author: THORNBERRY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Edward J. PRINCE and Wallace L. Hammer, a/k/a J. B. Roach, Defendants-Appellants.
    No. 73-2764.
    United States Court of Appeals, Fifth Circuit.
    July 12, 1974.
    Rehearing Denied Sept. 4, 1974.
    Rehearing and Rehearing En Banc Denied Oct. 1, 1974.

      Emmett Colvin, Dallas, Tex., for Edward J. Prince.
    Neal B. Wheeler, Dallas, Tex. (Court-appointed) , for Wallace L. Hammer.
    Frank D. McCown, U. S. Atty., Fort Worth, Tex., Richard D. Kibby, Fraud Section Crim. Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   THORNBERRY, Circuit Judge:

Wallace Hammer and Edward Prince were charged in a forty-two count indictment with violations of the anti-fraud provisions of the Securities Act of 1933, 15 U.S.C. § 77q(a), the mail fraud statute, 18 U.S.C. § 1341, registration provisions of the Securities Act of 1933, 15 U.S.C. § 77e(a), and the conspiracy statute, 18 U.S.C. § 371. Appellant Hammer was convicted by a jury on seventeen counts: five for violating the anti-fraud provisions, eight for violating the mail fraud statute, three for violating the registration provisions, and one for violating the conspiracy statute. On the three counts charging violations of the registration provisions, the district court granted Hammer’s post-conviction motion for a judgment of acquittal because the prosecution had failed to prove that the stock was not exempted from the registration requirements of the Act. Hammer was sentenced to serve five-year concurrent sentences on each of twelve counts, fined $5,000 on each of two counts, and placed on probation for the five years following his incarceration.

Appellant Prince was convicted on a total of four counts: one for violating the anti-fraud provisions, two for violating the mail fraud statute, and one for violating the conspiracy statute. He was sentenced to three years in prison, $15,000 in fines, and five years probation following his release. Two other defendants were tried with the appellants, but as to them, the jury was unable to reach a verdict.

Neither appellant denies that there was a conspiracy in violation of 18 U.S.C. § 371. Nor does either deny that there was a scheme to defraud persons in the offer and sale of securities in violation of 15 U.S.C. § 77q and 18 U.S.C. § 1341. To be sure, the evidence in this record indicates a securities fraud operation of massive proportions. Rather, each appellant contends that he was not a knowing participant in the conspiracy, and on the counts not requiring conspiratorial conduct, that he lacked the requisite intent or knowledge to violate the law. Both appellants also contend that the district court erred in overruling their objections to the admission of co-conspirator hearsay declarations.

Viewed in the light most favorable to the verdict, Glasser v. United States, 1942, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680, the evidence leaves little room for conjecture on appellants’ first contention. In August of 1967, two men named Todd and Farr acquired control of United Australian Oil, Inc., (UAO) by exchanging $80,000 worth of property, notes, and cash for 820,000 shares of UAO stock then owned by Nortex Oil and Gas Corporation. From the moment of its quiet acquisition until its ignominious denouement, UAO was nothing but a shell corporation, valuable only as a vehicle for future corporate activity. Although the corporation had a large number of public shareholders at the time of acquisition by Todd and Farr, it had no assets of any value. In fact, Nortex Oil and Gas Corporation had listed UAO on its financial books as having no value.

The modus operandi employed by UAO insiders was clearly described by the testimony and the exhibits introduced below. Within weeks of the takeover, nearly worthless assets were placed in UAO by Todd and his associates, including appellant Hammer, in return for large blocks of stock. A materially misleading letter was then prepared and distributed to UAO shareholders throughout the nation announcing these acquisitions, and predicting a rosy future for the corporation and its shareholders. In the year that followed, the appellants and other insiders sold at least 17 million shares of unregistered stock to the public for a total of $4,657,716.60.

In November of 1967, a shareholder’s report was prepared reflecting current assets of over a million dollars. An independent attorney advised UAO officials that, since the corporation had more than 500 shareholders and now more than a million dollars in assets, registration with the SEC was required. This report was never mailed to UAO stockholders. Instead, a new report, showing assets of $966,216.28, was prepared and mailed to UAO stockholders along with a stock rights offering.

In the fall of 1968, Hammer requested Prince to prepare a report announcing UAO’s acquisition of a gold mine, and Prince performed. The report enthusiastically quoted what was portrayed to be an engineer’s report which stated that the mine had at least $40,000,000 worth of gold in it, along with other assorted ores. The report, however, painted a nonexisting reality. UAO had acquired an option to acquire an option on the “gold mine” early in 1968, but the option had expired unexercised before the publicly announced “acquisition.” The engineer quoted in the report had been dead for years, and the quotation from the engineer’s report related to a claim which was not even included in the option. Last but not least, the mine was worthless.

Prince testified at the trial that he sold valuable timber rights to UAO for UAO stock. He contends that he was merely the “innocent dupe” of other, more sophisticated UAO insiders who admittedly were engaging in a large scale fraud on the public, and that this bona fide business transaction proves his innocence. In the circumstances revealed by the record, Prince’s contention strikes us as singularly hollow and without any merit. First, although Prince claimed that the corporation.had agreed to exchange stock for timber, he admitted that there was no written agreement to that effect. In fact, although Prince received UAO stock, he did not convey his timber rights to the corporation. Instead, he sold the timber to others outside the corporation and kept the proceeds. Second, in the single year which forms the life of this criminal enterprise, Prince sold 4,505,000 shares of UAO stock in his own name for $1,219,607.35, and an additional 400,000 shares listed in the name of Farr. On these sales, he received the rather generous commission of 15:% to 25% of the proceeds. None of the proceeds ever found their way into UAO corporate coffers. Instead, the proceeds less commissions were delivered to Hammer and others. Prince used at least some of the proceeds to purchase ten Cadillacs and two Buick Rivieras on behalf of UAO insiders. Finally, Prince had been a municipal bond dealer in the heart of the Chicago financial district for over forty years. Thus we are faced with a man of accumulated business acumen, who dealt in bonds, prepared a patently fraudulent report without making the slightest effort to ascertain its truthfulness, sold over four million shares of an unregistered stock at an extraordinary premium, sold valuable timber rights to a corporation without written evidence of any agreement, and paradoxically sold the same timber to other parties retaining both the UAO stock and the proceeds from the timber sold.

Hammer was variously described in the trial testimony as Todd’s “agent” or “associate,” as the “office manager,” and as a UAO vice president. He was associated with UAO from the moment of Todd’s acquisition, and evidently worked very closely with Todd. He directed Prince to prepare the fraudulent report on the gold mine. He directed a UAO secretary to issue to him blank stock certificates. He personally sold over 150,000 shares of UAO stock. Several witnesses testified that Hammer was the distributor of the proceeds from the sales of UAO stock by other insiders. Other witnesses testified that Hammer had threatened and intimidated several persons with regard to an SEC investigation of UAO.

With respect to each of the challenged convictions, we must sustain the verdict if there is substantial evidence, direct or circumstantial, to support it. “Substantial evidence” in this context means evidence that a reasonably minded jury could accept as adequate and sufficient to support the conclusion of defendant’s guilt beyond a reasonable doubt. United States v. Barfield, 5th Cir. 1971, 447 F.2d 85; United States v. Reid, 5th Cir. 1971, 441 F.2d 1089; United States v. Warner, 5th Cir. 1971, 441 F.2d 821; United States v. Bass, 5th Cir. 1974, 490 F.2d 846. We reiterate, however, that the appellants are challenging the sufficiency of the evidence with regard to only one element of the crimes charged: the required state of mind. The appellants allege not only that they lacked the specific intent to do what is proscribed by the mail fraud statute or the anti-fraud provisions of the Securities Act of 1933, but also that they were not knowing participants in the conspiracy.

Each of the statutory offenses for which the appellants were convicted requires specific intent. See Estep v. United States, 5th Cir. 1955, 223 F.2d 19, cert. denied, 350 U.S. 863, 76 S.Ct. 105, 100 L.Ed. 765; Blachly v. United States, 5th Cir. 1967, 380 F.2d 665; United States v. Vandersee, 3rd Cir. 1960, 279 F.2d 176, 179, cert. denied, 1961, 364 U.S. 943, 81 S.Ct. 463, 5 L.Ed. 2d 374; United States v. Marine, 7th Cir. 1969, 413 F.2d 214, 216, cert. denied, 1970, 396 U.S. 1001, 90 S.Ct. 550, 24 L.Ed.2d 493. But of course, direct proof of the appellants’ state of mind or participation in a criminal conspiracy is not required. Blachly v. United States, supra; Glasser v. United States, supra, 315 U.S. at 80, 62 S.Ct. at 469. Intent, knowledge, and participation in a conspiracy may be inferred from the activities of the parties and thus may be proved by circumstantial evidence. As the district judge noted in her charge, state of mind can rarely be established by any other means. See also Gusow v. United States, 10th Cir. 1965, 347 F.2d 755, 759-760; Aiken v. United States, 4th.Cir. 1939, 108 F.2d 182, 183. This does not mean that the government has met its burden where reasonably minded jurors must - resort to conjecture or where the evidence is not inconsistent with the hypothesis of the accused’s innocence. It does mean that our criminal jurisprudence ascribes much weight to the words and conduct of those accused of crimes. In the words of Justice Holmes, even a dog distinguishes between being stumbled over and being kicked. Holmes, The Common Law, p. 3 (1881 ed.). Based upon the record evidence, we think it was clearly a jury question whether each appellant possessed the requisite intent and knowledge and participated in the conspiracy. Blachly v. United States, supra; Glasser v. United States, supra; United States v. Apollo, 5th Cir. 1973, 476 F.2d 156, 162.

Both appellants objected to the admission of hearsay declarations of co-conspirators on the ground that the admitted statements were not made in furtherance of the conspiracy. The challenged testimony consisted of statements by co-conspirators concerning the cash that the scheme had generated, the procedure by which stockbrokers’ questions concerning share restrictions should be answered, the destruction of records, the possibility of further inquiry by the SEC, and threats made by conspirators to insure silence within the group. Having studied the record and the context in which the remarks and the testimony were made, we conclude that the statements were made in furtherance of the conspiracy and were therefore admissible. See United States v. Nall, 5th Cir. 1971, 437 F.2d 1177, 1182-1183; United States v. Harrell, 5th Cir. 1970, 436 F.2d 606, 613; United States v. Johnson, 5th Cir. 1972, 466 F.2d 508; Dutton v. Evans, 1970, 400 U.S. 74, 81, 91 S.Ct. 210, 215, 27 L.Ed.2d 213; Lutwak v. United States, 1953, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593.

The convictions are affirmed.

      . 15 U.S.C. § 77q(a) provides in pertinent part:
      § 77q. Fraudulent interstate transactions (a) It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly—
      (1) to employ any device, scheme, or artifice to defraud, or
      (2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make ■the statements made, in the light of the circumstances under which they were made, not misleading, or
      (3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.
      18 U.S.C. § 1341 provides:
      § ISJ/.1. Frauds and swindles

      Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Post Office Department, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.
      15 U.S.C. § 77e provides in pertinent part: § 77e. Prohibitions relating to interstate commerce and the mails (a) Unless a registration statement is in effect as to a security, it shall be unlawful for any person, directly or indirectly—
      (1) to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to sell such security through the use or medium of any prospectus or otherwise ; or
      (2) to carry or cause to be carried through the mails or in interstate commerce, by any means or instruments of transportation, any such security for the purpose of sale or for delivery after sale.
      18 U.S.C. § 371 provides:
      § 371. Conspiracy to commit offense or to defraud United States If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

      . In addition, Hammer separately contends that the trial court erred in granting a judgment of acquittal on three counts after the jury had found him guilty rather than before, that the district court erred in giving certain supplemental instructions with respect to these three counts, that the district court erred in giving an Allen charge, that the district court erred in permitting the government to cross examine the appellant’s character witness with regard to Hammer’s tax evasion conviction then on appeal, and erred in permitting another federal district judge of the same court to correct an illegal sentence by imposing $5,000 fines on each of two counts instead of one $10,000 fine. We find no merit in any of these contentions, See Michelson v. United States, 1948, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168; United States v. Bailey, 5th Cir. 1972, 468 F.2d 652, aff’d en banc, 5th Cir. 1973, 480 F.2d 518; F.R.Crim.P. 35.

      . They readily admit, however, the existence of an illegal conspiracy. And once such a conspiracy has been established, only slight evidence is required to connect an individual with it. United States v. Fontenot, 5th Cir. 1973, 483 F.2d 315, 321; United States v. Edwards, 5th Cir. 1974, 488 F.2d 1154, 1157. But guilt may not be inferred from mere association. To establish criminal conspiratorial conduct, the proof must show that each appellant agreed with one or more persons to do what is proscribed by the mail fraud statute or the anti-fraud provisions of the Securities Act, and it must show an overt act by one conspirator in furtherance of that agreement. United States v. Edwards, supra.


source: Caselaw Access Project

author: SIMPSON, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Miguel Luis Alba FERNANDEZ, Defendant-Appellant.
    No. 73-1446.
    United States Court of Appeals, Fifth Circuit.
    June 28, 1974.
    Joseph A. Calamia, El Paso, Téx. (Court-appointed), for defendant-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Edward S. Marquez, Asst. U. S. Atty., El Paso, Tex., for plaintiffappellee, ap
    Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.
   SIMPSON, Circuit Judge:

Fernandez appeals from his conviction before a jury, judgment and sentence under six counts of a nine-count indictment charging him with possessing, forging and uttering three United States Treasury checks allegedly stolen from the United States mails. He alleges as error: (i) the failure of the trial judge to charge the jury as to the presumption of innocence; (ii) prejudicial comments made by the prosecuting attorney in final argument concerning appellant’s prior criminal record and the failure of the trial judge to give limiting instructions as to the proper use of this evidence by the jury, and (iii) the lack of sufficient evidence to support conviction as to Counts 7, 8 and 9 involving one of the checks allegedly possessed, forged and uttered. Finally the jurisdiction of the federal courts to entertain the case is challenged because the crimes, if committed at all, took place outside the territorial jurisdiction of the United States, in Juarez, Chihuahua, Mexico.

We determine that the court had jurisdiction to try appellant’s case, but find that reversible error occurred below when the trial judge failed sufficiently to instruct the jury as to the presumption of innocence in the special circumstances of this trial involving the jury argument. In view of our remand, we do not discuss the sufficiency of the evidence.

I. FACTUAL BACKGROUND

In view of the questions raised a factual summary is necessary. In June and August, 1971, Social Security checks drawn on the U. S. Treasury payable to Maximo Garcia, Lynn D. Hay, and Librado Castillo failed to reach the payees at their addresses in El Paso, Texas, all within a six block area on Wyoming Street. The mailing of the checks was stipulated at trial. Testimony of the individual payees established that the checks were never received by them. It appeared from the endorsements, stamps, and other evidence, that the checks had been negotiated in Juarez, Mexico, directly across the International Boundary, the Rio Grande River, from El Paso, by individual(s) posing as the payees. Leads developed focusing the investigation on the appellant, Miguel Luis Alba Fernandez, and another. In June 1972, a nine-count indictment charging the appellant with (a) possessing, (b) forging and (c) uttering the three checks was returned by a Western District of Texas grand jury at El Paso, Texas. Counts 1, 2 and 3, respectively, charged that the appellant had possessed, forged and uttered a Treasury check made payable to Maximo Garcia. Similarly, Counts 4, 5 and 6 charged Fernandez with possessing, forging and uttering a Treasury check payable to Lynn D. Hay, and Counts 7, 8, and 9, respectively, charged him with possessing, forging and uttering a Treasury check payable to Librado Castillo. All the criminal acts involved were alleged to have been committed in Juarez, Chihuahua, Mexico, during June and August of 1971 by Fernandez, “whose last known residence is within the Western District of Texas”.

At trial, the government introduced testimony of a clerk from a Juarez shoe store that she had personally cashed the Maximo Garcia check, and that the appellant presented the check to her and endorsed it in her presence. A government witness, a fingerprint identification expert, testified that a fingerprint matching appellant’s was present on the Librado Castillo check. A handwriting expert testified for the government that the endorsements on the Lynn D. Hay and Librado Castillo checks were probably — though not certainly — made by the appellant. The appellant testified in his own behalf and denied that he had ever been in possession of any of the three checks forming the basis of the indictment. He stated that he had resided in the United States since a year before he entered the United States Army in 1964. The jury returned a verdict finding the appellant guilty on Counts 1 through 3 (Garcia check) and 7 through 9 (Castillo check), and not guilty on Counts 4 through 6 (Hay check).

II. JURISDICTION

Our first consideration is addressed to the claim of lack of jurisdiction below over the offenses charged. The appellant’s timely motion to dismiss the indictment for lack of jurisdiction was denied prior to trial. He renews the attack here that the courts of the United States lack jurisdiction to try him for criminal acts charged to have taken place in Juarez, Mexico, and not in the United States. The point is lacking in substance. Under the theory of objective territorial jurisdiction, the court below had the right to charge and try Fernandez for the indictment offenses. This theory originated in Strassheim v. Dailey, 1911, 211 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735, 738, where the Court held, per Mr. Justice Holmes: “Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of harm as if he had been present at the effect, if the state should succeed in getting him within its power.” We followed Strassheim in Rivard v. United States, 5 Cir. 1967, 375 F.2d 882, 887, cert. denied sub nom. Groleau v. United States, 389 U.S. 884, 88 S.Ct. 151, 19 L.Ed.2d 181. The theory is applicable to this case.

The case law makes clear that the alleged acts of possessing, forging and uttering the Garcia and Castillo checks in Juarez were acts “intended to produce and producing detrimental effects within [the United States],” specifically preventing the normal disbursement of Social Security funds to those lawfully entitled to receive such funds. Cf. Leonard v. United States, 9 Cir. 1963, 324 F.2d 911, 913.

III. THE PRESUMPTION OF INNOCENCE

Prejudicial error is asserted by reason of the failure of the trial judge to inform the jury, in his final instructions or at any other point in the trial, that appellant was entitled to be presumed innocent until proven guilty beyond a reasonable doubt. The government contends that the court’s very complete charges that proof must be beyond a reasonable doubt and defining reasonable doubt informed the jury in practical effect as to the presumption of innocence.

The court’s instructions as to reasonable doubt included the following:

“In a criminal case such as this, there is absolutely no obligation for the Defendant to prove his innocence. The burden of proving his guilt upon any one of the nine counts in the indictment beyond a reasonable doubt rests on the prosecution. That burden never shifts and that burden cannot be sustained unless and until the proof offered by the government in the case convinces you beyond a reasonable doubt of the guilt of the defendant.
“Now, I’m required to define the words ‘reasonable doubt’. By the term reasonable doubt which is used in this charge, I mean a doubt based upon reason arising out of the evidence or lack of evidence in the case. A reasonable doubt is such doubt as leaves the juror’s mind so undecided that that juror does not have an abiding conviction of the Defendant’s guilt after a full and fair consideration of all of the evidence in the case. A reasonable doubt is such doubt as would cause a reasonable, thoughtful and prudent person to hesitate to act if confronted with a question of importance concerning his or her own affairs. On the other hand, reasonable doubt does not arise from a mere conjecture, speculation or whim, nor does it arise from a reluctance to convict a Defendant through a feeling of sympathy or mercy. A reasonable doubt is a conscientious belief arising only after a calm, dispassionate and impartial consideration of all of the evidence. It’s not necessary for the Government to prove the guilt of the Defendant beyond all possible or conceivable doubt. If that were the rule, few persons however guilty they might be would ever be convicted. It is practically impossible for a person to be absolutely and completely convinced upon a fact, which, by its very nature, is not susceptible to exact and precise mathematical proof and certainty.
“In consequence therefore, the law is such that in a criminal case, it is sufficient that the Government or prosecution establish the Defendant’s guilt on any count beyond a reasonable doubt, which I’ve defined reasonable doubt for you, rather than and not necessarily on all possible or conceivable doubt.
“It therefore becomes your duty to carefully consider all of the evidence before you, and if as a result of such evidence you can and do entertain a reasonable doubt as to the guilt of the accused on any one of these nine counts, then you should so find the Defendant innocent, and it will be your duty to give the benefit of the doubt to the Defendant in any case where you have such doubt. If, on the other hand, all of the evidence when carefully examined and considered by you produces in your mind a conviction or a belief of the guilt of the accused beyond a reasonable doubt, you can then be said to be free from reasonable doubt and should accordingly return a finding of guilty as to each count on which you have no reasonable doubt.”

And again at the close of his instructions :

“Now, in summary and conclusion, if the Government has established each and all of the essential elements contained and charged in any one count in the grand jury indictment beyond a reasonable doubt, you should find the defendant guilty on that count. On the other hand, if you find that the government has not established or has failed to establish each and every one and all of the essential elements in any one of such counts of the indictment beyond a reasonable doubt as to the defendant, you should acquit the defendant and say so by your verdict of not guilty as to that particular count in the indictment which has not been proved beyond a reasonable doubt.”

In addition, the trial judge instructed the jury that the indictment was not to be considered as evidence:

“You will have the indictment or a copy of it in the jury room with you. Bear in mind my previous instruction which I now give you again, the indictment is not evidence and must not be considered by you as such. The indictment is merely the means by which the grand jury brings the case before a court and jury so that it can be tried and you can hear the case and decide the issues.”

No request to charge on presumption of innocence was made by the defense and no objection was raised, F.R.Crim. P., Rule 30, after the completion of the court’s jury instructions, although opportunity was provided out of the jury’s hearing to voice such objections. We deal with the sufficiency of the instructions as failing to include a specific charge on the presumption of innocence, therefore, in the light of the “plain error” limitation of Rule 52(b), F.R. Crim.P.

Our starting point is Coffin v. United States, 1895, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481, in which case the Court held that failure to give a requested charge on presumption of innocence was not overcome by an adequate charge on burden of proof. The Court ruled that failure to give the requested charge was error requiring reversal. Id. at 461, 15 S.Ct. at 405, 39 L.Ed. at 494. This result was the outcome of a comprehensive analysis by the Court of the historical and logical foundations of our system of criminal jurisprudence. The Court postulated a logical relationship between the presumption of innocence and the burden of proof as follows: (i) the presumption of innocence is evidence to be considered in favor of the accused; (ii) because the accused comes into trial clothed with this presumption, it necessarily gives rise in the minds of the jurors to a reasonable doubt as to the guilt of the accused; (iii) therefore, the prosecution is charged with the burden of producing evidence that the accused is guilty beyond that reasonable doubt. This elaborate exposition was logical and perhaps sound and helpful as an abstract jurisprudential exercise. It had short life as an approved direction to trial juries.

The foundation of the holding in Coffin — the concept of the presumption of innocence as evidence to be considered in favor of the accused — was soon substantially eroded if not rejected completely by subsequent Supreme Court decisions in Agnew v. United States, 1897, 165 U. S. 36, 17 S.Ct. 235, 41 L.Ed. 624, and Holt v. United States, 1910, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021. Both cases affirmed refusal to instruct the jury in Coffin terms. In both cases, the trial court had instructed the jury on the presumption of innocence, though not in the exact language requested by trial counsel. The appeals each claimed error in the trial judge’s refusal to instruct the jury to consider the presumption as evidence in favor of the accused. The Court held that such an instruction was unnecessary and at least potentially misleading. This Circuit and at least one other circuit have interpreted this holding as negating the statement in Coffin that the presumption of innocence is evidence to be considered in favor of the accused. Harrell v. United States, 5 Cir. 1955, 220 F.2d 516, 522; United States v. Nimerick, 2 Cir. 1941, 118 F.2d 464, 467-468, 152 A.L.R. 620, cert. denied 313 U.S. 592, 61 S.Ct. 1117, 85 L.Ed. 1546. We have recently held that the presumption is definitely not evidence and that it was not error to refuse to instruct a jury that it is to be so considered. United States v. Thaxton, 5 Cir. 1973, 483 F.2d 1071, 1073. Of unimpaired vitality is at least the Coffin holding that it is prejudicial error not to instruct on the presumption when requested:

“The inevitable tendency to obscure the results of a truth, when the truth itself is forgotten or ignored, admonishes that the protection of so vital and fundamental a principle as the presumption of innocence be not denied, when requested, to any one accused of crime.”
156 U.S. at 460-461, 15 S.Ct. at 405, 39 L.Ed. at 494.

In United States v. Thaxton, supra, at 1073, we followed this reasoning:

“The presumption of innocence performs a two-fold function in our criminal process. First, as a corollary to the. standard of proof in a criminal ease, it serves to remind the jury that the prosecution bears the burden of persuading the factfinder of the defendant’s guilt beyond a reasonable doubt and that in the absence of such proof that the jury must acquit. Second, ‘it cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced.’ 9 Wigmore on Evidence § 2511, at 407 (3d ed. 1940).”

We held in Helton v. United States, 5 Cir. 1956, 231 F.2d 654, that it was error to refuse to give a charge on the presumption of innocence when requested. We offered this advice very recently: “(T)rial judges should be careful to give the instruction on the presumption of innocence at the close of the case, so as to leave no room for controversy on this subject.” United States v. Davila-Nater, 5 Cir. 1973, 474 F.2d 270, 285. We note finally, that one circuit at least has held that failure to give a charge on the presumption of innocence can rise to the level of plain error requiring reversal. McDonald v. United States, D.C. Cir. 1960, 284 F.2d 232.

Where does this leave us? Containing, as it did, the quoted careful language as to the government’s burden of proof, and the defendant’s right to remain silent, as to reasonable doubt, and further as to the limited function of an indictment at a trial, the jury instruction here covered fully the mechanical aspects of the procedure to be used by a jury in reaching a verdict. The sole missing element was the emphasis the stock presumption of innocence charge places upon the mental state required in approaching and evaluating the evidence against the accused. With the presumption of innocence charge not requested and its omission not objected to, we would be sorely tempted here to hold that plain error under Rule 52(b), F.R. Crim.P. is not made out, but for one aspect of the trial below which we find so critical as to mandate reversal for new trial. The problem is discussed in Part IV below.

IY. PREJUDICIAL COMMENTS BY THE PROSECUTOR

We turn to another ground of error asserted by appellant: the prejudicial nature of the comments as to appellant’s prior criminal record made by the prosecuting attorney in his final jury argument and the failure of the trial judge to give limiting instruction as to the proper function of this type of evidence.

When he took the stand in his own defense, Fernandez testified on direct examination in response to his own counsel’s questions, that he had been convicted twice for shoplifting and once for possession of dangerous drugs. As the government points out on brief, these admitted convictions were not further explored on cross-examination. No limiting instructions as to the evidentiary purpose of the proof of the prior convictions were requested and none were given. As pointed out, supra, the appellant offered no objection to the jury instructions at their close and made no request for additional instructions when invited to do so by the court in compliance with F.R.Crim.P., Rule 30.

The Assistant United States Attorney conducting the prosecution in his opening summation argued to the jury in these terms:

“Now, this is a serious case. Now, ladies and gentlemen, I brought into this court room three elderly people, people that throughout their lives have worked hard for whatever benefit they may receive from Social Security. They have worked all their lives, and now they are receiving their compensation. And I ask you, now by what right does this young man — now, he’s only 27. Now, what right does this man have to go ahead and take those earnings and savings and compensation from people like Mrs. Hay and Mr. Hay who was too ill even to come to this court room today, or a man like Librado Castillo or Maximo Garcia.
“Now, this is what is involved in this particular ease. Not just some government checks. It wouldn’t matter what type of check it was. What is important is the people that were hurt. And they were hurt by Mr. Fernandez who in the very prime of his life, 27 years of age, takes checks from people that are already retired. For what purpose? I don’t know for what purpose? I do know that he has been involved in shoplifting and I know that he has been involved in narcotics and dangerous drugs. It may have been for that purpose.
“Now, these are the things we have to think about at the time that we are reviewing the evidence that was brought before you today.
“Now, we have in the Maximo Garcia check an eye witness, an eye witness. And I don’t care what Mr. Fernandez says. I don’t care what his attorney says. I believe that witness because she had no reason to come in here and tell you otherwise. If there is anybody in this courtroom that,has any reason to lie, it’s this man because he’s the man that is standing trial, and he’s got everything to lose and everything to gain by just coming in here and perhaps convincing just one of you that he was not responsible. Everything in the world.”

And again:

“At least one of the series of three counts, of the Librado Castillo, he is guilty beyond a reasonable doubt because they found his finger print on that check.
“Now, if he bothered to take the stand — now, he doesn’t have to testify at all, but he went ahead and bothered to take the stand and gave you a story about it was his girl friend in the store and this and that and he didn’t do it, but did he ever bother to explain to you how his finger print ended up on the Librado Castillo check? And if he is going to try to make you believe that he is not guilty, then he should have at least had the decency to get up there and tell you the truth and explain to you the evidence that we did find. But he doesn’t even have that.
“We found a thumb print on that check of Mr. Hay, the gentleman that is sick, too sick to come in here, and he didn’t even — the Librado Castillo. I’m sorry. The elderly man that was hard of hearing. But where did you ever hear any explanation as to how his thumb print got on that check?
“THE DEFENDANT: You didn’t ask me.
“MR. MARQUEZ: Where did you ever hear any explanation as to whether he worked in the bank? There is no evidence that Mr. Fernandez worked at any bank, that he ever handled that check working at the State National Bank or the El Paso National Bank. Never. And this is the type of man that takes the stand and tells you to believe what he has to say under oath.”

And finally at the end of his opening argument :

“I don’t know if counsel will answer the questions as to the finger print. He didn’t try to during the trial. I doubt very seriously if he can at this time now during his argument. But this is the evidence. And it shows beyond a reasonable doubt that this man without any right, without any consideration for those people, took those checks for his own selfish purposes, to shoplift or to buy more drugs. I don’t know. We know he has been involved with those problems before.”

The argument was not interrupted by objection from defense counsel or by sua sponte admonition from the bench. The only interruption was the rather curious exchange with the defendant Fernandez quoted above regarding the presence of Fernandez’s thumb print on the Librado Castillo check.

In response, defense counsel did not allude to his client’s criminal record, nor did he attempt to answer the government’s argument quoted above. He talked about reasonable doubt, the possibility of error in the identification of Fernandez by the young lady who cashed the Garcia check at the shoe store, Miss Flores-Chavez, the fallibility of both handwriting and fingerprint identification testimony, and the serious danger of the jury’s making a mistake and sending an innocent man to prison.

These arguments were all essentially variations on and paraphrases as to a single central theme; reasonable doubt and the presumption of innocence.

The prosecutor’s rebuttal argument first undertook to answer the questions raised as to the thumb print identification. He proceeded to reply to the defense argument regarding handwriting identification, and the expert’s inability to be positive as to the endorsement on the checks, by urging that Fernandez deliberately disguised his handwriting in furnishing exemplars:

“And now we made no bones about the testimony of the handwriting expert. I discussed that before. And I used it to go ahead and corroborate primarily the testimony of Scorro Flores Chavez [sic]. That was the purpose of that testimony. It’d be very nice to go ahead and have also positive handwriting, but the expert told you that Mr. Fernandez within the very specimens that he said he so eagerly cooperated to give has got many discrepancies. You will have this exhibit before you. Now, these are his handwriting specimens that he claims he voluntarily gave to the Secret Service. And yet you see that within the very specimen that he wrote, look at that G that he wrote, and then look at the G on the Garcia. He disguised it. Look at the difference. First he writes a G like this, and then he writes the G like that.
“Now, this is not on the check. This is on the specimen that he submitted. In his own handwriting specimen he tried to go ahead and fool the Secret Service people by disguising his own handwriting. So what makes you believe that his handwriting is going to be just positively on the checks? But good Lord, he had a stolen check. He had a stolen check in his hands. Three of them according to this evidence. Do you think he is going to really sit down and write like he normally writes ? This is what the expert is trying to tell you. And like he testified, many times you know that a person wrote document X and document B, and yet you know very often it’s hard to really say that the same people wrote it, even when you know that they did after you compare the handwriting. Because People themselves do not write the same way all the time. Only if you write sufficiently enough are you able to pick up enough habit characteristics where you can honestly say that the same person wrote the instrument.” (Emphasis added).

The finishing blow was administered at the close of the prosecutor’s argument, finally drawing an objection, too little and too late:

“(A)nd don’t you think for one minute we don’t appreciate your attendance and you listening to this case. Because over and above Mrs. Hay and Mr. Librado Castillo and Mr. Maximo Garcia, believe me, there are many other people in this community that are receiving Social Security payments and benefits for the many hard years of labor that they put into this country and into the businesses that they worked with. And we do have to protect them against individuals young men, young men whose only credit to our society has been being arrested three times, twice for shoplifting and once for dangerous drugs.
“MR. ARDITTI: I object to that, Your Honor.
“MR. MARQUEZ: That’s the evidence.
“MR. ARDITTI: Normally discharged veterans who have protected this country from evils outside its borders, Your Honor.
“THE COURT: I’ll sustain the objection. I believe that’s outside of the record.
“MR. MARQUEZ: All right, sir. But you’ve listened to the evidence. You have listened to all of the evidence. If he has protected my country, believe me, ladies and gentlemen, I know many other young men who have protected me. I have protected my country too. You have too when your time came. And I know many other young people who have protected their country, and they don’t get involved in stealing checks, and they don’t get involved and get arrested for shoplifting or the possession of dangerous drugs. Thank you, sir.”

Immediately thereafter the trial judge, after denying a motion to dismiss the indictment for insufficiency of the evidence, the ruling thereon having been earlier reserved, proceeded with his jury instructions. No request was made for any sort of limiting instruction as to the effect of evidence of prior convictions, or directing the jury to disregard the prosecutor’s inflammatory argument.

The prosecuting attorney’s argument below is difficult to distinguish in harmful effect from the argument we found to constitute “plain error”, even in the absence of objection, in United States v. Garber, 5 Cir. 1972, 471 F.2d 212, 217.

There, as here, it was improperly argued to the defendant’s prejudice that evidence of prior convictions showed the propensity or disposition of the defendant on trial to commit the offense charged. There, as here, the argument was reiterated and persisted in by the prosecutor, and similarly, no objection was voiced. Perhaps the prejudicial effect was greater in Garber because the prior convictions there were for violations of the Dyer Act and the charge "on trial involved a like offense. But in Garber the trial judge at least gave the usual instruction that evidence of prior convictions is admissible only to impeach the defendant’s credibility, although the Garber court characterized this as “too little and too late under the circumstances of this case”, Id. at 217, and speculated that an immediate curative instruction might not have been effective, this doubt in itself serving to underscore the seriousness of the error.

The Garber court continued that we have applied the government’s “harmless error” argument only where the evidence of guilt was exceptionally strong and the error appeared to have been harmless beyond a reasonable doubt, citing Hoover v. Beto, 5 Cir. 1972, en banc, 467 F.2d 516, 538, and cogently observed :

“The question is not merely whether a mistake was made in applying technical rules of evidence but whether that mistake resulted in prejudicial error clearly affecting the substantial rights of the accused. Garber had a right to the benefit of the rule prohibiting the use of the prior convictions to prove that he committed this crime. The prosecutor’s remarks were intended to influence the jury in a way that would deprive him of that right. Considering the evidence as a whole, we cannot be sure that the prosecutor was unsuccessful.” Id. at page 217.

Whether the prejudicial argument here falls on the Garber side of the line or on the safe “harmless error” side of the line, exemplified by Hoover v. Beto, en banc, supra, Martin v. United States, 5 Cir. 1972, 453 F.2d 1370, is a very close question indeed. This doubt is similar to the doubt expressed supra, Part III, as to the effect of the failure to charge on the presumption of innocence'

V. THE SYNERGISM

But our doubts are resolved when we consider the prejudicial effect of the failure to charge on the presumption of innocence in combination with the prejudicial prosecutorial argument indulged in and largely uncorrected below. The synergistic effect of the combination is fatal to the vitality of this conviction under the circumstances of this case.

Fernandez was entitled to be tried with the benefit of the presumption of innocence. Instead he was required to undergo trial in the face of argument by a representative of the appellee, his government, which strove to impose what amounted in substance to a “presumption of guilt” arising from the undisputed evidence of prior convictions. “Plain error”, necessitating reversal for new trial as to Counts 1, 2, 3, 7, 8 and 9 of the indictment, occurred below. That the jury returned a not guilty verdict as to Counts 4, 5 and 6 demonstrates the weakness of the government’s proof as to those counts. It is in no wise a tribute to the fairness of its prosecutorial officer.

VI. CONCLUSION

Inasmuch as the case is reversed for new trial, we do not consider the additional ground of error asserted, the insufficiency of the evidence below to support the conviction as to Counts 7, 8 and 9. The judgment of conviction appealed from is reversed and this case is remanded for further proceedings below.

      . In violation of Title 18, U.S.C., § 1708.

      . In violation of Title 18, U.S.C., § 495.

      . See further the discussion of a similar theory of “protective jurisdiction” in United States v. Pizzarusso, 2 Cir. 1968, 388 F.2d 8, 10, cert. denied 392 U.S. 936, 88 S.Ct. 2306, 20 L.Ed.2d 1395.

      . Accord, 9 Wigmore on Evidence, § 2511, pp. 409-10 (3d Ed.1940).

      . There was nothing left regarding this subject about which to cross-examine. The only legitimate purpose of such evidence being its consideration by the jury as affecting the defendant’s credibility, defense counsel obviously brought the convictions to the jury’s attention in the usual attempt to “soften the blow”.

      . The Gorier case arose, as did the case here under submission, in the El Paso Division of the Western Division of Texas, but was tried before a different judge of that district.

      . This principle might in other circumstances, absent the additional infirmities in the conviction, permit affirmance of the conviction as to Counts 1, 2 and 3 and render consideration of the conviction under Counts 7, 8 and 9 unnecessary under the concurrent sentence doctrine, United States v. Vigo, 5 Cir. 1970, 435 F.2d 1347, inasmuch as the government’s proof was “exceptionally strong” as to Counts 1, 2, and 3. We do not consider the doctrine available here.

      . See Webster’s Third New International Dictionary of the English Language, Unabridged (1966) at p. 2320:
      “Synergism: (1) ...
      (2) cooperative action of discrete agencies (as drugs or muscles) such that the total effect is greater than the sum of the two or more effects taken independently— opposed to antagonism.
      . . . . ” (Emphasis supplied).

      . We emphasize that our holding is limited to the peculiar combination of circumstances presented by this appeal.


author: ALDRICH, Senior Circuit Judge.

text:
    Stillman E. WILBUR Jr. Petitioner, Appellee, v. Garrell S. MULLANEY et al., Respondents, Appellants.
    No. 72-1348.
    United States Court of Appeals, First Circuit.
    Submitted Feb. 20, 1974.
    Decided April 30, 1974.
    As Amended May 10, 1974.

      Vernon I. Arey, Asst. Atty. Gen., with whom Fernand LaRoehelle, Asst. Atty. Gen., was on brief, for respondents, appellants.
    Peter J. Rubin, Portland, Me., by appointment of the Court, with whom Bernstein, Shur, Sawyer & Nelson, Portland, Me., was on brief, for petitioner, appellee.
    Before COFFIN, Chief Judge, AL-DRICH and McENTEE, Circuit Judges.
   OPINION ON REMAND

ALDRICH, Senior Circuit Judge.

We are faced again with the duty of considering the propriety, in the light of In re Winship, 1970, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368, of imposing upon a defendant indicted for murder, once an unlawful killing had been shown beyond a reasonable doubt, the burden of proving that his conduct met the statutory definition of manslaughter as distinguished from murder, or, as the Maine court, post, put it, of reducing the degree of the crime from murder to manslaughter.

The facts are these. At the trial the state’s case against Wilbur, the present petitioner for a writ of habeas corpus, hereinafter defendant, was based upon circumstantial evidence and defendant’s pretrial admissions that he had inflicted such severe injuries upon the deceased with his fist and a blunt instrument that death had resulted within a few minutes. Although he did not testify or offer any evidence, defendant’s theory of defense, as asserted in his pretrial statement introduced in full by the state, was that although he had struck the deceased, it was in the heat of passion suddenly provoked by an indecent homosexual overture, and that, therefore, he had not acted with malice aforethought, and was guilty of manslaughter, not murder. The court instructed the jury that it was the state’s burden to prove beyond a reasonable doubt that the defendant had killed the deceased, and that the killing was intentional and unlawful. It also informed the jury that malice aforethought was an “essential and indispensable element of the crime of murder,” but it charged that “malice aforethought may ... be implied from an unlawful killing” and “is presumed to be present in all homicides until the contrary appears from the circumstances of alleviation to be made out [“by a fair preponderance of the evidence”] by the defendant.”

In In re Winship the Court held that the Due Process Clause requires the state to prove beyond a reasonable doubt “every fact necessary to constitute the crime with which he is charged.” 397 U.S. at 364. On appeal from his conviction for murder, the instant defendant took the position that malice aforethought, which he equated with premeditation, was an intent more criminal in character than one formed under circumstances recited in the statute defining manslaughter, post, and that such higher intent was an element of the crime of murder and hence part of the state’s burden of proof rather than a matter for him to disprove.” The Maine court, however, held that under the law of Maine murder and manslaughter were but a single crime, felonious homicide, manslaughter being a degree thereof; and that the defendant has the burden of proving by a fair preponderance the “reductive factors (sudden provocation and heat of passion)”. State v. Wilbur, Me., 1971, 278 A.2d 139, 145. It reasoned that the “policy presumption [of malice], bearing as it does not on the guilt or innocence of felonious homicide but only upon the degree of and possible punishment for such homicide, should be accorded such procedural force as is required to make it truly effective” and that it did not anticipate that “Winship will be so extended as to reach the procedural requirements of Conley and Knight [post] as now interpreted.” Id. at 146. On a petition for habeas corpus the district court, and ultimately ourselves, disagreed. Wilbur v. Mullaney, 1 Cir., 1973, 473 F.2d 943.

Thereafter, in State v. Lafferty, Me., 1973, 309 A.2d 647, the Maine court rejected both our interpretation of the Maine law and the propriety of our effort to interpret it, as a result of which the Supreme Court, on petition for certiorari, vacated our judgment and ordered us to give “further consideration in light of [Lafferty].” 414 U.S. 1139, 94 S.Ct. 889, 39 L.Ed.2d 96 (1974).

In our prior opinion we were influenced by the fact that separate statutes defined murder and manslaughter; and by references in State v. Knight, 1857, 43 Me. 11, 33, to murder and manslaughter as “offenses . . . [which] import different degrees of criminality, and are punished with different degrees of severity,” and in State v. Conley, 1854, 39 Me. 78, 88 to manslaughter as “wanting” “all the elements of murder.” We now recognize that the separateness of the statutes is not deemed of any ultimate significance by the Maine Supreme Judicial Court and that both Knight and Conley, in addition to the language which earlier impressed us, contain language looking to the unitary nature of the crime embracing both murder and manslaughter, which language the Maine court deems controlling.

That the distinction between separate crimes and degrees of a single crime has not always been clearly conveyed is revealed in the charge given to the jury that convicted Wilbur. The trial court, after announcing that it would “describe the elements of the crimes of murder and manslaughter,” which it then did, concluded as follows:

“Now I have given you the general definitions of the crimes of murder and manslaughter with some further explanations; quoting largely, using largely the language of our court from which you can see clearly the definitions of the two offenses.”

Nevertheless, we now take as a given that there is “a single crime, unlawful (felonious) homicide.” Lafferty, ante, 309 A.2d at 663 (Emphasis in orig.). We believe we may have erred in focus-sing in our previous opinion upon the structure of the Maine law, coneededly an internal matter, Memorial Hospital v. Maricopa County, (2/26/74) 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306; instead of upon the consequences, from the standpoint of the defendant, in order to ascertain whether they were of constitutional proportions; or, as the Lafferty court put it, to see that state law as definitively interpreted “trespasses on no federally guaranteed constitutional rights.” 309 A.2d at 662. The question is more properly put: does the fact that Maine regards murder and manslaughter as a single crime, denominated felonious homicide, but differing in degree, avoid Winship’s strictures protecting “the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged” within the Court’s intendment?

We start with a consideration of the measure of the difference effected by the concept of “reductive factors” of provocation and heat of passion as to which defendant has the burden. Under Maine law “malice aforethought” is not to be thought of as a general equivalent of premeditation. The term is “not a designation of any subjective state of mind existing as a fact.” Lafferty, ante, 309 A.2d at 664, quoting State v. Rollins, Me., 1972, 295 A.2d 914, 920. (Emphasis in orig.) Whether a killing has taken place with the subjective intention that death result (i. e., “a ‘premeditated’ killing,” Lafferty, 309 A.2d at 670, Werniek, J., concurring) or death has been caused without any specific subjective intent but by reckless or brutal conduct, “malice aforethought,” “a fictional, metaphysical term of art” applicable to both acts, may be “extinguished by the fact that heat of passion upon sudden, adequate provocation spawned the conduct.” Id., 672. Such facts (heat of passion, causation, sudden and adequate provocation) do not eliminate criminality but are “the facts legislatively assigned in advance to bind a judge’s sentencing discretion” (id., at 667) and “mitigate the blameworthiness of the criminality.” Id. at 671. Yet there is no question but that what is required to extinguish “malice aforethought” are factual matters. The contention is that, not being addressed to disproof of criminality but to proof of lesser blameworthiness, the placing of the burden on an accused to prove such factual matters falls beyond the reach of Winship.

In determining the constitutionality of a state statute (we draw no distinction between statutory and court-made law) the Court said in St. Louis Southwestern Ry. Co. v. Arkansas, 1914, 235 U.S. 350, at 362, 35 S.Ct. 99, at 102, 59 L.Ed. 265,

“Upon the mere question of construction we are, of course, concluded by the decision of the state court of last resort. But . . . [w] e must regard the substance, rather than the form, and the controlling test is to be found in the operation and effect of the law as applied and enforced by the state.”

As recently as In re Gault, 1967, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, where the state court had construed its statute as providing that certain proceedings were not even criminal, the Court disregarded that conclusion, holding that from the substantive, and hence constitutional standpoint they must be regarded as criminal. It said, at pp. 49-50, “To hold otherwise would be to disregard substance because of the feeble enticement of the ‘civil’ label-of-convenience.” 387 U.S. at 49-50. See also Duncan v. Louisiana, 1968, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491.

In terms of substance the different consequences attaching to manslaughter and murder from the standpoint of the defendant in the state of Maine are obvious. For manslaughter the punishment may range from a nominal fine to “a fine of not more than $1000 or imprisonment for not more than twenty years.” 17 M.R.S.A. § 2551, ante. A defendant convicted of murder “shall be punished by imprisonment for life.” 17 M.R.S.A. § 2651, ante. In addition, the Lafferty court, 309 A.2d at 673, took exception to our attaching significance to the fact that the public draws a distinction between a conviction for murder and a conviction for manslaughter, a distinction eloquently noted as far back as Blackstone. The Court, however, in making constitutional assessments in Duncan v. Louisiana, ante, said, at 160, “The penalty authorized by the law of the locality may be taken ‘as a gauge of its social and ethical judgments.’ ” We believe we are commanded to consider this factor not only by Duncan, but by Winship itself. The Winship rationale is explicit.

“The requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons. The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction.” 397 U.S. at 363. (Emphasis supplied)

We cannot think that how these substantial differences with respect to liberty and stigma are achieved, vis-a-vis the defendant, is to be dismissed as a mere “procedural requirement,” State v. Wilbur, ante, at 146, or, to put it another way, is beyond the reach of Winship, whose expressed holding is that the procedural requirement of burden of proof is a constitutional matter. Whether a defendant is to be regarded as a murderer, to spend his life in prison, or, as guilty of manslaughter, is to serve a term of years, with the possibility of parole — or possibly only fined — depends upon the absence, or existence, of certain facts. We cannot accept that simply by calling them “reductive factors” the determination of these facts occurs other than “during a criminal prosecution.” Were it otherwise, the important interests that concerned the court in Winship could be diluted to whatever degree judicial or legislative draftsmen might elect.

In holding that a burden of proof cannot be placed upon the defendant by the process of defining the crime we emphasize that we are not deciding that proof of intentional homicide can never justify a finding of murder to the extent that there must necessarily be an acquittal unless the state by evidence affirmatively disproves the existence of factors which would show the offense to be manslaughter. We have no quarrel with a rule that proof of certain facts may justify inferences, and we recognize when a jury is told of a permissive inference arising from the state’s evidence unless the defendant makes a showing, or an “explanation,” cf. Barnes v. United States, 1973, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380, that in practical effect it may place upon him a burden of going forward. See Barnes at 846 n. 11. But this cannot be the strict burden of going forward in the sense of going-forward-persuasively-or-else-you-lose. See, e. g., Barnes at 845 n.9. What we are rejecting is the principle spelled out in State v. Wilbur, 278 A.2d at 146, where the court said,

“[We do not accept the view that] the defendant is required to do no more than generate the issue leaving the State, if it can, to negate the reductive factors by proof beyond a reasonable doubt. We are not persuaded to this view which tends to emasculate the presumption and defeat the very purpose for which sound public policy has raised it. [W]here under stated conditions the presumption of malice is raised, the burden of proof shifts to the defendant to reduce murder to manslaughter.”

Placing the burden on a defendant to reduce murder to manslaughter may be sound public policy if the state’s purpose is to facilitate convictions for murder, but Winship teaches that it is constitutionally improper to facilitate convictions at the cost of imposing a burden of proof upon the defendant. The burden of proof must be on the state throughout; not sometimes on the state, and sometimes on the defendant.

The order affirming the order of the district court is reinstated.

      . Murder

      Section 2651. Definition Whoever unlawfully kills a human being with malice aforethought, either express or implied, is guilty of murder and shall be punished by imprisonment for life. Manslaughter

      Section 2551. Definition Whoever unlawfully kills a human being in the heat of passion, on sudden provocation, without express or implied malice
      aforethought, ... or commits manslaughter as defined by the common law, shall be punished by a fine of not more than $1,000 or by imprisonment for not more than 20 years ....

      . The court spoke with apparent approval of this portion of the charge. “The jury [was] . . . thoroughly instructed as to the elements of unlawful homicide, murder and manslaughter.” State v. Wilbur, 278 A.2d at 144.

      . Indeed, we may think the fact that it is a circumstance peculiarly within the knowledge of the defendant is one of the reasons for the Maine rule. See 309 A.2d at 664.

      . See Blackstone, Commentaries on the Laws of England, 178; Malice is the “grand criterion which now distinguishes murder from manslaughter and other forms of killing.” ' (Am. ed. Phila. 1772). See also Mueller, Comparative Criminal Law in the United States 134 (1970).


author: PER CURIAM.

text:
    INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL NO. 18, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-1760.
    United States Court of Appeals, Sixth Circuit.
    Argued Jan. 29, 1974.
    Decided May 31, 1974.
    Louis S. Belkin, Cleveland, Ohio, for petitioner; Alan S. Belkin, Belkin & Belkin, Cleveland, Ohio, on brief.
    Stuart Rosenblum, N. L. R. B., for respondent; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Robert A. Giannasi, Asst. Gen. Counsel, David Miller, Atty., N. L. R. B., Washington, D. C., on brief.
    Before PHILLIPS, Chief Judge, EDWARDS and McCREE, Circuit Judges.
   PER CURIAM.

In this case the National Labor Relations Board found that the union violated Sections 8(b)(2) and (1)(A) of the Act. 29 U.S.C. §§ 158(b)(2) and (b)(1)(A) (1970). It ordered the union to cease and desist from making applicable any penalty carried out through its hiring hall practices upon one William Murphy and to make him whole by back-pay for such work, if any, which he lost by being demoted on the hiring hall list. The Board’s order is reported at 204 NRLB No. 112 (1973).

Although the record is not complete, it does suggest that Mr. Murphy may be a somewhat difficult human being. The episode that apparently triggered the penalty we deal with concerned a union election for delegates to the international convention wherein Murphy was a candidate. Although the facts are by no means fully developed, it is alleged that when Murphy discovered he was losing in the election, he seized the certified membership list which was being used to check the authenticity of ballots and undertook to run away with it. This led to his being suspended and fined and to his being demoted from one classification to another on the hiring hall list.

The administrative judge who heard this case ruled that while the union could discipline Murphy by suspension and fine, it could not deny him employment, and this was a per se rule which needed no testimony concerning the union’s justifications for its actions. It is clear that counsel for the union made every effort to offer evidence as to the union’s reasons for its actions.

The Board rejected the administrative judge’s rationale of a per se rule because it had previously permitted a union to take a former officer of the union who had embezzled the union’s money off of its referral list. See Philadelphia Typographical Union No. 2 (Triangle Publications), 189 NLRB 829 (1971). Nonetheless, the Board affirmed and adopted the order suggested by the administrative judge, holding essentially that nothing which the union might prove would change the picture if it had been allowed to present those proofs. Since the administrative judge did not even allow the union’s lawyer to complete his offer of proof, we do not see how this ruling can be justified.

Under these circumstances we remand this case to the Board for further evidentiary hearing under the standards of the Philadelphia Typographical Union case, supra.


author: PER CURIAM:

text:
    Pete D. ARVIZU et al., Plaintiffs, v. WACO INDEPENDENT SCHOOL DISTRICT et al., Defendants, Patricia Ann BAISEY et al., Plaintiffs-Appellants, v. The BOARD OF TRUSTEES OF the WACO INDEPENDENT SCHOOL DISTRICT et al., Defendants-Appellees.
    No. 73-3080.
    United States Court of Appeals, Fifth Circuit.
    July 8, 1974.
    John W. Walker, Little Rock, Ark., Jack Greenberg, Sylvia Drew, New York City, for plaintiffs-appellants.
    Minor L. Helm, Jr., Peeler Williams, Jr., Waco, Tex., for defendants-appellees.
    Guadalupe Salinas, Edward Idar, Jr., Jim Heidelberg, John E. Serna, San Antonio, Tex., for Pete D. Arvizu.
    ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
    Before GEWIN, GOLDBERG and DYER, Circuit Judges.
   PER CURIAM:

On petition for rehearing, the appellee School Board has called our attention to the fact that this court may have misconceived the effect of those provisions of the plan dealing with the desegregation of the Richfield and Jefferson-Moore High Schools. For the 1973-74 school year, all tenth graders in the Richfield and Jefferson-Moore sector were housed at Richfield High School. Eleventh and twelfth grade students were enrolled at the schools they formerly attended, except that Richfield students were required to attend eleventh grade English and twelfth grade government classes at Jefferson-Moore High School. For the 1974-75 school year, we understood the plan to operate in the same manner as it did in 1973-74, with the only exception being that the temporary consolidation of all tenth graders in the two sectors at Richfield High School was to be terminated.

Our estimation of the effect of the plan for the 1974-75 school year coincided with that of appellant, Arvizu. We quote from the brief of appellant, at 8:

“The plan provides for discontinuation of the 10th grade at the predominantly Black Jeff-Moore High School for the 1973-74 school Term. Thus no neighborhood facility will exist for Blacks in the 10th grade. After attending the predominantly white Rich-field High in 73-74, 10th graders living in the Jeff-Moore zone will return to the predominantly black Jeff-Moore High School for the 1974-75 school terms. Eleventh and twelfth grade black students will, under the Board’s plan continue to attend Jeff-Moore on a segregated basis. White 11th and 12th grade students for Richfield High will be transported for a English course in the 11th grade and a civics course in the 12th grade to Jeff-Moore High.
Beginning in 1975-76 students are projected to attend Jeff-Moore on a full time integrated basis.”

In their brief on appeal, the School Board did not clearly and specifically contest this assessment of the plan. However, in their petition for rehearing, they now contend that contrary to our assumption, the tenth and eleventh grades at the two schools will be integrated for the 1974-75 school year, and only the twelfth grades shall remain segregated. If this be true, we modify our opinion to approve the provisions of the plan with respect to the eleventh and twelfth grades at Richfield and Jefferson-Moore High Schools (school years 1973-74 and 1974-75), with the follow-qualification. Both parties seem to agree that in 1974-75, the twelfth grades at Jefferson-Moore and Richfield High Schools will retain their former segregated identities, but the course pairing utilized for twelfth grade government classes in 1973-74 will not be retained in 1974-75. We conclude that course pairing for the twelfth grade Richfield and Jefferson-Moore High School students must be employed unless the district court finds that this measure is “impractical” under the rationale of Davis v. Bd. of School Commissioners, 402 U.S. 33, 37, 91 S.Ct. 1289, 1292, 28 L.Ed.2d 577, 581 (1971). See Arvizu v. Waco Independent School District, 495 F.2d 499, pp. 503-504 (5th Cir. 1974). In all other respects, our opinion remains unchanged.

The petition for rehearing is denied and no member of this panel nor judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure, Local Fifth Circuit, Rule 12), petition for rehearing en bane is denied.


author: HILL, Circuit Judge.

text:
    MOBILE POWER ENTERPRISES, INC., Plaintiff-Appellant, v. POWER VAC, INC., Defendant, and Anilas Corporation, Defendant-Appellee. Eugene Ashley GAITERS, Plaintiff, v. POWER VAC, INC., Defendant, and Anilas Corporation, Defendant-Appellee.
    No. 73-1682.
    United States Court of Appeals, Tenth Circuit.
    May 31, 1974.
    Warren L. McConnico, Tulsa, Okl. (Phil Thompson, Tulsa, Okl., on the brief), for appellant.
    Paul P. McBride, Tulsa, Okl. (William D. Hunt, Tulsa, Okl., on the brief), for appellee.
    Before HILL and MeWILLIAMS, Circuit Judges, and DURFEE, Judge.

       Honorable James R. Durfee, Court of Claims, sitting by designation.

   HILL, Circuit Judge.

In this diversity action plaintiff-appellant Mobile Power Enterprises, Inc. (Mobile) appeals the trial court’s decision to grant to defendant-appellee Añilas Corporation (Añilas) $1250 in costs and attorneys fees incurred in preparing for this lawsuit.

Pertinent facts leading up to the lawsuit include the following. In 1970 Mobile leased from Añilas a self-contained washing unit manufactured by Power Vac, Inc. (Power Vac). The agreement provided Mobile with a five year lease and the option to purchase the unit when the lease expired. The lease also provided that Mobile would indemnify and hold Añilas harmless from any and all liabilities resulting from use of the truck.

On February 11, 1972, Eugene Gaiters, an employee of Mobile, was driving the washing unit along a four lane highway in Tulsa County, Oklahoma, when another vehicle suddenly swerved into his lane. Gaiters applied the brakes and heard a loud “pop” in the rear of the vehicle; thereafter the vehicle went out of control and turned over, causing extensive injuries to Gaiters and damaging the truck.

A suit was filed by Mobile and by Gaiters against Añilas and Power Vac. Subsequently plaintiffs obtained a satisfactory offer of settlement from Power Vac and sought an Order of Dismissal with prejudice against both defendants. Añilas then filed its application to tax costs and attorneys fees citing as its reasons the above stated indemnification clause and an Oklahoma statute which allows attorneys fees to the prevailing party in certain cases. Añilas’ motion was granted.

On appeal Añilas justifies the costs and attorneys fees on two grounds: (1) Rule 54(d), F.R.Civ.P., and other statutory authority allow costs to the prevailing party; and (2) the lease purchase contract expressly provides indemnification for actions arising out of the use or operation of the washing unit. We do not agree and accordingly reverse.

Rule 54(d) and 12 Okla.Stat. § 936 allow costs to the prevailing party in civil actions. We do not believe, however, that Añilas is a “prevailing party” as meant by the statutes. Generally a prevailing party is the party in whose favor judgment is rendered by the district court. S. A. Hirsh Mfg. Co. v. Childs, 157 F.Supp. 183 (W.D.Pa.1957); Nash v. Raun, 67 F.Supp. 212 (W.D.Pa. 1946); 6 Moore’s Federal Practice ft 54.70 [4]. Judgment, however, was not entered in Añilas’ favor. Mobile elected to settle with Power Vac rather than go to court against both co-defendants and by no stretch of the imagination can we see where settlement between plaintiff and one co-defendant transforms the other co-defendant into a prevailing party.

Añilas suggests that where a plaintiff voluntarily dismisses an action the defendant is entitled to recover costs. While this is an accurate statement of law with respect to dismissal of actions without prejudice, the court lacks power to allow costs, barring exceptional circumstances, if the dismissal is with prejudice. Smoot v. Fox, 353 F.2d 830 (6th Cir. 1965), cert. den’d 384 U.S. 909, 86 S.Ct. 1342, 16 L.Ed.2d 361; 9 Wright & Miller, Federal Practice and Procedure, § 2366. We do not believe Añilas has presented any exceptional circumstances warranting allowance of costs. See Lawrence v. Fuld, 32 F.R.D. 329 (D.Md.1963).

Añilas also relies on the lease-purchase agreement for justifying the trial court decision. Before Añilas could rely on this contract provision, however, it must have filed a counterclaim as required by Rule 13(a), F.R.Civ.P. Its failure to follow the mandates of Rule 13(a) precludes its reliance on the lease-purchase agreement in the instant action.

Because the court had no authority by statute or rule to award Añilas costs; because Añilas is not a prevailing party; and because Añilas did not file a counterclaim before dismissal of the action, we reverse the trial court’s decision.

      . The unit consisted of a custom-made washing and cleaning apparatus resting on a two-and-one-half ton truck.

      . Lessee agrees to and does hereby indemnify and hold Lessor harmless of, from and against all claims, costs, expenses, damages and liabilities, including reasonable attorney fees resulting from or pertaining to the use or operation of the property during the term of this agreement and while said property is in possession of the Lessee.

      . Rule 54(d) Costs. Except where express provision therefore is made either in a statute of the United States or in these rules, costs shall be allowed as a matter of course to the prevailing party unless the court otherwise directs; . . .
      12 O.S. § 936. In any civil action to recover on an open account, account stated, note, bill, negotiable instrument, or contract relating to the purchase or sale of goods, wares, or merchandise, or for labor or the contract which is subject to the action, the prevailing party shall be allowed a reasonable attorney fee to be set by the court, to be taxed and collected as costs.


text:
    Burt EISMAN, Appellee, v. BALTIMORE REGIONAL JOINT BOARD OF AMALGAMATED CLOTHING WORKERS OF AMERICA et al., Appellants, and Amalgamated Clothing Workers of America, Defendants.
    No. 73-1644.
    United States Court of Appeals, Fourth Circuit.
    Argued April 4, 1974.
    Decided June 3, 1974.
    Bernard W. Rubenstein, Baltimore, Md. (Bernard P. Jeweler, and Edelman, Levy & Rubenstein, Baltimore, Md., on brief) for appellants.
    Leonard J. Kerpelman, Baltimore, Md., for appellee.
    Before BOREMAN, Senior Circuit Judge, and BUTZNER and RUSSELL, Circuit Judges.
   PER CURIAM:

Plaintiff, Burt Eisman, brought his action for damages against Amalgamated Clothing Workers of America, the Baltimore Regional Joint Board of ACWA, and two of the officers of the Regional Joint Board alleging infringement of his right to due process in that he was wrongfully expelled from membership in his local union in violation of the provisions of the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411 et seq. Section 101(a)(5) of LMRDA (29 U.S.C. § 411(a)(5)) provides :

No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.

The two Regional Joint Board officers were alleged to have acted under color of and in abuse of their authority as union officers.

For reasons set forth in an unreported Memorandum Decision the district court granted ACWA’s motion for summary judgment, thus releasing ACWA from potential liability to the plaintiff and leaving as defendants only the Baltimore Regional Joint Board and its two named officers who were its manager and assistant manager.

The Regional Joint Board had served Eisman with a written notice that a disciplinary hearing would be held to consider his improper conduct at a local union meeting on October 23, 1970. When the hearing failed to begin at the appointed time, after waiting ten to fifteen minutes Eisman departed. Thereafter the Regional Board convened and, in Eisman’s absence, considered not only evidence relating to the October 23 incident but also evidence of several other acts of alleged misconduct by Eisman not included in the formal charge. Subsequently Eisman was expelled from union membership.

The district court held that Eisman was wrongfully expelled from his union and that his expulsion was void; that Eisman “was prejudiced by the determination of the Joint Board to expelí him based in whole or in part upon facts and allegations not within the scope of the written charges on which the disciplinary hearing was to have been held.” Eisman v. Baltimore Regional Joint Board of the Amalgamated Clothing Workers of America, et al., 352 F.Supp. 429 (D.Md.1972). The district court ordered that the case be set down for jury trial on the following issues: (1) whether Esposito and Nocella (the two officers of the Joint Board), acting under color of and in abuse of their respective union offices, caused the wrongful expulsion of plaintiff; (2) whether plaintiff suffered any injury which was the proximate result of his wrongful expulsion; (3) the assessment of the amount of compensatory damages to compensate for any such injury; and (4) the assessment of punitive damages if otherwise appropriate.

The Joint Board and its two officers were granted an interlocutory appeal.

Upon consideration of the record, the brief and oral argument presented by appellants and the joint appendix, we perceive no error in the district court’s findings of fact and conclusions of law, we affirm on the opinion of the district court.

Affirmed.

      . Appellee’s counsel declined to file a brief or orally argue the case.

      . 352 F.Supp. 429, supra.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Kenneth JOINER, Defendant-Appellant.
    No. 74-1225
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 17, 1974.
    Rehearing Denied July 31, 1974.

      Laurence L. Priddy, Fort Worth, Tex. (Court-appointed), for defendant-appellant.
    Frank D. McCown, U. S. Atty., John W. Sweeney, Jr., Asst. U. S. Atty., Fort Worth, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, 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. I.

   PER CURIAM:

Appellant, William Kenneth Joiner, was convicted of escaping from a federal corrections institute in violation of 18 U.S.C. § 751(a). The escape occurred while appellant was on a two-day furlough to attend divorce proceedings instituted by his wife against him. He failed to return at the end of his leave and three weeks later was arrested for a traffic offense and returned to custody.

On appeal Joiner contends (1) that the evidence was insufficient for conviction, (2) that the court erred in its charge to the jury on proof beyond a reasonable doubt, and (3) that the court erred in admitting into evidence the judgment and commitment of the offense for which he was originally convicted. We find no merit to these contentions and affirm.

Appellant contends that the evidence was insufficient to show that his failure to return from furlough was wilful. As a basis for this contention he relies on uncontradicted evidence that he is an epileptic and is subject to seizures, after which he becomes mentally confused. He testified that he suffered several seizures following the divorce hearing. Appellant contends that the shock of the divorce proceedings triggered' epileptic seizures which left him confused, affected his memory, and rendered him incapable of wilful criminal intent. There was, however, substantial evidence on which the jury could have predicated its verdict of guilty. There was expert testimony to the effect that the usual length of time for mental confusion following epileptic seizures is a few hours and that it would be rare for such a condition to last as long as a day or two. The record also shows that defendant remembered various incidents while on escape status, such as his purchase of a car and hiring a person to drive it. Moreover, at the time of appellant’s arrest he was able to respond to questions asked by the arresting officers. Taking the view most favorable to the Government, there was substantial evidence to support the verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

The District Court instructed the jury that proof beyond a reasonable doubt is established “if the evidence is such as you would be willing to rely and act upon in the more important of your own affairs.” While this type of charge has received some criticism because of the personal reference to a juror’s willingness to act, as contrasted to that of the reasonable prudent man, such a charge does not warrant reversal. See Scurry v. United States, 1965, 120 U.S.App.D.C. 374, 347 F.2d 468; United States v. Releford, 6 Cir., 1954, 352 F.2d 36. The identical language objected to is used in Federal Jury Practice and Instructions, Section 8.01. Moreover, the challenged language is only a portion of an extensive and long-approved charge on reasonable doubt given by the District Court.

Appellant’s objection to the introduction as a business record of a certified copy of his judgment and conviction is without merit. See Timms v. United States, 5 Cir., 1968, 403 F.2d 879.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ronald Gage McGLYNN, Defendant-Appellant.
    No. 73-2894.
    United States Court of Appeals, Fifth Circuit.
    July 17, 1974.
    Joseph S. Chagra, Lee A. Chagra, El Paso, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., S^n Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for plaintiffappellee.
    Before COLEMAN, AINSWORTH and GEE, Circuit Judges.
   PER CURIAM:

On May 24, 1973, the grand jury for the Western District of Texas indicted Ronald Gage McGlynn for the unlawful possession of 87 pounds of marihuana. Upon trial to the court without a jury, he was convicted and sentenced as a young adult offender, 18 U.S.C., § 5010(b); 18 U.S.C., § 5017(c).

This appeal was argued in New Orleans on December 13, 1973. The Court was then of the view, and so stated from the Bench, that apparently the only appropriate disposition of the appeal would be to remand for further proceedings consistently with the decision of the Supreme Court, June 21, 1973, in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596. Prior to the entry of any order to that effect, however, this Court held on April 8, 1974, that Almeida is to apply only to searches conducted after the date it was rendered, United States v. Miller, 5 Cir., 1974, 492 F.2d 37. The apprehension in this case, and the search which produced it, occurred April 27, 1973.

The sole issue in the appeal is whether the District Court erred in denying the motion to suppress the evidence obtained in the search. The United States Border Patrol was checking traffic at a permanent checkpoint on Interstate 10, between Sierre Blanca and El Paso. As the McGlynn automobile approached it was seen to have a tire in the back seat. This aroused the possibility that it had been removed from the trunk to make more room. McGlynn was asked to open the trunk and the officer smelled marihuana. Whereupon, the automobile was pulled out of the traffic lane and the trunk was searched. On the motion to suppress the Border Patrol officer testified that he opened the trunk in the first place “to search for aliens in the trunk”.

Since Almeida-Sanchez, supra, is not to be applied to searches conducted prior to June 21, 1973, this case, like so many others, falls within our decision in United States v. Merla, 5 Cir., 1974, 493 F.2d 910. See, also, United States v. Hufstetler, 5 Cir., 1974, 496 F.2d 1184.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jacqueline Simmons GREENE, Defendant-Appellant.
    No. 73-2286.
    United States Court of Appeals, Fifth Circuit.
    July 17, 1974.
    Lee A. Chagra, El Paso, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Edward Marquez, Ronald F. Ederer, Asst. U. S. Attys., El Paso, Tex., for plaintiff-appellee.
    Before COLEMAN, AINSWORTH and GEE, Circuit Judges.
   PER CURIAM:

On March 8, 1973, the grand jury for the Western District of Texas indicted Jacqueline Simmons Greene for the unlawful possession of 140 pounds of marihuana. Upon trial to the court without a jury, she was convicted and sentenced to five years imprisonment, eligible for parole under 18 U.S.C., § 4208(a)(2) and a special parole term of five years.

This appeal was argued in New Orleans on December 13, 1973. The Court was then of the view, and so stated from the Bench, that apparently the only appropriate disposition of the appeal would be to remand for further proceedings consistently with the decision of the Supreme Court, June 21, 1973, in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596. Prior to the entry of any order to that effect, however, this Court held on April 8, 1974, that Almeida is to apply only to searches conducted after the date it was rendered, United States v. Miller, 5 Cir., 1974, 492 F.2d 37. The apprehension in this case occurred September 24, 1972.

The sole issue in this appeal is whether the District Court erred in denying the motion to suppress the evidence obtained in the search which produced the illegal substance.

This case, however, is not like United States v. McGlynn, 5 Cir., 496 F.2d 1316, which we heard on the same date as this appeal and which we have this day decided. This search occurred near Kent, Texas, on Interstate Highway 10. The record fails to show whether it occurred at a permanent Border Patrol check point or at a functional equivalent of the border. It shows no probable cause for a stop and search for aliens, or for any other lawful purpose.

This brings into play such cases as United States v. Byrd, 5 Cir., 1973, 483 F.2d 1196, reversal reaffirmed under pre-Almeida standards, United States v. Byrd, 5 Cir., 1974, 494 F.2d 1284.

In the undeveloped, exceedingly sparse state of this record, we vacate the judgment of conviction and remand this case to the District Court for a complete development of the facts and circumstances surrounding this stop and search and for a determination of its validity within the perimeters of the applicable law.

Vacated and remanded.


text:
    Frank EVANS, on behalf of himself and all others similarly situated, Plaintiff-Appellant, v. Lester W. SEAMAN, d/b/a Les’s Roller Rink a/k/a Leo’s Roller Rink, Defendant-Appellee.
    No. 73-2658.
    United States Court of Appeals, Fifth Circuit.
    July 12, 1974.

      George M. Strickler, Jr., New Orleans, La., Nausead Stewart, Jackson, Miss., Armand Derfner, Lawyers Committee for Civ. Rights Under Law, Washington, D. C., for plaintiff-appellant.
    W. D. Kendall, Jackson, Miss., for defendant-appellee.
    Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.
   PER CURIAM:

In its present posture, this appeal is concerned solely with the amount of the attorney’s fees awarded a successful plaintiff in a suit prosecuted under Title II of the 1964 Civil Rights Act, 42 U.S. C., § 2000a. On the prior appeal, Evans v. Seaman, 5 Cir., 1972, 452 F.2d 749, cert. denied, 408 U.S. 924, 92 S.Ct. 2493, 33 L.Ed.2d 335, we directed:

“On remand the trial judge is to determine and grant reasonable attorney’s fees as are warranted unless special circumstances would render such an award unjust. Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1938); Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir., 1970).”

On remand, the District Court held that attorney’s fees should be awarded and there is no appeal from that action. The problem is that the plaintiff is dissatisfied with the amount of the award and has appealed on that issue alone. Fees in the amount of $4,620 were claimed, and the sum of $1,750 was awarded.

At the hearing on the subject in the District Court, counsel for the defendant announced that he would “take no issue with the amount of attorney’s fees and time spent”. He did seek unsuccessfully to introduce evidence as to the defendant’s ability to pay and to develop the “injustice” of granting a full award. The Court then announced that it would “fix a reasonable attorney’s fee under the circumstances in this case (emphasis .ours) at $1,750”.

The difficulty with this appeal is that the District Court decided this matter on June 4, 1973 and thus neither the parties nor the Court had the benefit of our opinion in Johnson v. Georgia Highway Express, Inc., decided January 21, 1974, 488 F.2d 714. Johnson laid down the principle that the factors upon which the size of an attorney’s fee is based must be elucidated. Moreover, the decision illuminated the guidelines to be considered in such cases.

We intimate no views as to adequacy or inadequacy of the award now before us, but in view of the foregoing, we vacate the judgment of the District Court and remand for further consideration in the light of Johnson v. Georgia Highway Express, Inc., supra.

Vacated and remanded.


text:
    Mrs. William Betty HELIS, Plaintiff-Appellee, v. Chester A. USRY, District Director of Internal Revenue, New Orleans District, Defendant-Appellant. William G. HELIS, Jr., and Venus D. Helis, Plaintiffs-Appellees, v. Chester A USRY, District Director of Internal Revenue, New Orleans District, Defendant-Appellant.
    No. 73-3270.
    United States Court of Appeals, Fifth Circuit.
    July 15, 1974.

      Scott P. Crampton, Asst. Atty. Gen., Jack D. Warren, Meyer Rothwaeks, Attys. Tax. Div., Dept, of Justice, Washington, D. C., Michaelle F. Pitard, Asst. U.
    S. Atty., Gerald J. Gallinghouse, U. S. Atty., New Orleans, La., Jane M. Edmisten, Paul M. Ginsburg, Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellant.
    Gibbons Burke, James G. Burke, Jr., David A. Kerstein, Morris Wright, Harry McCall, Jr., New Orleans, La., for plaintiffs-appellees.
    Before DYER and MORGAN, Circuit Judges, and KRAFT, Sr., District Judge.
   PER CURIAM:

On a previous appeal by the government from adverse judgments in two tax refund suits, we affirmed the District Court on all issues except the issue of whether the partnership of Mrs. William (Betty) Helis, Sr., and her son, William G. Helis, Jr., known as Helis European Operations, had met their burden of demonstrating that certain claimed expenses were deductible.

On remand we directed that for the expenses to be deductible taxpayers would have to meet their burden of proof by showing that all expenses of the Athens office of European Operations were (1) necessary and ordinary business expenses of European Operations, and (2) expenses not involved in the acquisition of a capital asset. At the trial of the District Court on remand taxpayers presented testimony of James A. Rorison, Jr., who, in a managerial capacity for taxpayers, was familiar with certain expenditures of the European Operations business. In addition to Rorison’s testimony, the deposition of William Helis, Jr., and other documentary evidence prepared by the staff of Helis European Operations was also presented in evidence, as were certain stipulated financial reports of the partnership’s operations for the Years 1957, 1961, 1962, 1963, and 1964, which reports had been prepared by the auditors of European Operations.

The trial court had before it pertinent portions of the original record and the additional evidence produced above described. A perusal of the record indicates to us that the findings of the District Court which held (1) that all of taxpayers’ expenditures in connection with the operation of the Athens office were ordinary and necessary business expenses of European Operations and (2) that these expenditures were non-capital in nature are not clearly erroneous and should be sustained under Rule 52 of the Federal Rules of Civil Procedure.

Neither do we find merit in the government’s assertion that the District Court erred in allowing the taxpayers to deduct certain interest and payroll tax expenses under Sections 163 and 164 of the Internal Revenue Code since, as the government contends, these grounds for deductions were never urged by taxpayers either in their claims for refund or in their complaints in the instant litigation. We think in the case at hand the taxpayers’ claims were sufficient to “put the Commissioner on notice”. In response to the disallowance by the Commissioner, the taxpayers stated in their claims and complaints that the Commissioner improperly disallowed all expenses of European Operations. The Commissioner, who had disallowed all such expenses, had before him the partnership returns of taxpayers in which the items of interest and taxes were clearly set forth as deductible expenses. The rule is that the claim must be sufficient to advise the Commissioner of Internal Revenue as to the items to which taxpayer claims error and the grounds upon which the taxpayer makes this claim. We feel that the taxpayers met the required standard of specificity in their claims and complaints. See Keneipp v. United States, 1950, 87 U.S.App.D.C. 242, 184 F.2d 263.

However, even if taxpayers failed to satisfy the procedural requirements of Section 7422(a) of the Internal Revenue Code, the government waived its right to object to the sufficiency of the taxpayers’ claims and complaints because of its failure to timely raise the objections. The government, after numerous conferences, two trials on the merits in the District Court, and a prior appeal to this court, has for the first time in this second appeal raised this procedural issue.

We hold that the government in the case at hand waived its right to object to the sufficiency of the claim for refund when it did not raise the issue during the entire course of the litigation until this appeal. See Tucker v. Alexander, 275 U.S. 228, 48 S.Ct. 45, 72 L.Ed. 253 (1933).

Judgment affirmed.

      . The facts of this case are set out in more detail in the previous opinion of this court in Helis v. Usry (1972) 464 F.2d 330, and need not be repeated on this appeal.

      . The two refund suits were consolidated for the first trial.

      . The government actually stipulated during the trial on remand that the taxes and interest had been paid by European^Operations.