author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eugene Cecil McKIM, Defendant-Appellant.
    No. 73-1787
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 12, 1973.
    Rehearing Denied Nov. 29, 1973.
    Oscar J. Pena, Laredo, Tex. (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, 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.

   AINSWORTH, Circuit Judge:

Appellant Eugene Cecil McKim was convicted of conspiring to import, possessing with intent to distribute and importing into the United States from Mexico, approximately 60 pounds of marihuana, in violation of 21 U.S.C. §§ 952(a), 841(a)(1) and 960(a)(1), respectively. On appeal he contends that the district court erred in allowing, over his objection, the use of illegally obtained evidence, to-wit, the marihuana. Because of the recent Supreme Court decision of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), and our later decision in United States v. Byrd, 5 Cir., 1973, 483 F.2d 1196, we reverse.

On September 9, 1972, at approximately 2:30 a. m., appellant, accompanied by two passengers, was driving a 1972 Ford automobile on Texas Highway 1017 in a northerly direction, about 55 miles from the Mexican border when the vehicle was stopped by two United States Border Patrol Agents for a routine immigration check. At the request of the agents McKim opened the trunk of the vehicle and the agents detected a strong odor of marihuana emanating therefrom. A subsequent search of the trunk revealed marihuana contained in four plastic bags, which was seized and later introduced in evidence at the trial.

Border Patrol Agent Ostrowski testified that he did not notice anything unusual when he approached the automobile to conduct an investigation for aliens, that he and his partner had been assigned to the area to make routine immigration inspections of vehicles to prevent the illegal entry of aliens into the United States. They were “taking a roving checkpoint” when they stopped Mc-Kim. The agent distinguished a “roving checkpoint” from any other checkpoint, saying, “It is not a stationary checkpoint with stop signs and stuff like that on the highways. My partner and I rode different highways at random and we stopped the traffic to conduct our immigration inspections.” He testified that he did not know whether or not the vehicle had been to Mexico or anywhere close to the border, that he was not looking for that particular car and had no search or arrest warrant.

The facts here closely resemble those in Almeida-Sanchez, supra,, in which the Supreme Court reversed a judgment' of conviction, having found no support for the constitutionality of a stop and search where the search was not a border search nor the functional equivalent thereof, and there was no probable cause for stopping and searching and no consent thereto by petitioner. In that case,

“The petitioner was stopped by the United States Border Patrol on State Highway 78 in California, and his car was thoroughly searched. The road is essentially an east-west highway that runs for part of its course through an undeveloped region. At about the point where petitioner was stopped the road meanders north as well as east — but nowhere does the road reach the Mexican border, and at all points it lies north of Interstate 80, a major east-west highway entirely within the United States that connects the Southwest with the west coast. The petitioner was some 25 air miles north of the border when he was stopped. It is undenied that the Border Patrol had no search warrant, and that there was no probable cause of any kind for the stop or the subsequent search— not even the ‘reasonable suspicion’ found sufficient for a street detention and weapons search in Terry v. Ohio, 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889], and Adams v. Williams, 407 U.S. 143 [92 S.Ct. 1921, 32 L.Ed.2d 612].” 413 U.S. at 267, 93 S.Ct. at 2536.

In reversing the judgment of conviction, the Supreme Court noted :

“Whatever the permissible scope of intrusiveness of a routine border search might be, searches of this kind may in certain circumstances take place not only at the border itself, but at its functional equivalents as well. For example, searches at an established station near the border, at a point marking the confluence of two or more roads that extend from the border, might be functional equivalents of border searches. For another example, a search of the passengers and cargo of an airplane arriving at a St. Louis airport after a nonstop flight from Mexico City would clearly be the functional equivalent of a border search.
“But the search of petitioner’s automobile by a roving patrol, on a California road that lies at all points at least 20 miles north of the Mexican border, was of a wholly different sort. In the absence of probable cause or consent, that search violated the petitioner’s Fourth Amendment right to be free of ‘unreasonable searches and seizures.’ ” 413 U.S. at 273, 93 S.Ct. at 2539.

Although the Supreme Court’s “functional equivalent” test is merely illustrative, and does not foreclose the possibility of future situations warranting the characterization of “functional equivalents” to border searches, under the analogous circumstances of the present case the constitutionality of the search cannot be upheld. As in Almeida-San-chez, appellant was stopped by a roving patrol, not at an established station, on a road which at no point reaches the Mexican border, and which more or less parallels Federal Highway 83, a major east-west highway entirely within the United States. Highway 1017, on which appellant was stopped, runs from Linn, Texas, to San Gloria, Texas, in a northwesterly direction; thence generally in a northerly direction. At all points it is at least 35 miles from the international border. The act of the officers in stopping appellant at a point approximately 55 miles from the border was based neither on probable cause nor suspicion.

Reversed.

      . In United States v. Byrd, 5 Cir., 1973, 483 F.2d 1196, a case which is factually similar to the present one, we reversed the conviction of appellant who was stopped on a Texas Highway 45 miles from the Mexican border by United States Border Patrol Agents conducting a roving patrol in search of illegal aliens. As here, the officers had no search warrant and no probable cause to believe that defendant was smuggling aliens across the border. The car was stopped for a routine immigration inspection which resulted in the discovery and seizure of marihuana. Applying the principles of Almeida-Sanchez, supra, we concluded that a search 45 miles on this side of the Mexican border was not the functional equivalent of a border search, and in the absence of probable cause or consent, was unconstitutional.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    John Anthony TAYLOR, Appellant, v. UNITED STATES of America, Appellee.
    No. 88, Docket 73-1800.
    United States Court of Appeals, Second Circuit.
    Submitted Nov. 8, 1973.
    Decided Nov. 14, 1973.
    John Anthony Taylor, pro se.
    Raymond J. Dearie, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E.D.N.Y., of counsel), for appellee.
    Before WATERMAN, FRIENDLY and TIMBERS, Circuit Judges.
   PER CURIAM:

On November 13, 1972, John Anthony Taylor, who had been convicted in the District Court for the Eastern District of New York of conspiring to engage in armed bank robbery in violation of 18 U.S.C. § 371, moved in that court under 28 U.S.C. § 2255 for an order vacating his sentence and setting aside his conviction. The motion was supported by an affidavit of Carol M. Brunner, who had been indicted with him and had testified against him, that an Assistant United States Attorney had offered her “special favors” in exchange for her testimony against Taylor. It was made clear to her, she stated, that the charges against her “would be .reduced in consideration of my presenting the most damaging testimony possible against John Taylor.” The Assistant responded with an affidavit stating that the Government “did not make any promises or offer any special favors” in exchange for her testimony. Judge Travia, in an opinion, denied the application. When it turned out that Taylor had never received the Assistant’s affidavit, the judge reopened the ease and two more sharply conflicting affidavits were filed. This time Brunner stated that the prosecutor had promised her that she would not go to jail if she cooperated with the Government and that he had told her to answer in the negative if asked whether any promises had been made to her, as she did. The Assistant denied these charges as well.

On April 16, 1973, the court filed an opinion adhering to its earlier decision. Crediting the Assistant’s affidavit and discrediting Brunner’s the judge concluded that “the motion papers submitted and the files and records of this court on this case conclusively show that the defendant Taylor is entitled to no relief.”

Taylor appealed to this court and filed his pro se brief on June 19, 1973. The Government’s answering brief was due on July 18, 1973. It filed none and obtained no extension of time. Inquiry from a judge of this court a week before the date scheduled for submission of the appeal developed that the Government, now recognizing that the court had been in error in not conducting an eviden-tiary hearing, was preparing to move for a remand. This it did on November 2, 1973.

The Government’s motion refers to “the position that this Court has taken with respect to the requirement of evidentiary hearing following applications similarly [sic] to that of appellant” and cites as an example a summary order to that effect filed last April. This is disingenuous in the extreme. It is not a novel doctrine peculiar to this court that when a federal prisoner raises an issue which would require a new trial if factually sustained, as the judge conceded to be the case here, see Giglio v. United States, 405 U.S. 150, 154-155, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and presents a sufficient affidavit in its support, an opposing affidavit by the Government is not part of “the files and records of the case” which can be taken to “conclusively show that the prisoner is entitled to no relief,” within 28 U.S.C. § 2255. The principle was established by the Supreme Court as long ago as Walker v. Johnston, 312 U.S. 275, 61 S. Ct. 574, 85 L.Ed. 830 (1941), and Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942). By this time the rule should be well known to Assistant United States Attorneys, who ought not to lead courts into errors, and to federal trial judges, who ought not to make them. The result of what happened here is that this court has been burdened with an appeal that should never have had to be taken and, more important, that Taylor has been denied an evidentiary hearing he should have had a year ago.

The order denying the petition is reversed, with instructions that the petition be assigned to another judge who shall appoint counsel for Taylor and conduct an evidentiary hearing as soon as feasible. The mandate shall issue forthwith.


author: RONEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Raul Acosta MENDOZA, Defendant-Appellant.
    No. 72-3539.
    United States Court of Appeals, Fifth Circuit.
    Nov. 15, 1973.
    Pat E. Dwyer, El Paso, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., Edward S. Marquez, El Paso, Tex., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and RONEY and GEE, Circuit Judges.
   RONEY, Circuit Judge:

We hold that there was insufficient evidence to sustain the conviction of defendant under 18 U.S.C.A. § 922(a)(6) for knowingly and unlawfully misrepresenting his residence to a federally licensed firearms dealer in connection with his acquisition of a firearm.

The indictment alleged that Mendoza “did knowingly and unlawfully exhibit a false and fictitious State of Texas Chauffeur’s License which stated, among other things, that he was a resident of El Paso, Texas, when in truth and fact he was a resident of Juarez, Chihuahua, Mexico, and this false and fictitious identification was likely to deceive” the licensed dealer with respect to the lawfulness of the sale.

There was no evidence from which the jury could reasonably conclude that Mendoza presented the driver’s license as a representation of his residence at the time of the sale. The address on the license was a mailing address used by Mendoza. He was temporarily living at the address when the license was issued. He could be contacted by mail or telephone through the friend who was living at the address.

Mendoza, a truck driver, was admitted into the United States on June 8, 1970, as a resident alien. As a “long haul” truck driver, Mendoza spent most of his time traveling. Upon his return from a ■trip, he would visit friends in El Paso, remain at the El Paso Truck Terminal, check into a motel, or visit his mother in Juarez, Mexico. He maintained no permanent living accommodations.

A careful review of the testimony of the licensed dealer fails to establish the critical fact which the Government needed to prove, i. e. that the license was presented by defendant to the dealer for the purpose of representing his residence as opposed to merely furnishing identification. After the witness identified the sales slip concerning the transaction, she testified as follows:

Q Did you, yourself, sell this weapon to Mr. Mendoza?
A Yes, I did.
Q Are your initials on that? How can you identify that it was your sale ?
A By the writing.
Q Okay. Now, do you remember selling a weapon to Raul Acosta Mendoza?
A I remember the name. I don’t remember the person himself, but I remember the name becasue we have to fill out a form, that they have to answer all of these questions and sign them, and so do I have to sign it too.
Q Is this the form, Mrs. Presburg?
A Yes, that’s it.
Q And this is the form that Mr. Mendoza did fill out in your presence ?
A Yes, sir.
Q Could you please state the address that’s shown on that form.
A 917% South Park Street, El Paso, Texas 79901.
Q Is there a signature on this form ?
A Yes. Raul Mendoza.
Q Was there any identification presented to you concerning the purchase of this weapon?
A Yes. He was identified to me by the Texas Drivers License 663 7053.
Q Now, Mrs. Presburg, would you look at the, on that form that is signed by Mr. Mendoza, the certification, could you please read that certification to the jury.
A You mean the questions?
Q Not the questions so much as the certification just below the questions.

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

Q As the standard procedure when you sell a weapon, are there any questions that you ask?

A Yes, there are eight questions that they have to answer on this form. And I also ask them if they are Texas residents. ' They are not allowed to buy a firearm for resale purposes, as a gift or for transfer to anyone else unless they are also a resident of the State of Texas.

Q Is this your standard procedure?

A Yes. We have a form on the wall written in English and Spanish. They are bilaws stating to that effect.

Q I’m sorry. On the wall — would you repeat that.

A We have on the wall a written card of the bilaws stating to that effect that they cannot transfer, give or sell to another person unless they are also a resident of the State of Texas.

Q Does this form also set out that •they must be a resident to buy the weapon ?

A Yes.

Q Did you then in fact sell to Mr. Mendoza the weapon?

A Yes.

Q And what was the amount of purchase ?

A $105 plus the tax of $5.25, making a total of $110.25.

The witness could not remember this transaction. She testified that the license was presented to her as identification. She did not testify that it was given as proof of residence. The witness did not testify that she followed her standard procedure for this sale. There was no evidence that the license was produced in response to any request she may have made concerning his residence. There was no evidence that the defendant knew that the license was being used for the purpose of determining his residence.

Without these critical facts, the proof fails to support the conviction under this indictment as written.

Reversed.


text:
    Delores MENDOZA et al., Appellants, v. UNITED FARM WORKERS ORGANIZING COMMITTEE et al., Appellees.
    No. 71-1930.
    United States Court of Appeals, Ninth Circuit.
    Sept. 7, 1973.
    Certiorari Denied Feb. 19, 1974.
    See 94 S.Ct. 1416.
    Jonathan C. Gibson (argued), of Gibson & Kennerson, San Diego, Cal., Frederic A. Jacobus, of Jacobus, Isham & Humpal, Visalia, Cal., Rex H. Reed, John L. Kilcullen, of Gall, Lane, Powell & Kilcullen, Washington, D. C., for appellants.
    Stephen Engelhardt (argued), of Cohen, Farnsworth, Denison, Carder & En-gelhardt, Delano, Cal., for appellees.
    Before HASTIE KILKENNY and GOODWIN, Circuit Judges.

       The Honorable William H. Hastie, Senior United States Circuit Judge of the Third Circuit, sitting by designation.

   PER CURIAM:

This is an appeal from an order dismissing a complaint that charged violation of Fourteenth Amendment rights on the ground that it failed to allege such state action as the Amendment requires.

The complaint alleges that the plaintiffs are present or former employees of the defendant growers of agricultural commodities and that union shop provisions of a labor contract between the defendant employers and the defendant United Farm Workers Organizing Committee, a labor organization, have resulted in the plaintiffs’ discharge or other discriminatory action by the defendants' against them as employees The complaint also alleges without particularizing that the union shop contract is “on its face and in its operation and effect” violative of the Fourteenth Amendment. The complaint does not specify any causative or coercive involvement of the state in the alleged wrongdoing.

Reference to two leading cases will serve to highlight the inadequacy of this complaint to support a claim of violation of the Fourteenth Amendment. In Shelley v. Kraemer, 1947, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161, the Supreme Court observed that “so long as the purposes of . . . [covenants that impose racial restrictions on property ownership] are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action of the State and the provisions of the [Fourteenth] Amendment have not been violated”. Recently, the Supreme Court had occasion to apply this concept in a suit by a would-be patron against the owner of a restaurant that had denied her service on a racial ground. Adickes v. Kress & Co., 1970, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142. A majority of the Court agreed that in order to convert such ordinarily private action into state action within the meaning of the Fourteenth Amendment, there must be some “compulsion of state law”. 398 U. S. at 170, 90 S.Ct. 1598.

The present complaint does not allege that the defendants entered into and performed their union shop agreement under any compulsion of California law rather than through the normal give and take of collective bargaining and labor-management relations. We add that we have found nothing in California law that coerces parties to include union shop provisions in a labor contract. In these circumstances, we agree with the district court that the complaint was inadequate.

The judgment is affirmed.


author: HASTIE, Circuit Judge.

text:
    LA CHEMISE LACOSTE, a French corporation, Appellant, v. GENERAL MILLS, INC., a Delaware corporation, David Crystal, Inc., a Delaware corporation and Izod, Ltd., a New York corporation as additional Defendants under Rule 19, Appellees. The ALLIGATOR COMPANY, INC., a Delaware corporation, Defendant and Third-Party Plaintiff, Appellee, v. JEAN PATOU, INC., a New York corporation, Third-Party Defendant.
    No. 72-1111.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 26, 1973.
    Decided Sept. 6, 1973.
    As Amended Nov. 1, 1973.

      See also, D.C., 60 F.R.D. 164.
    Thomas S. Lodge, Connolly, Bove & Lodge, Wilmington, Del., for plaintiff-appellant and third-party defendant; W. Brown Morton, Jr., Donal B. Tobin, Morton, Bernard, Brown, Roberts & Sutherland, Washington, D. C., of counsel.
    Lewis S. Black, Jr., Morris, Nichols, Arscht & Tunnell, Wilmington, Del., for defendant, appellee.
    Robert K. Payson, Potter, Anderson & Corroon, Wilmington, Del., for additional defendants, appellees; Irving Constant, Brian Bilzin, Rubin, Wachtel, Baum & Levin, New York City, Arthur H. Seidel, Allen L. Greenberg, Seidel, Gonda & Goldhammer, Philadelphia, Pa., of counsel.
    Before HASTIE and ALDISERT, Circuit Judges, and DITTER, District Judge.
   OPINION OF THE COURT

HASTIE, Circuit Judge.

This litigation began with a complaint filed in the district court by La Chemise Lacoste, a French corporation, against the Alligator Company, Inc., a Delaware corporation. The relief sought was a declaratory judgment that Lacoste owned a certain crocodile emblem as a trademark for toiletries and was entitled to sell toiletries bearing that emblem in the United States.

Responding to this complaint, Alligator pleaded that Lacoste, acting through Jean Patou, Inc., a New York corporation, as its exclusive distributor, had violated Alligator’s trademark rights and had competed unfairly by marketing in the United States toiletries so marked as to infringe its alligator emblem and trademark. Patou, as the instrumentality through which Lacoste had acted, was joined as a third-party defendant to affirmative request by Alligator for a determination of trademark rights between Alligator and Lacoste.

At this stage the litigation was essentially a controversy over the use of lizard-like emblems on toiletries and the pleadings showed that decision would be required upon conflicting claims to trademark rights in such emblems so used.

Lacoste then answered the charge in Alligator’s counterclaim that it was violating Alligator’s trademark rights and undertook to add as unwilling parties defendant three other American corporations: General Mills, Inc., Izod, Ltd. and David Crystal, Inc., though neither La-coste nor Alligator had theretofore sought relief against these corporations. Lacoste treated this joinder as a matter of right under Rule 19(a), Federal Rules of Civil Procedure.

Thereafter, the cause came on for hearing on a motion of Lacoste for a preliminary injunction restraining General Mills, Alligator, Izod and Crystal from “diluting the distinctiveness of [Laeoste’s] common law trade marks, ‘Chemise Lacoste’ and ‘Lacoste’,” by alleged misuse of a lizard-like emblem on various articles of apparel. Simultaneously, the court considered a motion by General Mills, Izod and Crystal to dismiss the action as against them on the ground they were misjoined and the further ground that no cause of action had been pleaded against them.

The court granted the motion to dismiss the added parties and denied La-coste’s motion for a temporary injunction. 1971, 53 F.R.D. 596. Lacoste has appealed, thus bringing before us the propriety of the denial of a preliminary injunction and, incidentally at least, the propriety of the dismissal of the added parties, since most, if not all, of the alleged infringements sought to be restrained pendente lite are acts of those corporations rather than Alligator.

We agree with the district court that on the present record General Mills, Izod and Crystal were not subject to compulsory joinder under Rule 19(a). Cf. McArthur v. Rosenbaum Co. of Pittsburgh, 3d Cir. 1950, 180 F.2d 617; Volkswagenwerk Aktiengesellschaft v. Dreer, E.D.Pa.1963, 224 F.Supp. 744. The pleadings as they existed up to the time of the attempted joinder disclosed only disputes and conflicting claims between Lacoste and Alligator and no relief had been sought against any other person. True, at hearing it was established that General Mills was the sole stockholder of Crystal and had recently acquired all of the stock of Alligator. Moreover, Izod was wholly owned by Crystal. But the district court found, permissibly on this record, that these subsidiaries existed in law and functioned in fact as distinct entities over which, in the district court’s language, “Mills does not exercise such control as to conclude that Alligator and Crystal are the alter egos of Mills justifying the piercing of the corporate veil . . . .” 53 F.R.D. at 603. We also agree with the district court that it had not acquired personal jurisdiction over Izod, a New York corporation.

Once it is decided that the corporations other than Alligator were not properly joined, the propriety of denying a preliminary injunction becomes very clear. The district court ruled that “to issue a preliminary injunction with respect to Alligator would be to resolve [in limine] a serious and novel question of fact and law as between LCL [Lacoste] and Alligator as to which has dominant rights in the crocodile emblem.” 53 F.R.D. at 605. We think this appraisal was correct. A meaningful preliminary injunction against Alligator would necessarily have gone beyond the maintenance of the status quo. It would have granted affirmative relief pending final adjudication. Moreover, it was not proved that the requested injunction was essential to the avoidance of immediate irreparable harm to Lacoste. In all the circumstances, we conclude that the denial of a preliminary injunction was a proper exercise of judgment and discretion. Cf. Penn Galvanizing Co. v. Lukens Steel Co., 3d Cir. 1972, 468 F.2d 1021.

The judgment will be affirmed.


author: DUNIWAY, Circuit Judge:

text:
    June Karen LARAMIE et al., Plaintiffs-Appellants, v. Narcisse NICHOLSON, Jr., et al., Defendants-Appellees.
    No. 72-1264.
    United States Court of Appeals, Ninth Circuit.
    Oct. 9, 1973.
    Kelly Hancock, Omak, Wash., for plaintiffs-appellants.
    Robert L. Pirtle, of Ziontz, Pirtle & Morisset, Seattle, Wash., for defendants-appellees.
    Before KOELSCH, DUNIWAY and WALLACE, Circuit Judges.
   OPINION

DUNIWAY, Circuit Judge:

The appealing plaintiffs are children whose mother is a member of the Col-ville Confederated Tribe of Indians. They seek to be enrolled as members of the tribe. The trial judge dismissed their action for want of jurisdiction, relying on our decision in Fondahn v. Native Village of Tyonek, 9 Cir., 1971, 450 F.2d 520. We reverse and remand.

Although plaintiffs met all other requirements for enrollment in the tribe, they were refused enrollment by the Business Council of the tribe because they had previously been enrolled members of another tribe. Council Resolution 1967-186, Section 4 provided:

“If the applicant is already a duly enrolled member of another recognized tribe, this will deem the applicant automatically ineligible for adoption in the Colville Confederated Tribes, regardless of whether the applicant offers to relinquish his or her rights with the other tribe.”

This requirement was amended in 1969, by Resolution 1969-349, adopted after the action by the Council in the present case, to disqualify also those who had in the past been members of another tribe.

Plaintiffs allege that the Colville Business Council agreed to enroll them if the Commissioner of Indian Affairs of the Department of the Interior ruled that this was not prohibited by Resolution 1967-186. They say that the Commissioner so ruled, but that the Council still refused to take further action, even though other individuals having the same supposed disqualification were enrolled in the tribe. This is the factual basis for plaintiffs’ claim of a denial of the equal protection of tribal law.

Plaintiffs claim that violation of the so-called Indian Bill of Rights, 25 U.S.C. §§ 1301-1303, enacted in 1968 (82 Stat. 77), gives rise to a .civi'l action and that 28 U.S.C. § 1343(4) confers jurisdiction on the District Court. We agree. We have recently so held. Johnson v. Lower Elwha Tribal Community, 9 Cir., 1973, 484 F.2d 200 (1973).

In that case, the claim was that the plaintiff had been deprived of due process of law in violation of 25 U.S.C. § 1302(8). In this case, the claim is that the plaintiffs have been deprived of the equal protection of the tribal laws, in violation of the same section. We see no difference in principle that distinguishes our Johnson ease from this case.

Our decision in Fondahn, swpra, is not to the contrary. It is true that the case was decided in 1971, more than three years after the enactment of the Indian Bill of Rights on April 11, 1968. But it is also true that the statute was not brought to our attention, and we did not even purport to decide what its effect upon jurisdiction might be. Instead, we followed pre 1968 law, adopting and applying the reasoning of the Tenth Circuit in Martinez v. Southern Ute Tribe, 10 Cir., 1957, 249 F.2d 915. The Tenth Circuit has indicated that Martinez may no longer be good law. In Slattery v. Arapahoe Tribal Council, 10 Cir., 1971, 453 F.2d 278, 281, the Tenth Circuit, in dictum, and after citing Martinez, said:

“It may well be that tribal enrollment practices are now subject to the statutory requirements of equal protection and due process as provided in 25 U.S.C. § 1302(8). See The Indian Bill of Rights and the Constitutional Statute of Tribal Government, 82 Harv.L.Rev. 1343 [1372-73] (1969). However, the existence of such restraint and the extent thereof need not here be decided.” 453 F.2d at 281.

The case was decided on the ground that no violation of the statute was shown. We conclude that Fondahn, supra, does not control this case.

We do not consider the merits of the plaintiffs’ claim; that is a matter for the district court in the first instance. We only hold that the court did have jurisdiction under 28 U.S.C. § 1343(4) and • 25 U.S.C. § 1302(8).

The judgment is reversed and the case is remanded for further-proceedings.


text:
    Alice M. THOMPSON, Plaintiff-Appellant, v. Mel TONASKET et al., as members of the Colville Business Council of The Colville Confederated Tribe, and The Colville Confederated Tribe, Defendants-Appellees.
    No. 72-1193.
    United States Court of Appeals, Ninth Circuit.
    Nov. 2, 1973.
    Kelly Hancock, Omak, Wash., for plaintiff-appellant.
    Robert L. Pirtle, Ziontz, Pirtle & Mor-isset, Seattle, Wash., for defendants-ap-pellees.
    Before KOELSCH, DUNIWAY and WALLACE, Circuit Judges.
   PER CURIAM:

This case presents the same jurisdictional question as was presented in the case of Laramie v. Nicholson, 9 Cir., 1973, 487 F.2d 315. As in that case, the trial judge held that he had no jurisdiction and dismissed the action. The judgment is reversed on the authority of Laramie v. Nicholson, supra, and of Johnson v. The Lower Elwha Tribal Community, 9 Cir., 1973, 484 F.2d 200.

As in the Laramie ease, we express no opinion on the merits of the case because the trial court did not reach that question. The judgment is reversed and the case is remanded for further proceedings.


text:
    Robert E. IANNELLI and Dolores Iannelli, his wife v. H. Alan LONG, District Director, Pittsburgh, Pennsylvania, and Johnnie M. Walters, Commissioner of Internal Revenue of the United States of America, successor to Harold T. Swartz, Appellants.
    No. 72-1418.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 27, 1973.
    Decided June 29, 1973.
    Certiorari Denied Nov. 19, 1973.
    See 94 S.Ct. 541.
    Robert E. Lindsay, Tax Div., Dept. of Justice, Washington, D. C., Scott P. Crampton, Asst. Atty. Gen., Tax Div., Meyer Rothwacks, Chief Appellate Section, John P. Burke, John M. Brant, Attys. Tax Div. Dept. of Justice, Richard L. Thornburgh, Pittsburgh, Pa., of counsel, for appellants.
    James E. McLaughlin, McArdle, McLaughlin, Paletta & McVay, Pittsburgh, Pa., Charles Alan Wright, Austin, Tex., William A. Camp, of counsel, for appel-lees.
    Before HASTIE and ALDISERT, Circuit Judges, and DITTER, District Judge.
   OPINION OF THE COURT

HASTIE, Circuit Judge.

The order from which the government has taken this appeal enjoined the District Director and the Commissioner of Internal Revenue from seizing or selling, until further order of the court, any property of Robert Iannelli or his wife Dolores to satisfy jeopardy assessments against them for alleged failure to pay overdue federal wagering taxes. In its opinion, W.D.Pa.1971, 333 F.Supp. 407, the court explained that the purpose of this temporary injunction was to protect the taxpayers against possible necessity for self incrimination if, in normal course, they should undertake to establish in a civil suit a right to refund of sums collected pursuant to these assessments while criminal proceedings growing out of their alleged wagering business were pending. The government contends that the district court lacked jurisdiction to grant this injunctive relief because section 7421(a) of the Internal Revenue Code of 1954, U.S.C. § 7421(a), provides, with irrelevant exceptions, that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person”.

The parties agree that section 7421(a) is comprehensive and that on its face it seems to prohibit such a suit and such an injunction as we have here. Cf. Enoch v. Williams Packing & Navigation Co., 1962, 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292; Johnson v. Wall, 4th Cir. 1964, 329 F.2d 149. It reflects an evident purpose to protect the public revenue from court imposed delays in the collection of taxes, leaving aggrieved taxpayers to sue for refunds of any amounts improperly collected. Thus, the section presupposes a bona fide attempt of the government to collect revenue. Therefore, if a levy on property is in formal guise an effort to collect taxes but in fact is only a device for harassing and punishing a wrongdoer without honest anticipation that the levy may yield money owed for taxes, it is arguable that a suit to restrain the tax collector’s enterprise is not in reality a suit to restrain the collection of taxes. Accordingly, it is relevant to consider whether we have here a bona fide effort to collect revenue.

The taxpayers do not dispute that they may owe the government substantial sums of overdue taxes, though they dispute the claimed amount of their total indebtedness. Moreover, at the time of the jeopardy assessment and resultant levies the taxpayers, who had not filed a complete inventory of their possessions, appeared to be the owners of mortgaged income producing rental property, a furnished home, a life insurance policy, bank accounts, automobiles and the contents of a safe deposit box. It is not disputed that in the aggregate the levies on their property were intended to and probably would yield substantial revenue, although in the district court counsel for the government conceded that at least some of the real property was so heavily mortgaged that a forced sale would not in likelihood benefit the government.

Though one of the government’s objectives in this undertaking to seize all of the taxpayers’ discoverable property may have been to put economic pressure upon persons believed to be engaged in large scale criminal activities, the jeopardy assessment and consequent levies also appear to have been bona fide and potentially productive attempts to collect revenue. And bona fide efforts to collect taxes through lawful procedure are the very undertakings that Congress has protected through the enactment of section 7421(a) against frustration or delay by litigation.

The district court was understandably and properly concerned that the taxpayers not be forced to choose between forfeiting their property without contesting the tax assessments on the one hand and, on the other, incriminating themselves by admitting in a tax refund suit that they had been engaged in an illicit enterprise for which they already had been indicted. But a tax refund claim and complaint adequate to toll the running of the statute of limitations could be drafted and filed without damaging admissions concerning the details or even the nature of taxpayers’ business. And further proceedings in such a suit would properly be deferred on the plaintiffs’ request until the conclusion of related criminal proceedings against them or until the running of all applicable periods of limitations on prosecutions. Cf. United States v. Kordel, 1970, 397 U.S. 1, 12 note 27, 90 S.Ct. 763, 25 L. Ed.2d 1; De Vita v. Sills, 3d Cir. 1970, 422 F.2d 1172, 1181. And in the unlikely case of an arbitrary refusal of a district judge to grant such a stay, the abuse of discretion would be reviewable in this court.

For these reasons we have concluded that section 7421(a) of the Internal Revenue Code prohibits the relief granted to the taxpayers in this case.

The judgment will be reversed.


text:
    Shirley S. IMESON, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
    No. 25523.
    United States Court of Appeals, Ninth Circuit.
    Oct. 30, 1973.
    Rehearing Denied Dec. 14, 1973.
    Shirley S. Imeson, in pro. per.
    Gordon Gilman, Atty., Washington, D. C. (argued), James L. Browning, Jr., U. S. Atty., San Francisco, Cal., Johnnie M. Walters, Scott P. Crampton, Asst. Attys. Gen., Meyer T. Rothwacks, William M. Brown, Jr., Carleton D. Powell, Lee A. Jackson, Elmer J. Kelsey, Robert D. Bickel, Tax Div., Dept. of Justice, Washington, D. C., K. Martin Worthy, Chief Counsel, IRS, Washington, D. C., for appellee.
    Before KOELSCH, DUNIWAY and HUFSTEDLER, Circuit Judges.
   OPINION

PER CURIAM:

The taxpayer, Mrs. Imeson, appeals from a decision of the Tax Court sustaining the Commissioner’s disallowance of bad debt deductions for child support ar-rearages and of certain other deductions claimed on her 1964 and 1965 federal income tax returns.

Mrs. Imeson was divorced from her husband in 1954. She was awarded custody of their three minor children, and her husband was ordered to pay child support. The child support order was modified in 1956, reducing her husband’s obligation to $180 per month. The husband made some support payments under the modified order, but he made none after April 1965. Mrs. Imeson contends that she is entitled to a bad debt deduction for accrued and unpaid child support payments that her divorced husband had been ordered to make.

The divorce decree confirmed a property settlement agreement by which Mrs. Imeson received the equity in fourteen parcels of real property. She collected the rents, rehabilitated, and maintained the property. In the course of her managing the property, she used two automobiles, a 1958 Chevrolet that she had purchased for $2,500 and a 1960 MG that she had purchased for $1,000. In 1965, she deducted as ordinary and necessary business expense one third of her operating, maintenance, and insurance expenses in connection with the two automobiles; she also deducted one third of the “replacement” cost of one of the cars. The Tax Court upheld the Commissioner’s determination reducing the depreciation deduction to $166.50, based upon a seven-year useful life of the vehicles. The taxpayer contends that the Tax Court erred in confining her deduction of operating expenses to one third of the cost and in computing allowable depreciation.

The parties present three issues: (1) Are accrued and uncollectible court-ordered child support payments “debts” to the taxpayer within the meaning of section 166 of the Internal Revenue Code of 1954, 26 U.S.C. § 166? (2) Did Mrs. Imeson carry her burden of proving her basis for the debts and the worthlessness of her husband’s obligations? (3) Did the Tax Court err in reducing her claimed automobile expense and depreciation deductions ?

(1) We do not decide the first question because we conclude that on this record we must answer the second question “No.”

The first question is an arguable one. The Tax Court view, typified by the leading case, Swenson (1965) 43 T.C. 897, is that uncollectible child support payments are not a “debt” because the funds used to create the debt were not derived from the capital or income of the taxpayer. The Tax Court has treated these obligations as if they were uncol-lectible unpaid wages or salary. (See, e. g., 5 Mertens, Law of Federal Income Taxation (1969) ed.) § 30.12.) It is arguable, however, that Mrs. Imeson’s position, in which she is legally obligated to support her children if her husband, who has been ordered to do so, defaults, is not analogous to that of the unpaid wage earner. It can be argued that her position is more like that of a taxpayer who pays materialmen’s liens on his house after the builder has defaulted. See Martin, 1962, 38 T.C. 188. It can also be argued that her position is analogous to that of a guarantor who pays the creditor when the principal debtor defaults: Shiman v. Commissioner, 2 Cir., 1932, 60 F.2d 65; Putnam v. Commissioner, 1956, 352 U.S. 82, 77 S.Ct. 175, 1 L.Ed.2d 144; Cf. Iowa Southern Utilities v. United States, Ct.C1.1965, 348 F.2d 492, 172 Ct.Cl. 21. On the other hand, it can be argued that her position is more like that of the taxpayer wife in Rude, 1967, 48 T.C. 165, who paid her and her husband’s joint income tax liability and was denied her claim that one-half of it was a bad debt owed to her by her husband. See also Lewellyn v. Electric Reduction Co., 1927, 275 U.S. 243, 48 S.Ct. 63, 72 L.Ed. 262.

(2) We do not resolve these questions, however, because, as in Long v. Commissioner, 9 Cir., 1938, 96 F.2d 270, we must answer the second question against Mrs. Imeson. The path from a debt to a deduction is not easy. Mrs. Imeson has the further burdens of proving the amounts she expended to support her children (basis) and the total worthlessness of her husband’s obligation to her in the tax years in question.

Mrs. Imeson’s basis would not be the face amount of her ex-husband’s obligation. (Long v. Commissioner, supra.) It would be the amount she expended from her capital or income to support her children, but, in no event more than the amount of her husband’s obligation to her for child support. Mrs. Imeson offered no evidence of her expenditures to support her children. Instead, she attempted to construct her proof from the amounts her husband failed to pay. Moreover, she did not offer any evidence that her husband’s support obligations became wholly worthless during the years in which she took deductions. (See, e. g., 5 Mertens, supra, §§ 30.24, 30.27, 30.28.)

(3) We must also answer the third question against Mrs. Imeson. Her challenge to the Tax Coúrt’s determinations concerning deductibility of automobile expense and depreciation cannot be sustained. She may have been too modest in her allocation of her automobile expenses to her real estate business, but she did not offer proof to establish the facts. The Tax Cóurt decided that depreciation of the automobiles was properly computed by the Commissioner using a seven-year life for each vehicle. The decision ascribes greater longevity to the vehicles than can be readily justified by common experience or by current tax regulations. However, we are confined to the record, and it does not contain enough evidence to support a conclusion by us that the Tax Court’s determination of this issue was wrong.

Affirmed.

      . Mrs. Imeson’s other contentions are not sufficiently meritorious to warrant discussion.


author: SOLOMON, District Judge:

text:
    BURGESS & ASSOCIATES, INC., an Ohio corporation, Plaintiff-Appellant, v. Ben C. KLINGENSMITH, an Individual, et al., Defendants-Appellees. Ben C. KLINGENSMITH, an Individual, et al., Defendants-Appellants, v. BURGESS & ASSOCIATES, INC., an Ohio corporation, Plaintiff-Appellee.
    Nos. 72-1557, 72-1556.
    United States Court of Appeals, Ninth Circuit.'
    Nov. 6, 1973.
    As Amended on Denial of Rehearing Dec. 19, 1973.

      Robert D. Hornbaker (argued), Los Angeles, Cal., for Ben C. Klingensmith et al.
    R. Douglas Lyon (argued), Reginald E. Caughey, of Lyon & Lyon, Los Ange-les, Cal., for Burgess & Associates, Inc.
    Before BROWNING and WRIGHT, Circuit Judges, and SOLOMON , District Judge.

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

   SOLOMON, District Judge:

Both parties appeal from portions of a judgment holding one patent valid and infringed and another patent invalid.

Burgess & Associates, Inc. (Burgess) is the assignee of U. S. Patent No. 3,023,738 (738 patent) and U. S. Patent No. 3,367,480 (480 patent). Burgess brought this action for infringement of claims 1 and 2 of the 738 patent and claims 1, 2, and 4 of the 480 patent against Ben C. Klingensmith and his associates, ABM Industries, Inc., Donald Kanning, and Arthur Longstreet (Klin-gensmith). Klingensmith denied infringement and alleged in a counterclaim that the patents were invalid, or, if valid, had been misused.

The district court held that the 738 patent was valid and infringed. It also held the 480 patent was invalid. The court enjoined Klingensmith from infringing the 738 patent and ordered an accounting. Klingensmith appeals from the finding that the 738 patent was valid and infringed and Burgess appeals from the finding that the 480 patent is invalid.

The 738 Patent: Infringement

The 738 patent describes a pneumatic free-piston vibrator. The vibrator is used in connection with a bowl with a helical track along its inside surface. The patented device vibrates parts placed in the bottom of the bowl, orienting them in a given direction and making them proceed up the helical path to a conveyor belt. The vibrator and feeder bowl are used to feed parts at a constant rate of speed and with a given spatial orientation.

Pneumatic vibrators to feed parts are old in the art. Burgess asserts that the older vibrators could control the frequency of the piston stroke but not its amplitude; that is, they could control the number of strokes per minute but not the length of the stroke. Burgess contends that the 738 vibrator achieves a higher rate of feed and more precise spatial orientation of parts by controlling the amplitude of the piston stroke.

Burgess originally applied for a patent on the 738 device on March 24, 1959. In his original application he claimed “. . .a device having an inlet line for conducting gas under pressure to said device to effect recipricatory movement of said piston . . . .” That claim was rejected three times as unpat-entable over the prior art. Burgess then cancelled that claim and substituted claim 1 of the 738 patent. The claim contained the following language:

. means coacting in response to the position of said piston in said chamber respectively to alternately apply said pressurized gas to opposite ends of the piston for a portion of its stroke, . . . [and] other means coaeting in response to 'the position of said piston respectively to alternately couple the end of the chamber opposed to the applied gas to the outlet line for a portion of the piston stroke ....

The new sixteen-line claim was not merely an expanded version of the can-celled claim. Although the cancelled claim covered all devices “to effect re-ciprocatory movement of [the] piston”, the claim as finally allowed contained specific means clauses describing which devices were covered. The means clauses narrowed the scope of the claim in two important respects:

(1) The means clauses limited the claim to devices in which “other means”, as distinguished from the means used to connect the chamber with the inlet line, “. couple the end of the chamber opposed- to the applied gas to the outlet line.” In other words, the claim did not cover vibrators which use the same means to connect the ends of the piston chamber to both the inlet and outlet lines.
(2) The means clauses covered only devices which “alternately couple the ends of the chamber opposed to the applied gas to the outlet line for a portion of the 'stroke .. .” In other words, the claim did not cover vibrators in which the end of the piston chamber opposed to the applied gas is not connected to the outlet line.

The first accused device of Klingen-smith uses the same means to connect one side of the piston chamber with both the inlet and outlet lines. The second accused device has one side of the piston chamber which is not connected to the outlet line when it is the side “opposed to the applied gas.” Neither device is covered by the means clauses in the 738 patent.

Burgess added the- specific means clauses to obtain the patent. He is therefore estopped from claiming that Klingensmith’s devices, not covered by those means clauses, infringe the 738 patent. “. . . [C]laims that have been narrowed in order to obtain the issuance of a patent by distinguishing the prior art cannot be sustained to cover that which was previously by limitation eliminated from the patent.” Graham v. John Deere Co., 383 U.S. 1, 33, 86 S.Ct. 684, 702,15 L.Ed.2d 545 (1966).

Burgess argues that Klingensmith’s vibrators are the equivalents of the vibrator claimed in the 738 patent, even though not directly covered by its claims. Under the doctrine of equivalents a device infringes if it performs “substantially the same function in substantially the same way to obtain the same result” as the patented device. Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., 339 U.S. 605, 608, 70 S.Ct. 854, 856, 94 L.Ed. 1097 (1950).

File wrapper estoppel prevents the application of the doctrine of equivalents. “The patentee may not, by resort to the doctrine of equivalents, give to an allowed claim a scope which it might have had without the amendments, the cancellation of which amounts to a disclaimer.” Schriber Co. v. Cleveland Trust Co., 311 U.S. 211, 221, 61 S.Ct. 235, 240, 85 L.Ed. 132 (1940); Keating v. Stearnes Imperial Co., 347 F.2d 444, 446 (7th Cir. 1965).

Neither the Klingensmith’s devices infringed the 738 patent. The trial judge’s contrary finding was clearly erroneous.

The 738 Patent: Validity

Our holding that Klingensmith’s devices do not infringe the 738 patent does not render moot the question of the patent’s validity, since its validity is challenged in Klingensmith’s counterclaim. Altvater v. Freeman, 319 U.S. 359, 363, 63 S.Ct. 1115, 87 L.Ed. 1450 (1943).

In his findings of fact, the trial judge found that the combination of elements defined in claims 1 and 2 of the 738 patent “produce a wholly new and unexpected result, the ability to control amplitude and frequency independently.” Those claims in the patent cover only “means ... to control the amplitude of reciprocation of [the] piston.” Neither claim mentions a means to control amplitude and frequency independently. The trial judge therefore based his finding of nonobviousness on a means not claimed in the patent. Since the claims are the sole measure of the monopoly granted by the patent, Aro Mfg. Co., Inc. v. Convertible Top Replacement Co., Inc., 365 U.S. 336, 339, 81 S.Ct. 599, 5 L.Ed.2d 592 (1961), the trial judge erred in relying on a means of the patented device not mentioned in the claims. See Lincoln Co. v. Stewart-Warner Corp., 303 U.S. 545, 550, 58 S.Ct. 662, 82 L.Ed. 1008 (1938) ; see also John Deere Co. v. Graham, 333 F.2d 529, 534 (8th Cir. 1964), aff’d 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966).

The 738 patent is a combination of old elements in a crowded field. We must scrutinize it with “a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements.” A & P Tea Co. v. Supermarket Corp., 340 U.S. 147, 152, 71 S.Ct. 127, 130, 95 L.Ed. 162 (1950).

Warren C. Burgess, Jr., the inventor of the 738 patent, admitted that the only element on the patented vibrator not found on prior vibrators was the valve on the outlet line controlling the pressure in the exhaust system. The valve was designed, according to the first two claims of the patent, to control the amplitude of reciprocation of the piston.

Two earlier patents taught that controlling the pressure in the exhaust system of a pneumatic device affected the amplitude of the piston stroke. Schmitz, U. S. Patent No. 2,699,224, Jan. 11, 1955, controlled the pressure differential on two sides of a free piston to vary the speed and force of impact of the piston. Hansen, U. S. Patent No. 1,056,170, March 18, 1913, taught that increasing the back pressure in the exhaust system of a pneumatic tool shortened the stroke of the piston.

It was undisputed that installing mufflers on vibrator exhaust systems created back pressure in the exhaust system which decreased the amplitude of the piston stroke. Ice clogging the outlet holes of vibrators had a similar effect.

In our view controlling the amplitude of the stroke by adding a valve on the outlet line was obvious in light of Hansen and Schmitz and the undisputed common experience with mufflers and icing.

The district court decision was embodied in a eonclusionary memorandum of decision and in lengthy findings of fact and conclusions of law drafted by counsel for Burgess and adopted by the court. The court did not write an opinion. While it may be permissible for a judge to adopt findings proposed by counsel in complex patent cases, Industrial Building Materials, Inc. v. In-terchemical Corp., 437 F.2d 1336, 1339 (9th Cir. 1970), an appellate court will scrutinize them more carefully than findings which are the product of the judge’s own independent thought and research. See United States v. El Paso Natural Gas Co., 376 U.S. 651, 656, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964).

We reject the trial court’s finding of nonobviousness as clearly erroneous because it is based upon a means not claimed in the patent and because it is not supported by the evidence. We therefore hold that the 738 patent was invalid and not infringed.

The U80 Patent

The 480 patent describes a pneumatic free-piston vibrator attached to the outside of a feed bowl similar to that used with the 738 patent. The pneumatic piston is radially disposed from the center of the bowl and oscillates substantially in the plane of the bowl’s base plate.

Burgess admitted that the 480 patent was a combination of old elements and that the only invention was the spatial relationship between the vibrator and the feed bowl. Burgess alleges, however, that the side-mounted pneumatic vibrator greatly increases the load-carrying capacity of the feed bowl and is more efficient than vertically mounted pneumatic vibrators. The side-mounted vibrator also moves parts around the helical path inside the bowl more rapidly-

Burgess’ own expert admitted that neither the increase in load-carrying ability nor the faster track speed were unexpected in light of the prior art. He was only suprised by the amount of the increase.

Side-mounted electrical vibrators were old in the art. The side-mounted electrical vibrators had advantages similar to those claimed by Burgess for his side-mounted pneumatic vibrator.

The trial judge found that “the relocation [of the pneumatic vibrator from the vertical to the horizontal position] would have been obvious to a person having ordinary skill in the art at the time of the alleged invention thereof.” That finding is not clearly erroneous ; it is amply supported by the evidence.

Since we have held that both the 738 and 480 patents are invalid, we need not decide whether Burgess’ alleged misuse of the patents barred an action for their infringement.

We do not find this to be an exceptional case justifying the award of attorney’s fees under 35 U.S.C. § 285.

Klingensmith is entitled to costs.

The judgment holding U. S. Patent No. 3,023,738 valid and infringed is reversed. The judgment holding U. S. Patent No. 3,367,480 invalid is affirmed.

      . The claim quoted here was typical of the claims of the first application. The full text of the claim reads as follows:
      A pneumatic, free-piston vibration inducing device having an inlet line for conducting gas under pressure to said device to effect reciprocatory movement of said piston, and an outlet line for exhausting spent gas from said device, means in said inlet line for regulating the pressure of said gas, and means in said outlet line for regulating the pressure drop across said vibration inducing device.

      . The full text of claim 1 of the 738 patent reads:
      In a pneumatic vibratory apparatus having a resiliently supported article carrier and a vibration inducing piston disposed for free reciprocation in a chamber, an inlet line for supplying gas under pressure to said chamber, means for regulating the gas pressure in said inlet line, means coacting in response to the position of said piston in said chamber respectively to alternately apply said pressurized gas to opposite ends of the piston for a portion of its stroke, an outlet line for exhausting spent gas from the chamber, other means coacting in response to the position of said piston respectively to alternately couple the end of the chamber opposed to the applied gas to the outlet line for a portion of the piston stroke, and pressure regulating means coacting therewith in the outlet line to control the amplitude of reciprocation of said piston.
      The second claim of the 738 patent included the first by reference.

      . Burgess argues that the findings of fact, which he drafted and which the trial judge adopted, are not legally sufficient to support the finding of invalidity. See Graham v. John Deere Co., supra at 17, 86 S.Ct. 684. We do not commend the practice of preparing findings for a judge and then attacking their technical sufficiency on appeal.


author: BUTZNER, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. William Henry POWELL, Appellant.
    No. 73-1210.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 4, 1973.
    Decided Nov. 14, 1973.
    Rehearing Denied Jan. 7,1974.

      Jerome P. Friedlander, II, Arlington, Va. [court-appointed], for appellant.
    Paul A. Scott, Asst. U. S. Atty. (Brien P. Gettings, U. S. Atty., E. D. Va., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and WINTER and BUTZNER, Circuit Judges.
   BUTZNER, Circuit Judge:

William Henry Powell appeals from a judgment convicting him of violating the Dyer Act and sentencing him to five years in the penitentiary. Powell complains that the court erred in its charge to the jury, that the evidence was insufficient to sustain the conviction, and that the court relied upon misinformation in deciding on his punishment. We find no merit in Powell’s first and second assignments of error, and accordingly we summarily affirm that part of the judgment finding him guilty. However, because the district judge may have relied on misinformation about material factors bearing on the severity of punishment, which Powell lacked opportunity to refute, we vacate the sentence and remand the case for resentencing.

Powell, together with five other persons including his mother and two brothers, was indicted on several counts for receiving and concealing ten stolen motor vehicles which moved in interstate commerce and conspiracy to receive and conceal these vehicles. The indictments were dismissed against the two defendants who are not related to Powell. In a joint trial of Powell’s relatives, his mother was acquitted, one brother was convicted on a single count, and the other on three counts. In a separate trial, Powell was found guilty on one count of receiving and concealing a stolen motor vehicle; he was acquitted on five counts, and five counts against him were dismissed. The same district judge presided over both trials. Powell was sentenced to five years in prison, and his brothers received sentences of 18 months and 30 months respectively.

At the sentencing hearing, Powell’s counsel told the court he believed the pre-sentence report might include information from the Federal Bureau of Investigation that Powell was the mastermind of an auto theft ring. He further stated that if this information was in the report, it was prejudicial and not supported by any facts. He explained that he would like to respond to this charge, but that he had not been able to see the report. Without commenting on the presence or absence of the information to which Powell’s counsel had referred, the district judge denied the request to see the pre-sentence report, the judge added:

“I tried both of the defendant’s brothers without a jury, and his mother, and, of course, I presided at the trial when he was tried before a jury, when the jury convicted him, and I am aware that he was only convicted on one count.
“I cannot, however, erase from my mind the evidence that I have heard in the other cases, and I intend to consider it and think it proper to consider it in fixing this man’s sentence.”

After Powell’s counsel noted an objection to the court’s ruling, he explained the status of a state case against Powell and concluded his remarks with a plea for leniency. Next, Powell spoke in his own behalf, reasserting his innocence and echoing his counsel’s plea.

Immediately before imposing sentence, the judge said:

“While we have not given the probation report to counsel, there is nothing in the probation report insofar as the facts concerning the case that didn’t come out at trial, and I am basing my judgment, insofar as sentence is concerned, on what went on at the trial.
“There is no question in my mind that this defendant was the ringleader of the theft that involved his two brothers, that he was responsible for getting his two brothers in trouble

Mindful of the limitations on appellate review of sentencing, Powell does not challenge the power or the discretion of the district judge to sentence him to a term of five years. Instead, he complains about the manner in which the sentence was imposed. He contends that the district judge’s characterization of him as the ringleader and as the person who got his brothers in trouble is not substantiated by the record and that it is untrue.

The government asserts that the district judge fully discharged his responsibilities by disclosing that he considered Powell’s role in determining the severity of punishment. The government argues that the district court could properly rely on the evidence introduced at the trial of Powell’s relatives to determine an appropriate sentence for Powell, and that the court did not abuse its discretion in denying inspection of the presentence report.

The law applicable to this case is now fairly well settled. Generally, federal sentences are not reviewable, Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), and the sentencing judge may draw on varied sources for information that will assist him in determining appropriate punishment. Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). While not every type of misinformation will justify relief, a sentence cannot stand if it is based on assumptions concerning the defendant’s criminal record that are “materially false,” Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed.2d 1690 (1948), or if it is founded “in part upon misinformation of constitutional magnitude.” United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 592, 30 L.Ed.2d 592 (1972).

There is no dispute about the materiality of the judge’s findings that Powell was the ringleader of the auto theft group and that he led his brothers astray. These were the sole reasons cited by the judge for sentencing Powell to a prison term twice as long as that imposed on one of his brothers who had been convicted under more counts of the indictment than Powell. Misinformation or an unfounded assumption concerning facts of this importance is sufficient to render the sentencing procedure invalid. Cf. United States v. Malcolm, 432 F.2d 809, 816 (2d Cir. 1970).

We agree with the government that a court can rely on pertinent evidence from another case in determining punishment, although with respect to the prisoner the evidence is hearsay. Williams v. New York, 337 U.S. 241, 246, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949); United States v. Schipani, 435 F.2d 26, 27 (2d Cir.), cert, denied, 401 U.S. 983, 91 S.Ct. 1198, 28 L.Ed.2d 334 (1970). And, interpreting the judge’s remarks to be a disclaimer of reliance on the presentence report as a source of information for fixing Powell’s punishment, we find no reversible error in the denial of Powell’s motion to inspect the report.

However, if we, have misinterpreted the district judge’s comments, he should disclose any information in the report about Powell’s leadership of the thieves. Of course, he may preserve confidential sources of this information. Rule 32(c) of the Federal Rules of Criminal Procedure allows the judge to disclose all or any part of a presentence report to the defendant or his counsel. The Advisory Committee, recognizing the necessity for a defendant to be aware of material facts in the report so he can explain or refute them, has expressed the hope that courts “will make increasing use of their discretion to disclose.” Proposed Amendments to the Rules of Criminal Procedure, 39 F.R.D. 168, 194 (1966). We interpreted Rule 32(c) in Baker v. United States, 388 F.2d 931 (4th Cir. 1968), to require, as a minimum, disclosure of the recitation in the report of the defendant’s criminal record. This must be accompanied, we said, with an opportunity for the defendant “to refute or explain any record disparagement of his earlier deportment.” 388 F.2d at 933; cf. United States v. Picard, 464 F.2d 215, 217 (1st Cir. 1972). Recently, sitting en bane, we found the presentence report in controversy did not contain confidential information or rehabilitative plans that necessitated withholding the report from the defendant and his counsel. “In such circumstances,” we wrote, “disclosure, when requested, should be favored in order that the appearance of justice will be fostered with the resulting increase in respect for the administration of the law.” United States v. Knupp, 448 F.2d 412, 413 (4th Cir. 1971). As in Knwpp, many instances of withholding presentence reports prove to be pointless. Rule 32(c) requires sentencing judges to exercise discretion in granting or denying requests for inspection, and we reiterate that a report should be withheld only when there are sound reasons for preserving secrecy.

Apart from the ambiguity concerning the presentence report, the primary difficulty in the government’s position is factual. The government has been unable to point to any evidence in either the trial of Powell’s mother and his brothers or in Powell’s own trial establishing that he was the ringleader of the group or that he was responsible for getting his brothers in trouble. The second defect in the government’s case is procedural. The district judge did not disclose that he believed Powell was the ringleader and the cause of his brothers’ involvement until after Powell’s counsel had addressed the court and Powell had exercised his right of allocution. Immediately after the disclosure, without reopening the proceedings for further argument or explanation, the court pronounced sentence. Thus, Powell was denied the opportunity to explain or refute the charge before he was sentenced. These two defects in the sentencing procedure — failure of the record to support material factors on which the severity of the punishment rested, and Powell’s lack of an opportunity to explain or refute the derogatory information on which the judge relied — denied Powell due process of law. Cf. Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); United States v. Malcolm, 432 F.2d 809, 816 (2d Cir. 1970).

Accordingly, we vacate the sentence and remand the case for further proceedings at which Powell should be furnished the information on which the district court relied in defining his role. The district court should afford Powell an opportunity to explain or refute this information before it resentences him.

      . For a number of years, the absence of sentence review has been under critical study. The Committee on Rules of Practice and Procedure now proposes to amend Fed.R. Crim.P. 35 by providing for sentence review panels. Proposed Amendments to the Federal Rules of Criminal Procedure 15 (Prelim. Draft, 1973). See also, ABA Appellate Review of Sentences (App. Draft, 1968).

      . The assistant United States attorney, arguing the case on appeal, speculated that Powell could be considered the ringleader because he appeared to be smarter than his brothers. He did not, however, attribute this reasoning to the district judge, and we cannot rely on it as a basis for decision.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. William R. SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v . Jack H. WRIGHT, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Billy R. POULSEN, Defendant-Appellant.
    Nos. 73-1961 to 73-1963.
    United States Court of Appeals, Ninth Circuit.
    Oct. 10, 1973.
    Rehearing Denied Dec. 17, 1973.

      William R. Smith, in pro. per.
    Jack H. Wright, in pro. per.
    Billy R. Poulsen, in pro. per.
    Thomas C. Frost, Asst. U. S. Atty. (argued), Sidney E. Smith, U. S. Atty., Boise, Idaho, for plaintiff-appellee.
    Before CARTER and GOODWIN, Circuit Judges, and EAST, District Judge.

       The Honorable William G. East, United States District Judge for the District of Oregon, sitting by designation.

   PER CURIAM:

Defendants appeal from a 30-day jail sentence and a fine of $250 following conviction of violating 26 U.S.C. § 7205, which makes it a misdemeanor willfully to supply false information upon an Internal Revenue Service form.

Defendants, protesting the withholding of income tax from the wages of workmen, elected to declare a sufficient number of nonexistent dependents to make certain that no taxes would be withheld. One defendant filed a W-4 form claiming 17 dependents, the others claimed 10 each. All three sent letters to the Internal Revenue Service in which they stated that they had inflated their number of dependents to prevent their wages from being illegally seized.

Defendants now contend that they were entitled to engage in these theatrics because they had no “intent to defraud.” In a misdemeanor prosecution, however, the government need not prove fraud, loss of revenue, or reliance' by the government. The offense is made out when a person required by 'law to complete and file a W-4 intentionally uses the form to supply false information. United States v. Malinowski, 472 F.2d 850 (3rd Cir. 1973).

Our system of self-assessment and concurrent payment of taxes as income is earned cannot survive if every taxpayer is permitted to formulate his own rules. Misdemeanor penalties were provided by Congress with the knowledge that for certain types of forbidden behavior, even though criminal conduct is not present, a mild deterrent and the certainty of punishment are vital to the system. The defendants are free to express their political discontent in other ways. When they elected to defy the tax laws, they assumed the burden of the penalties provided by those laws.

The defendants have represented themselves in this court and in the district court. None has legal training. It is perhaps appropriate, therefore, to point out that under the law they have the right to apply to the sentencing court for a reduction of their sentence within 120 days from the date the judgment in this case becomes final. See F. R.Crim.P. 35.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Thomas Justin MILLICAN, Ind. and d/b/a Hip Magazine, Defendant-Appellant.
    No. 73-1734
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 18, 1973.
    Glenn Zell, Atlanta, Ga., for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., Richard H. Still, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, 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:

The appellant, publisher of HIP magazine, was convicted in a non-jury trial on two counts of using the mails to distribute obscene material in violation of 18 U.S.C.A. § 1461. The defendant used the mails for delivery of HIP magazine which carried an advertisement for the film “In Deep” which the trial judge found to be obscene. The film was ordered and received through the mails by a postal inspector, using an alias under which he had entered a subscription for HIP magazine. In light of our recent decision in United States v. Thevis, 5 Cir., 1973, 484 F.2d 1149 we find the trial judge made a proper determination regarding the film’s obscenity and we affirm the conviction.

El] The appellant testified that he did not deal in films and upon receiving this order from an inspector, he went to a local book store, purchased the film, sight unseen, and then mailed it as requested. Even if we accept the fact that Millican did not see the film prior to mailing it, there is ample evidence to establish the existence of requisite knowledge that Millican was aware of the contents of the film since it need not be shown that he knew such contents were in fact legally obscene. Thevis, supra.

After reviewing the film, we agree that the District Judge made a proper determination regarding the film’s obscenity. As Thevis delineates, the proper review procedure for determining whether pre-Miller, 1973, 413 U. S. 15, 93 S,Ct. 2607, 37 L.Ed.2d 419 material is obscene is to test the material under both Memoirs, 1966, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, and Miller. This procedure avoids an ex post facto application of Miller and keeps Memoirs intact for the purposes of judging offenses committed prior to the Supreme Court decision in Miller. Unless the material is judged to be obscene under both Memoirs and Miller there can be no conviction. Since we have concluded that the film is obscene under both Miller and Memoirs, the decision of the District Court is affirmed.

Affirmed.


text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. WESTERN COMMERCIAL TRANSPORT, INC., Respondent.
    No. 73-1707
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 19, 1973.
    Rehearing Denied Feb. 13, 1974.

      Elliott Moore, Deputy Associate Gen. Counsel, N.L.R.B., Washington D. C., Elmer P. Davis, Director, Region 16, N.L. R.B., Fort Worth, Tex., for petitioner.
    Edward L. Kemble, Denis L. Toothe, Fort Worth, Tex., for respondent.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

The National Labor Relations Board found that Western Commercial Transport, Inc. violated Section 8(a) ((1) and (2) of the National Labor Relations Act by recognizing, bargaining and contracting with South West Tank Line Union while there was an existing question concerning representation by another union. The Board ordered the Company to withdraw recognition from Tank Line Union, set aside the bargaining agreement, post appropriate notices, and cease and desist from further recognition and bargaining with Tank Line Union unless and until the Board shall have certified that Union as the bargaining representative. We find substantial evidence in the record to support the Board’s findings and enforce the Order.

In 1966, the Company entered into a collective bargaining agreement with another union, Southern Conference of Teamsters, after election and certification by the Board of Southern Conference as the statutory bargaining representative. Written to expire August 1, 1970, the contract was orally extended to August 1, 1971, with indications that a Master Agreement might then become effective. A dispute arose over the Master Agreement, and on September 20, 1971, the Company instituted a federal court action to have the Master Agreement declared null and void and of no force and effect. Southern Conference counterclaimed for specific performance of the Master Agreement. On November 28, 1972, the District Court found in favor of the Company, holding the Master Agreement void.

Prior to the court decree, during March, 1972, the Company was presented with designation cards signed by 89 of the 162 unit employees by Tank Line Union. After some 14 negotiation sessions, the Company executed a bargaining agreement with Tank Line Union to become effective May 1, 1972. At no time did the. Company notify the Southern Conference of Teamsters Union of a rival claim to representative status.

Under the doctrine of Midwest Piping & Supply Co., 63 N.L.R.B. 1060 (1945), an employer faced with conflicting claims of rival unions which give rise to a question concerning representation must adhere to a policy of strict neutrality and may not recognize or enter into a contract with either union until one has been certified under the procedures provided by the Act. Oil Transport Co. v. NLRB, 440 F.2d 664 (5th Cir. 1971); NLRB v. Signal Oil & Gas Co., 303 F.2d 785 (5th Cir. 1962). There is substantial evidence to support the Board’s finding that a real question of representation existed at the time the Company and Tank Line Union bargained and then executed a collective bargaining agreement. Tank Line Union’s possession of authorization cards from a majority of the employees did not foreclose the existence of a substantial representational question. See Oil Transport Co. v. NLRB, supra, 440 F.2d at 665.

The Company, however, contends that it was entitled to recognize Tank Line Union after the latter presented its authorization cards because Southern Conference’s certification period had expired and, as the District Court subsequently held, no collective bargaining agreement existed. These facts are beside the point. The issue to be resolved is whether there was a bona fide issue as to representation at the time the Company recognized Tank Line Union. The Board argues convincingly that Southern Conference made apparent its interest in preserving its status as the employees’ collective bargaining agent by its defense and counterclaim in the Master Agreement litigation. Such conduct provides sufficient justification for the Board's finding that the issue of representation was in doubt, rather than settled, by Tank Line Union’s authorization cards. At the same time Tank Line Union was negotiating on behalf of the employees for an agreement, Southern Conference was attempting to enforce the Master Agreement for the same employees through litigation. The conflicting claim to representation at that time is apparent.

An employer who assumes the responsibility of deciding which of two rival unions represents his employees assumes also the risk that the Board will find a genuine issue of representation and an unfair labor practice in his lack of neutrality. The Company could have avoided this result by petitioning the Board for an election under Section 9(c)(1)(B) of the Act. See NLRB v. Hunter Outdoor Products, Inc., 440 F.2d 876, 880 (1st Cir. 1971); NLRB v. Signal Oil & Gas Co., supra, 300 F.2d at 788 n. 3.

NLRB v. Gissel Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), does not mandate otherwise. That case upheld the Board's authority to find violation of Section 8(a)(5) where an employer refused to bargain with a union which had presented authorization cards representing a majority of the bargaining unit. The Court noted, however, that an employer need not accept a card check as proof of majority status, but could petition the Board for an election. Moreover, in Gissel, unlike the present ease, there were no rival claims of representation. An employer faced with the claims of rival unions can refuse to bargain without violating Section 8(a)(5) until the Board determines that a representation question does not exist. NLRB v. Downtown Bakery Corp., 330 F.2d 921, 928 (6th Cir. 1964); NLRB v. Signal Oil & Gas Co., supra, 303 F.2d at 788 n. 3.

Enforced.


author: ALDRICH, Senior Circuit Judge.

text:
    Archie M. KROLOFF, Individually and as beneficiary of the Estate of Dorothy Allen Kroloff, deceased, Plaintiff, Appel-lee, v. UNITED STATES of America, Defendant, Appellant.
    No. 72-1257.
    United States Court of Appeals, Ninth Circuit.
    Oct. 25, 1973.

      Richard Farber (argued), Scott P. Crampton, Asst. Atty. Gen., Tax Div., Dept. of Justice, Washington, D. C., William C. Smitherman, U. S. Atty., Phoenix, Ariz., Eugene D. Silverman, Meyer T. Rothwacks, Loring W. Post, Tax Div., Dept. of Justice, Washington, D. C., for defendant, appellant.
    Richard L. Lassen (argued), John R. Christian, Leo R. Beus, of Jennings, Strouss & Salmon, Phoenix, Ariz., for plaintiff, appellee.
    Before ALDRICH, CHOY and GOODWIN, Circuit Judges.

       Honorable Bailey Aldrich, United States Senior Circuit Judge, First Circuit, sitting by designation.

   ALDRICH, Senior Circuit Judge.

This is a suit for refund of an estate tax in which the district court found for the plaintiff, executor and surviving husband of the decedent and hereinafter taxpayer. The government appeals, alleging, basically, only one point: the inadequacy of the evidence to support the finding.

In July 1957, taxpayer and his wife applied to the New York Life Insurance Company for insurance on the life of the wife. There were two applications and eventually two policies. One application taxpayer signed as “Applicant” and decedent as “Proposed Insured.” The other was not signed, but coneededly nothing turns on this; the policies read in like terms, and were treated alike. Upon issuance the first premiums were paid by taxpayer from community funds, the parties being residents of Arizona, a community property state. All further premiums were noticed to taxpayer and paid for by him out of community funds or through policy loans. The government takes the position that although taxpayer as an individual was the named beneficiary and sole record owner of all rights, the policies and proceeds were presumptively community property, so that an estate tax was owed on one half of the proceeds. The district court, instead, found the policies to be taxpayer’s sole individual property.

Taxpayer is faced with a strong presumption that assets acquired by one spouse with community funds are community property. 9 Ariz.Rev.Stat. Ann. § 25-211, subd. A (1956); Smith v. Smith, 71 Ariz. 315, 227 P.2d 214 (1951); Porter v. Porter, 67 Ariz. 273, 279, 195 P.2d 132, 136 (1948); Blackman v. Blackman, 45 Ariz. 374, 43 P.2d 1011 (1935). The apparent title’s existence in one spouse, even with the knowledge of the other, does not ordinarily rebut this presumption. Blackman v. Blackman, ante; Jones v. Rigdon, 32 Ariz. 286, 257 P. 639 (1927). For present purposes we accept as sound the Fifth Circuit’s application of this rule to record ownership of life insurance policies. See Freedman v. United States, 382 F.2d 742 (5th Cir. 1967); Commissioner of Internal Revenue v. Fleming, 155 F.2d 204 (5th Cir. 1946). We find highly applicable, however, the language of the Arizona court in Jones v. Rigdon, ante, 32 Ariz. at 291, 257 P. at 640:

“The fact that a husband causes or permits a conveyance to be made to his wife tends to show that it was the intention of the parties the property should be her separate estate. . It is true that this of itself does not conclusively establish the property as being the separate estate of the wife, but it may be supported by proof of the intention of the husband and the wife to such effect, even where it appears the property was paid for with community funds. And extrinsic evidence, including the testimony of witnesses, is admissible on this point. [Citations omitted.]”

Taxpayer was the decedent’s sole legatee. At the time the policies were applied for, according to uncontradicted testimony of taxpayer and the insurance agent, the agent, taxpayer and decedent discussed estate matters; viz., the fact that to be able to pay the taxes on decedent’s estate coming to him if she predeceased, taxpayer would need extra cash to avoid a sale of illiquid assets, and the advantages, taxwise, that he individually, rather than the estate, have such a cash accession. The agent testified that decedent concurred in the proposed arrangement; that she intended to have no community interest in the insurance policies and that they were to be taxpayer’s sole and separate property. The district court, on this record, found the evidence “clear, convincing, satisfactory and conclusive” that decedent intended that the policies, when issued, and funds necessary to make premium payments as they became due, be taxpayer’s sole and separate property.

While the government argues that this oral testimony might reasonably be regarded with suspicion, and indeed the court would have been free so to regard it in view of the absence of any further documentation, cf. Bintliff v. United States, 462 F.2d 403 (5th Cir. 1972), we cannot say that the court was not warranted in accepting it. There is no rule that the community property presumption cannot be overcome by oral testimony, see Jones v. Rigdon, ante; cf. Greenwood v. Commissioner of Internal Revenue, 134 F.2d 915 (9th Cir. 1943), and we may not reject the district court’s findings unless palpably unsound. This is not such a case; indeed, we find the appeal quite lacking in merit.

Affirmed.

      . The government seeks to make a further claim, for the first time, on appeal. This would require resolution of factual questions not raised before the district court and is therefore impermissible. The government’s case of Bintliff v. United States, post, is in-apposite.

      . Apparently taxpayer paid, or at least sues, in the capacity of beneficiary-distributee as distinguished from executor, a matter of no consequence so far as his right to recovery of the payment is concerned.

      . The appropriate burden in Arizona. Porter v. Porter, ante.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ruben LEE, Defendant-Appellant.
    No. 73-2549
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 12, 1973.

      Manuel James, Key West, Fla. (Court-appointed), for defendant-appellant.
    Robert W. Rust, U. S. Atty., Lawrence B. Craig, III, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, 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:

In a jury trial, Lee was convicted on two counts of possession and distribution of heroin in violation of 18 U.S.C.A. § 2 and 21 U.S.C.A. § 841 (1970). We are wholly unpersuaded by Lee’s sole contention on appeal that the Government’s evidence adduced at trial was insufficient as a matter of law to allow the case to go to the jury.

During the trial, the accomplice, Vicki Ingraham, directly implicated Lee, and her testimony was corroborated in large measure by the two other prosecution witnesses. Inasmuch as In-graham’s testimony alone is sufficient to sustain Lee’s conviction, see United States v. Iacovetti, 5 Cir. 1972, 466 F.2d 1147,. 1153, her corroborated testimony obviously sufficed to send the case to the jury. See Glasser v. United States, 1941, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Hill, 5 Cir. 1973, 481 F.2d 929; United States v. Stephenson, 5 Cir. 1973, 474 F.2d 1353; United States v. Warner, 5 Cir. 1971, 441 F.2d 821; United States v. Andrews, 5 Cir. 1970, 427 F.2d 539.

Affirmed.


text:
    Early LOWE, Petitioner-Appellant, v. STATE OF ALABAMA, Respondent-Appellee.
    No. 73-3605.
    United States Court of Appeals, Fifth Circuit.
    Nov. 13, 1973.

      Early Lowe, pro se.
    William J. Baxley, Atty. Gen., Montgomery, Ala., for respondent-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.
   PER CURIAM:

Petitioner’s pro se applications for a certificate of probable cause, and for leave to appeal in forma pauperis are granted, and the appeal is docketed.

This state prisoner’s habeas petition alleges a number of constitutional defects in his arrest, indictment, trial and conviction the nature of which are such that examination of the state trial record, examination of the record of the evi-dentiary hearing in petitioner’s state ha-beas action, or an evidentiary hearing in the District Court would be appropriate. See Smith v. Beto, 467 F.2d 1374, 1375 (CA5 1972); Gerzin v. Beto, 459 F.2d 671 (CA5 1972). As best we can determine, however, the District Court did not hold an evidentiary hearing and had before it neither the state trial court record nor the state evidentiary hearing record. If so that court did not conduct the requisite independent inquiry into petitioner’s constitutional claims. See Townsend v. Sain, 1963, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.

Petitioner’s application for appointment of counsel on appeal is denied.

The order of the District Court denying appellant’s habeas petition is vacated and the case is remanded for further consideration.

      . It is appropriate to dispose of this ease summarily. See Groendyke Transportation, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158.


text:
    Mickey and Nell SWINBURN, Plaintiffs-Appellants, v. FIRST FEDERAL SAVINGS AND LOAN OF LUBBOCK, TEXAS, and Bob Zirby, Lubbock, Texas, Defendants-Appellees.
    No. 73-2635.
    United States Court of Appeals, Fifth Circuit.
    Nov. 23, 1973.
    Mickey Swinburn, pro se.
    Bill D. Tucker, Lubbock, Tex., for defendants-appellees.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
   PER CURIAM:

The appeal is ordered dismissed for want of prosecution for appellant’s failure to file a brief within the time fixed by the rules. Rule 9(b). See Tidwell v. Dees, 5 Cir. 1972, 464 F.2d 1297.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Carlton Ellis ALLISON et al., Defendants-Appellants.
    No. 72-2828.
    United States Court of Appeals, Fifth Circuit.
    Nov. 13, 1973.
    Arthur J. Hanes, Sr., Birmingham, Ala., for Allison and Perry.
    J. Terry Huffstutler, Jr., Guntersville, Ala., for Holladay.
    Robert B. French, Jr., Fort Payne, Ala., for Ralph Marquez.
    James R. Venable, Decatur, Ga., for Bryant, Denson and Robinson.
    Larry L. Debus, Phoenix, Ariz., for M. Marquez.
    Wayman G. Sherrer, U. S.. Atty., Albert C. Bowen, Jr., Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   PER CURIAM:

This Dyer Act ease was remanded to the district court for a limited posLtrial hearing to determine whether there is a reasonable possibility that the presence of the alternate juror during the jury’s deliberations affected the jury’s verdict. The factual circumstances requiring the remand order and the directions given to the district court for an evidentiary hearing appear in our prior opinion, United States v. Allison, etc., 5 Cir. 1973, 481 F.2d 468.

The trial judge has conducted an evi-dentiary hearing, the transcript thereof and the court’s findings and conclusions have been certified to us. The parties were requested to but have declined to file briefs on the remand issue. In the hearing each juror and the alternate was interrogated out of the presence of the other jurors. Following the hearing the trial judge entered an order containing detailed findings of fact and conclusions of law.

The procedures followed by the trial judge and the standards employed by him complied with our remand directions. We find no error in the trial judge’s conclusion that there is no reasonable possibility that the presence of the alternate juror during the jury’s deliberations affected the verdict.

The findings and conclusions of the district court on remand are affirmed. This requires that the convictions be, and they hereby are

Affirmed.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kary ROBINSON, Defendant-Appellant.
    No. 73-2263
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 21, 1973.
    W. Howard Donovan, III, Mobile, Ala. (Court-appointed), for defendant-appellant.
    Charles S. White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM.

Robinson raises two issues in this appeal from his conviction for possession and distribution of heroin in violation of 21 U.S.C.A. § 841(a)(1). He contends that the evidence was insufficient to prove constructive possession of narcotics and he claims that the district court erred in denying his motion for a change of venue or a continuance of the trial date due to prejudicial publicity. Finding no error in the judgment below we affirm.

Robinson’s failure to move for a judgment of acquittal at the close of all the evidence restricts our review concerning the sufficiency of the evidence to a determination whether there was a manifest miscarriage of justice or plain error in the judgment below. United States v. Pitts, 5 Cir. 1970, 428 F.2d 534. We find neither.

Robinson’s claim of prejudicial pretrial publicity is without merit. The facts in the case before us simply do not show any prejudice to Robinson which would necessitate a reversal of the district court’s exercise of sound discretion. Hale v. United States, 435 F.2d 737, 5 Cir. 1970, cert, denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed. 142.

The judgment of the district court is affirmed.


text:
    Thomas J. PATTERSON, #92810, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2788
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 9, 1973.
    Thomas A. Deas, Mobile, Ala., Court-Appointed, for petitioner-appellant.
    Charles S. White-Spunner, U. S. Atty., Irwin W. Coleman, Jr., Asst. U.S. Atty., Mobile, Ala., for respondent-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

       Rule 18, 5th Gir. See Isbell Enterprises, Ine. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant Patterson filed a habeas corpus petition in the district court pursuant to 28 U.S.C. § 2255 (1970) seeking to have his previous conviction of escaping from federal custody in violation of 18 U.S.C. § 751 (1970) set aside. As a basis for relief, appellant contended that his court-appointed counsel had refrained from requesting the court to have him examined for possible insanity at the time of his escape. Because of the alleged incompetence of counsel, appellant contended that he had been denied due process of law. ■

The district court conducted a hearing to ascertain the facts surrounding appellant’s claims. Appellant and two witnesses testified that appellant had indeed requested counsel to seek a psychiatric examination. Court-appointed counsel denied ever receiving such a request. Crediting the counsel’s testimony, the district court denied relief.

We affirm. Factual questions must be determined by the district court, and unless clearly erroneous are binding on the court of appeals. See United States v. Strother, 458 F.2d 424, 430 (5th Cir. 1972). Since this case falls within the well established rule,, we are bound to affirm the district court’s determinations of the factual issues.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. James Edward WEEKS, Defendant-Appellant.
    No. 73-2362.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 21, 1973.
    N. P. Callahan, Jr., Birmingham, Ala. (Court-appointed), for defendant-appellant.
    Wayman Sherrer, U. S. Atty., Stephen Salter, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

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

   PER CURIAM:

The principal issue raised in this appeal is whether in-court identifications were tainted by pre-trial photographic displays. The record contains substantial evidence that the photographic identification procedure did not “give rise to a very substantial likelihood of irreparable misidentification,” Simmons v. United States, 1968, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253, and that the in-court identifications were based on observation of the appellant during the crime. We need not reach this issue, however, because it was not preserved for appeal by appropriate objection during the trial. The admission of the in-court identification being free of plain error, and appellant’s other points of appeal being without merit, the judgment of the court below is therefore

Affirmed.