author: GURFEIN, District Judge:

text:
    ALBANY WELFARE RIGHTS ORGANIZATION et al., Appellants, v. George K. WYMAN, Individually and as Commissioner of Social Services for the State of New York, et al., Appellees.
    No. 210, Docket 73-1580.
    United States Court of Appeals, Second Circuit.
    Argued Dec. 14, 1973.
    Decided March 14, 1974.
    Marvin N. Karpatkin, New York City, Joel F. Spitzer, Albany, N. Y. (Paul R. Lichterman, Albany, N. Y., Paul G. Chevigny and Eve Cary, New York City, on the brief), for appellants.
    Alan W. Rubenstein (Louis J. Lefkow-itz, Atty. Gen., Ruth Kessler Toch, Sol. Gen., on the brief), for appellee Wyman.
    Condon A. Lyons, County Atty., Albany, N. Y. (Robert E. Harris, Albany, N. Y., of counsel), for appellees Schreek and Jay.

      Before LUMBARD and MANSFIELD, Circuit Judges, and GURFEIN, District Judge.

       Of the United States District Court for the Southern District of New York, sitting by designation.

   GURFEIN, District Judge:

This is an appeal from an order of the District Court for the Northern District of New York, Judge Foley, entered on February 12, 1973, denying plaintiffs’ motion for a preliminary injunction after a hearing and dismissing the complaint.

Plaintiffs are the Albany Welfare Rights Organization (AWRO) and individual members and welfare recipients. AWRO is a local chapter of the Upstate New York affiliate of the National Welfare Rights Organization, which has some 150,000 members in approximately 850 local organizations throughout all fifty states. At the time of the hearing below, AWRO had approximately 400 members. The organization’s purpose is educational and political in that it seeks to inform welfare recipients of their legal rights, to train them to help other welfare recipients in their dealings with the Welfare Department, and to organize them to exert political pressure on behalf of poor people upon local, state, and federal governments.

The controversy in this case arose when the plaintiffs attempted to pass out informational leaflets to welfare recipients inside the County Welfare Center and were forbidden to do so by the defendant Albany County Welfare officials who relied upon discretion conferred upon them by the defendant State Commissioner. This appeal by Albany Welfare Rights Organization and Catherine Boddie is from the District Court’s orders under those claims for relief (Second, Fourth and Fifth) which relate directly to the exercise of the right of plaintiffs to distribute leaflets. The defendants are the State Commissioner of Social Services, the Albany County Commissioner, a deputy commissioner, the supervisor and a caseworker.

Jurisdiction is alleged under 28 U.S.C. §§ 1331 and 1343(3) and (4). We hold that there is jurisdiction under Section 1343(3).

The second claim for relief is based upon alleged violation of the Social Security Act and regulations in that the discretion vested by Commissioner Wy-man in the County Social Services Departments to prohibit groups from disseminating information is discriminatory against the plaintiffs. The fourth claim is a constitutional claim alleging that denial to plaintiffs of access to the premises of the Albany County Department of Social Services deprives them of the equal protection of the laws. The fifth claim is that the denial of free access to the premises violates the rights of the plaintiffs to freedom of speech, and the right to assemble, to organize and to petition for redress of grievances in violation of the First and Fourth Amendments. Since we are constrained to reverse on the dismissal of the Fifth Claim, we need not consider the other claims raised.

The Albany County Social Services Department is located in a five-story building in the City of Albany. All the work of the Department employees that involves personal contact with welfare recipients is carried out on the first and third floors, and there are waiting areas on these floors for recipients who come to the Center. The Welfare Department has approximately 400 employees.

All county business is carried out behind partitions. Welfare recipients upon arriving at the building are referred to a particular waiting area depending on the nature of their business. There the recipient informs a secretary of his presence and takes a seat in the waiting area.

Every few minutes a welfare department employee comes to the front of the waiting area and shouts out the address of a waiting recipient (to preserve anonymity) and that person then enters the work area through a door to see a caseworker.

As of May 31, 1972, the welfare department had 6,600 cases involving some 20,000 persons. On any given day between 200 and 250 welfare recipients come to the welfare center concerning public assistance alone, excluding those who come for food stamps and medicaid. Most of these persons wait a minimum of an hour and & half before the case is called.

At the end of 1969 members of the Albany Welfare Rights Organization began to go down to the Welfare Center every Monday to meet.with Welfare officials and to pass out leaflets to waiting welfare recipients. The leaflets contained legal information about the rights of welfare recipients in relation to the welfare department and information about AWRO and the welfare rights movement. AWRO members would also try to answer welfare recipients’ questions about their legal rights or would tell them to come to the AWRO office for help with complicated problems that could not be answered on the spot. People who expressed an interest were encouraged to join the organization.

The weekly distribution of leaflets went on for approximately six months during which time AWRO membership grew heavily. In mid-1970, however, a new policy was instituted by the County Welfare Department, and AWRO members were told that they could not pass out their leaflets inside the welfare center. When told to stop they did so for that day without protest, but they continued to return to the center on a number of occasions and to pass out as many leaflets as they could until someone came to insist they leave. No arrests were ever made of persons distributing leaflets nor were police called at any time to disperse them.

At the hearing there was no testimony that during the six months that AWRO members handed out leaflets in the welfare center there was any disruption whatever caused by their activities. On the contrary, the testimony tended to establish that distributing leaflets was carried on only in public areas of the building which were separated from areas where county business was carried out. There were some incidents of disruption, but these related to the refusal of county officials to discuss grievances [align] with AWRO, and were not related to distributing leaflets.

The appellees contend, so far as is relevant to this disposition, that (1) neither AWRO nor Boddie has standing to maintain the action; (2) the complaint does not state a constitutional claim against the State Commissioner; (3) subsidiary thereto, appellees contend that a waiting room in the office of a county social service department is not a proper place for a welfare organization to enter for the purpose of distributing leaflets and conduct organizing activities.

As Judge Friendly observed in Aguayo v. Richardson, 473 F.2d 1090, 1098 (2 Cir. 1973), cert. denied, Aguayo v. Weinberger, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 101 (1974), welfare cases require the courts to “weave our way through a maze of problems relating to standing and jurisdiction.” That is also true of cases asserting First Amendment rights brought by associations of people.

While a complaint by an association alleging that its members will be harmed by threatened conduct suffices to give the association standing under the general federal question statute, 28 U.S.C. § 1331, Aguayo, supra, 473 F.2d at 1099, that does not determine the $10,000 jurisdictional amount requirement. (Id. at n. 13) If we look to the standing of a welfare organization under the civil rights statute, 42 U.S.C. § 1983, and its jurisdictional implementation, 28 U.S.C. § 1343(3), this Court has held that such an organization may not sue under the Civil Rights Act for the violation of rights of members. Id. at 1099-1100.

The District Judge, construing Aguayo to be applicable to the facts of this case, held that AWRO had no standing to raise the constitutional claims. We think that AWRO had standing to bring this complaint because the refusal of access alleged involved an abridgement of the constitutional right of association. N. A. A. C. P. v. Button, 371 U.S. 415, 428-429, 83 S.Ct. 328, 9 L.Ed. 2d 405 (1963); Louisiana ex rel Gremillion v. N. A. A. C. P., 366 U.S. 293, 296, 81 S.Ct. 1333, 6 L.Ed.2d 301 (1961); Bates v. City of Little Rock, 361 U.S. 516, 523 n. 9, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); N. A. A. C. P. v. Alabama ex rel. Patterson, 357 U.S. 449, 458-460, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); see also Smith v. Board of Education of Morrilton School District No. 32, 365 F.2d 770 (8 Cir. 1966). There is sufficient evidence in the record to permit the conclusion that AWRO’s efforts to increase its membership were adversely affected by its exclusion from the premises of the Albany County Welfare Department.

Judge Foley, with his customary patience, and in obedience to the suggestion in Negron v. Wallace, 436 F.2d 1139, 1141 (2 Cir.), cert. denied, 402 U.S. 998, 91 S.Ct. 2184, 29 L.Ed.2d 164 (1971), tried to work out a compromise between the parties, but in Judge Foley’s words, “the flat rejection was made to allow groups, or any number of A.W. R.O. members, to enter the waiting room of the Albany Department building and pass out leaflets and talk to people waiting on benches to be processed by the Department’s case workers, or other employees and solicit them for membership in the A.W.R.O. or discuss with them problems concerning public assistance that certain of the recipients might be concerned with.”

Upon the failure of the negotiations, the District Judge dismissed the complaint, thus sustaining the complete exclusion of AWRO representatives from “the waiting room.” We think that a blanket and wholesale ban, in the circumstances, violates the rights of the plaintiffs under the First Amendment as applied to the states under the Fourteenth, and that the decision below was erroneous. We paraphrase the language of Judge Kaufman in Wolin v. Port of New York Authority, 392 F.2d 83, 85 (2 Cir.), cert. denied, 393 U.S. 940, 89 S.Ct. 290, 21 L.Ed.2d 275 (1968): “We hold that the [Albany County Welfare Dept.] may not abridge by absolute prohibition the right of political expression. The peaceful activities proposed by [AWRO] are protected against denial by the [Albany County Welfare Dept.], and accordingly, they may be restricted only by regulations narrowly drawn to serve legitimate interests of the general public who use the [County Welfare Center].”

The right of free speech is a fundamental right which is safeguarded against state interference by the due process clause of the Fourteenth Amendment. De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 81 L.Ed. 278 (1937) . Though no restrictive state statute is involved, the exclusion of the plaintiffs by the permissive order of the State Commissioner to County Officials constitutes State action. Peaceful distribution of leaflets is a form of communication protected by the First Amendment, and hence, by the Fourteenth. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971); Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938) . As Chief Justice Hughes said in Lovell, supra, “The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.” 303 U.S. at 452, 58 S.Ct. at 669.

Leaflets are, therefore, within the protection against prior restraint on their distribution, and such restraint constitutes an impermissible restraint under the Constitution, Organization for a Better Austin, supra, 402 U.S. at 418, 91 S.Ct. 1575, and comes to the courts with a “heavy presumption” against its constitutional validity. Id. at 419, 91 S.Ct. 1575. In the light of the “heavy presumption,” there would have to be an extraordinary showing of an invasion of privacy to rebut the presumption. Cf. Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313 (1943).

The State is, of course, “free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience.” Cantwell v. Connecticut, 310 U.S. 296, 306-307, 60 S.Ct. 900, 904, 84 L.Ed. 1213 (1940). See Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). “But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508, 89 S. Ct. 733, 737, 21 L.Ed.2d 731 (1969).

We, thus, come to the question whether there is a compelling state interest in the total exclusion of the AWRO representatives from the waiting rooms of the County Welfare Center.

The appropriateness of the place for the exercise of the right of free speech and the furtherance of the right of free association as a preliminary to petitioning for redress of grievances turns to some extent “on the relevance of the premises to the protest.” Wolin, supra, 392 F.2d at 90. Judge Kaufman noted in Wolin that there were two ways to find that relevance, where the place represents the object of protest, and where the relevant audience may be found. Id.

Here we are not dealing with direct protests but rather with informational activity. In that regard the “relevant audience” factor is compelling. Prospective members of the AWRO and persons who need information about public assistance are best found in the waiting rooms of County Welfare Centers. And it is in that best place that the restrictions on free speech have been imposed in this case.

We must recognize, of course, that the waiting rooms of welfare offices are not “streets, sidewalks, parks and other similar public places [which] are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.” See Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 315, 88 S.Ct. 1601, 1606, 20 L.Ed.2d 603 (1968). Nor do they, like bus terminals, so resemble public thoroughfares as to make them appropriate places for the exercise of First Amendment rights. See Wolin, supra. As the Court of Appeals for the First Circuit said in Massachusetts Welfare Rights Organization v. Ott, 421 F.2d 525, 527 n. 4: “A welfare office is not to be equated with a public street.” Obviously, the constitutional rights asserted may be the subject of regulations to protect the free flow of traffic and the conduct of the county’s business.

On this record, however, we are not dealing with the incursion of a mass of people to coerce the public officials in the performance of their duties. There is no plea to be allowed to conduct sit-downs or disruptive meetings. The plea is a narrow one, that a limited number of AWRO representatives, three in number, be permitted to distribute informational literature and to talk to people while they are waiting to consult the county officials. It is in the light of these modest requests that we must consider whether the waiting room of a welfare office is an appropriate place for the exercise of these constitutional rights.

We think it is. The waiting room is a public place, for all may enter who have public business to transact. It is not a part of the premises which is screened off for the actual conduct of public business and the private interviewing of welfare recipients.

On the one hand, it is not an appropriate place for a picket line or demonstrations. In that sense, it is not a traditional forum of protest. LeClair v. O’Neil, 307 F.Supp. 621 (D.C.Mass. 1969), aff’d, 401 U.S. 984, 91 S.Ct. 1219, 28 L.Ed.2d 524 (1971). On the other hand, a waiting room is a proper place for private conversation with those waiting to be served. Here we apply the distinction between the communication of ideas by conduct and the communication of ideas by pure speech. Cox v. Louisiana, supra, 379 U.S. at 555, 85 S.Ct. 453; LeClair v. O’Neil, supra. In that respect, we accept as a proper enunciation of relevant principle the conclusion of Judge Pettine in his well-reasoned opinion in Unemployed Workers Union v. Hackett, 332 F.Supp. 1372 (D.R. I.1971), and the dictum of the three-judge court in Hurley v. Hinckley, 304 F.Supp. 704, 711-712 (D.Mass.1969), aff’d sub nom., Doyle v. O’Brien, 396 U.S. 277, 90 S.Ct. 603, 24 L.Ed.2d 469 (1970). See also Indiana Consumers and Workers Union et al. v. Swaim, Civ. No. 72F5 (D.C.Ind., July 12, 1972) (unreported).

The District Court found the “conduct” here significantly different from that described by Judge Pettine in Unemployed Workers Union v. Hackett, supra. We believe that in reaching that conclusion, however, the District Court wrongly considered evidence of earlier demonstrations or “confrontations” to be determinative of what we conceive to be an independent right to distribute pamphlets and to engage in peaceable free speech by a limited number of people.

While the engaging by plaintiffs in a series of legal and illegal episodes may at times justify a denial of a temporary injunction until conduct and speech can be sorted out one from the other, which we do not find to be the case here, that affords no basis for denying the right of speech itself by dismissal of the entire complaint. A permission to speak and, peaceably and in a reasonable manner, to distribute leaflets may not be denied as part of a blanket refusal to permit demonstrations and confrontations which occur at the wrong time and place to the disruption of offical business. Judge Foley was right, of course, in recognizing that reasonable regulations may be necessary to further significant governmental interests, see Adderley v. Florida, 385 U.S. 39, 47-48, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), and Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), but there is a difference between reasonable regulation and total prohibition.

The District Court also believed that privacy was a “major factor.” We do not consider the right of privacy of the welfare recipients as a compelling consideration against First Amendment rights. We do not suggest that an AWRO representative would have the right to demand the name of a person on the waiting line if he chooses not to give it. But we cannot assume, on the other hand, that everyone on the waiting line would reject all communication with such representative. This is not an intrusion into the home, the church, or the voting booth. It involves simply talking to people who are waiting. Unless there is a showing that the listener has been badgered to the point of being made a captive, this intrusion on privacy in a public waiting room is slight against the heavy presumption in favor of free speech and assembly, which are preludes to the orderly redress of grievances. See Public Utilities Commission v. Pol-lak, 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068 (1952).

This court is mindful of, and stresses, the need for quiet and decorum in the conduct of the state’s business. We do not tolerate pressures on' caseworkers or administrative personnel any more than we would sanction pressures on judges or jurors. This appeal, however, does not involve protest. It involves the orderly distribution of information, without coercion, to welfare recipients. Any order issued may enjoin the making of excessive noise or engaging in other disruptive activity. The work of the welfare department must go on without disturbance.

We hold, in substance, that, since the constitutional rights of the plaintiffs have been impaired, the complaint should be reinstated so far as the constitutional free speech claim is concerned. We hold that, at least one person should be permitted in one waiting room as the representative of AWRO with the privilege of distributing printed material and of conversing with willing welfare recipients.

The District Court should determine, in conformity with this opinion, the number of AWRO representatives, if more than one, to be given access under reasonable conditions to provide a peace-cial business.

Having reinstated the Fifth Claim of the complaint, we need not decide now whether the plaintiffs will be entitled to money damages upon a trial.

Dismissal of Fifth Claim of the Complaint reversed and remanded; order denying preliminary injunction reversed with direction to grant it in conformity with opinion.

      . It was stated on the oral argument that the waiting area on the first floor consists of 3300 square feet, and on the third floor, of 900 square feet. The District Court in its opinion refers to “the waiting room” in the singular, possibly because it deemed the larger waiting room as the only one requiring practical consideration.

      . The injunction may provide that the plaintiffs will remove all discarded material, and that the AWRO representatives clearly designate themselves in an appropriate manner as not being employees of the Albany County Welfare Department.

      . We have used the term “at least one person” for the reason that Judge Foley had indicated in his findings that two or three individuals might create a disruptive influence.


source: Caselaw Access Project

author: PELL, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America ex rel. Charles TOWNSEND, Petitioner-Appellant, v. John J. TWOMEY, Warden of Illinois Penitentiary, Respondent-Appellee.
    No. 73-1994.
    United States Court of Appeals, Seventh Circuit.
    March 18, 1974.

      Charles Townsend, pro se.
    William J. Scott, Atty. Gen., Chicago, 111., for respondent-appellee.
    Before CUMMINGS, PELL, and STEVENS, Circuit Judges.
   PELL, Circuit Judge.

This is an appeal by Charles Townsend, petitioner in the district court and a prisoner in Stateville Penitentiary, Joliet, Illinois, from the dismissal of his petition for a writ of habeas corpus. Noting our jurisdiction to entertain this appeal under 28 U.S.C. § 2254, we have considered the merits of the appeal on the record and briefs filed herein, without oral argument, pursuant to Rule 2, Fed.R.App.P.

Although the history of the Townsend litigation is an extensive one, that portion prior to November 19, 1971, need not be set out herein since it is reported in United States ex rel. Townsend v. Twomey, 452 F.2d 350 (7th Cir. 1971), which opinion was filed on the date mentioned. Our expression in that opinion of a lack of optimism that the end of the trail of this particular litigation had been reached appears to be justified by subsequent and somewhat complex developments as reflected in the file before us.

The mandate of this court following our opinion was issued on January 24, 1972, and in pertinent part reads as follows :

“ON CONSIDERATION WHEREOF, it is ordered and adjudged by this court that the judgment of the said District Court in this cause appealed from be, and the same is hereby, REVERSED, and, that this cause be and the same is hereby REMANDED to the said District Court with the directions that the State of Illinois be given the option of determining within a reasonable time to be fixed by that Court, but not more than four months, whether to (1) resentence the defendant without a retrial on the issue of guilt, provided such procedure is appropriate under the Illinois law, or (2) vacate his conviction and sentence to be followed by retrial. If neither option is exercised within the time fixed by the District Court, the writ must be granted and the appellee released, in accordance with the opinion of this Court . . . . ”

Although the present record does not disclose what action the district court took upon remand, we assume that an appropriate order was entered relating to the time for state action.

On August 13, 1973, Townsend filed pro se a petition for habeas corpus in the district court. Although it would appear from the files which have reached us that 67 C 389 was still pending in the district court, the pro se petition was given a new number, 73 C 2070; however, it was assigned to the same judge to whom the previous habeas proceedings had been returned on remand.

In his 1973 petition, Townsend answered the questions pertinent here exactly as follows:

“10. State concisely the grounds on which you base your allegation that you are being held in custody unlawfully:
(a) The Circuit Court of Cook County has not complied with orders handed down by a higher Court which issued orders in the interem of Court decisions, petitioner be given bond on his own recognizance while awaiting trial.
(b) The Circuit Court of Cook County has failed in it duties in either vacating conviction of petitioner and retrial to follow or resentence petitioner without a retrial and if neither given option is exercised the petitioner was to be released.
(e) In The United States Court of Appeals for the Seventh Circuit on November 19, 1971, petitioner’s case was reversed and remanded with the above options which remain in the Circuit Court of Cook County in which said court has not exercised the within and not more than four months, given as an option to retrial or resentence the petitioner or release the petitioner, and petitioner is being held in custody contrary to due process and equal protection of the law as guaranteed by both State and Federal Constitutions.
11. State concisely and in the same order the facts which support each of the grounds set out in (10):
(a) Petitioner requested on December 29, 1972, that judge power instantly set a date to hear and judge the matter before his court in order that petitioner’s Constitutional rights be protected and enforced and that he receive due process and equal protection of the law, however, the Circuit Court of Cook County has refused to follow orders issued by a higher court to in the interim, release the petitioner on his own recognizance bond while awaiting trial.
(b) The opinion of the United States Court of Appeals For The Seventh Circuit, April Session, 1971 United States ex rel. Charles Townsend, v. John J. Twomey, 452 F.2d 350, at p. 363, last paragraph, this decision was reversed and remanded with the option of determining within a reasonable time to be fixed by the Federal District Court directing the State of Illinois to (1) resentence the defendant without a retrial or (2) vacate his conviction and sentence to followed by a retrial. If neither option is exercised within the time fixed appellant was to be released.
(c) It is evident that Petitioner is being held in contrary to due process and equal protection of the law. Issues that should have long been disposed of or decided on are still pending in the Circuit Court of Cook County without a proper hearing as records before the Cheif Justice Joseph A. Power will show that the above court has refuse to comply with matters of law that has already been directed to this court by a higher court, and is continuing to denie your petitioner of due process and equal protection of the law.”

It appears that Townsend does not read the mandate of this court as we do. That order did not require that he be either resentenced or retried within the maximum four-month period but rather that the state should exercise its option within that period by deciding which route, if either, would be taken.

On October 13, 1973, the district court granted the state’s motion to dismiss on the basis that further state remedies were available to the petitioner and had not been exhausted. The present appeal followed.

The difficulties of a proper resolution of the case increase at this point because we are uncertain as to the interpretation put on the 1973 petition by the district court. It appears to us that the petition is susceptible of being construed in any of at least three ways: (a) that the state had failed either to resentence or retry Townsend within the specified period; (b) that the state had failed to exercise its option to make the determination of what it would do within the specified period; or (c) that the state had on a timely basis exercised an option specified in the mandate but had so slowly implemented its decision that Townsend was thereby deprived of constitutional rights.

Townsend’s interpretation appears to be the first of these. However, as we have already observed herein, we do not construe the mandate as requiring that either of these processes need be entirely completed within the specified time, although the determination did have to be made on a timely basis. If the second interpretation is correct, then it would appear that under the mandate of this court the petition, however designated by Townsend, could have been properly deemed to be a request to the district court to grant the writ- and discharge the petitioner for failure of the state to make the determination. If either of the first two interpretations is correct, we do not understand why the present petition was docketed as a new case inasmuch as the existing, and presumably still pending, habeas proceedings would appear to have been the proper vehicle for further proceedings consistent with the mandate of this court.

On the other hand, if the third interpretation is the correct one, then new matters are involved, and we would not know why the ordinary rule as to exhaustion of state remedies would not be applicable.

In reviewing the district court’s grant of a motion to dismiss, we ordinarily accept the facts as alleged in the petition. The difficulty here is, of course, to determine what those facts are.

We have been furnished with divers documents by both parties, and while it is not entirely clear that all of the documents are properly to be considered as a part of the appeal record, we do not propose to be overly technical on this pro se appeal. Therefore, we note from the documents we have been furnished that Townsend was resentenced on January 16, 1974, to a term of 14 years to 50 years. The resentencing thus did not occur until approximately two years after the issuance of the mandate of this court. In its brief filed in this court, the state indicates that it “had properly exercised its option for resentence without retrial consistent with the federal mandate. The delay in the actual imposition of sentence resulted almost entirely from petitioner’s own conduct.” Elsewhere in the papers there is an indication that in the state criminal court subsequent to the remand, continuances of the sentencing were secured by counsel for Townsend. A photocopy of the memorandum of orders from the state court is among the papers but we candidly are unable to determine from the longhand, abbreviated type of entries just what did occur with respect to continuances, other than that final disposition was not speedily reached.

We also note that the district court is now engaged in proceedings in 67 C 389 concerning Townsend’s claim that the state did not comply with this court’s 1972 mandate.

To the extent that the petition involved in this appeal proceeds on the theory that while the state may have made the required determination within time, it nevertheless deprived Townsend of constitutional rights because of the two-year delay in completion of the process, we would affirm the dismissal of the petition. Whether or not the delay which in fact occurred resulted from petitioner’s own conduct, as claimed by the state, is a matter which, in our opinion, should be factually determined in state post-sentencing procedures. It has not been demonstrated that such procedures are not available. While we are of the opinion that Townsend did not proceed on this third theory, we do note that the petition could be susceptible of such an interpretation. Finally, as to this phase of the case, we do not intend to express any opinion as to whether a two-year delay in sentencing following a timely determination to resentence would constitute a deprivation of constitutional rights. We will confront that rather novel question if and when it is squarely presented to us, which it is not now.

Because the petition as it was filed basically is challenging the state for noncompliance with the mandate of this court, we dismiss the appeal and remand to the district court with the direction that the petition and other documents herein be consolidated with 67 C 389.

While we do not deem that it would be necessary under the mandate of this court for Townsend to file a further petition for habeas corpus in the event the state did not in fact exercise either of its options within the time limited, since the district court was directed upon such failure to grant the writ which was petitioned for in 67 C 389, nevertheless, the averments of the 1973 petition will serve as a supplementary petition crystallizing Townsend’s contentions of noncompli-5ance.

In our opinion, the only issue before the district court will be whether the state did “determine,” within the meaning of the mandate as herein set out, to resentence Townsend within a reasonable time specified, not exceeding four months after the issuance of the mandate.

Townsend has, inter alia, during the pendency of this appeal filed for mandamus. That relief is denied.

Appeal dismissed and remanded for appropriate proceedings.

      . The district court file number in the case to which the remand applied was 67 C 380.


author: WIDENER, Circuit Judge:

text:
    Benjamin E. MASTERS, Plaintiff, Appellant and Cross Appellee, v. MARYLAND MANAGEMENT COMPANY, Defendant, Appellee and Cross Appellant.
    Nos. 73-1691, 73-1692.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 9, 1973.
    Decided March 20, 1974.

      Joseph F. Lentz, Jr., Baltimore, Md., for Benjamin E. Masters.
    Joseph M. Roulhac, Baltimore, Md. (Smith, Somerville & Case, Baltimore, Md., on brief), for Md. Management Co.
    Before BOREMAN, Senior Circuit Judge, and WINTER and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

This suit, with its many separate hearings spread over more than two years, concerns alleged violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq, and other applicable statutes concerning minimum wages. Masters, the plaintiff, was an employee of Maryland Management Company (the employer) which operated an apartment building known as Sutton Place Apartments in Baltimore under a Project Management Contract with the Federal Housing Administration (FHA). Masters was employed by oral agreement, which the court found to be that he agreed to work alternately short and long work weeks of fixed hours for a salary of $175 per week. After his discharge in 1969, Masters sued, alleging that the employer had not paid him overtime for all hours worked in excess of eight hours a day and 40 hours a week, had thus violated the applicable statutes, and should pay him back overtime pay and damages. The district court awarded judgment to Masters for $3,981.92. Both parties appeal. Because we find the judgment of the district court correct in every aspect of this somewhát complicated ease, we affirm.

The issues are: (1) whether the Service Contract Act, 41 U.S.C. § 351 et seq, and the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 327 et seq, apply here, and, if so, whether they require a different computation of overtime than the Fair Labor Standards Act; and (2) whether the district court’s computation of “regular rate” and its corresponding judgment based thereupon was correct.

Masters was employed as a resident stationary engineer for the employer for a total of 45 weeks; he was to live on the premises of Sutton Place Apartments and pay $215 a month for rent. There was no dispute as to the hours he was to work. During his short work week, Masters was to work a regular five day, eight hours per day, 40 hour, week, and was to be on call an additional sixteen hours a day on Tuesdays and Thursdays after his regular workday. Thus, the total at work or on call hours was 72 hours for the short week. During Masters’ long workweek, he was to be at work or on call for 24 hours five days a week except Tuesday and Thursday, on which two days he was to work only eight hours, for a total of 136 hours. Other terms of employment were that Master was to wear uniforms which were furnished by the company, and he was to receive free telephone service and free parking space. Also, he was given the free use of a poolside cabana for twelve of the 45 weeks he was employed.

We are of opinion that the Contract Work Hours and Safety Standards Act, which was expressly made applicable by the contract between the FHA and Maryland Management to those employees who may be “laborers or mechanics” under the statute, and the Service Contract Act, which the district court also held applicable in this case, are both mutually supplemental to the Fair Labor Standards Act. The Supreme Court in Powell v. U. S. Cartridge Company, 339 U.S. 497, 70 S.Ct. 755, 94 L.Ed. 1017 (1940), has held the Walsh-Healey Act and the Fair Labor Standards Act mutually supplementary. The Fifth Circuit, relying on Powell, held that the Contract Work Hours and Safety Standards Act was supplemental to the Fair Labor Standards Act in Mitchell v. Empire Gas, 256 F.2d 781 (5th Cir. 1958). Similarly, Dowd v. Blackstone Cleaners, Inc., 306 F.Supp. 1276 (N.D.Texas 1969), held the Service Contract Act mutually supplemental to the Fair Labor Standards Act. These holdings lead us to believe that none of the three statutes are mutually exclusive of the other, but that the provisions of all may apply so far as they are not in conflict. A laborer is ordinarily entitled to be paid in accordance with the statutes requiring the greatest pay, but this does not mean no other parts of the other statutes may not affect him. The Secretary of Labor is in accord, as 29 CFR § 778.5 provides in part: “Where such legislation is applicable and does not contravene the requirements of the Fair Labor Standards Act, nothing . should be taken to override or nullify the provisions of these laws.”

The other statutes referred to do not in this case affect the computation of “regular rate” under the Fair Labor Standards Act. The Service Contract Act was passed to provide labor standards for the protection of employees of contractors who perform maintenance service for federal agencies. It speaks in terms of a “regular or basic hourly rate of pay,” 41 U. S.C. § 355, in its provision restricting fringe benefit computation not allowed by the Fair Labor Standards Act. The Contract Work Hours and Safety Standards Act assures that “laborers and mechanics” who work for government contractors are paid overtime for work in excess of eight hours a day and forty hours a week. This act terms the applicable rate a “basic rate,” and requires overtime payment of at least one and one-half times that amount. 40 U.S.C. § 328(a). “Regular rate” under the Fair Labor Standards Act “must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments,” and “actual fact.” Walling v. Youngerman-Reynolds Hardwood Company, 325 U.S. 419, 424, 65 S.Ct. 1242, 1245, 89 L.Ed. 1705 (1945). The computation of “regular rate” is, of course, the first step in computing an employee’s overtime. The Service Contract Act explicitly states that “the regular or basic hourly rate of pay” will include no fringe benefits not includable in the regular rate under the Fair Labor Standards Act. 41 U.S.C. § 355. See also 29 CFR § 4.55, § 778.7 and § 778.214(e). Similarly, 29 CFR § 4.15(c)(1) and (2) make clear that “basic rate” as used in the Contract Work Hours and Safety Standards Act is synonymous with “regular rate” under the Fair Labor Standards Act.

The district court made a finding of fact that Masters .was a salaried employee whose employment contract was for $175 a week regardless of the number of hours worked. The court further found that Masters’ sleeping time during the on call hours was at least five hours a night, and concluded that six hours’ sleeping time should be deducted from each 24 hour period when Masters was on call. Both parties appeal this finding as to sleeping time. In making these findings, the court stated that it found Masters’ testimony as to the terms of the employment contract and activity during on call hours incredible. There was testimony from other witnesses which showed that Masters at least did some work and received emergency telephone calls during the on call hours. Under the circumstances, we are unable to say that these findings of fact are clearly erroneous, and we leave them undisturbed. F.R.Civ.P. 52(a). It is clear that the court was justified in its finding that Masters was not working all the time he was on the premises, and we think its division of hours between working and sleeping is supported by the record. See also 29 CFR § 785.20 and § 785.23.

The district court determined Masters’ “regular rate” by dividing his total period of employment into four categories : sixteen short non-cabana weeks of 60 hours’ work; seventeen long non-cabana weeks of 106 hours’ work; six short cabana weeks of 60 hours’ work; and six long cabana weeks of 106 hours’ work. The weekly value of Masters’ free telephone and parking space was included in his salary for each category of workweek, and the weekly value of the cabana was included for the twelve weeks where it was used. Uniforms, which the employer furnished, and the apartment which Masters was required to rent for the convenience of the employer were not included as compensable items. The court then divided the hours worked into Masters’ salary, including the items specified, to arrive at his “regular rate” for each category. These rates ranged from a low of $1.72 an hour for the long non-cabana weeks to a high of $3.12 an hour for the short cabana weeks. Overtime owed was computed by multiplying all hours worked over 40 hours a week by one and one-half times the “regular rate” for each of the four categories, and the court arrived at a total overtime owed of $1,990.96. An additional sum of $1,990.-96 was then added as liquidated damages under 29 U.S.C. § 216(b), giving Masters a total judgment of $3,981.92. Since the full amount of liquidated damages was awarded, pre-judgment interest was held not recoverable.

The district court’s computations are correct under the Act and applicable regulations and decisions. An employment contract providing for a fixed salary for fluctuating hours is specifically contemplated under 29 CFR § 778.114, and the court did just as the regulations and examples thereunder provide. The agreement questioned here was similar to the one discussed in Overnight Transport Company v. Missel, 316 U.S. 572, 62 S.Ct. 1216, 86 L.Ed. 1682 (1942), and the district judge reached the same result as the Supreme Court did in that case.

Masters persists in his argument that his work week was of irregular hours for a fixed salary; and apparently takes the position that the agreement was an imperfect attempt to come within the exemptions of 29 U.S.C. §§ 207(f) and (g)(3). See Walling v. Belo Corp., 316 U.S. 624, 62 S.Ct. 1223, 86 L.Ed. 1716 (1942). The answer is that the facts he assumes in his argument are contrary to the findings of fact of the district court, which are based not only on affirmative oral testimony and written evidence but also his stated position filed with the district court. The contention is obviously without merit.

He then argues that the value of the uniforms and the apartment should also have been included as compensable wages. The uniforms are not facilities furnished by the employer within the meaning of 29 U.S.C. § 203 (m). The regulations point out that facilities furnished primarily for the benefit or convenience of the employer should not be included in computing wages, and the district court found as a fact that they were so furnished. In any event, Masters’ lodging on the premises was found as a fact to be for the benefit of the employer and the apartment was not furnished by the employer since Masters paid rent of $215 a month, and he was required to live on the property. See 29 CFR § 531.3(d)(1) and (2); § 531.29 and § 531.30.

The award of liquidated damages more than adequately compensated Masters for the delay in payment of overtime wages due him, and the district court was correct in its refusal to award pre-judgment interest. Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 715, 65 S.Ct. 895, 89 L.Ed. 1296 (1945).

Masters lastly complains that a minimum wage violation also occurred. In view of the fact that his regular rate was never less than $1.72 an hour, and as high as $3.12, well over the minimum wage required, it is obvious there was no minimum wage violation.

The judgment of the district court is accordingly

Affirmed.

      . U.S.Code Congressional and Administrative News, 1965, p. 3737.

      . No determination by the Secretary of any prevailing rate has been brought to our attention. Neither was it brought to the attention of the district court. See 41 U.S.C. § 351. Absent such determination, the effect of this statute on the outcome of this case is at best illusionary and theoretical, for 41 U.S.C. § 351(b)(1) provides that minimum wages under that act are not less than those specified under 29 U.S.C. § 206(a)(1) of the Fair Labor Standards Act.

      . U.S.Code Congressional and Administrative News, 1962, pp. 2121-2122.

      . Because Masters worked no day for less than eight hours, whether his overtime is calculated on the basis of eight hours a day or forty hours a week is academic.


author: HAYNSWORTH, Chief Judge.

text:
    Anthony L. JANNETTA, Appellant, v. E. W. COLE, Chief, Rock Hill Fire Department, et al., Appellees. Anthony L. JANNETTA, Appellee, v. E. W. COLE, Chief, Rock Hill Fire Department, et al., Appellants.
    Nos. 73-1642, 73-1643.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 4, 1973.
    Decided April 3, 1974.

      C. Rauch Wise, Greenwood, S. C., for Anthony L. Jannetta.
    Emil W. Wald, Rock Hill, S. C. (C. W. F. Spencer, Jr., Rock Hill, S. C., on brief) for E. W. Cole and others.
    Before HAYNSWORTH, Chief Judge, WINTER, Circuit Judge and TURK, District Judge.
   HAYNSWORTH, Chief Judge.

Jannetta brought this action pursuant to 42 U.S.C. § 1983 seeking reinstatement to his position as a fireman for the City of Rock Hill, South Carolina, Fire Department and back pay from the date of discharge to the date of reinstatement. He claims that he was wrongfully dismissed because of his participation in circulating a petition protesting a recent promotion in the fire department and presenting it to the city manager. The district court found Jan-netta to have been wrongfully discharged, awarded back pay from the date of dismissal to the date of the order, but refused to order reinstatement because, “under the Ordinances of the City of Rock Hill, he could be dismissed without cause.” Jannetta appealed complaining of the court’s failure to order reinstatement and the defendants cross-appealed complaining of the court’s finding that Jannetta was improperly discharged and entitled to back pay. The only other issue presented on this appeal is whether the award of back pay should have been reduced by the amount of Jannetta’s outside earnings during his “unemployment.”

Because we agree that Jannetta was wrongfully discharged, we sustain the back pay award. However, the award should have been reduced by any increase in Jannetta’s outside earnings attributable to his lack of employment by the fire department. In addition, the district court should have ordered Jan-netta’s reinstatement to the position from which he was wrongfully discharged.

In early October, 1971, the Rock Hill Fire Department made several promotions based on a merit system. One of those promoted was a black man, John Chisholm, who was promoted over several whites with greater seniority. After the notice of the promotions was published, Jannetta, with the assistance of several other firemen, began circulating a letter or petition complaining about the promotion of the black fireman, questioning his qualifications and requesting an explanation. Following the accumulation of some twenty-four signatures, the petition was delivered to the office of the fire chief and, simultaneously, to the city manager. The senior officers of the department investigated the substance of the petition and concluded that the black fireman was well qualified for the position of leadership and that Jannetta was primarily responsible for the letter or petition which resulted in racial tension within the department. Jannetta was suspended from his position by the fire chief, “upon the grounds of insubordination and disloyalty, in that [he] participated in circulating a letter of complaint in complete disregard of long established chain of command requirements applicable to all personnel.” The chief recommended to the city manager that the suspension be made permanent and following a hearing before the city manager on December 16, 1971, Jannetta’s employment was terminated. None of the other firemen who signed the letter or petition were disciplined in any manner.

The defendants admit that there is no question that Jannetta’s participation in the circulation and presentation of the petition was determinative of his dismissal, although they point to certain other infirmities in his employment record (tardiness, etc.) as also contributing to his dismissal. The district court specifically found, however, that Jannetta was dismissed solely for his participation in the circulation of the petition and delivery of a copy directly to the city manager. This finding is clearly supported by the evidence. Indeed, it is established by Chief Cole’s letter of suspension to Jannetta.

In Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811„ the Supreme Court noted that the State does have an interest in regulating the speech of its employees that differs significantly with those it possesses in regulating the speech of the population in general. State attempts to regulate the speech of its employees necessitates a weighing of the interest of the public employee in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. The initial issue, therefore, is whether there was, in fact, an interference with the efficiency of the public services performed by the Rock Hill Fire Department by virtue of Jannetta’s actions.

The district court specifically found that, although there was some lowering of morale in the fire department, the petition was not the primary cause and that circulation of the petition occasioned no interference with the operation of the department. Thus the district court found that the defendants failed to show any significant interference with the efficient operation of the department. The record clearly supports such a finding.

As to the charge that Jannetta by-passed the “chain of command” procedure by presenting his petition directly to the city manager, it is noted that nowhere was it suggested that such a by-pass would result in dismissal. Furthermore, the district court found that the city manager’s announced “open door” policy amounted to an alternate procedure open to city employees to present grievances to city officials. The district court thus held that while the grievance procedure outlined in the employees’ handbook (Chain of Command) on its face was properly narrow and adequate, its application in this case, where one, simultaneously with the submission of his petition in compliance with the handbook procedure, also submitted his petition to the city manager in compliance with a parallel but less formal “grievance procedure,” was over-broad and infringed upon a constitutionally protected freedom. The district court concluded, and we agree, that Jan-netta’s dismissal resulted from his exercise of a constitutionally protected right and that the defendants failed to show sufficient justification for penalizing him because of his exercise of that right.

The Supreme Court has held that, though there may be no “right” to a valuable government benefit, the denial of it may not be predicated on one’s exercise of first and fourteenth amendment rights. Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460. This general principle has been applied on numerous occasions to denials of public employment. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811; United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508; Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228; Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed. 2d 321; Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377; Cramp v. Board of Public Instruction, 368 U.S. 278, 82 S.Ct. 275, 7 L.Ed.2d 285; Cafeteria Workers v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230; Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216; United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754. Thus, defendants’ argument that Jannetta had no “right” to or reasonable expectancy of continued employment is immaterial to his free speech claim. The district court held, and we agree, that Jannetta’s dismissal was impermissibly predicated upon his exercise of first and fourteenth amendment rights.

Defendants also argue that since there was no showing or finding that any of the named defendants acted other than in good faith, money damages were improperly awarded. In Eslinger v. Thomas, 4 Cir., 476 F.2d 225, we refused to award money damages against a state official whose actions, although resulting in unconstitutional discrimination against women, were taken in good faith and based on reasonable grounds to believe the actions were within the law. We noted that while there is nothing in § 1983 or the fourteenth amendment to suggest that an improper motive is requisite for a federal cause of action, conscientious state officials, when acting reasonably and in good faith, should not be expected to answer in money damages for failure to accurately predict the future course of constitutional doctrine, even though such failure may entitle a plaintiff to equitable relief. 476 F.2d at 229.

The circumstances of this case do not support a “good faith” defense. Jannetta was discharged for exercising a well established and well known constitutional right. No preview of an uncertain future was needed to determine that firing one for his participation “in circulating a letter of complaint” was constitutionally impermissible.

The district court, although it found Jannetta’s dismissal to be improper and awarded back pay, failed to order reinstatement. In Smith v. Hampton Training School for Nurses, 4 Cir., 360 F.2d 577, this Court addressed the issue of remedies to be afforded for the unlawful deprivation of public employment. Noting that § 1983 authorizes federal courts, in civil rights cases, to grant broad relief “in equity, or other proper proceeding” and is designed to provide a comprehensive remedy for the deprivation of constitutional rights, we held that where there is no lawful basis for the discharge, the plaintiff is entitled to be restored to the position he occupied when he attempted to exercise his constitutionally protected right which led to that discharge. 360 F.2d at 581. Thus the remedy for constitutionally impermissible discharge from public employment is back pay and reinstatement. See, Wall v. Stanly County Board of Education, 4 Cir., 378 F.2d 275; Johnson v. Branch, 4 Cir., 364 F.2d 177; and Franklin v. County School Board of Giles County, 4 Cir., 360 F.2d 325.

The district court should have ordered Jannetta’s reinstatement to the position of fireman. The fact that after reinstatement, as other firemen, he will be subject to discharge for good reason, or perhaps for no reason, so long as his circulation of the complaint is not the actual reason, is not a sufficient basis for withholding such relief.

Finally, the back pay award was based on Jannetta’s full salary, reduced only by taxes. As defendants properly point out, while wrongful discharge may entitle a plaintiff to recover back pay, that award should be reduced by “outside earnings.” Smith v. Hampton Training School for Nurses, supra. The employee should be made whole, but not enriched. The back pay award should be reduced by any increase in Jannetta’s outside earnings attributable to his lack of employment by the fire department.

The district court’s finding of wrongful discharge is sustained. The case is remanded with instructions to order Jannetta’s reinstatement, reduce the award of back pay by the amount of any increase in outside earnings, if any, and extend the back pay award to the date of the reinstatement order.

Affirmed in part; reversed in part and remanded.

      . Rock Hill City Code § 11-2 provides: The fire chief may, for the purpose of proper discipline and regulation of the force, suspend any member for a period of not exceeding thirty days. He shall notify the city manager of such action.

      . Rock Hill City Code § 11-3 provides: Should any member of the force fail or neglect to act in accordance with the provisions of this chapter, he shall be liable to a fine not exceeding loss of a total of one month’s pay, to suspension without pay for not exceeding one month or to final discharge as determined by the fire chief with the approval of the city manager.

      . There is no indication in the record as to the participation of the mayor or the individual councilmen, who were also named as defendants in the complaint, in Jannetta’s dismissal. Since there was apparently no objection made below to the imposition of liability upon these defendants and because no such objection was raised on this appeal, we find it unnecessary and inappropriate to speculate as to the possible basis of such liability. There being no allegation of error in this regard, the issue is simply not before us on this appeal.

      . The defendants attempt to distinguish this case from Pickering on several grounds: (1) the statements in Pickering were not directed toward or against any person with whom he would normally be in contact in the course of his daily work; here they were so directed; (2) the statements in Pickering were not, as here, directed against a minority group individual; (3) the statements in Pickering were made to the public on a public issue, whereas here the communication was to the employer about matters of employment. While these are, indeed, differences in the factual setting between this case and Pickering, the relevance of these distinctions is to what extent they affect the Pickering balance — that is to what extent they affect the communication’s impact on the efficient operation of the fire department. As noted in the text, the district court found no impairment of efficiency.

      . The defendants also seem to be suggesting that because the communication here involved was not directed to the public on a “public issue” it is not entitled to the protection of the First Amendment. They equate the petition here involved with internal bickering between an employer and his employee. The First Amendment is not limited in its protection to issues of great social and political impact, however, and Jan-netta’s petition should not be denied such protection simply because it dealt with matters of a local nature. In some contexts, a public declaration may well amount to an abuse of an employee’s right to communicate a grievance to his superiors.


author: HOLLOWAY, Circuit Judge. LEWIS, Chief Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jose PEREZ and Vivian Perez, Defendants-Appellants.
    Nos. 73-1436 and 73-1437.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Nov. 14, 1973.
    Decided March 18, 1974.

      Charles O. Thomas, Kansas City, Kan., for defendants-appellants.
    Monti L. Belot, III, Asst. U. S. Atty., Topeka, Kan. (Robert J. Roth, U. S. Atty., Richard L. Meyer and Thomas A. Hamill, Asst. U. S. Attys., Topeka, Kan., on the brief), for plaintiff-appellee.
    Before LEWIS, Chief Judge, and HOLLOWAY and McWILLIAMS, Circuit Judges.
   HOLLOWAY, Circuit Judge.

Jose and Vivian Perez appeal their convictions for distributing or dispensing heroin and for possession of heroin, a controlled Schedule I substance. 21 U.S.C.A. §§ 841(a)(1) and 844. Vivian was convicted on count 1 for distributing or dispensing a quantity of heroin; Jose was convicted on count 2 for distributing or dispensing a separate quantity of heroin; and they were jointly convicted of possession of other heroin on count 3. While we agree with two claims of error asserted by the defendants, on this record we believe those errors were harmless and affirm.

These cases developed from a lead to Jose and Vivian Perez by an unnamed informant. The government claimed the privilege of protecting the identity of the informer and he did not testify at the trial. His name and whereabouts were the subject of cross-examination, but the trial court sustained objections based on the claim of privilege. No issue is directly raised on appeal based on the failure to have the informer present at the trial. There are serious arguments made, however, that the right of confrontation and the hearsay rule were violated by the admission of testimony of government witnesses as to statements the informer made to them. These contentions are discussed later.

The government proof tended to establish these facts. On October 2, 1972, Scott, an undercover agent of the Bureau of Narcotics and Dangerous Drugs, made contact through the informant with Jose and Vivian. During conversation with Scott, Vivian explained that they would provide Scott with drugs and he then would repay them as he obtained money for selling the drugs. Vivian said that if he was honest with them he could make a lot of money for himself.

Arrangements were made for purchase of some heroin and later that day Vivian delivered a tinfoil packet of heroin to Agent Scott at a Safeway parking lot in Kansas City, Kansas. Vivian was not paid at that time but told Scott that the price for the heroin was $450.

The next day Scott made further contact with Jose. Arrangements were later made for a meeting with Jose at the Kansas University Medical Center. This contact occurred on October 4 and Jose there delivered another package of heroin to Scott. This transaction involved approximately 22 grams of heroin which was of a much purer nature than that normally found on “the street.” Scott testified that this material would probably make 800 dosage units at the street level, worth about $8,000 currently in Kansas City.

On October 7 a search pursuant to a warrant was carried out at the residence where Jose and Vivian were living. The search uncovered approximately 3 grams of heroin. On the back porch adjoining the house approximately 13.6 grams of lactose were found, a cutting substance used with heroin. A set of scales was seized and a quantity of money was found in a lady’s coat, including $380 of the $450 in bills paid to Jose on October 4.

The principal defense was entrapment. Jose testified he came to Kansas City with his wife to try to break the heroin habit and find a job. In Ft. Worth, he could not break the habit because when he would come out the door of the clinic, there would be pushers waiting to sell heroin. When he came to Kansas City he joined the methadone center at Kansas University Medical Center and got a maintenance job at the Kansas University.

While Jose and Vivian were attending this clinic Jose was given heroin by Mike James. Jose said he had come on James in a restroom where he was preparing to inject himself with heroin. James offered him heroin, which he accepted. Both Jose and Vivian became readdicted.

Dr. McKneely of the Kansas University Medical Center staff verified that Jose and Vivian had been patients at the clinic. He said his records showed Jose had begun attending the clinic in February, 1972, and had attended at various times into the summer. He also said they both returned to the clinic in October.

Jose testified that he did not pay James for the first heroin he received at the clinic. He said he subsequently made some purchases of it from James for about a month until the addiction was pretty well advanced. When Jose went to James’ home on one occasion, James said his supply had run out and asked if Jose knew where to buy heroin, perhaps in Texas. James said that since his supply “had been busted, did I want to go and buy some and then I could get what I needed.” Jose accepted this suggestion and brought some heroin for James, who gave Jose a part of it for his personal use. The money for the heroin from Texas was supplied by James, who had been “pushing before.” Jose said he made several other trips for James to Texas and that on each occasion James gave him the money.

Jose testified that finally they had no money and that he and James were both ill and desperate. James asked if Jose could get heroin in Texas on credit which Jose did. He said he brought it to Kansas and gave it to James. James then called Jose and said he had the money to pay for the heroin purchased on credit, and that was the day “he introduced me to Agent Scott.” Jose said James persuaded him to take the heroin to Agent Scott and that was why he took the heroin to him, “so that we could then pay for the credit owed in Texas.”

Agent Sawyer of the Bureau testified that the informer had been arrested on September 28, 1972, and immediately was employed as a government informer. The informer was a drug user and a pusher. He entered a plea to the charge against him and received probation. As noted, the first contact arranged by the informer for Scott to see Vivian and Jose was on October 2, 1972. Jose said this occurred at James’ home and that Scott, Mike James, James’ wife and Vivian were there also.

. Jose said that he brought the heroin from Texas because his habit was “pretty heavy” and his wife was also addicted against. He testified that the 3 grams of heroin found in their home were for his personal use. (As stated the jury found the defendants guilty of simple possession of the 3 grams of heroin and did not find them guilty of possession with intent to distribute it). They were using 4 or 5 grams of heroin daily. Jose also denied that he had ever gotten heroin for any one except James and Scott in his life. And he testified he was not selling heroin to obtain the money to buy heroin with, and was working sometimes during this period.

Vivian did not testify. Jose and Mc-Kneely were the only defense witnesses. Except as the testimony of Jose conflicted with it, the government proof was generally undenied.

First, defendants argue that the trial court erred by admitting hearsay testimony through Agent Scott. On redirect Scott was asked to describe the relationship between the defendants and the informant. The trial court overruled a hearsay objection to Scott’s testimony repeating statements by the informer. The court stated that a lot of other evidence about the informant had been admitted and that he thought that Vivian’s counsel had opened up the subject.

Agent Scott was then permitted to testify that the informant stated to him that he had occupied a position very similar to that which Scott later occupied; that “. . . . the defendants had been giving drugs to the informant to sell for them just in the same manner in which I began to take drugs for them, to sell for them.” Complaint is also made that other similar hearsay was erroneously admitted as to statements by the informant describing actions by the defendants.

We must agree that the admission of such testimony was error. It is true that defense counsel cross-examined in some particulars about the informer and his relationship with Agent Scott. However, we cannot agree that the defendants had opened up the subject of proof by whatever means, and that they had waived all objections based on their right to confrontation and the hearsay rule. The testimony went to the jury on the question of guilt and involved extrajudicial statements by the informer who did not confront the defendants in court, and was not subject to cross-examination or under oath. It was inadmissible. Dennis v. United States, 302 F.2d 5, 10 (10th Cir.); La Placa v. United States, 354 F.2d 56, 59 (1st Cir.), cert. denied, 383 U.S. 927, 86 S.Ct. 932, 15 L.Ed.2d 846; see United States v. Brown, 411 F.2d 1134, 1138 (10th Cir.). And since these basic rights were infringed, the Sixth Amendment guaranty of confrontation was denied. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297; Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed. 2d 476; Favre v. Henderson, 464 F.2d 359 (5th Cir.), cert. denied, 409 U.S. 942, 93 S.Ct. 235, 34 L.Ed.2d 193.

For these reasons we must agree that admission of the informer’s statements was error in these circumstances. However, for reasons detailed later, we are satisfied that on this record the constitutional error was harmless.

Secondly appellants argue that prejudicial and improper closing argument was made by government counsel and that the trial court erred in not granting their motions for a mistrial.

In closing government counsel argued that this was one of the most flagrant violations of federal law in drug trafficking that he had seen in the city in recent years. He further asserted that the heroin sold to the agent was the highest quality of heroin seen on the streets of Kansas City. The comments are set out in the margin. At the conclusion of the government argument and shortly after making of the last comment in question, both defense counsel moved for a mistrial. The trial court denied the motions, and no admonition was given to the jury.

It is clearly improper for counsel to make such a statement of his personal belief concerning the issues for trial. See United States v. Fancutt, 491 F.2d 312 (10th Cir., Feb. 5, 1974); United States v. Martinez, 487 F.2d 973, 977 (10th Cir.). Convictions have been reversed for similar improper statements by the prosecutor. See United States v. Grunberger, 431 F.2d 1062 (2d Cir.). It is true that it is also improper to make argument concerning the facts not warranted by the record. See Marks v. United States, 260 F.2d 377, 383 (10th Cir.), cert. denied, 358 U.S. 929, 79 S.Ct. 315, 3 L.Ed.2d 302. However we are not persuaded that the comments here were out of line with the testimony admitted as to the quality of the heroin.

There was some support for the comment on the quality of the heroin. We are, therefore, not persuaded that the argument was improper or prejudicial on this score. The statement of personal belief on the seriousness of the law violations was, however, clearly improper. We have repeatedly warned that such conduct may bring reversal. Nevertheless we must consider the case as it was submitted to this jury since errors not affecting the substantial rights of the parties are disregarded. 28 U.S.C.A. § 2111.

The most serious question before us is whether the errors were harmless. As stated, we are persuaded that admission of the informer’s statement was in violation of the right of confrontation as well as the hearsay rule. Thus the Sixth Amendment is involved and “ . . . . before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284. Thus we turn back to the informer’s statements repeated by the agent.

The informer’s statements repeated by Agent Scott in substance were that the defendants had been giving drugs to the informant to sell for them in the same manner, just as they later did to the agent. Such proof was undoubtedly beneficial to the government case. It covered both defendants and was in different and stronger terms than the admissions made by Jose about his activities. However, during Jose’s testimony he admitted that he had a relationship of a similar nature with James, the admissions however not including Vivian. He admitted that he made several trips to Texas to get heroin for James. Also Vivian’s and Jose’s sales as proven stand out and began shortly after meeting Agent Scott. And the testimony by Jose that James “persuaded” him to take heroin to Scott, like the entrapment defense overall, was weak.

We are admonished against giving too much emphasis to “overwhelming evidence” of guilt in evaluating the effect of constitutional errors. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284. Nevertheless, we believe that the errors were harmless beyond a reasonable doubt in this case in view of the amount of the government proof, the admissions made by Jose and the weakness of the entrapment defense. Therefore, as to both the admission of the informer’s hearsay statements and the prosecutor’s statement of personal belief, we are satisfied the errors were harmless.

Third, the defendants say that the trial court erred in not submitting a proposed instruction limiting the consideration of proof of other offenses, relying on United States v. McClain, 142 U.S.App.D.C. 213, 440 F.2d 241. Their instruction would have charged that any evidence of other probable violations had been admitted for the limited purpose of enabling the jury to evaluate the defendants’ claims of entrapment.

However, the trial court clearly instructed the jury that the defendants were on trial only for the acts alleged in the indictment and that the jury should consider only whether the defendants had committed those acts. We are satisfied that the charge properly limited the use of the proof for this case. Moreover the main issue for the jury was entrapment. As to it consideration of proof of other heroin transactions was not improper since the defense turns on whether the defendants were predisposed to the criminal conduct, or whether it was implanted in their minds by government agents. United States v. Russell, 411 U.S. 423, 434-436, 93 S.Ct. 1637, 36 L.Ed.2d 366.

In substance the defendants say the jury should have been told to consider the proof of other offenses only on the question of predisposition and the entrapment defense. Since this was the main issue submitted anyway, there could have been no substantial harm. See Corcoran v. United States, 427 F.2d 16, 17 (9th Cir.). In the context of this case the instructions were adequate and no prejudicial error occurred.

Fourth, the defendants argue that the trial court erred in failing to give their requested instruction on entrapment.

Defendants say that in essence they are claiming that after the informant was arrested, he had to produce a dealer to the government to insure he would maintain his freedom. They argue that he therefore induced Jose to procure a supply of heroin, part of which was subsequently delivered to the agents, and that the inducement by the informer subsequently led to the course of conduct with regard to the delivery of heroin, for which the defendants were indicted. Pointing to Sherman v. United States, 356 U.S. 369, 374, 78 S.Ct. 819, 2 L.Ed.2d 848, they say it should have been explained in the instructions that entrapment may include a course of conduct which was the product of inducement by government agents.

We are satisfied, however, that the charge given on entrapment was proper under the latest pronouncement of the Supreme Court. See United States v. Russell, supra, 411 U.S. at 427 n. 4, 434-436, 93 S.Ct. 1637, 36 L.Ed.2d 366; see also United States v. Hayes, 477 F.2d 868 (10th Cir.). Lack of the particular explanation sought was not prejudicial.

We are convinced that there was no prejudicial error and the judgment is affirmed.

LEWIS, Chief Judge

(concurring in the result).

I agree that this ease is properly affirmed but, in part, for different reasons than those expressed in the main opinion. I am in agreement with the trial court’s ruling that the matter of admitting hearsay evidence of the informer’s statements, termed error but harmless in the majority opinion, was initiated and pursued by defendants for their benefit. Specific inquiries as to statements made by the informer to the agent were drawn out on cross-examination presumably as an aid to establishing entrapment. The trial court, noting that defendants had opened up this avenue of inquiry, allowed the government to meet this approach with further but limited inquiry by the prosecution in the area of hearsay. I do not agree that the trial court erred in this respect.

      . Count 3 of the indictment charged that Jose and Vivian knowingly and intentionally possessed with intent to distribute three grams of heroin in violation of 21 U.S.C.A. § 841(a)(1). However the court also instructed on the lesser included offense of simple possession as a violation § 844 and the jury found the defendants guilty of the lesser included offense. As to this conviction on count 3, defendants’ brief makes no request for reversal for retrial.

      . At one point the government brief states that the testimony of the Agent was hearsay insofar as he recited the relationship between the informer and defendants. (Appel-lee’s Brief, p. 4) It argues that there was no prejudicial error.
      This followed a government contention also made that by raising the defense of entrapment in cross-examination of Agent Scott about the informant, the defense counsel had opened the door to redirect inquiry by the prosecution to refute such inference. Thus the argument is that the testimony of Agent
      Scott as to the informant — defendants relationship was properly admitted. The proof was not, however, so limited by instructions in the way it went to the jury and we must consider its effect as bearing on guilt.

      . We realize, of course, that the view has been expressed that the confrontation clause does not embrace all of the limitations of the federal hearsay evidentiary rule. See e. g., Dutton v. Evans, 400 U.S. 74, 81, 91 S.Ct. 210, 27 L.Ed.2d 213 (Opinion of Mr. Justice Stewart) ; United States v. Cerone, 452 F.2d 274, 283 (7th Cir.), cert. denied, 405 U.S. 964, 92 S.Ct. 1168, 31 L.Ed.2d 240. Here, however, we are convinced that the error was one of constitutional magnitude in any event. See Favre v. Henderson, supra.

      . With respect to his personal views of the case the government attorney said:
      “ . . . . Ladies and gentlemen of the Jury, we don’t need the informant to make this case. This is one of the most flagrant violations of federal law in drug trafficking that I have seen in this city in recent years.”
      And in regard to the quality of the heroin he said:
      “ . . . .It was this informant that tricked these poor innocent kids into this and as a result of this tricking they were able to obtain the highest quality of heroin that has been seen on the streets in Kansas City in a quantity of approximately eighty-five grams, which is worth $25,000.00.” V ífc H*
      “Ladies and gentlemen, these two defendants have brought some of the highest quality heroin into this city that has been seen in recent times and they have dealt in large quantities.”

      . There were no motions to strike the remarks or to admonish the jury to disregard them. The motions were only for a mistrial, made and denied out of the hearing of the jury.

      . As the government argues it is incumbent on the defendant promptly to object to such argument. See United States v. Ward, 481 F.2d 185 (5th Cir.) ; United States v. Elmore, 423 F.2d 775, 780 (4th Cir.), cert. denied, 400 U.S. 825, 91 S.Ct. 49, 27 L.Ed.2d 54. However where there may be unfair prejudice, the failure to object may not constitute waiver. See United States v. Grunberger, supra, 431 F.2d at 1068-1069. We, therefore, have examined the improper statement here to determine the possibility of prejudicial effect, although the objection and motions for a mistrial were not made until the close of the government’s argument.

      . In connection with the heroin sold by Jose to Agent Scott, the Agent testified that the substance was of a much purer nature than that normally found on the street. As to the heroin sold by both Vivian and Jose, he testified that the substance “ . . . was relative high quality, particularly for this area.”

      . On count 3 there was an issue whether defendants possessed the 3 grains of heroin, found during the search, with the intent to distribute. However on this count the jury-found the defendants guilty only of simple possession.


author: SIMPSON, Circuit Judge:

text:
    In the Matter of LUDLUM ENTERPRISES, INC., Bankrupt. J. B. BOOHER and Daniel Wincor, Appellants, v. David S. SEARLES, Trustee, Appellee.
    No. 74-1039
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 13, 1974.

      J. B. Booher and Daniel Wincor, pro se.
    Friedman, Britton & Stettin, Herbert Stettin, Miami, Fla., for appellee.
    Robert W. Rust, U. S. Atty., Miami, Fla., for the United States.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part 1.

   SIMPSON, Circuit Judge:

Appellants Booher and Wincor have appealed an adverse finding by the referee in bankruptcy, affirmed on petition for review by the district court, as to the priority of their interest in the assets of the bankrupt. The sole question before us is whether the amended involuntary petition in bankruptcy which formed the basis for the adjudication dates from its filing or relates back under F.R.Civ.P. 15(c) to the filing date of the original petition which it amended. If the amended petition relates back to the filing date of the original, appellants’ secured interest would constitute a preference as perfected within four months of that date. The effect would then be to void the secured interest priority with respect to claims against the bankrupt. On the other hand, since it was perfected more than four months before the filing of the amended petition, if that filing date is used, appellants’ claim does have priority. Decision of this question was necessary but neither the referee nor the district court dealt directly with the factual issue raised by the appellants. We remand to the district court with directions to require that a factual finding in this regard be made by the referee.

Appellants are practising attorneys. They entered into a security agreement with Ludlum Enterprises on June 30, 1971, acquiring a security interest in Ludlum’s accounts receivable to secure payment for .legal services, described as “all debts, liabilities and obligations of any kind, wherever and however incurred of Debtor to Secured Party. That interest was not perfected until November 15, 1971, when appellants filed the appropriate financing statement with the Secretary of State of Florida in Tallahassee, Florida. On December 10, less than a month later, an involuntary petition in bankruptcy was filed by three of Ludlum’s creditors, alleging as the sole act of bankruptcy that Ludlum had suffered the' appointment of a receiver for its property in a state court proceeding. An adjudication of bankruptcy was made on this basis, but it was later challenged and set aside due to improper service of process.

On May 18, 1972, an amended petition in bankruptcy was filed by the same three creditors, joined by three additional ones, reiterating the receivership claim and asserting two additional acts of bankruptcy. The referee held that this petition related back to the date of the original and that therefore the November- 15, 1971, perfection of appellants’ security interest was a preference because within four months of the December 10, 1971 petition. The referee adjudged Ludlum Enterprises, Inc. a bankrupt based upon the amended petition, but failed to specify the particular act of bankruptcy relied upon as the ground therefor. The adjudication was not challenged. Thereafter the referee filed his report as to creditors and order upon the same, denying appellants priority for their claim. A petition for review was filed with the district court, and that court’s order affirmed the finding of the referee, again without singling out any specific act of bankruptcy as a basis for the adjudication.

There is no dispute as to the applicable law. In bankruptcy proceedings amended petitions alleging already pleaded acts of bankruptcy in amplified or modified form relate back to the filing date of the original petition. Conversely, acts not previously alleged do not relate back, but date from the filing of the amended petition. See, e. g., Wynne v. Rochelle, 5 Cir. 1967, 385 F.2d 789; In re Louisell Lumber Co., 5 Cir. 1913, 209 F. 784. Clearly, if the adjudication of bankruptcy had been grounded upon either of the two new acts alleged in the amended petition, appellants would be entitled to priority because the petition would not relate back to the original. Appellants argued below that the repeated ground, appointment of a receiver for the bankrupt, could not have been properly relied upon for adjudication because it was not the type of receivership contemplated by Section 3a(5) of the Bankruptcy Act.

In light of these facts we might have assumed that, given the specific challenge by appellants, the referee and district court must necessarily have determined that the receivership was within Section 3a(5) and thus the amended petition related back to December 10, 1971. But the record reveals that the issue was never squarely faced. The referee found that “(t)here being no previous determination as to the character of the receivership and no evidence as to such character in this proceeding, the Court concludes that the amendment did relate back to the original date . . . ” App. at 12. In passing on the same issue, the district court held that “(f)rom all that appears in this file, the act alleged in the original petition in bankruptcy is or could have been the act on which the present adjudication in bankruptcy is based.” App. at 4.

We think this will not suffice. Appellants are entitled to know whether the referee relied upon the receivership, and are entitled to challenge that reliance as outside the Bankruptcy Act if they so choose. If the receivership is found to be outside the Act, then appellants must be accorded the priority for which they ask, as there can be no doubt that the amended petition cannot relate back to the date of the original. The order appealed from is vacated and the case is remanded to the district court with instructions to direct the referee to make a specific finding with respect to the ground relied upon for the adjudication of bankruptcy in this case.

Vacated and remanded.


author: PER CURIAM:

text:
    Lehman S. ELLIOTT, Petitioner-Appellant, v. STATE OF ALABAMA, RespondentAppellee.
    No. 74-1159
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 16, 1974.
    Lehman S. Elliott, pro se.
    William J. Baxley, Atty. Gen., John M. Gruenewald, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   PER CURIAM:

The district court denied the petition of the appellant, an Alabama state prisoner, for the writ of habeas corpus. We vacate the judgment below and remand for further proceedings.

Appellant was arrested in December of 1964 and was charged with first degree murder for the slaying of his wife. At his preliminary hearing he entered pleas of not guilty and not guilty by reason of insanity. The court appointed three attorneys to represent him. Appellant was subsequently convicted on a plea of guilty of second degree murder and sentenced to thirty years imprisonment.

Appellant applied for a writ of error coram nobis in the state court. After an evidentiary hearing, relief was denied. No appeal was taken. Prior to the evidentiary hearing, appellant filed his first habeas petition in the federal district court. This petition was denied because state proceedings were pending. A second habeas petition was filed in which appellant alleged that he was denied counsel at his preliminary hearing and that he was denied an appeal from the denial of coram nobis relief. Relief was denied and no appeal was taken.

Appellant then filed this present petition in the court below alleging that on the first day of his trial he was kept in the judge’s chambers; that on the second day he was seated in the courtroom, but away from the defense table; that counsel entered a guilty plea without consulting him and without his consent; and that when he attempted to protest, another of his counsel silenced him. He also contended that the trial court erred in not conducting a sanity hearing in light of his insanity plea and his having spent three years in a Maryland asylum. The district court denied the petition finding from the transcript of the coram nobis hearing that the hearing was a full and fair one and that the state court’s findings of competent counsel and voluntary guilty plea were supported by the evidence.

Although appellant did not appeal from the denial of coram nobis relief, the time for such appeal has elapsed leaving him without a further remedy in the Alabama state courts. There is no question of a deliberate bypass. State remedies have been exhausted. Hairston v. State of Alabama, 5th Cir. 1972, 465 F.2d 675; Harris v. State of Alabama, 5th Cir. 1970, 429 F.2d 1236; Lizana v. State of Alabama, 5th Cir. 1968, 394 F.2d 512.

A review of the records before this Court reveals nothing of the guilty plea proceedings. There is no transcript of those proceedings and there are no written waivers of trial by jury to show that the waiver was voluntarily and understandingly made. The transcript of the coram nobis hearing contains only applicant’s testimony, the testimony of other parties not being included. Clearly, the district court did not have before it sufficient evidence to support its findings of fact. Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770; Brown v. Jones, 5th Cir. 1974, 489 F.2d 1040; Smith v. Beto, 5th Cir. 1972, 467 F.2d 1374; Cancler v. Henderson, 5th Cir. 1972, 460 F.2d 1261. Furthermore, the alleged circumstances surrounding applicant’s guilty plea render it questionable. He apparently was jailed for at least 14 months before trial and had a history of mental illness. These, with his other allegations, raise a serious question of the voluntariness of his guilty plea. We therefore vacate the judgment below and remand to allow the district court to accumulate evidence by whatever means appropriate in order to determine the accuracy of appellant’s allegations.


text:
    Ulysses TANNER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-3694
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 16, 1974.
    Ulysses Tanner, pro se.
    Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, Asst. U. S. Atty., New Orleans, La., for respondent-appellee.
    Before ' WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM:

On January 24, 1972, petitioner Tanner entered a plea of guilty to distribution of a controlled narcotic in violation of 21 U.S.C. § 841(a)(1) and received a term of ten years imprisonment. At the time of sentencing the trial court neglected to impose the special parole term required for such offenses by 21 U.S.C. § 841(b)(1)(A). On March 28, 1973, the sentencing court moved to correct this error and, in the absence of petitioner and his counsel, amended the original judgment and commitment to provide for a special parole term of six years. Petitioner brought the present action under 28 U.S.C. § 2255 challenging that alteration of his sentence on two bases: (1) that the imposition after sentencing of a special parole term is prohibited by the Fifth Amendment’s guarantee against double jeopardy and (2) that the due process clause of the Fifth Amendment and Rule 43 of the Federal Rules of Criminal Procedure require the presence of the defendant and his counsel whenever a sentence is made more burdensome. The district court denied petitioner a hearing and refused to vacate the entire parole period, but reduced the term of three years, the statutory minimum.

Petitioner’s arguments on both the fact of additional punishment and the manner of its imposition are squarely controlled by the recent decision of this Court in Caille v. United States, 5 Cir. 1973, 487 F.2d 614. In that case the trial judge when sentencing a defendant for violation of 21 U.S.C. § 841(a)(1) had also inadvertently omitted from his judgment the mandatory special parole term. The court moved subsequently to amend the judgment in order to add the parole provision without benefit of the defendant’s presence. In response to the allegation of “double jeopardy,” construed as a claim that due process forbade such an assessment of punishment in two stages, we held that “[defendant] is not entitled to relief on the grounds that he was ‘sentenced twice.’ When the district court became aware that the mandatory special parole term provided by 21 U.S.C.A. § 841(b)(1)(A) had not been imposed, it had a duty to comply with the statute.” 487 F.2d at 615.

We found greater merit, however, in the contention presented by Caille and raised here by Tanner that Rule 43 of the Federal Rules of Criminal Procedure requires a defendant’s presence at the time the parole term is annexed to the core sentence.

“It is clear to us that addition of the three-year special parole term made the new sentence more onerous than it was previously. Accordingly, the appellant has the right to be present at such resentencing, in compliance with the relevant provision of Rule 43. [citations omitted]
“The district court apparently was of the opinion that appellant need not be present because the special parole term imposed was the minimum authorized by the statute. In our view, however, imposition of the special parole term was not merely a ministerial act. If the district court had been aware at the time of sentencing that the special parole term must be imposed, it may well be that a shorter prison term would have been awarded. On remand that course will be open to the district court.” 487 F.2d at 616-617.

In line with the holding in Caille, we reverse the judgment below insofar as it held that petitioner was not entitled to be present at the time his sentence was amended. This cause is remanded to the district court with directions to resen-tence petitioner in proceedings at which he shall be present and represented by counsel if he wishes. In this appeal petitioner has also pressed several attacks on the legality of the resentencing that he did not argue to the district court. In the exercise of its discretion this Court does not ordinarily consider matters raised for the first time on appeal, see Davis v. United States, 5 Cir. 1970, 424 F.2d 1061; on remand, however, petitioner is to be permitted the opportunity to amend his § 2255 motion to include all of the additional grounds for relief urged here..

Reversed and remanded.

      . 21 U.S.C. § 841(b)(1)(A) provides in relevant part that:
      “Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of ... a prior conviction impose a special parole term of at least 3 years in addition to such term of imprisonment . . .


text:
    HARLEM RIVER CONSUMERS COOPERATIVE, INC., Plaintiff-Appellant, v. ASSOCIATED GROCERS OF HARLEM, INC., et al., Defendants-Appellees.
    No. 1016, Docket 74-1237.
    United States Court of Appeals, Second Circuit.
    Argued April 9, 1974.
    Decided April 11, 1974.
    Cora T. Walker, New York City, for plaintiff-appellant.
    Joseph Zuckerman, New York City (Rosenman, Colin, Kaye,' Petschek, Freund & Emil, of counsel), for defendant-appellee Retail, Wholesale & Chain Store Food Employees Union, Local 338.
    Roberto Lebrón, New York City, for defendant-appellee Fedco Foods, Inc.
    Howard B. Weinreich, and Guggenhei-mer & Untermyer, New York City, for defendant-appellee Shopwell, Inc.
    Bernard J. Ferguson, Woodside, N. Y., for defendant-appellee Mid-Eastern Cooperatives, Inc.
    Walter Steck, and Farber, Raucher & Goldberg, New York City, for defendant-appellee Pioneer Food Stores, Inc.
    Stanley Bierman, and Unterberg, Ban-dler & Goldstein, New York City, for defendant-appellee Associated Food Stores, Inc.
    Robert Sugerman, and Berger, Kramer & Levenson, New York City, for defendant-appellee Sloan’s Supermarkets, Inc.
    Sol Needle, and Sirota & Kurta, New York City, for defendant-appellees Theodore Solomon, Aaron Kaufman and Harry Rosenblum.
    Before FRIENDLY and HAYS, Circuit Judges, and THOMSEN, District Judge.

       Of the District Court for the District of Maryland, sitting by designation.

   PER CURIAM:

Despite the unquestionable sincerity of plaintiff’s counsel, we are satisfied that Judge Pierce acted well within his discretion in denying temporary injunc-tive relief. 371 F.Supp. 701. His order is therefore affirmed. ■