faced with a growing volume of cases, but it is not a constitutional imperative. Additionally, the two offenses charged to Dempsey in the present and the previous cases are separate charges requiring distinct elements of proof. We have repeatedly held, and lately reiterated, United States v. Pacheco, 489 F.2d 554, 557 (CA5, 1974), that the commission of a substantive offense and a conspiracy to commit that offense are separate and distinct and that ordinarily a person may be convicted of and sentenced for both. Distribution of narcotics is not necessarily a two-person crime as contemplated by the limited scope of “Wharton’s Rule.” Id. at 558. While distribution may connote a buyer and seller it also, and indeed often does, connote plurality of sellers or buyers or both.

Dempsey’s claim that he was entitled to a judgment of acquittal for insufficiency of evidence is without merit.

Before trial Marshall claimed that he was entitled to a severance, asserting that unavoidably he would be prejudiced in a joint trial with Dempsey because introduction of Dempsey’s earlier plea to the three cocaine transactions would automatically establish Count I, the conspiracy count, against him (Marshall). The motion was denied. At trial Marshall reasserted his motion for severance after Dempsey introduced the judgment of his own previous conviction.

Denial of the pre-trial motion for severance was not reversible error. It was not clear at that point that the recital of Dempsey’s prior conviction would be offered in evidence. The three overt acts did not mention Dempsey as an actor, and Marshall’s contention that evidence that these three acts in fact occurred would inevitably establish his guilt of conspiracy is overblown. With respect to the denial of the motion when reasserted at trial, we pretermit discussion since Marshall was convicted under all counts and given concurrent sentences. Conviction on the conspiracy count did not “fatally infect” the substantive counts so as to preclude application of the concurrent sentence doctrine. See United States v. Tyler, 505 F.2d 1329 (CA5, 1975).

In cross-examination Marshall admitted that he had been a user of narcotics. The government, in the guise of attacking his credibility, displayed to him a federal firearms transaction form signed by him. It was neither verbally identified nor displayed to the jury. Counsel had Marshall read aloud from the form a question asking whether he was a user of drugs. Marshall acknowledged that in executing the document he had answered the question in the negative. Having at least arguably established that Marshall had falsely answered the question (there was considerable dialogue over whether the question, phrased in the present tense, reached prior usage of drugs), the government had Marshall read the certificate that he had made in signing the document, which included this statement:

I hereby certify that the answers to the above are true and correct. I understand that a person who answers any of the above questions in the affirmative is prohibited by Federal law from purchasing and/or possessing a firearm. I also understand that the making of any false oral or written statement or the exhibiting of any false or misrepresented identification with respect to this transaction is a crime punishable as a felony.

Marshall did not object at the time to reading the certificate, which occurred at the end of a trial day. But, before court began the following morning, the trial judge instructed the government to make no further reference to the document. He noted that the jury had not seen it and expressed his view that the jury would not necessarily infer that it was a federal firearm transactions form. When court convened he gave an instruction to the jury limiting the testimony relating to the form and the certificate to the issue of Marshall’s credibility.

Marshall urges that this sequence of events inevitably prejudiced him by implying that he was guilty of a felony concerning firearms. We would be naive to accept the government’s argument that having Marshall read the certificate was neutral and intended to do no more than show that he was not a credible person. That limited purpose could have been achieved by phrasing differently the questions addressed to Marshall, or by redaction, so that the document was not identified as relating to firearms and the certificate’s reference to making a false statement as a felony was not revealed. The manner in which the evidence actually was presented does no credit to the prosecution. Nevertheless, under the circumstances it clearly was not reversible error.

The court refused Marshall’s request for an instruction on credibility of an- addict-informer. See United States v. Collins, 472 F.2d 1017 (CA5), cert. denied, 409 U.S. 1011, 93 S.Ct. 437, 34 L.Ed.2d 306 (1972). This was not reversible error. The testimony of at least two of three addict-informers was substantially. corroborated. See Govt. of Virgin Islands v. Hendricks, 476 F.2d 776 (CA3, 1973). Also, the requested instruction contained the phrase that “a drug addict is inherently a perjurer,” which justified refusal of the charge. As the Third Circuit noted in Hendricks, this phrase would make the testimony incompetent altogether. 476 F.2d at 779.

The other contentions of the parties require no discussion. None reveal reversible error.

,The convictions are affirmed.

      . We note, however, that Marshall did not object to introduction of the judgment of Dempsey’s conviction but rather asked for a limiting instruction, which the court gave, and only then did he review his motion for severance.

      . The court did instruct that testimony of an informer testifying for pay or immunity or personal advantage must be examined and weighed with greater care than usual.


author: GOLDBERG, Circuit Judge:

text:
    Louis D. LAMBERTI, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Division of Corrections, Respondent-Appellant.
    No. 74-2164.
    United States Court of Appeals, Fifth Circuit.
    May 22, 1975.

      Robert L. Shevin, Atty. Gen., Linda C. Hertz, Asst. Atty. Gen., Miami, Fla., for respondent-appellant.
    Andrew Hall, Miami, Fla. (Court-appointed), for petitioner-appellee.
    Before GOLDBERG and RONEY, Circuit Judges, and LYNNE, District Judge.
   GOLDBERG, Circuit Judge:

In an act of judicial rarity, we remand for exhaustion of state remedies after a United States District Court has granted the writ of habeas corpus.

Louis D. Lamberti, convicted of robbery by a jury of the Criminal Court of record in and for Dade County, Florida, was sentenced to 20 years in prison. His direct appeal was dismissed, apparently on account of untimely filing. Subsequently maintaining in habeas corpus proceedings before the appellate courts of Florida that the tardiness of his appeal was caused by the state court judge who tried and sentenced him, and that he was thus entitled to a belated appeal, Lamberti obtained no relief. He then initiated this habeas corpus suit in the United States District Court for the Southern District of Florida, still asserting primarily that the state trial judge had thwarted his direct appeal, but also claiming that the privately retained counsel who handled his post-trial motions had rendered him ineffective assistance. The district court below granted Lamberti the limited relief he sought, on the basis of his ineffective counsel argument, and the State of Florida appeals. We are reluctantly compelled to the conclusion that petitioner Lamberti failed to exhaust his state remedies; thus we reverse and remand.

The able trial judge’s supererogation and impatience for ultimate justice is understandable even though it was impermissible in this ease. Our decision is based not on ad hoc factual distinctions, but on compelling precedent. By remanding for exhaustion, we respect comity, yet we also reserve our commission to draw the precious writ from its sheath if a federal judicial remedy proves necessary and proper in the final disposition of Lamberti’s lamentations. Our remand is not only technically and precedentially required, it is an exercise of judicial restraint appropriate to the traditions of our revered federalism. It is a salutary rule that requires a petitioner for the writ of habeas corpus to pass through the state’s curative filters before applying to the federal judicial chambers. That'the quest for the writ be so structured not only assures the State a power of redemption before federal judgment is brought to bear, but it also assures that our federal courts’ perspective will not be blurred and obscured by an excess of petitions filed here in the first instance.

I

Lamberti, represented at trial by privately retained counsel, was convicted and sentenced during the late evening hours of January 21, 1971. During the next day or two he retained new counsel, Harvey Silverman, to prepare his post-trial motions and to prosecute his appeal. On January 25, 1971, Silverman filed a notice of appearance and a motion requesting “an extension of the 4 day period [in which to move for a new trial] to 15 days pursuant to Rule 1.590(a) of the Criminal Rules of . Procedure.” No action was ever taken on this motion. The following day Lamberti’s trial counsel, Richard Bergstresser, evidently oblivious to the solicitation of Silverman, also filed a motion for an extension of the period in which to move for a new trial to the maximum 15 days permitted in the Rules.

Bergstresser’s motion was granted on January 26. Silverman then proceeded to take over the representation of Lam-berti. Finding Bergstresser unwilling to cooperate in preparation of Lamberti’s motion for a new trial, Silverman was forced to rely on the transcript to reveal whatever errors might be claimed as grounds for a new trial. Unfortunately, preparation of the transcript was delayed beyond the 15 days allowed for presentation of the motion.

The state court record reflects that nothing further of any relevance transpired until February 27, 1971. On that date the trial judge entered an order reciting that there had been a delay in transcription of the trial and that it would be “impossible to make a proper motion for a new trial or to file an appeal” until the transcript was prepared, and extending the deadline for filing a motion for a new trial until 15 days after the complete transcript was in the hands of the defendant’s attorney. Though it was evidently not so perceived at the time, this order was invalid, for the trial court possessed no authority to extend the motion period beyond 15 days from the entry of the verdict. See note 1 supra.

On March 19, 1971, Silverman filed a written motion for a new trial on Lam-berti’s behalf. This motion came within the time limits set in the February 27 order, but (after two amendments) it was ultimately denied on the merits in an order entered July 20, 1971. On August 2, 1971, a notice of appeal was filed. The State opposed Lamberti’s appeal as untimely, arguing that his notice of appeal was not filed within 30 days of the entry of judgment as required under Florida Appellate Rule 3.2(b), and that the invalid February 27 order and subsequent trial court proceedings had no tolling effect on the 30 day limitation. The appeal was dismissed without opinion, apparently on the grounds raised by the State. Lamberti v. State, Fla.Dist.Ct. App., 3d Dist. 1972, 256 So.2d 422.

Lamberti then proceeded to petition the Florida District Court of Appeal on habeas corpus for a belated appeal. Acquiescent in the State’s conclusion that his notice of appeal was untimely, Lam-berti asserted chiefly that his tardiness was caused by the trial court’s unauthorized and allegedly misleading extension of time in which to file a motion for a new trial, and that the trial court had thus thwarted his appeal. Evidently unmoved by this claim, the Florida Court dismissed the petition without opinion. State ex rel. Lamberti v. Wainwright, Fla.Dist.Ct.App., 3d Dist. 1972, 270 So.2d 785. A second petition on the same theory was likewise dismissed without explanation. State ex rel. Lamberti v. Wainwright, Fla.Dist.Ct.App., 3d Dist. 1973, 276 So.2d 565. Thereafter Lamber-ti petitioned pro se before the Florida Supreme Court, urging basically the same points for the same relief. The Supreme Court denied relief on grounds of res judicata. Lamberti v. Wainwright, Fla.1973, 284 So.2d 202.

Disappointed in the Florida Courts, Lamberti filed his habeas corpus petition in the federal district court below in October, 1973. That petition stated the same grounds for relief as were asserted before the state courts. In a subsequent memorandum, however, counsel for Lamberti advised the district judge below that “[t]he record established] a second ground for relief, ineffective assistance of counsel. Therefore, in the event the Court finds against the Petitioner on the ground raised [judicial thwarting of the appeal], the Petition should be stayed pending exhaustion on the second ground in State courts.” The State responded immediately by letter contending that since Lamberti had not raised his ineffective counsel claim in the state courts, his entire petition should be dismissed without prejudice for failure to exhaust state remedies.

The able district judge pretermitted consideration of the issue chiefly contested in the state habeas proceedings. Instead, after a hearing, the court concluded that Lamberti’s direct appeal had been frustrated by the ineffective assistance of his counsel, and judged that this deficiency was of constitutional proportions despite the fact that Lamberti’s counsel was privately retained. Addressing the question of Lamberti’s exhaustion of state remedies regarding the ineffectiveness of counsel claim, the district court reasoned:

Even though none of the state courts have ever considered whether under the facts presented petitioner was deprived of the effective assistance of counsel, those courts were certainly-given a fair opportunity to do so. This ... is all that comity, the gist of the exhaustion doctrine, requires.

The district judge then entered an order providing that unless Lamberti were afforded a belated appeal in the Florida courts within a reasonable time, a writ of habeas corpus would issue releasing him from all restraint under his robbery conviction.

II

Petitioner Lamberti urges, and the State disputes, that his ineffective assistance of counsel claim was subsumed within the “judicial thwarting” position argued in the state courts, and thus that the Florida courts were afforded a fair opportunity to pass on the claim now pressed in the federal courthouse. It is true of course that the basic facts upon which Lamberti” grounds his ineffective counsel argument were laid before the state courts. The question is whether the exhaustion provision of 28 U.S.C. § 2254(b) requires that Lamberti should have presented his legal argument before the state judiciary as well.

Analysis begins with Picard v. Connor, 1971, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438. Connor, indicted for murder by a Massachusetts grand jury under a “John Doe” warrant procedure authorized by Massachusetts legislation, was convicted in the state courts. In his state court trial proceedings and on direct appeal in the state courts he urged that the “John Doe” warrant technique offended his constitutional rights by denying him the protections of a grand jury indictment in a state felony proceeding. Connor sought federal habeas corpus relief, but the writ was refused by the district court. On appeal the First Circuit assumed the continuing inapplicability of the Fifth Amendment’s Grand Jury clause to the states, but proceeded to afford Connor relief on the theory, raised sua sponte by the court, that “the procedure by which [Connor] was brought to trial deprived him of the Fourteenth Amendment’s guarantee of equal protection of the laws.” Connor v. Picard, 1 Cir. 1970, 434 F.2d 673, 674. On certiorari, the Supreme Court reversed the First Circuit’s decision, and held that Connor failed to exhaust the Equal Protection claim in the state courts:

We are . . . unable to agree with [the First Circuit] that [Connor] provided the Massachusetts “court with ‘an opportunity to apply controlling legal principles to the facts bearing upon [his] constitutional claim.’ ” [citation] To be sure, [Connor] presented all the facts. Yet the constitutional claim the Court of Appeals found inherent in those facts was never brought to the attention of the state courts. The [Massachusetts] Supreme Judicial Court dealt with the arguments respondent offered; we cannot fault that court for failing also to consider sua sponte whether the indictment procedure denied respondent equal protection of the laws. . We simply hold that the substance of a federal habeas corpus claim must first be presented to the state courts. The claim that an indictment is invalid is not the substantial equivalent of a claim that it results in an unconstitutional discrimination.

404 U.S. at 277-78, 92 S.Ct. at 513, 30 L.Ed.2d at 444-45. Under Connor we are bound here to hold that petitioner Lamberti’s effectiveness of counsel argument was not adequately presented to the Florida courts.

Lamberti’s state court petitions nowhere suggested that he relied upon the Sixth Amendment’s right to assistance of counsel, or that he might be considered aggrieved in respect of a constitutional right if the tardiness of his notice of appeal in the Florida courts were considered the responsibility of his privately retained counsel. Indeed, Lam-berti’s state habeas corpus petition relied primarily, and without any apparent hesitation, upon Baggett v. Wainwright, Fla.1970, 229 So.2d 239, 242, in which the Florida Supreme Court revealed a disinclination to view the failure of privately retained counsel to timely perfect an appeal as a problem attaining any constitutional proportions.

A habeas petitioner need not spell out each syllable of his claim before the state courts in order to satisfy the exhaustion requirement of § 2254(b). It suffices that the substantial equivalent of a petitioner’s federal habeas claim has been argued in the state proceedings. In Bryant v. Caldwell, 5 Cir. 1973, 484 F.2d 65, the petitioner had argued to the state courts that the state trial judge presiding at the petitioner’s criminal trial had wrongly permitted court-appointed defense counsel to absent himself during the prosecutor’s closing argument; but relief was denied by the state courts. On federal habeas corpus the petitioner refocused his attack, and asserted that his counsel’s disappearing act denied him effective assistance. We held that despite this shift in perspective regarding the theory of the grievance, since the state supreme court had found that “[ujnder no theory can it be maintained that the trial court committed any error,” the petitioner had adequately exhausted his state remedies under Connor; thus we proceeded to the merits.

We find the matter at bar unlike. the Bryant case, however. To begin with, here the state courts reviewing Lamberti’s petitions have said nothing to indicate that they considered any claim or theory that was not specifically raised to their attention by the parties; we are reluctant to infer from their silence any suggestion that Lamberti’s present assertions have been passed upon. See McBride v. Estelle, 5 Cir. 1975, 507 F.2d 903; Alonzo v. Estelle, 5 Cir. 1974, 500 F.2d 672. Moreover, Bryant’s result was based on the recognition that the ineffective assistance of appointed counsel moulding applied in the federal forum was simply an obvious variant to the frame tried on the petitioner’s claim in the state courts. In the perspective of existing case law, however, we can hardly regard petitioner Lamberti’s ineffective assistance of privately retained counsel argument as an equally obvious variant on the theory Lamberti asserted in the state courts. Holdings in this Circuit current at the time Lamberti filed his state habeas corpus petitions indicated that deficiencies of privately retained counsel would not constitute grounds for habeas corpus relief in the absence of “fraud and deceit.” See, e. g., McGriff v. Wainwright, 5 Cir. 1970, 431 F.2d 897; Langford v. Alabama, 5 Cir. 1969, 422 F.2d 760; Howard v. Beto, 5 Cir. 1967, 375 F.2d 441; Breedlove v. Beto, 5 Cir. 1968, 404 F.2d 1019, n. 1; cf., e. g., Pate v. Holman, 5 Cir. 1965, 341 F.2d 764, 775. See also Baggett v. Wainwright, Fla.1970, 229 So.2d 239, 242. Indeed, in the state habeas corpus proceedings the Florida Attorney General answered Lamberti’s assertions that the state trial court had thwarted his appeal precisely by arguing that responsibility for tardy filing lay solely with Lamberti himself or his privately retained counsel. In this context we cannot say that Lamberti’s present theory that the failure of his privately retained counsel to perfect his appeal establishes a federal constitutional grievance was fairly presented to the Florida courts despite the absence of any such suggestion in his own papers.

Lamberti only urged the state courts to see that the trial judge had deprived him of his appeal by misleading his counsel; he never suggested a theory on which the state courts could afford him relief from the effects of any errors of his privately retained counsel. Since his ineffective assistance of retained counsel theory is not the substantial equivalent of his “judicial thwarting” ground, comity compels us to the conclusion that the district court erred in entertaining Lam-berti’s ineffective counsel argument before it had been adequately presented to the state courts.

Ill

The question remains whether on remand the district court may entertain Lamberti’s petition on the grounds he originally asserted, i. e., that his appeal was thwarted by the state trial judge. Reluctantly, we conclude that comity mandates Lamberti’s return to the state courts for full exhaustion with respect to both his claims.

While the Supreme Court has been spared consideration of the issue, this Court has recently reaffirmed en banc the rule that, “Ordinarily a state prisoner seeking federal habeas corpus must exhaust available state remedies with respect to each claim in his habeas petition, or his petition will be denied by the federal courts.” West v. Louisiana, 5 Cir. 1973, 478 F.2d 1026, 1034, aff’d regarding exhaustion en banc, 5 Cir. 1975, 510 F.2d 363. This principle derives from a balance struck between the competing values of the prompt vindication of federally protected rights of criminal defendants and the deference engendered by comity between the federal and state courts. We are not at liberty here to upset that balance.

It is true that in a number of cases in which habeas petitioners have exhausted state remedies with respect to only some of their several theories of relief, we have addressed and dismissed on the merits insubstantial arguments which were exhausted (while dismissing unexhausted contentions without prejudice). But in these cases our exercise of judicial economy has been justified by the recognition that denial of relief on those exhausted claims would not offend against comity.

In two cases we have affirmed the extension of federal habeas corpus relief on an exhausted claim while dismissing a non-exhausted claim without prejudice for non-exhaustion: West v. Louisiana, supra, and Moye v. Highsmith, 5 Cir. 1972, 460 F.2d 1388, aff’g Moye v. Georgia, N.D.Ga.1971, 330 F.Supp. 290. But we find those cases of no avail to petitioner Lamberti here. In West two considerations combined to compel exception to the ordinary rule requiring exhaustion in respect of all claims when relief is to be granted on any claim. First, judging from past experience with West’s petitions in the state courts, the prospect of state court relief was tinged with delay. The promptness of the Florida courts in negotiating Lamberti’s past petitions eliminates that consideration here, however. The other, and larger, consideration in West was that

the State did not contend in the district court that West had failed to exhaust his state remedies. Failure to raise the contention of lack of exhaustion at the district court level is ordinarily a bar to its consideration on appeal. [citations] By failing to press this issue below, the State implicitly acknowledged the insubstantiality of its interest in further adjudicating West’s claim. Against this minimal state interest, there is a substantial interest on the part of both the defendant and the federal courts in promptly resolving this case. . We see no reason to delay longer in vindicating these rights.

478 F.2d at 1034—35, aff’d regarding exhaustion en banc, 5 Cir., 510 F.2d 363. This aspect of the West case, too, distinguishes it from the matter at bar; at the first suggestion in the federal proceedings of Lamberti’s ineffective counsel argument, the State promptly responded that the issue wanted exhaustion. Moye v. Highsmith, the other case granting relief on an exhausted habeas claim while dismissing unexhausted issues, predates the panel and en banc opinions in West and their adherence to the ordinary rule requiring exhaustion on all claims. Moreover, the specific issue addressed here was never discussed in either the district or' circuit court opinions in Moye, and the appellate opinion does not even mention that any of Moye’s contentions in the district court were dismissed on exhaustion grounds. Given this, we are unwilling to read Moye as denominating an exception to the general rule later reaffirmed in West.

Thus, we find no reason to except petitioner Lamberti from the general dictate of comity that he present all his contentions in the state courts before resorting to federal habeas corpus. On the contrary, we find applicable and persuasive the suggestion of Judge Clark and the holding of Judge Weinfeld that, particularly where the exhausted claim is related to a non-exhausted claim, comity requires exhaustion on all matters in order to assure the state courts a complete perspective on the problem.

The judgment of the district court is reversed, and the cause is remanded with directions to dismiss the petition without prejudice to petitioner’s reapplication, if necessary, following exhaustion of his state court remedies in respect of his claims.

Reversed and remanded.

      . Former Rule 1.590(a), now 3.590(a), of the Florida Rules of Criminal Procedure, provides:
      A motion for a new trial or in arrest of judgment, or both, may be made within four days, or such greater time as the court may allow, not to exceed fifteen days, after the rendition of the verdict or the finding of the court.

      . Lamberti has additionally argued in his state and federal habeas corpus applications that his appeal was thwarted by the trial court’s failure to advise him at the close of trial of the 30 day limitation on the filing of a notice of appeal, and by the court reporter’s failure to prepare his trial transcript with dispatch. These asserted grievances are not significant to our resolution of this case.

      . The federal district court below found that when confronted with delay in obtaining the trial transcript, Silverman approached the state trial judge and received assurances from him then that Lamberti would be allowed 15 days after the transcript was received in which to file for a new trial. Lamberti’s state habeas papers, however, never asserted that the trial judge had made any such assurances prior to the February 27 order. Rather, his first petition relied upon the allegation that he and his counsel were misled by the February 27 order into believing that time remained in which to move for a new trial, then appeal. Evidently recognizing the vulnerability of this approach, .in view of the fact that the time to file a notice of appeal had already expired by February 27, Lamberti revised his argument in his second habeas petition to the District Court of Appeal to include an allegation that he was misled by the fact that the trial judge failed to act upon Silverman’s January 25 motion until February 27. Aside from the fact that the January 25 motion asked only for a 15 day extension from the return of the verdict, and aside from the question of the sufficiency of this factual allegation to make out a case of judicial error, the plausibility of the assertion that Lamberti and Silverman were misled would seem to depend upon the premise that they were unaware of the success of Bergstresser’s January 26 motion, a point not mentioned in the petitions. Lamberti’s papers before the Florida Supreme Court essentially recapitulated his second ha-beas corpus submission to the District Court of Appeal.

      . But see note 3 infra.

      . See also Minafee v. Estelle, 5 Cir. 1974, 491 F.2d 1096.
      The Supreme Court has rephrased its Con-nor standard somewhat in Humphrey v. Cady, 1972, 405 U.S. 504, 516, n. 18, 92 S.Ct. 1048, 1056, 31 L.Ed.2d 394, 407, saying that “[t]he question ... is whether any of petitioner’s claims is so clearly distinct from the claims he has already presented to the state courts that it may fairly be said that the state courts have had no opportunity to pass on the claim . . .We do not regard this casual rearticulation as any modification of the Con-nor holding, however.

      . Lamberti does not assert, however, nor do we believe, that Baggett would have rendered application to the Florida courts on this issue futile. See generally Blackledge v. Perry, 1974, 417 U.S. 21, 22, 94 S.Ct. 2098, 2100, 40 L.Ed.2d 628, 632; Developments in the Law— Federal Habeas Corpus, 83 Harv.L.Rev. 1038, 1098-99 (1970); cf. Wilwording v. Swenson, 1971, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418. Cf. also note 9 infra.

      . By contrast, in both Collier v. Estelle, 5 Cir. 1974, 488 F.2d 929, on which Lamberti relies, and Macon v. Lash, 7 Cir. 1972, 458 F.2d 942, a case somewhat similar to the matter sub judice, the states’ courts’ dispositions themselves raised the issues confronted on the federal habeas application.

      . Like Bryant, Collier v. Estelle, supra note 7, 488 F.2d at 931 n. 4, on which Lamberti particularly relies, and Macon v. Lash, supra note 7, involved appointed counsel.

      . We do not mean to suggest that the Florida courts were constrained at any time to take no more expansive view of a criminal defendant’s federal constitutional right to effective assistance from privately retained counsel. Indeed, our opinion in Breedlove v. Beto, 5 Cir. 1968, 404 F.2d 1019, n. 1, recognized the conflict in the authorities on this question.

      . Atilus v. United States, 5 Cir. 1969, 406 F.2d 694.

      . In fact, panel opinions of this Court in West v. Louisiana, 5 Cir. 1973, 478 F.2d 1026, aff'd in part en banc, 5 Cir. 1975, 510 F.2d 363, and Fitzgerald v. Beto, 5 Cir. 1973, 479 F.2d 420, rev’d en banc sub nom. Fitzgerald v. Estelle, 5 Cir. 1974, 505 F.2d 1334, indicating that deficiencies in the representation of privately retained counsel may give rise to a constitutional claim cognizable on habeas corpus, were reported (and the cases were ordered to be reheard en banc) while the Florida Supreme Court held Lamberti’s petition under advisement. Those opinions were never brought to the attention of the Florida Supreme Court in Lamberti’s case, however; and the Court ultimately dismissed his claim on the ground that it raised “identical issues which were previously raised and disposed of adversely to the petitioner by the District Court of Appeal.” 284 So.2d 202.

      . Cf., e. g., Pate v. Holman, 5 Cir. 1965, 343 F.2d 546; Blair v. California, 9 Cir. 1965, 340 F.2d 741; Pennsylvania ex rel. Raymond v. Rundle, 3 Cir. 1964, 339 F.2d 598.

      . See Francisco v. Gaithright, 1974, 419 U.S. 59, 63, 95 S.Ct. 257, 259, 42 L.Ed.2d 226, 230.

      . See also, e. g., Brinks v. Georgia, 5 Cir. 1975, 512 F.2d 673; Harris v. Estelle, 5 Cir. 1974, 487 F.2d 1293, 1296-97; Hargrett v. Wainwright, 5 Cir. 1973, 474 F.2d 987.

      . See, e. g., Ardister v. Hopper, 5 Cir. 1974, 500 F.2d 229, 232; Singleton v. Estelle, 5 Cir. 1974, 492 F.2d 671; Harris v. Estelle, 5 Cir. 1974, 487 F.2d 1293, 1296-97; McDonald v. Wainwright, 5 Cir. 1972, 466 F.2d 1136.

      . See also Smith v. Goguen, 1974, 415 U.S. 566, 576, 94 S.Ct. 1242, 1249, 39 L.Ed.2d 605, 614 (decided after the panel opinion in West).

      . Harris v. Estelle, 5 Cir. 1974, 487 F.2d 1293, 1297.

      . United States ex rel. Ferguson v. Deegan, S.D.N.Y.1971, 323 F.Supp. 42.

      . While in light of our holding we need not gauge its precise legal significance, we do note that there are some differences between the factual case asserted by Lamberti in the Florida courts and the facts as found by the district court below in regard to the assurances given attorney Silverman by the state trial judge before February 27, 1971, that Silverman would have fifteen days to prepare the new trial motion following receipt of the completed transcript. See note 3 supra.