author: DYER, Circuit Judge:

text:
    John NEWMAN, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellant. Abraham FRANCIS, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellant.
    Nos. 73-3393, 73-3670.
    United States Court of Appeals, Fifth Circuit.
    June 28, 1974.
    Rehearings and Rehearings Eh Banc Denied Oct. 7, 1974.

      Shirley A. Wimberly, Asst. Dist. Atty., Louise Korns, Barbara Rutledge, Asst. Atty. Gen., New Orleans, La., for respondent-appellant.
    John W. Reed, New Orleans, La., for John Newman.
    Lolis E. Elie (Court-appointed, not under Act), George M. Strickler, Jr., New Orleans, La., for Abraham Francis.
    Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.
   DYER, Circuit Judge:

These consolidated appeals raise the question of whether a state prisoner may challenge the validity of his indictment in a federal habeas corpus proceeding when a state rule of procedure prohibits the issue from being untimely raised in state court. We adhere to the principle that a district court cannot disregard the operation of a state waiver rule, absent a showing of actual prejudice by the habeas petitioner. Because the relief granted by the district courts did not comport with this waiver-by-failure-to-object principle, the district courts’ writs must be vacated.

Newman was indicted by an Orleans Parish, Louisiana, grand jury in October, 1962 for aggravated rape and was convicted after a jury trial for that offense. Francis was indicted for felony murder by a grand jury in the same parish in December of 1964 and was subsequently found guilty by a jury of the offense charged. Thereafter both Newman and Francis unsuccessfully sought habeas relief in the Louisiana courts, alleging, inter alia, racial discrimination in the selection of their grand juries. Newman’s petition was rejected on the ground that the grand jury system prevailing at the time of his indictment had not been discriminatory. In Francis’ case, however, the state habeas court did not reach the merits of his contention, but held instead that Francis had waived the right to challenge the validity of the grand jury selection procedure since he had failed to file an objection within the period specified by the applicable Louisiana rule of criminal procedure. It is undisputed that neither Newman nor Francis timely challenged their indictments on the basis of unconstitutionally constituted grand juries.

Failing to obtain relief in the Louisiana courts, the prisoners sought writs of habeas corpus in federal court pursuant to 28 U.S.C.A. § 2254. In each case the district courts concluded that the state had failed to show that the petitioners had deliberately by-passed state procedures and had failed to rebut the prima facie showing of discrimination in selecting grand juries. The district court which granted relief to Francis found alternatively that the petitioner had a “viable explanation” for his failure to file a timely challenge to the indictment. The court reasoned that if the matter had been presented by a federal prisoner, seeking to avoid the waiver provision of F.R.Crim.P. 12(b)(2), the court would have found “cause” within the meaning of that Rule so as to justify relief. The factual basis for the court’s finding was that Francis had been represented by a civil lawyer, unskilled in the intricacies of criminal practice, who had, by his inexperience, allowed the time for challenging the indictment to pass without objecting to the grand jury’s composition.

In appealing from the grant of federal habeas relief to Newman and Francis, Louisiana argues that the district courts erred by applying the “deliberate bypass” test of Fay v. Noia, 1963, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, rather than the waiver-by-failure-to-object principle set forth in Davis v. United States, 1973, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216. In Davis the Supreme Court held that failure to raise an objection to the indictment prior to trial barred consideration of the alleged defect in the indictment in a collateral attack, unless the court found “cause shown” to excuse the operation of the express waiver provision. Although the Davis decision was rendered prior to the federal district courts’ disposition of these cases, the record shows that the district judge in acting on Newman’s petition did not consider Davis at all. The apparent reason for this omission is that the court relied on a magistrate’s report prepared prior to the Supreme Court’s opinion in Davis. On the other hand, the district court which granted Francis’ petition considered the Davis holding, but accepted the distinction now urged by both Francis and Newman, that the decision concerned a federal prisoner and therefore has no application to a state prisoner seeking federal habeas relief.

This Circuit has already rejected the attempt to limit Davis to its precise facts. We recently affirmed the denial of a federal habeas petition challenging the selection of a Louisiana grand jury on the basis of the waiver provision contained in the present Louisiana rule. Jones v. Henderson, 5 Cir. 1974, 494 F.2d 47. See also Marlin v. Florida, 5 Cir. 1974, 489 F.2d 702; Rivera v. Wainwright, 5 Cir. 1974, 488 F.2d 275.

The record before us in Newman’s case discloses nothing that would take his federal habeas claim outside the reach of Davis and our decision.in Jones v. Henderson, supra. Therefore, we vacate the order of the district court and remand the case with directions to dismiss Newman’s petition for habeas corpus.

Francis’ petition, however, raises a more troublesome issue. Unlike the Florida waiver provision considered in Rivera and Marlin, supra, which is identical to Rule 12(b)(2), the Louisiana rule now before us purports to be absolute; that is, there is no “cause shown” exception comparable to the provision in the rules which we have previously considered. The difference in procedural provisions requires an examination of the exception to the waiver-by-failure-to-object principle.

The Supreme Court in Davis accepted the district court’s determination that there had been no “cause shown” to justify relief from the waiver provision of Rule 12(b)(2). The lower court’s findings of fact persuaded the Supreme Court that Davis had not been prejudiced by the allegedly unconstitutional grand jury selection procedure. In recognition of the Rule’s provision that a showing of prejudice overrides the interest of having an “airtight system of forfeitures,” the Court stated:

The presumption of prejudice which supports the existence of the right [as in Peters v. Kiff, 1972, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83] is not inconsistent with a holding that actual prejudice must be shown in order to obtain relief from a statutorily provided waiver for failure to assert it in a timely manner.

Davis, supra, at 245 (emphasis supplied).

We believe that such an exception must be engrafted on the Louisiana statute to allow a federal habeas court to excuse noncompliance with state procedural requirements when the petitioner can demonstrate actual prejudice. The state’s interest in requiring the timely filing of motions, especially motions which may abort a criminal prosecution, is indeed strong. But the countervailing concern was expressed by the Supreme Court in Fay v. Noia, supra, at 431: “Of course orderly criminal procedure is a desideratum, and of course there must be sanctions for the flouting of such [a] procedure. But that state interest ‘competes . . . against an ideal . . . [the] ideal of fair procedure.’ ”

By way of illustration, consider a hypothetical twist on the factual situation present in Davis. In that case, the petitioner, a black, was indicted along with his two white accomplices. The case against him, the district court found, was a strong one, although largely circumstantial. Moreover, ample evidence was adduced to justify a grand jury’s determination that Davis should stand trial. If, unlike Davis, however, an unconstitutionally selected grand jury had chosen not to indict the white participants but instead to indict only the black perpetrator, and if a collateral attack on the underlying conviction was made which seriously challenged the sufficiency of the evidence even to indict, a federal court would not be powerless to grant habeas relief. Fundamental fairness requires that a federal court be able to remedy such a wrong in spite of a procedural defect such as failing to file a timely objection to the indictment, assuming, of course, that non-compliance with the state rule was not merely a deliberate tactical maneuver.

We conclude, therefore, that the Louisiana waiver provision must be given effect by the federal district courts unless there is a showing of actual prejudice. Consequently, the order of the district court granting Francis’ habeas petition must be vacated, and the case remanded to permit a determination of whether the facts presented by Francis constitute a showing of prejudice which would excuse his non-compliance with the state’s rule of criminal procedure.

Vacated and remanded with directions to dismiss with respect to Newman. Vacated and remanded for further proceedings consistent with this opinion with respect to Francis.

      . The rule then applicable was contained in LSA-R.S. 15:202:
      All objections to the manner of selecting or drawing any juror or jury or to any defect or irregularity that can be pleaded against any array or venire must be filed, pleaded, heard or urged before the expiration of the third judicial day of the term for which said jury shall have been drawn, or before entering upon the trial of the case if it be begun sooner; otherwise, all such objections shall be considered as waived and shall not afterwards be urged or heard.
      The statute has since beeD repealed and replaced by LSA-C.Cr.P. art. 535.

      . F.R.Crim.P. 12 (b) (2) provides in pertinent part that “[d]efenses and objections based on defects in the institution of the prosecution or in the indictment . . . may be raised only by motion before trial,” and that failure to present such defenses or objections “constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver.”

      . See note 1, supra.

        . The Jones opinion did not discuss the issue of whether non-compliance with the present Louisiana rule might be excused, although the Court did note that the petitioner had been represented by competent counsel. Cf. Tollett v. Henderson, 1973, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235.


source: Caselaw Access Project

author: TUTTLE, Circuit Judge: SIMPSON, Circuit Judge

license: Public Domain

text:
    Henry C. MUELLER, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 73-3156.
    United States Court of Appeals, Fifth Circuit.
    June 28, 1974.
    Rehearing Denied Aug. 27, 1974.

      Robert O. Rogers, David S. Miesel, Palm Beach, Fla., for petitioner-appellant.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Tax Div., Dept, of Justice, Washington, D. C., Lawrence B. Gibbs, Acting Chief Counsel, Michael B. Frosch, I. R. S., Charles E. Anderson, Karl Schmeidler, Attys., Tax Div., Dept, of Justice, Washington, D. C., for respondent-appellee.
    Before BROWN, C. J., and TUTTLE and SIMPSON, Circuit Judges.
   TUTTLE, Circuit Judge:

This is an appeal by the taxpayer from a judgment by the tax court in which he attacks five adverse determinations by that court dealing with his alleged tax deficiencies for the years 1962, 1963, 1966 and 1967. We affirm the judgment of the tax court in all respects except as to that determination denying to the taxpayer the right to claim a deduction for ordinary and necessary business expenses under section 162 to the extent of payments actually made to his business creditors by the trustee in bankruptcy in a year subsequent to the adjudication.

The question arises in this way: The taxpayer, engaged in growing tomatoes, had received taxable income of $60,000 between January 1 and September 27, 1966. On September 27 he filed a voluntary petition in bankruptcy and title to his assets was transferred to a trustee. At the time of bankruptcy petitioner had unpaid business expenses in excess of $100,000. The bankruptcy proceedings terminated in 1968, and at that time the trustee paid trade or business expenses which had been incurred by petitioner prior to bankruptcy in the amount of $43,702.31.

The taxpayer contends that the transfer of title to his assets to the trustee in bankruptcy constitutes either “payment” or “constructive payment” of his unpaid business expenses, and that he is therefore entitled to a deduction under section 162. The taxpayer was on a cash receipts and disbursements basis.

A statement of the problem makes an appealing case for the taxpayer. Here he had collected up $60,000 in assets during operations in the first eight months of 1966, but had failed to pay any debts which, if paid in regular course of business, would have been deducted dollar for dollar to reduce his tax liability for the tax year 1966. Instead, following bankruptcy he turned over approximately $75,000 in value to the trustee who subsequently, although not until a subsequent tax year, paid out some $43,000 to creditors whose claims would normally have constituted business liabilities for tax purposes.

In its opinion, the tax court, with three judges concurring in a brief opinion which stated “the results in connection with [this issue] are unfortunate; however, the court was required to reach the conclusions adopted by the majority, and it will require the creative hand of the legislature to enact new laws that will bring about reasonable results in this situation,” and with five judges dissenting on this issue, based its decision solely upon the authority of B & L Farms Co. v. United States, 368 F.2d 571 (5th Cir. 1967), cert. denied, 389 U.S. 835, 88 S.Ct. 45, 19 L.Ed.2d 96 (1967). In its majority opinon the court made it plain that it was forced to this decision solely because:

“We are therefore required by Jack E. Golsen, 54 T.C. 742 (1970), aff’d. 445 F.2d 985 (C.A. 10, 1971), cert. denied, 404 U.S. 940, 92 S.Ct. 284, 30 L.Ed.2d 254 (1971), to follow the Fifth Circuit’s decision. We therefore look to B & L Farms to determine whether the decision in that ease is in fact controlling here.”

Of course a panel of this Court does not have the authority nor would we consider, circumventing a decision of the Court in a prior case because of some insignificant difference in the state of facts. However, a careful reading of B & L Farms Co. v. United States, D.C., 238 F.Supp. 407, which was affirmed per curiam by this Court, Chief Judge Brown dissenting, reveals that there is an issue before us in this case which was not decided adversely to the taxpayer in B & L Farms.

In the earlier case, a corporation, on a fiscal year basis and using the cash receipts and disbursements method of accounting, had substantial income in excess of allowable deductions for business expenses prior to an adjudication in bankruptcy some five weeks before the end of the fiscal year, ending July 31, 1959. During that time the trustee apparently actually paid out of the assets which the corporation had at the time of adjudication some of these business debts. However, a major part of the corporation’s assets which were now administered by the trustee in bankruptcy were not utilized for the payment of debts until after August 1, 1959, and thus payments were not actually made to the business creditors of the bankrupt corporation during the fiscal year of bankruptcy ending July 31, 1959. The taxpayer, acting through the trustee in bankruptcy, sought to reduce the corporation’s income for the year of bankruptcy on the theory that the trustee took title to all the corporation’s assets during the year 1959 and that this amounted to an actual or constructive payment by the bankrupt to its trade creditors as of the time that the trustee took possession. This Court held, by affirming the trial court’s judgment per curiam, that since at the time of the takeover by the trustees of B & L Farms Co.’s assets neither the amount nor the fact of liability as to a large mass of creditors could then be ascertained, there was no actual or constructive payment to those persons who were ultimately paid. What and all the court decided was that no deduction could be taken in fiscal 1959 for payments unascertained in amount and not actually made to creditors until a later fiscal year. What was actually in issue in B & L Farms was a claim for a carryback refund under section 172 for taxes for the fiscal year ending July 31, 1956, to which the corporation would be entitled if it could establish that the turnover of assets to the trustees in June of 1959 amounted to payment to the creditors during that fiscal year.

What B & L Farms did not decide is that when the taxpayer’s assets were actually paid out by the trustee to those creditors, whose claims would properly come within the definition of business expenses, this would not then be a deductible item for the year in which the amounts were actually paid to creditors. In point of fact, running through the B & L Farms Co. case the implication is clear that B & L Farms Co. would have been entitled to take the deduction in the later fiscal year of payment, but that this would be of no benefit because the year 1956, whose income was sought to be balanced off by the carryback was too far removed from the year of payment, and thus was beyond the permissible statutory three year carryback period. The district court there said:

“Both parties hereto have conceded that there was a net operating loss, under Section 172, for the fiscal year ending July 31, 1959. This net operating loss for 1959 could be, and was, carried back to reduce the tax which was paid for the fiscal year ending July 31, 1956. It is important to note that we have already decided that trade expenses which were not ‘paid’ in the 1959 fiscal year cannot serve as deductions for purposes of computing the net operating loss for that year.”

It is pointed out by Chief Judge Brown in his dissenting opinion to the affirmance by this Court that: “The Trustees in bankruptcy have applied for recovery of $162,538.73 in income taxes paid for the year ending July 31, 1956, under an asserted carry-back under Section 172 of the Internal Revenue Code of 1954. This the Government opposes because, though the property of the Bankrupt did pass to the Trustees within the fiscal year 1959, the Trustees did not actually pay dividends to the creditors until a later year beyond the permissible carry-back three-year period.” (Emphasis added).

The dissenting judge would have decided the basic question differently, that is to say, that the turnover of assets to the trustee would, in and of itself, amount to ordinary necessary business expenses. It is clear, however, that the dissenting and district court opinions contemplated a deduction, even though no benefit as a carryback to 1956 because outside the statutory period, to be recognized in the later year of payment, if it had any impact on taxes for that year.

In the Commissioner’s brief, the Commissioner was seeking to point out that there was no distinction between the taxpayers in B & L Farms Co. and in the case before us merely because the taxpayer here is an individual whereas in the earlier case it was a corporate taxpayer. In support of this proposition the brief stated:

“Because the individual taxpayer may not be able to benefit from the business expenses disallowed in 1966 does not mean that these deductions are necessarily lost. They are merely transferred to the trustee who may use them to offset his own income or gain or any of taxpayer’s income or gain that is realized during the administration of the bankrupt estate. In practical terms this differs little from the corporate situation. In any event, this is a rather minor discrepancy that does not justify different tax treatment for cash basis individual taxpayers.” (Emphasis added).

This Court questioned counsel whether this language was intended to say that the business expenses disallowed in 1966 could be used to offset “any of taxpayer’s income or gain that is realized during the administration of the bankrupt estate.” The Commissioner’s response denied any concession to that effect, saying in effect that it could be utilized only by the trustee to offset income the trustee might have obtained as interest on bank deposits or the like during the period of administration.

We conclude, as did the dissenting judge in the B & L Farms Co. case and as did nine judges of the tax court, and which view seems equally to have been shared by the majority who felt bound by our B & L Farms Co. decision, that the result reached in such a situation as this is to be avoided unless clearly required by a binding precedent. The case presents a totally distorted picture of the taxpayer’s income when he’s required to pay a tax on the total amount of receipts from a business but is not entitled to claim a deduction for the expenses incurred in creating that income, either when his assets are turned over to the bankruptcy trustee (a matter that has been laid to rest now in this Circuit by B & L Farms Co.) or in a subsequent year when the trustee actually pays these business creditors. Recognizing ful well that we are enjoined not to consider the “equity” in tax interpretations, we find the issue with which we are here dealing to be one which has not been expressly determined heretofore.

We therefore conclude that the tax court erred in not allowing a deduction for business expenses carried back to 1966 by the taxpayer in an amount equal to that actually paid out as dividends by the trustees in bankruptcy to those persons whose claims would have been allowed as business expenses if paid during 1966.

We do not deal here with a claim of a bankrupt taxpayer for a refund of taxes overpaid before bankruptcy. Such a claim, existing at the time of bankruptcy, would, under the teaching of Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 15 L.Ed.2d 428 (1965) pass to the bankrupt’s estate for the benefit of creditors. We perceive no way in which the creditors of this taxpayer are deprived of any asset or benefit by reason of a disposition of this case in a manner that only reduces the taxpayer’s prebankruptcy income tax liability, not dis-chargeable in bankruptcy.

The decision of the tax court is affirmed in part and reversed in part and the case is remanded to that court for further proceedings not inconsistent with this opinion.

SIMPSON, Circuit Judge

(dissenting) :

I view as controlling here our decision in B & L Farms Co. v. United States, 5 Cir. 1967, 368 F.2d 571, cert. denied 1967, 389 U.S. 835, 88 S.Ct. 45, 19 L.Ed.2d 96, affirming per curiam (Judge, now B & L Farms Co. v. United States, S.D. Chief Judge, Brown dissenting in part) Fla.1964, 238 F.Supp. 407.

The majority opinion seeks to distinguish B & L Farms because that case merely holds that turning over assets does not constitute payment during the taxable year in question, whereas the majority decision here is to allow credit for amounts actually expended by the trustee in later years.

Our opinion in B & L Farms adopted the district court opinion and its reasoning: “The conclusions reached by the district court are correct and its judgment is free from error. That judgment is affirmed.” When we go back to the district court opinion in B •& L Farms we find that that court did not limit itself to the fact of wholesale deduction. Instead it expressly held that payments by a trustee in later years cannot be deducted as “paid” in the taxable year under Section 162 of the Internal Revenue Code, regardless of whether the amounts are ascertainable then, later, or anytime. 238 F.Supp. at pp. 409-410. The majority’s attempt to distinguish the two cases will not withstand critical analysis. The carry-over aspect of B & L Farms absent in the instant case, relied on as a distinguishing factor by the majority opinion is quite simply irrelevant. It came into play only after decision of the issue identical to the two cases, the disallowance of a deduction for expenses paid by the trustee after the year of adjudication of bankruptcy.

Agreed that B & L Farms produces a harsh result, it governs our decision of this case in my view. I would affirm the tax court per curiam on the authority of B & L Farms.

I respectfully dissent.

      . The taxpayer alleged error by the tax court on two other issues: (1) disallowance of a bad debt deduction; and (2) recapture of an investment credit on section 38 propperty.


author: PER CURIAM:

text:
    Robert Anthony EDWARDS, Petitioner-Appellee, v. STATE OF LOUISIANA, Respondent-Appellant.
    No. 73-3795
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 3, 1974.
    Barbara B. Rutledge, Asst. Atty. Gen., Jesse J. Marks, Sp. Counsel to Atty. Gen., William J. Guste, Jr., Atty. Gen., New Orleans, La., for respondent-appellant.
    Donald C. Theriot, Baton Rouge, La. (Court-appointed), for petitioner-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5th Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).

   PER CURIAM:

No direct appeal to the Louisiana Supreme Court was ever perfected on behalf of Robert Anthony Edwards by his privately retained attorney, Peter J. Compagno, from his 1967 conviction for armed robbery and concomitant twenty-five year sentence at hard labor in the Louisiana State Penitentiary. In 1971 Edwards petitioned the State trial court for a writ of habeas corpus, asserting ineffective counsel, arrest without probable cause, introduction of illegal and prejudicial testimony, use of prejudicially instructed witnesses by the State and denial of appellate review, equal protection and due process of law. That court’s denial of relief without a hearing was affirmed on appeal to the Louisiana Supreme Court. Louisiana ex rel. Edward v. Henderson, 260 La. 690, 257 So. 2d 151 (1972).

His State remedies exhausted, Edwards sought similar relief in the district court below on the same grounds. Adopting the recommendations of the United States Magistrate, who concluded that Edwards’ intertwined claims of ineffective counsel and denial of appellate review were arguably meritorious, the district judge remanded the petition to the State court for an evidentiary hearing and further reconsideration within 60 days. Accordingly, Judge Rudolph F. Becker, Jr., of the Criminal District Court for the Parish of Orleans, appointed counsel to represent Edwards and held a hearing at which Compagno, a former assistant district attorney for many years, Edwards and his mother, Mrs. Anna Austin, gave testimony. Judge Becker determined that Edwards had been informed by his attorney, Compagno, of his right to appeal the conviction and again denied the petition.

Thereafter, Edwards renewed his habeas corpus quest in the district court, which conducted another hearing in March of 1973. Edwards and his mother again appeared and testified. The State produced no witnesses, introducing instead the transcript of proceedings in Judge Becker’s court. On the basis of the entire record the federal district judge concluded:

Although Edwards was represented by retained counsel, rather than by appointed counsel at trial, he was entitled to be informed of his right to appeal. Atilus v. United States, 406 F.2d 694 (C.5, 1969); Arrastia v. United States, 455 F.2d 736 (C.5, 1972); Gairson v. Cupp, 415 F.2d 352 (C.9, 1969). In the present case it appears that, whether or not petitioner was specifically informed of his right to appeal, he made it clear to his attorney that he desired that post-conviction proceedings be undertaken. This request was not acted upon by counsel, either by pursuing the available remedies or by informing petitioner that he was withdrawing from the matter and that new counsel should be retained or appointed for the purposes of appeal, prior to the expiration of the appeal time. In the opinion of the Court, counsel’s conduct in this matter fails to meet the standard of effective representation required by Atilus v. United States, supra; and Arrastia v. United States, supra.

On March 30, 1973 the district' court entered an alternative decree which provided that unless the State of Louisiana granted Edwards an out-of-time appeal within 120 days and provided him with appointed counsel, a writ of habeas corpus discharging Edwards from State custody would issue.

The State did not grant Edwards an out-of-time appeal. Although correspondence in the record indicates that the attorneys representing Louisiana intended to appeal the alternative order, they did not do so within the time allowed by law. After the time for appeal had expired and in response to a letter from Edwards, the district court ordered the State to show cause for its noncompliance with the March 30 order. Thereafter, and approximately six and one-half months too late [see F.R.A.P. 4(a)], the State filed a notice of appeal from the March 30 order. When the State failed to show any cause or reason save its own negligence for its failure either to comply with or appeal the March 30 order, the district court on November 5, 1973, issued the Great Writ, commanding Edwards’ release from custody. The State of Louisiana has taken today’s appeal from this final grant of habeas relief, which the district court stayed pending the outcome of this appeal.

The nettlesome question of the State’s responsibility under the XIV Amendment for the conduct of privately retained trial counsel, which was initially decided in Edwards’ favor in Fitzgerald v. Beto, 479 F.2d 420 (5th Cir. 1973) and West v. Louisiana, 478 F.2d 1026 (5th. Cir. 1973), is as yet unresolved in this Circuit, see West v. Louisiana, supra, 478 F.2d at 1037 (Roney, J., dissenting), and is presently before the court en banc in those cases. In the Fifth Circuit precedents relied upon by the district court, this court accorded Section 2255 relief to federally convicted prisoners who had been denied an opportunity to appeal their convictions by' the malfeasance of their privately engaged attorneys. Neither of these cases involved the XIV Amendment and the obligations of the states thereunder. See Atilus v. United States, Supra; Arrastia v. United States, supra; but see Gairson v. Cupp, supra.

Because of the procedural posture of the cause at this juncture, no resolution of this issue is possible here. “When the trial judge acts in a manner which clearly indicates his intention that the act shall be the final one in the case and a notation of the act has been entered on the docket, the time to appeal begins to run.” Rubin v. United States, 488 F.2d 87, 88 (5th Cir. 1973). Conditional grants of the Great Writ are final judgments within the usual jurisdiction of this court under 28 U.S.C. § 1291. See, e. g., Sexton v. Wise, 494 F.2d 1176 (5th Cir. 1974). The State failed to appeal the March 30 order within the time prescribed by Fed.R.App.P. 4(a), therefore we are without jurisdiction to reach the merits of that adjudication. E. g., Rubin v. United States, supra; Jackson v. Decker, 451 F.2d 348 (5th Cir. 1971); Dunn v. Henderson, 446 F.2d 1398 (5th Cir. 1971).

Since the March 30 order is beyond the power of this court, our review is limited to consideration of the November 5 order. That order does no more than direct the execution of the prior final judgment. Given the finality of the former, the latter order putting its alternative proviso into operation cannot be error.

Our affirmance of the district court’s grant of habeas corpus relief, however, does not preclude the State from petitioning the tribunal below for relief from the March 30 order under Fed.R.Civ.P. 60(b). Should that court find the State of Louisiana is entitled to relief under that rule as to its March 30 final judgment, then the merits of that decision would be open to possible reconsideration in light of this court’s en banc action in Fitzgerald and West or, perhaps, be open to the allowance of some additional time to the State to offer Edwards an out-of-time appeal. These matters are of course for the district court’s determination in the first instance.

Affirmed.


author: GIBSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Robert ALBRECHT and Marion Albrecht, Appellants.
    No. 73-1814.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 14, 1974.
    Decided May 8, 1974.
    Rehearing Denied June 13, 1974.

      Robert Q. Price, Langdon, N. D., for appellants.
    Edward J. Shawaker, Atty., Land and Natural Resources Div., Dept, of Justice, Washington, D. C., for appellee.
    Before GIBSON, BRIGHT and STEPHENSON, Circuit Judges.
   GIBSON, Circuit Judge.

In this equitable action, the District Court ordered Robert and Marion Albrecht, the defendants, to restore drainage ditches on their land and permanently enjoined them from draining any potholes on the same land. We affirm the District Court.

Defendant, Robert Albrecht, has farmed in northeastern North Dakota for 23 years, the latest 14 years in the Alsen area, the location of his farm, part of which contained the disputed ditched land in this case. From 1960-67, the Albrechts leased farm lands from Reinhart and Mary Herbel, the parents of Mrs. Albrecht. On September 26, 1964, the Herbels entered into the following agreement with the United States Department of Interior, which was acting pursuant to authority granted by 16 U.S.C. § 718d(c):

The parties of the first part, for themselves and for their heirs, successors and assigns, covenant and agree that they will cooperate in the maintenance of the aforesaid lands as a waterfowl production area by not draining or permitting the draining, through the transfer of appurtenant water rights or otherwise, of any surface water including lakes, ponds, marshes, sloughs, swales, swamps, or potholes, now existing or reoccurring due to natural causes on the above-described tract, by ditching or any other means; by not filling in with earth or any other material or leveling, any part or portion of the above-described tract on which surface water or marsh vegetation is now existing or hereafter reoccurs due to natural causes; and by not burning any areas covered with marsh vegetation. It is understood and agreed that this indenture imposes no other obligations or restrictions upon the parties of the first part and that neither they nor their successors, assigns, lessees, or any other person or party claiming under them shall in any way be restricted from carrying on farming practices such as grazing, hay cutting, plowing, working and cropping wetlands when the same are dry of natural causes, and that they may utilize all of the subject lands in the customary manner except for the draining, filling, leveling, and burning provisions mentioned above, (emphasis added).

The document granting this right to the United States was entitled “Conveyance of Easement for Waterfowl Management Rights”, and the Register of Deeds, Cavalier County, North Dakota, filed this document on December 7, 1964. The Herbels received $600 consideration. Robert Albrecht, then a tenant of the Herbels, knew of the easement after, but not before, it was conveyed. The easement was conveyed as to the NE Section 21, Township 160N, Range 62W, Cavalier County, North Dakota. On June 26, 1967, the Albrechts acquired a fee simple in the above-described land subject to the easements of record from the Herbels. Robert Albrecht had actual and constructive notice of the plaintiff’s interest in the land.

The defendants’ land is located in an area known to waterfowl biologists as the northeastern drift plain, which includes northeastern North Dakota and parts of the Canadian provinces of Manitoba, Saskatchewan, and Alberta. The northeastern drift plain is an example of a prairie pothole region, named for its major geographical feature. Each square mile of such land is dotted by approximately 70 to 80 potholes of three to four feet deep. The prairie pothole region is further divided into different classifications depending on geographical and climatological attributes that allow the retention of water through a certain number of summer days. The Albrechts’ land is classified as pothole land that 42 per cent of the breeding ducks prefer, particularly because the potholes usually retain water through July or August, and therefore, provide an excellent environment for the production of aquatic invertebrates and aquatic plants, the basic foods for breeding adult ducks and their offspirng. Essential to the maintenance of the land as a waterfowl production area is the availability of shallow water in these numerous potholes during the usually drier summer months. On the other hand, too much water, as a lake area with its deeper waters, does not provide the proper habitat .for many species of duck to rear their young. Also, for the protection of their young, many species of duck prefer to be isolated in a small pothole, rather than to share a large lake.

In late 1969 and April, 1970, the Wetlands Management District, Devils Lake, North Dakota, a division of the United States Fish and Wildlife Service and the Bureau of Sport Fisheries and Wildlife, discovered by aerial observance that ditching was present on many lands in the Alsen area, including the Albrechts’, to which the Government had obtained its easement. The Assistant Wetlands Manager at Devils Lake tried unsuccessfully to have the Albrechts fill the ditches. At the time of trial during the fall of 1973, 60-70 per cent of the landowners in the area had voluntarily complied with the Government and had restored their ditched lands. The ditch on the Albrechts’ land was approximately five feet deep and 25-30 feet wide at the top and extended across the quarter section of land at some traverse. Apparently this same ditch extended for approximately 15 miles across several landowners’ properties.

Harold F. Duebbert, an expert in waterfowl biology, testified that the ditching had the same effect as a drought, that water could only be retained briefly during the spring, that the vegetation had changed markedly on the Albrechts’ land, and that the usefulness of the Albrechts’ land as a waterfowl production area had been “significantly reduced.”

Apparently, the entire Alsen area had become blotched with these man-made ditches. No one has explained who dug —or perhaps more exactly, excavated— this ditch. Due to the wonders of precise draftmanship, the Government has the benefits of the easement requiring the landowner not to drain or permit to be drained the waters of the pothole areas. The stealthy ditchdigger remains anonymous, and we are sure that no legend will be told in Alsen identifying the beneficial perpetrator.

Robert Albrecht complained during trial and as a legal argument on appeal that the defendants herein have been discriminatorily singled out by the Government concerning the enforcement of the easement. According to Albrecht, Allen Loewen, who owns higher land to the north of the Albrechts, had been pumping dry a 60-70 acre lake bottom area for farming despite assurances to the Government and Albrecht himself that the pumping would not continue. The pumped water ran onto the Albrechts’ land and made it unsuitable for farming. Although the record is not entirely clear, evidently out of the quarter section involved, 35 acres of the Albrechts’ land could not be farmed due to the natural potholes and 125 acres were tillable under normal water conditions. According to the Government at trial, Allen Loewen had agreed with the Government to no longer pump water, and an adjacent landowner to the Albrechts had also agreed to fill in the ditches on his land. The claimed discrimination does not affect the plaintiff’s easement and is no defense to the plaintiff’s right to have the easement observed and respected by the dominant fee owner.

Defendants’ major argument is that North Dakota statutory law does not specifically allow the type of easement, servitude, or right to property conveyed by the Herbels to the Government. N.D. Cent.Code §§ 47-05-01 [easements] and 47-05-02 [servitudes] (1960). Defendants further assert, without direct authority, that North Dakota law only recognizes statutorily created interests in land and conclude that without statutory authorization the Government did not have the power to acquire the disputed interest in land.

The classification of the interest in land conveyed in this case according to the traditional analysis of easements is difficult. Here is created a non-appurtenant restriction on changing the natural contour of the land for the benefit of migratory birds. Traditionally, the interest in land conveyed would be an easement in gross, since such an easement “belongs to the owner of it [the United States] independently of his ownership or possession of any specific land.” Restatement of Property, Explanatory Notes § 454, comment a at 2917 (1944). By the terms of the document, the Herbels conveyed to the United States this interest in property “for themselves and for their heirs, successors and assigns.” This right to property use conveyed can be seen traditionally as an easement in gross for the benefit of the United States and to run indefinitely, as such easements in gross can. Restatement of Property, supra at 2918. In the end, however, and according to our following analysis, we agree with the District Court:

In this case, [the Government] acquired an interest which it termed an easement. It is clear that the parties intended it to be a permanent interest. It appears to this Court to be immaterial what term is used to describe the interest acquired. To attach a label to it and then apply a rule of law applicable to that label that would wholly defeat the purpose of the program cannot be permitted.

United States v. Albrecht, 364 F.Supp. at 1351.

The Government argues that United States v. Little Lake Misere Land Co., 412 U.S. 580, 93 S.Ct. 2389, 37 L.Ed.2d 187 (1973) (hereinafter Little Lake), controls and that federal law applies in all situations arising under the Migratory Bird Hunting Stamp Act, and in particular 16 U.S.C. § 718d(c). In interpreting the Migratory Bird Conservation Act in Little Lake, the Court rejected the Government’s argument “that land acquisition agreements of the United States should be governed [virtually without qualification] by federally created federal law.” Little Lake, supra at 595.

In Little Lake, the Court first held that federal courts have the power to determine and to apply federal law to the question of which substantive law should apply, the law of the state or the law as created by federal courts, when the case arises from or bears heavily upon a federal regulatory program. Little Lake, supra at 592. The District Court in this case first applied federal law, specifically Little Lake, to determine which substantive law should be applied. United States v. Albrecht, 364 F.Supp. 1349, 1351 (D.N.D.1973). We agree that this exercise of authority to determine choice-of-law was within the power of federal courts. The Migratory Bird Hunting Stamp Act, commonly known as the Duck Stamp Act, was passed originally in 1934 to raise funds by selling duck stamps to provide for the “acquisition of migratory bird refuges.” H.R.Rep. No. 2182, 85th Cong., 2d Sess., U.S.Code Cong. & Adm.News, p. 3232 (1958). The Act was amended in 1958 to increase the cost of the duck stamp and, inter alia, to add 16 U.S.C. § 718d(c) to allow for the acquiring of property and interest in property to be designated as “Waterfowl Production Areas.” From 1934 through 1958, only 13.7 per cent of revenues gained from the sale of duck stamps were used for refuge acquisition, and hunters and Congress “feared that unless the bill [the 1958 amendment] is enacted into law, in a few short years migratory bird hunting as it is presently carried on will be merely a matter of history.” H.R.Rep. No. 2182, 85th Cong., 2d Sess., U.S. Code Cong. & Adm.News p. 3232 (1958). The Congress therefore increased the cost of duck stamps and committed the federal government to acquiring lands suitable for waterfowl production. The House Report said it would take 25 years to acquire the minimum of wildlife lands to effectuate the bill’s purposes. Certainly the resolution of this case bears heavily upon a federal regulatory program.

As in Little Lake, the question becomes what substantive law to apply, federal or state. Appellants aid us little in determining whether North Dakota law would absolutely preclude the conveyance of the type of easement granted-to the United States. Appellants only assert without authority that the statutory laws of North Dakota do not provide for this easement or interest in property and that North Dakota does not recognize any other rights to land not statutorily enacted. However, under the context of this case, while the determination of North Dakota law in regard to the validity of the property right conveyed to the United States would be useful, it is not controlling, particularly if viewed as aberrant or hostile to federal property rights. Assuming arguendo that North Dakota law would not permit the conveyance of the right to the United States in this case, the specific federal governmental interest in acquiring rights to property for waterfowl production areas is stronger than any possible "aberrant” or “hostile” North Dakota law that would preclude the conveyance granted in this case. Little Lake, supra at 595-596. We fully recognize that laws of real property are usually governed by the particular states ; yet the reasonable property right conveyed to the United States in this case effectuates an important national concern, the acquisition of necessary land for waterfowl production areas, and should not be defeated by any possible North Dakota law barring the conveyance of this property right. To hold otherwise would be to permit the possibility that states could rely on local property laws to defeat the acquisition of reasonable rights to their citizens’ property pursuant to 16 U.S.C. § 718d(c) and to destroy a national program of acquiring property to aid in the breeding of migratory birds. We, therefore, specifically hold that the property right conveyed to the United States in this case, whether or not deemed a valid easement or other property right under North Dakota law, was a valid conveyance under federal law and vested in the United States the rights as stated therein. Section 718d(c) specifically allows the United States to acquire wetland and pothole areas and the “interests therein.”

Defendants also claim that the Herbels could not have granted this interest in land to the United States “that would be in its nature adverse to the exclusive possession of the defendants under their lease.” The lease of the real property by defendants terminated by operation of North Dakota law when they acquired a fee simple title on June 26, 1967, N.D.Cent.Code § 47-16-14(3), and whatever rights the defendants had as lessees terminated. They then held title as fee owners subject to a valid easement granted by the prior fee owners.

In addition, appellants contend that the easement is void, because the United States acted beyond its authority in acquiring an easement over an entire quarter section of land, when only 35 acres could be classified as pothole land. We disagree. It was well within the power of the Secretary of the Interior to acquire the reasonable easement conveyed in this case. The Albrechts and their successors are not restricted from farming the land, when such land is dry due to natural causes.

Appellants do not contest that their land has been ditched, that water has been drained from the property, and that the land is significantly less useful as a waterfowl production area. The terms of the easement have clearly been violated. The District Court’s order requiring defendants to meet with representatives of the Bureau of Sport Fisheries and Wildlife to agree on an acceptable manner and time to restore the Albrechts’ land to its previous natural state is affirmed. We also affirm the District Court’s permanent injunction forbidding defendants from draining or permitting the draining of their land subject to the valid easement.

The District Court is affirmed.

      . The Honorable Paul Benson, Chief Judge, United States District Court, North Dakota, filed a memorandum of decision published as United States v. Albrecht, 364 F.Supp. 1349 (D.N.D.1973).

      . That section reads :
      The Secretary of the Interior is authorized to utilize funds made available under subsection (b) of this section for the purposes of such subsection, and such other funds as may be appropriated for the purposes of such subsection, or of this subsection, to acquire, or defray the expense incident to the acquisition by gift, devise, lease, purchase, or exchange of, small wetland and pothole areas, interests therein, and rights-of-way to provide access thereto. Such small areas, to be- designated as “Waterfowl Production Areas”, may be acquired without regard to the limitations and requirements of the Migratory Bird Conservation Act, but all of the provisions of such Act which govern the administration and protection of lands acquired thereunder, except the inviolate sanctuary provisions of such Act, shall be apiilicable to areas acquired pursuant to this subsection.

      . Little Lake, supra at 591.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ingelow Odell SELLS and Howard Michael Jefferies, Defendants-Appellants.
    Nos. 73-1598, 73-1599.
    United States Court of Appeals, Seventh Circuit.
    Heard April 9, 1974.
    Decided May 21, 1974.
    Lawrence O. Sells, Indianapolis, Ind., for defendants-appellants.
    Stanley B. Miller, U. S. Atty., Richard L. Darst, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, SPRECHER, Circuit Judge and NO-LAND, District Judge.

      District Judge James E. Noland of the Southern District of Indiana is sitting by designation.

   PER CURIAM.

The defendants Sells and Jefferies were convicted at a joint trial of conspiracy to violate 18 U.S.C. §§ 2312 and 2313 and of violating those statutes. Jefferies was tried before a jury and Sells before the Court. Both were convicted on all counts and have appealed. We affirm.

In seeking reversal of their convictions the defendants have raised three issues: (1) whether the warrantless search of Sells’ business premises violated the fourth amendment and thereby tainted any evidence flowing therefrom; (2) whether certain testimony admitted at trial was prejudicial hearsay; and (3) whether there is sufficient evidence in the record to support the conviction. Appellant Sells has raised the first issue and Jefferies the second and third.

The search complained of by Sells took place on November 2, 1972, and was conducted by two Indiana State Police officers. That search produced evidence which was used as the basis for a federal search warrant issued on November 15, 1972, which produced evidence later admitted at the trial of the defendant. The district court held a suppression hearing and found that there was consent for the search and denied suppression. As consent is a factual issue, United States v. Young, 471 F.2d 109 (7th Cir. 1972), the facts surrounding the search must be briefly set out.

Two to four months prior to the November 2 search, defendant Sells spoke with one of the state police officers in regard to Sells’ son’s automobile which had been impounded subsequent to an accident. Sells wanted to know why the vehicle had been impounded and was told that they were checking it out because they had heard that Sells might be involved in certain criminal activity involving stolen ears. Sells then told the officer that he had nothing to hide and any time the officer wished to inspect his business he could do so.

Thereafter, on November 2, the officer and another state police trooper went to Sells’ used car/junk car dealership and asked to speak to Sells. They were informed by Sells’ son that a Mr. Ranson was in charge as Sells was not there. Ranson, who knew both of the officers and knew they were police officers, was then told by the officers that Sells had told them they could look around any time. Ranson told them to go ahead and look and the officers then began inspecting the salvage vehicles which were sitting on the lot.

Shortly thereafter, a Mr. Watkins, who was the manager of the defendant’s business, returned and approached the officers after being told by the other employees of their presence. He inquired if he could help them and they repeated the substance of what they had previously told Ranson. Watkins then told them to go ahead and look around and left them. In the course of their inspection of the junked vehicles the officers noticed that certain vehicle identification numbers, which were supposed to be visible through the windshield of the cars, were missing. They then located the numbers from either the inspection sticker on the windshield, or the door plate, and these became the basis for the subsequent federal search warrant.

The district court found both actual consent for the search by the employees and statutory consent under two Indiana statutes. As we agree that there was valid consent given by the defendant’s employees, we need not deal with defendant’s allegations regarding the defects in the statutory consent.

Appellant Sells has argued that the representation by the police officers to the employees that Sells had given his permission to search, in order to obtain the consent of the employees, amounts to fraud and deceit and makes such consent involuntary.

The district court, after hearing testimony, taking evidence, viewing the witnesses and resolving conflicts in the evidence, found as a matter of fact that defendant Sells did tell the officer that he could look around any time he wished. Where findings of fact are involved appellate courts must be reluctant to interfere unless there is insubstantial evidence in the record to support the trial court’s conclusion. United States v. Hayward, 471 F.2d 388 (7th Cir. 1972); United States v. Young, 471 F.2d 109 (7th Cir. 1972), cert. denied, 412 U.S. 929, 93 S.Ct. 2755, 37 L.Ed.2d 156 (1973); Byrd v. Lane, 398 F.2d 750 (7th Cir. 1968), cert. denied, 393 U.S. 1020, 89 S.Ct. 625, 21 L.Ed.2d 564 (1969). Cf. United States v. Sicilia, 475 F.2d 308 (7th Cir. 1973).

The trial court further found that consent was given for the search by two of Sells’ employees and, while not relying on the consent earlier given by Sells himself, found the employees’ consent to be valid. We do not find this determination to be clearly erroneous.

The question of whether the consent given by the employees was voluntary or was given as a result of duress or coercion is one of fact to be determined from a totality of all the circumstances surrounding the case. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). See also United States v. Sicilia, 475 F.2d 308 (7th Cir. 1973); United States v. Young, 471 F.2d 109 (7th Cir. 1972); United States v. DeMarsh, 360 F.Supp. 132 (E.D.Wis. 1973).

In the instant case, the conflicts in the evidence were resolved by the district court and it found that Sells had given consent. Thus, when the police officers informed Sells’ employees that Sells had told them they could look around, they were not deluding the employees nor attempting to gain entry through fraudulent means. Further, the evidence shows that some of the employees, if not all, knew both officers and knew they were police officers. It is, therefore, unlikely that the employees were “overly intimidated by the approach of a police officer” whom they knew so as to render the consent involuntary. United States v. Hayward, 471 F.2d 388, 390 (7th Cir. 1972). Therefore, we do not find the determination by the district court, that the consent given by the employees was voluntary, clearly erroneous.

Appellant Sells also argues that the only employee who could have given consent for the search was Watkins, the manager of the business, and not Ran-son. The Supreme Court has recently set forth the test to be used to determine who may bind another by consenting to a search.

In United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), the Court said that when the government seeks to justify a warrant-less search by showing voluntary consent, it may do so by showing that “permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effect sought to be inspected.” Id. at 993.

Common authority was defined as “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable” for the searching officers to believe that the person giving the consent had the authority to do so. Id. at n. 7.

Consent is a factual question and, so too, is the question of the appearance of authority to give it. Applying Matlock to -the facts and circumstances which were presented to the district court, we do not find that the Court erred in viewing the employee Ranson as being one whom the police officers could reasonably believe had the authority to consent to the search. They were informed by defendant Sells’ son that Ranson was in charge when they asked for the defendant. Ranson knew them and knew they were police officers. Further, he made no statement that they should wait for Watkins or that he could not authorize the search. In short, to the officers, he had the necessary appearance of authority demanded by Matlock to give consent to search the premises. Therefore, we conclude that the district court was correct in finding that the November 2 search was a valid warrantless search and that the evidence obtained subsequent thereto was not tainted.

Appellant Jefferies has argued that there is insufficient evidence to sustain his conviction and that certain evidence was admitted over objection which was prejudicial hearsay.

At trial the government presented a witness who was the security officer for Allison Division of General Motors in Indianapolis. The witness testified to an occurrence in the plant parking lot which related to one of the sixteen alleged overt acts of the conspiracy.

The witness related the incident and stated that one of the occupants identified himself as the defendant Sells by showing the witness an Indiana driver’s license with that name on it. When he began to identify the defendant Jefferies, counsel interposed a preliminary question and asked if the witness could physically identify either of the persons he saw. When the witness related that he could not, counsel made an objection which was overruled. The witness then testified that the second person identified himself as the defendant Jefferies by showing a Florida driver’s license with that name on it, and he related the substance of his conversation with that person. No further objection was made by counsel.

The objection made was general; “We will object.” However, it appears from the preliminary question that the objection was directed at the witness’ testimony regarding the name on the Florida driver’s license. No further objection was raised by counsel regarding the substance of the conversation related by the witness.

We believe the ruling by the district court was correct. The testimony of the witness, at least to the extent of the name printed on the driver’s license, was not hearsay as he was merely testifying to what he saw. As such, it was testimony regarding a fact known to him about which he could be cross-examined. See NLRB v. Tex-Tan, Inc., 318 F.2d 472 (5th Cir. 1963). While his inability to physically identify the appellant may have a bearing, such inability is directed to the weight the trier of fact may wish to give the testimony, not its admissibility. As no further objection was raised by counsel to the subsequent testimony, no determination is necessary as to its character.

Finally, we have reviewed the record herein and find no support for appellant Jefferies’ contention that there is insufficient evidence to support his conviction. Where there is conflict in the evidence it clearly was resolved by the trier of fact, and such resolution does not appear to be clearly erroneous. There was substantial evidence to arrive at the decision reached by the jury and the Court.

Consequently, the judgments of conviction are

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sebastian Jesse MIRELEZ, Defendant-Appellant.
    No. 74-1166
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 1, 1974.

      Philip S. Greene, Houston, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Mary L. Sinderson, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before COLEMAN, DYER and RONEY, 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, Part I.

   PER CURIAM:

Mirelez pled guilty to two counts of an indictment charging him with willfully making false statements in his income tax returns for the calendar years 1966 and 1967 by the omission of gross income derived from the sale of heroin. He argues that the failure to report the source of income as heroin sales is an essential element for which he was charged and “that the imposition of such a ‘harsh disclosure' requirement is the wrong thing to do.” He further asserts that he cannot be compelled to state the source of his income because it would tend to incriminate him. We affirm.

It is clear that Mirelez was not charged with falsely stating the source of his income but rather was charged with the willful failure to report certain gross income under 26 U.S. C.A. 7206(1), a perjury statute. The gist of the offense is a willfully false statement with respect to material fact or facts susceptible of proof. Kolaski v. United States, 5 Cir. 1966, 362 F.2d 847, 848. Accord, United States v. Lewis, 5 Cir. 1972, 475 F.2d 571, 573-574. Thus the violations to which Mirelez entered his pleas of guilty were complete with the omission of gross income, regardless of its source. United States v. Garcilaso de la Vega, 2 Cir. 1974, 489 F.2d 761, 765.

We are equally unimpressed with Mirelez’ argument that he cannot be forced to incriminate himself by stating in his tax return that the source of income was the illegal sale of heroin. “It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime. But if the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon. He could not draw a conjurer’s circle around the whole matter by his own declaration that to write any word upon the government blank would bring him into danger of the law.” United States v. Sullivan, 1927, 274 U.S. 259, 263-264, 47 S.Ct. 607, 608, 71 L.Ed. 1037.

Finally, relying on United States v. Sepe, 5 Cir. 1973, 486 F.2d 1044 (en banc), Mirelez now asserts that since we have disapproved any agreement between the prosecutor and defendant whereby a guilty plea is entered with a reservation of the right to appeal non-jurisdictional defects, he is entitled to have the adjudication of guilt based upon his plea reversed and have the case remanded so that he may plead anew. We disagree. The issues raised on this appeal go to the jurisdiction of the district court, i. e. an attack upon the indictment for failure to state an offense, and an assertion that the statute forming the basis of the charges in the two counts to which pleas were entered is an unconstitutional infringement of Mirelez’ Fifth Amendment privilege. These issues were expressly excepted in Sepe and could be raised on appeal without specifically reserving the right to do so. Sepe simply disapproved the reservation of a right to appeal non-jurisdictional defects after a guilty plea.

We have considered and find without merit the other issues raised on appeal.

Affirmed.

      . Title 26 U.S.C.A. § 7206(1) Any person who—
      (1) Declaration under penalties of perjury — Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct in every material matter;
      * * * * * * *
      shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned not more than 3 years, or both, together with the costs of prosecution.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Wallace L. HAMMER, Defendant-Appellant.
    No. 74-1227
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 3, 1974.

      Wallace L. Hammer, pro se.
    Richard D. Stephens, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

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

   PER CURIAM:

Hammer appeals the district court’s denial of his motion to reduce or modify sentence, filed pursuant to Rule 35, F. R.Cr.P. We vacate the judgment appealed from and remand with directions.

The appellant pleaded guilty to filing a false and fraudulent income tax return, in violation of 26 U.S.C. § 7201, and was sentenced on April 20, 1973 to serve a five-year sentence by District Judge Sarah T. Hughes. A notice of appeal was timely filed and the appeal docketed in this Court, but the appeal was dismissed on July 24, 1973 due to the appellant’s failure to timely file a brief and the reproduced appendix.

During that time, the appellant was also convicted by a jury of securities violations and mail fraud, and was sentenced on July 13, 1973 to serve ten concurrent five-year sentences, to commence upon the expiration of his previously imposed sentence for income tax violations. He also received a sentence of five years to run consecutively to the other sentences, but that sentence was suspended and he was placed on probation for the duration thereof. An appeal from the judgment of conviction and sentencing in the latter case is presently pending in this Court.

On November 13, 1973, Hammer filed a pro se Rule 35 motion in connection with both of the criminal cases. The appellant appealed to the mercy of the court and requested that the five-year tax return fraud sentence and the sentence imposed in the securities and mail fraud case be made to run concurrently. It was denied on the date of its filing by District Judge W. M. Taylor, Jr.

Although the appellant lodged an ap- ' peal with respect to the denial in both cases, this Court now may only consider the denial of relief in the income tax case since the denial of relief in the other case has been made part of the appellant’s pending criminal appeal therein.

This appeal presents two procedural problems, neither of which goes to the merits of the ruling below.

In the first place, there appears to be some question as to the timeliness of the filing of the motion to reduce sentence. Rule 35 permits a court to modify or reduce a legally-imposed sentence within 120 days of its imposition, within 120 days of the issuance of the mandate of the Court of Appeals’ affirmance or dismissal of the appeal, or within 120 days of the order or judgment of the Supreme Court’s action on the case. A trial court lacks the jurisdiction to entertain such a motion beyond that period. United States v. Mehrtens, 5th Cir. 1974, 494 F.2d 1172; United States v. Fournier, 5th Cir. 1973, 483 F.2d 68. While Hammer’s motion was filed beyond 120 days of his sentencing, it was filed 112 days of this Court’s dismissal of his appeal, and therefore the court had the authority to entertain it.

The second issue raised in the case sub judice is whether it was permissible for a district judge other than the sentencing judge to rule upon the appellant’s motion to reduce sentence, without any indication that the sentencing judge is unavailable to make the determination as to the modification of the sentence. As in United States v. Harper, 5th Cir. 1972, 460 F.2d 1024, we conclude that the district judge who accepted the appellant’s guilty plea and sentenced him is the proper judge to adjudicate his Rule 35 motion.

Accordingly, and without any intimation as to the ultimate determination on the narrow discretionary issue presented by the pleadings, we vacate the judgment denying the appellant’s Rule 35 motion, and remand the cause with instructions that it be adjudicated by the judge who sentenced him.

Vacated and remanded.


author: SIMPSON, Circuit Judge:

text:
    Norman Garfield KLINE, Jr., et al., Plaintiffs-Appellants, v. FLORIDA AIRLINES, INC., Defendant-Appellee.
    No. 73-3280.
    United States Court of Appeals, Fifth Circuit.
    July 10, 1974.
    Harold Mendelow, Miami, Fla., for plaintiffs-appellants.
    L. Robert Frank, Michael N. Brown, Tampa, Fla., for defendant-appellee.
    Before BELL, SIMPSON and IN-GRAHAM, Circuit Judges.
   SIMPSON, Circuit Judge:

The plaintiff-appellants were employed by appellee as mechanics in 1971 and were furloughed in a force reduction or work cut back without regard being given to their seniority. All are Florida citizens and residents and appellee is a Florida corporation. The suit below was for mandatory reinstatement and back pay. The trial court granted summary judgment and we affirm on the basis of the undisputed facts before him.

Shortly after the appellants’ lay-off the International Association of Machinists and Aerospace Workers (IAM) was formally certified by the National Mediation Board as the bargaining representative for the airline employees. Negotiations with the company regarding rates of pay, working conditions. and other matters ensued soon thereafter. The issue of the appellants’ discharge arose during these contract negotiations between the company president and the union representative and was included in the bargaining at the written request of the IAM representative. The union representative at said meeting was acting on behalf of appellants and neither then nor at any time did appellants, or any or either of them, repudiate the IAM’s authority to act for them. Further, none of appellants attempted in any matter at any time to negotiate said issue with the company. The negotiations were concluded by a letter agreement signed by both parties and by the National Mediation Board which settled in full the dispute concerning the job lay off or termination of appellants. Specifically the agreement contained this provision:

“In order to settle the outstanding issues remaining in the unions submission of contract proposals it is agreed and understood the Florida Air Lines, Inc. will recall, in order of seniority the remaining four Florida Air Line mechanics terminated on Feb. 20, 1971, as mechanic openings occur and credit them with seniority and active service credit from their original date of hire.
It is further agreed that the qualification of holding valid Air Frame and Power Plant Certificates applies. No certificates, no recall.
It is further agreed and understood that ‘bid jobs’ (Lead Mechanics, Inspector) filled after Jack Sheesley, Charles Noecker, John Sewell and Norman Kline, Jr., being furloughed on Feb. 20, 1971, shall not be disturbed. However, for the future if additional Lead Mechanics or Inspector Jobs are created and filled future reduction will be on the basis of seniority as defined in the Agreement between the parties.”

In paragraph 4 of his affidavit in opposition to the grant of summary judgment, the IAM Grand Lodge representative, George M. Brown, admitted that as part of his contract proposals he presented the Company President a proposal to reinstate the appellants with full emoluments, but continued that he never understood that the letter of agreement would deprive appellants of any rights under the Railway Labor Act or any other laws for recovery of job rights. We agree with the trial court’s appraisal by his order granting summary judgment of this statement as “at best, a plea of unilateral mistake, and * * * insufficient to limit or avoid the effect of the settlement agreement”, citing Pyzniski v. New York Central Railroad Company, 2 Cir. 1970, 421 F.2d 854.

Title 45, U.S.C. Secs. 151, 152, and 154 to 163, known as the Railway Labor Act, is extended to carriers by air by Secs. 181 et seq. of Title 45, U.S.C. The act requires the representative of the parties involved to attempt to settle disputes or grievances, whether deemed “major” or “minor”, Sec. 152 First. Elgin, Joliet & Eastern Railway Co. v. Burey, 1945, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886, on rehearing, 1946, 327 U.S. 661, 665, 66 S.'Ct. 721, 723, 90 L.Ed. 928, 930. Sec. 152 Second directs that all disputes between a carrier and its employees “shall be considered, and, if possible, decided, with all expedition, in conference between representatives designated and authorized so to confer.”

Under these mandates the parties then are required to try to settle a dispute before invoking the procedures for handling either (1) “major disputes”, within the jurisdiction of the National Mediation Board, Sec. 183, Title 45 U.S.C., or (2) “minor disputes”, Sec. 184, Title 45 U.S.C.

Sec. 184 provides that disputes between an employee and a carrier by air growing out of a grievance shall be handled in the usual manner “up to and including the operating officer of the carrier designated”, but “failing to reach an adjustment”, may be submitted to a private board of adjustment. Appellants contend before us that no such systems board had come into existence at the time of the layoffs of appellants. We view this as immaterial in the posture of this case, since the dispute was fully adjusted short of the need arising for submission of the dispute to such a board.

Appellants urge that the power of the collective bargaining agent to act for its members in major and minor disputes was spelled out by the Supreme Court in Elgin, Joliet & E. R. Co., supra. Our holding conflicts in no sense with that decision, especially in view of the clear language of the court on rehearing granted, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928, in limiting the somewhat broad implications of the original opinion:

“We also pointed out that the Act imposes correlative affirmative duties upon the carrier, the collective agent and the aggrieved employee to make every reasonable effort to settle the dispute. It would be entirely inconsistent for the Act to require the carrier and the union to negotiate concerning the settlement of the grievance and, while withholding power from them to make that settlement effective finally as against the employee, to relieve him altogether of obligation in the matter. Not only is he required to take affirmative steps. His failure to do so may result in loss of his rights.” (Note omitted) 327 U.S. at 665, 66 S.Ct. at 723, 90 L.Ed. at 930.

The Court said with respect to major and minor disputes:

“The obligation [to negotiate] is not partial. In plain terms the duty is laid on the carrier and employees alike, together with their representatives; and in equally plain terms it applies to all disputes covered by the Act, whether major or minor.”
Id. at 665, 66 S.Ct. at 723, 90 L.Ed. at 930. Note 6 (quoting the original opinion, 325 U.S. at 725, 65 S.Ct. at 1290, 90 L.Ed. at 1895 Note 18.)

We agree with the lower court that the appellants were bound as a matter of law by the negotiated settlement. Summary judgment was proper.

Affirmed.

      . The IAM’s written proposal concerning negotiations included the following request:
      “It is further proposed that Messrs. John Sewell, Norman Kline, Jack Sheesley and Charles D. Noecker lay off out of seniority be reversed and the individuals be made completely whole for any and all damages.”

      . The NMB has jurisdiction under Sec. 183 only where the dispute is “not adjusted in conference between the parties.”

      . We do not decide whether the right of the appellants to sue at common law for unlawful discharge survives the submission of their claims to negotiation. Assuming that this right remains viable, it may not be asserted in the federal courts, in view of the lack of diversity of citizenship between appellants and appellee.
      As to the common law right of action, see, e. g. Rumbaugh v. Winefrede R. R. Co., 4 Cir. 1964, 331 F.2d 530, 539, cert. den. 379 U.S. 929, 85 S.Ct. 322, 13 L.Ed.2d 341; Morrissette v. C. B. & Q. R. R. Co., 7 Cir. 1961, 299 F.2d 502, 503, cert. denied 1962, 369 U.S. 874, 82 S.Ct. 1141, 8 L.Ed.2d 277; Duplisea v. Maine Cent. R. R. Co., 1 Cir. 1958, 260 F.2d 495; Stack v. N. Y. Cent. R. R. Co., 2 Cir. 1958, 258 F.2d 739, 741, 742; Buster v. C. M. St. P. & P. R. R. Co., 7 Cir. 1952, 195 F.2d 73, 74.


author: WEICK, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Freddie Lee RENNER, Defendant-Appellant.
    No. 73-1847.
    United States Court of Appeals, Sixth Circuit.
    Argued April 2, 1974.
    Decided May 29, 1974.
    William Gary Crabtree, London, Ky. (Court-appointed), on brief, for defendant-appellant.
    James F. Cook, Lexington, Ky., for plaintiff-appellee; Eugene E. Siler, U. S. Atty., Robert M. Murphy Asst. U. S. Atty., Lexington, Ky., on brief.
    Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and WALINSKI, District Judge.

       The Honorable Nicholas J. Walinski, Judge, United States District Court for the Northern District of Ohio, sitting by designation.

   WEICK, Circuit Judge.

Appellant Renner was charged in a 37-count indictment with the offenses of making false and fictitious statements to the effect that he was not under indictment for a state court felony charge, in connection with his acquisition of firearms, and with the offenses of knowingly receiving and possessing firearms when he knew he was under such indictment for a felony, all in violation of 18 U.S.C. §§ 922(a)(6) and 922(h)(1). The false statements charges were contained in the odd-numbered counts of the indictment, and the receipt and possession charges were contained in the even-numbered counts, all of which even-numbered counts incorporated by reference part of the first count which alleged that at all times mentioned therein Renner was under indictment for a felony, in the Circuit Court in Kentucky, “and knew at all these alleged dates that he was so indicted.”

The case was tried before a jury which acquitted Renner on each of the nineteen odd-numbered counts which charged him with knowingly making false and fictitious statements. The jury found Renner guilty on each of the eighteen even-numbered counts which charged him with receiving and possessing the firearms when he was under indictment on the state felony charge.

The trial judge had charged the jury that knowledge was relevant only to the odd-numbered counts, and that lack of knowledge that he was under indictment was no defense to the even-numbered counts. The court instructed the jury to disregard as surplusage the allegations in the indictment that Renner knew at all times that he was under indictment on the state felony charge. These instructions left Renner with no defense to the even-numbered counts in the indictment since he admitted receipt and possession of the firearms and admitted that the firearms had previously been transported in interstate commerce.

Renner was sentenced to two years’ imprisonment and upon expiration of his sentence to five additional years’ probation.

Renner, in his appeal, complains only that the trial court erred in instructing the jury that lack of knowledge that he was under indictment at the time he received the firearms was not a defense to an alleged violation of 18 U.S.C. § 922(h)(1). We are of the opinion that such an instruction was erroneous. We reverse.

The facts in this case are neither complex nor controverted. Renner was a man twenty-eight years of age, married, with a five-year-old son. He had an eighth grade education. On December 17, 1968, Renner was indicted by a grand jury of the Rockcastle Circuit Court, Mount Vernon, Kentucky, for armed assault with intent to rob, in violation of K.R.S. 433.150. Said offense is punishable by a prison term in excess of one year. Renner was arrested on December 28, 1968, spent the night in jail, and was released on bond the next morning, having been ordered to appear in Rockcastle Circuit Court on March 19, 1969.

Renner appeared for his trial without counsel. He testified as to what took place in the Rockcastle Circuit Court, as follows:

Q. What happened on that date, that is, March 19, 1969 in the Rock-castle County Circuit Court?
A. Well, Mr. Marler [the prosecuting witness] told me he was going to drop the charges on me, so we went back in that little room and talked to them, and the Judge called me up there and give my money back and I walked out of the courtroom. I thought it was thrown out of court.
Q. Now, that’s Judge Hale?
A. Yes.
Q. And Judge Hale returned the money that was taken from you when you were put in jail ?
A. Yes, sir.
Q. Were you told by the Court to appear again at any time ?
A. No, sir.
Q. Did you hear the Commonwealth’s Attorney, or the Court, read or state that the indictment was to be filed away with leave to reinstate on recommendation of the prosecuting witness ?
A. No, sir, they didn’t explain nothin’ to me.
Q. And what you’re telling the jury is you thought that the case had been — I mean, the indictment had been dismissed?
A. Yes, sir. (App. 14-15)

The Circuit Court, however, entered the following order:

On motion of Commonwealth Attorney, this indictment filed with leave to reinstate on recommendation of prosecuting witness.

There was no proof that Renner had knowledge of this order, or what it meant. When he left the courtroom he was no longer under bond. As a matter of fact no action was subsequently taken under the state court indictment except to formally dismiss it more than three years later.

Renner admitted purchasing twenty-two firearms (handguns) from two duly registered firearm dealers in February and March 1972. For each purchase Renner signed the required Treasury Department Form 4473. Renner admitted that during each purchase the dealer read to him the question on the form: “Are you under indictment in any court for a crime punishable by imprisonment for a term exceeding one year,” from Form 4473, and that he answered, “No.”

Renner further testified that had he known that he was under indictment, he would not have purchased the firearms. Except for the claim that Renner was under indictment at the time, his purchases of the handguns were entirely lawful.

At the trial Renner’s defense to all of the thirty-seven charges in the indictment was that he understood that the 1968 Kentucky indictment “was dropped” when he made an appearance in the Rockcastle Circuit Court on March 19, 1969.

The trial court instructed the jury that lack of knowledge that the Kentucky indictment was still pending was a defense to the nineteen odd-numbered counts charging a violation of 18 U.S.C. § 922(a)(6). The jury, when it acquitted Renner on all eighteen counts, obviously believed the testimony of Renner that he did not know that the indictment was still pending when he acquired the firearms.

As to the § 922(h)(1) violations, the Court instructed the jury:

However, as to Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34 and 36, the even numbered counts, knowledge is not an element of the offense, and the fact that the defendant may have had a good faith belief that the indictment against him had been dismissed by virtue of the act of filing it away, nevertheless, mistake or lack of knowledge, if any, on his part that the indictment was still outstanding would not constitute a defense as to the offenses charged in Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34 and 36, the even numbered counts of the indictment.
You are further instructed that as to the offenses charged in Counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, 22, 24, 26, 28, 30, 32, 34 and 36, the even numbered counts of the indictment, that as said offenses do not involve specific intent, the work [sic] “knowingly” used in said counts of the indictment, that is, the even numbered counts of the indictment, is surplusage, and is not to be considered by you for any purpose in arriving at a verdict as to said counts of the indictment.

This instruction effectually pulled the rug out from under Renner’s defense, and he was left without any defense. The jury had no alternative under the court’s instructions but to find Renner guilty of the § 922(h) (1) violations.

The question to be determined on this appeal is whether scienter is an element of the offense stated in 18 U.S.C. § 922(h)(1) with respect to that part of the statute reading “person under indictment.”

The Act itself does not specifically require knowledge that an indictment is pending. If such a requirement is to be imposed it must be based on the long-established requirement of criminal responsibility, namely, mens rea. Morissette v. United States, 342 U.S. 246, 251, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

We must also consider the decision of the Supreme Court in United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), in which it was stated that the number of exceptions to the general rule that one must have mens rea to be convicted of a crime has increased over the years. 401 U.S. at 607.

In Freed the defendant was charged with violating 26 U.S.C. § 5861(d), which makes it unlawful for one to receive or possess a firearm which is not registered to him. The defendant asserted as a defense that he did not know the hand grenades which he had received were not registered. 26 U.S.C. § 5861(d) does not require specific intent or knowledge that the firearms were unregistered. In deciding the validity of the asserted defense the Court made a comprehensive review of the knowledge requirement for criminal conduct.

The Court compared the mens rea requirements of various crimes referred to in the previous decisions of Morissette, supra, Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), and United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943). In Morissette the Court held mens rea was an element of the crime of conversion of property of the United States in violation of 18 U.S.C. § 641 even though said section made no mention of such a requirement. A similar result was reached in Lambert, dealing with an ordinance of Los Angeles requiring convicted felons to register with the police department after remaining in the city for five days. Again a knowledge requirement was imposed by the Court even though not mentioned in the law.

In Dotterweich a conviction under the Food and Drug Act was upheld wherein a corporate officer was penalized when the firm shipped adulterated and misbranded drugs. Knowledge was held not to be required and the conviction was allowed to stand even though there was no “consciousness of wrongdoing.” This is the general rule with respect to pure food laws. 35 Am.Jur.2d, Food, § 77 p. 864 (1967).

The Court in Freed held that knowledge as to the unregistered status of hand grenades received or possessed was not required for a conviction under the statute. The Court was of the view that the facts of the case were closer to Doiterweich than Morissette or Lambert because the violation in Freed concerned “a regulatory measure in the interest of the public safety, which may well be premised on the theory that - one would hardly be surprised to learn that possession of hand grenades is not an innocent act.” 401 U.S. at 609. In a footnote to that statement the Court stated:

We need not decide whether a criminal conspiracy to do an act “innocent in itself” and not known by the alleged conspirators to be prohibited must be actuated by some corrupt motive other than the intention to do the act which is prohibited and which is the object of the conspiracy. An agreement to acquire hand grenades is hardly an agreement innocent in itself. Therefore what we have said of the substantive offense satisfies on these special facts the requirements for a conspiracy. Cf. United States v. Mack, 2 Cir., 112 F.2d 290.

In a concurring opinion Justice Brennan noted that while a defendant under this statute need not have knowledge that the firearm is unregistered, he must, however, have knowledge that the object possessed is a firearm and must also knowingly receive or possess the object. “[T]he National Firearms Act does not create a crime of strict liability as to all its elements.” Id. at 612.

If an item consists of highly dangerous materials, such as a hand grenade, a person reasonably knows that the item cannot be lawfully purchased or received without complying with strict governmental procedures designed to secure close supervision of such dangerous item. Thus, adulterated and misbranded drugs (Dotterweich, supra), narcotics (United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922)), and hand grenades (Freed, supra) have been designated as such items, and a violation of regulatory measures dealing with said items may occur without the violator having mens rea as to every element of the crimes delineated in said regulatory measures.

We do not question the legitimacy of the classification of “persons under indictment” being prohibited from purchasing firearms, even though an indictment is merely an accusation. This Court has previously delineated a nexus between such a classification as set forth in 18 U.S.C. § 922(h)(1) and a propensity for violence. United States v. Craven, 478 F.2d 1329 (6th Cir. 1973).

Nor do we question the legitimacy of the basis upon which Congress predicated this Act. Tighter controls on the interstate transportation of instrumentalities of violence were needed. See H.R. Rep. No. 1577, 90th Cong., 2d Sess. (1968).

We are specifically addressing our attention to the mens rea requirement in criminal prosecutions with respect to the special circumstances of the classification “persons under indictment for a crime punishable by imprisonment for a term exceeding one year.”

In our opinion, in order to convict a-person of an offense where being under indictment is an element, it must- be shown that the accused had knowledge of the indictment; without such a showing' a serious question of due process would be involved.

The principles stated in Morissette with regard to mens rea are applicable to the present action. We are of the opinion that such an application of mens rea principles is consistent with Freed, for the Court in Freed specifically stated that knowledge that hand grenades were unregistered was not required because the act, namely, the possessing of hand grenades, was not innocent in itself. Thus, Freed did not prescribe a broad rule that specific intent or knowledge is not an element of the crime in prosecutions for illegal possession of firearms.

As well stated in Justice Brennan’s concurring opinion in Freed:

Following the analysis of the Model Penal Code, I think we must recognize, first, that “[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” Dennis v. United States, 341 U.S. 494, 500 [71 S.Ct. 857, 862, 95 L.Ed. 1137] (1951) (Vinson, C. J., announcing judgment); Smith v. California, 361 U.S. 147, 150 [80 S.Ct. 215, 217, 4 L.Ed.2d 205] (1959); second, that mens rea is not a unitary concept, but may vary as to each element of a crime; and third, that Anglo-American law has developed several identifiable and analytically distinct levels of intent, e. g., negligence, recklessness, knowledge, and purpose. To determine the mental element required for conviction, each material element of the offense must be examined and the determination made what level of intent Congress intended the Government to prove, taking into account constitutional considerations, see Screws v. United States, 325 U.S. 91, [65 S.Ct. 1031, 89 L.Ed. 1495] (1945), as well as the common-law background, if any, of the crime involved. See Morissette v. United States, 342 U.S. 246 [72 S.Ct. 240, 96 L.Ed. 288] (1952) . (Footnotes omitted.) (401 U.S. at 613-614.)

By reason of the special circumstances that may surround one under indictment, i. e., he may not be aware of the fact that he has been indicted .because of failure to serve him on a secret indictment, or where, as here, the accused had been advised in court that the indictment was dropped, and he did not know that it had been “filed away with leave to reinstate at the recommendation of the prosecuting witness,” in our opinion knowledge that he is still under indictment is a relevant factor.

The indictment in the present case pleaded knowledge. Such an allegation ought not to have been stricken as surplusage. Whether Renner knew that he was under indictment was a question for the jury to decide in its determination of Renner’s guilt or innocence. Morissette, supra, at 274. The jury did consider this question with regard to the alleged violations of § 922(a) (6) and found Renner not guilty because he made no false and fictitious statements.

As to the alleged violations of •§ 922(h)(1), in which the jury was instructed not to consider Renner’s knowledge of the indictment, Renner was found guilty. Such instruction was error. The jury should have been' instructed to consider Renner’s knowledge of the indictment as an element of the alleged § 922(h)(1) violations.

The judgment of conviction is reversed.

      . “Scienter" and “mens rea" are used interchangeably throughout this opinion. See United States v. Morissette, 342 U.S. 246, 252, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

      . The Court of Appeals of Kentucky in VanArsdale v. Caswell, (Ky.) 311 S.W.2d 404 (1958), discussed the practice of “filing away an indictment or warrant.” It is like an indefinite continuance, and is never reinstated without notice to the accused. He can appeal from such an order; it cannot be entered without the consent of the accused. There was no proof here that the accused consented because he did not even know about it.
      The Kentucky Court stated that ordinarily the defendant does not object to such an order because “ . . . from a practical standpoint it usually means the end of the prosecution.” It was the end here.
      In an amicus brief filed by the Louisville Police Officers Association in VanArsdale, the Association vigorously argued that “trial courts are justified in ‘filing away’ a warrant or indictment as it protects citizens and police officers from suits for malicious prosecution, since such an order indefinitely continues the case and prevents a final determination thereof.” (Id. at 407).