text:
    UNITED STATES of America, Plaintiff-Appellee, v. Miguel RODRIGUEZ, Defendant-Appellant.
    No. 72-1529.
    United States Court of Appeals, Fifth Circuit.
    Jan. 30, 1973.
    Rehearing Denied April 4, 1973.
    See also, D.C., 336 F.Supp. 708.

      Louis Stoskopf, Martin S. Saxon, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Mervyn L. Ames, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before RIVES, WISDOM and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

In this appeal of a narcotics conviction, three questions have been raised Was the evidence sufficient to convict the defendant despite an entrapment defense? Was evidence of a subsequent, similar transaction admissible? Did the trial court’s refusal to order the Government to subpoena an informer witness and to permit defendant to testify to conversations with this witness deprive defendant of a fair trial ?

, Miguel Rodriguez met a Special Agent of the Bureau of Narcotics and Dangerous Drugs and a Government informer, Eduardo Malpica, on September 7, 1971, in downtown Miami, Florida. Arrangements were made for the agent to purchase cocaine from Rodriguez the following day. On September 8th, the agent first extracted from a package under the seat of Rodriguez’ car a sample of cocaine and later paid defendant $1,500 and took the package.

After a non-jury trial, defendant was convicted of two narcotics offenses, possession of cocaine with intent to distribute and distribution of cocaine, both in violation of 21 U.S.C.A. § 841(a)(1). He was sentenced to concurrent imprisonment for four years on each count. We affirm.

Entrapment

Defendant asserts entrapment as a matter of law and as a matter of fact and contests the sufficiency of the Government’s evidence to refute entrapment.

Alleging entrapment at law, defendant shows that the cocaine in question was part of two kilos of cocaine furnished his brother, Mario Rodriguez, by a Government informer named Juan Mesa. The Government admits that this was apparently the source of defendant’s supply. Defendant argues that the Government thus furnished itself narcotics through an intermediary, as proscribed in United States v. Bueno, 447 F.2d 903 (5th Cir. 1971).

The rationale of Bueno, however, will not support the defense in this case. In Bueno, we held that entrapment at law is established when the Government furnishes narcotics to an individual for him to sell to a Government agent. The crime in Bueno was committed through the creative activity of theGovernment informer in buying the heroin, smuggling it into the United States from Mexico, giving it to Bueno, selecting the prospective purchaser, and arranging for the defendant to make the sale. No such Government participation was involved in the sale made by Rodriguez. Bueno will not support the theory that the introduction of narcotics into the marketplace by the Government informer is sufficient to cloak all subsequent sellers with an entrapment defense. Being once removed from the person to whom the cocaine was furnished by a Government informer, Rodriguez cannot claim entrapment as a matter of law. He obtained the contraband from a non-government source, and that fact alone is sufficient to distinguish his defense from Bueno’s.

Defendant makes an alternate contention that the evidence showed that-he received the cocaine from the informer, Malpica, instead of his brother, so that the Bueno rule could properly be extended to this case, but this issue of fact was resolved against defendant on contrary testimony.

Alleging entrapment as a matter of fact, defendant charges that the Government informer, Malpica, induced him to participate in this transaction. Once a defendant raises the entrapment issue with some evidentiary support, the burden of going forward with the evidence shifts to the Government to contradict the evidence. United States v. Groessel, 440 F.2d 602 (5th Cir. 1971), cert, denied, 403 U.S. 933, 91 S.Ct. 2263, 29 L. Ed.2d 713.

We conclude that the Government has met its burden. The evidence established that defendant was a dealer .in narcotics and had dealt in considerable quantities of cocaine. No evidence supports the conjecture that Malpica here implanted the scheme in defendant’s mind. The Supreme Court, in Sor-rells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), said that, in determining the validity of an entrapment defense, “the controlling question [is] whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials.” 287 U.S. at 451, 53 S.Ct. at 216. We do not discern in the activities of the Government informer and agent sufficient creativity to meet this standard. At most, the Government merely provided an opportunity for Rodriguez to commit the offense.

Defendant testified that he never touched the package of cocaine, but that the Government informer, Malpica, actually obtained the cocaine from Mario Rodriguez and sold it to the agent. To refute this evidence, the Government presented testimony that the informer and agent both got into defendant’s car at his invitation, that defendant told the agent to get the package of cocaine from under the seat on both occasions, and defendant both accepted and retained the payment. The trial court’s guilty verdict resolved this issue of fact against defendant.

Admissibility of Subsequent, Similar Transaction

Defendant contends that the admission into evidence of testimony pertaining to a subsequent, similar transaction was both erroneous and sufficiently prejudicial to warrant reversal. The testimony involved a sale of cocaine by Rodriguez on September 27, 1971, twenty days after the date of the offense charged.

The Court refused to permit the Government to introduce this evidence in its case in chief. But when the defendant testified in his own behalf, the Court allowed cross-examination as to a meeting between Government agents and the defendant on September 27, 1971. Defendant denied that cocaine was discussed at that meeting. Government agents then testified that a small amount of cocaine was passed from defendant to a Government agent at that time.

Although defendant grants that such testimony concerning prior and contemporary criminal acts may be admitted, he raises the critical question regarding the admissibility of evidence of acts which occurred subsequent to the dates in the indictment.

The Government, relying on United States v. Pittman, 439 F.2d 906 (5th Cir. 1971), cert. denied, 404 U.S. 842, 92 S.Ct. 138, 30 L.Ed.2d 77 and United States v. Cooper, 321 F.2d 456 (6th Cir. 1963), argues that this evidence is admissible to impeach the defendant, to rebut the entrapment defense, and to corroborate the offense charged in the indictment. It does not contend that the evidence is admissible to prove intent in this case. See United States v. Johnson, 453 F.2d 1195 (5th Cir. 1972).

Although it is true that Cooper involved corroborative acts which occurred prior to that charged in the indictment and Pittman involved acts which occurred between the dates of the two separate acts charged in the indictment, our review of the cases and the rationale for the admission of the evidence does not indicate that the sequence of events should be crucial. This Court, in Pittman, relied on Rodriguez v. United States, 284 F.2d 863 (5th Cir. 1960), cert. denied, 368 U.S. 1001, 82 S.Ct. 632, 7 L.Ed.2d 540 (1962), to hold that “evidence of an extraneous offense is admissible when it corroborates the offense charged, otherwise than by simply imputing to the defendant a general disposition to commit offenses of that type.” 439 F.2d at 909. Testimony regarding the intermediate transaction was held to corroborate the offense charged because it showed that, during the time period spanned by the indictment, the defendants possessed narcotic drugs on their premises and trusted the Government informer sufficiently to sell them to him.

Cooper, moreover, is authority for the proposition that, in a narcotics case when the entrapment defense is raised, evidence of defendant’s other similar criminal acts, ordinarily not admissible if not charged in the indictment, are admissible to prove predisposition to commit the offense charged. There the Court explained that sales of narcotics just a few weeks before the offenses charged “would certainly seem to be related or similar acts and indicate a predisposition to commit the offenses.” 321 F.2d at 458.

The primary thrust of these authorities is that evidence of a similar offense, committed in close proximity of time, may be corroborative of a prior or subsequent offense. Although evidence introduced in a criminal trial generally should relate only to the specific offense charged, prior or subsequent incidents may be introduced to establish that a defendant possessed a requisite knowledge or that there is a consistent pattern, scheme of operations, or similarity of method. United States v. Goodwin and Nail, 470 F.2d 893 (5th Cir. 1972). The balancing between the probative value of such evidence and any prejudice that may result from its admission is left within the sound discretion of the trial judge. See, e. g., United States v. Byrd, 352 F.2d 570 (2d Cir. 1965). The elements which control the admissibility of the subsequent act in this case are the similar nature and close proximity of the two events.

Our reading of the instant record has convinced us that, m light of defendant’s entrapment defense, no abuse of discretion was committed when the trial judge admitted evidence of a subsequent, similar transaction.

Absent Informer

Defendant’s third argument is that the lower court erred in denying him the opportunity to subpoena the informer, Malpica, to testify on the entrapment issue and in sustaining objections to defendant’s questions regarding his conversations with this informer. A review of the record indicates that issuance of a subpoena would have been futile because Malpica could not be located and that the rulings on the defendant’s testimony were not reversible, if error at all.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM: BYRNE, District Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert J. BARANOV, Defendant-Appellant.
    No. 26380.
    United States Court of Appeals, Ninth Circuit.
    Feb. 9, 1973.
    Byrne, J., dissented with an opinion.
    Burton C. Jacobson, Beverly Hills, Cal., for defendant-appellant.
    Harry D. Steward, U. S. Atty., Warren P. Reese, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.
    Before CHAMBERS and WRIGHT, Circuit Judges, and BYRNE, Sr., District Judge.

       Honorable William M. Byrne, Senior United States District Judge, Central District of California, sitting by designation.

   PER CURIAM:

Baranov appeals from a conviction for mailing obscene matter in violation of 18 U.S.C. § 1461. We reverse.

The government’s case consisted of photographs, advertisements, a motion picture and proof of mailing.

As we are required to do, we have reviewed the evidence de novo. Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964); Wasserman v. Municipal Court of the Alhambra Judicial Dist., 449 F.2d 787 (9th Cir. 1971); Childs v. Oregon, 431 F.2d 272 (9th Cir. 1970), rev’d on other grounds 401 U.S. 1006, 91 S.Ct. 1248, 28 L.Ed. 2d 542 (1971). We have found the usual tasteless pictures focusing on the exterior human genitalia.

However, none of this material appears to be any more offensive or distasteful than what the Supreme Court has found not obscene. United States v. 392 Copies of Magazine “Exclusive”, 253 F.Supp. 485 (D.Md.1966), aff’d 373 F.2d 633 (4th Cir. 1967), rev’d sub nom. Central Magazine Sales v. United States, 389 U.S. 50, 88 S.Ct. 235, 19 L.Ed.2d 49 (1967); Pinkus v. Pitchess, 429 F.2d 416 (9th Cir. 1970), aff’d 400 U.S. 922, 91 S.Ct. 185, 27 L.Ed.2d 183 (1970). Cf. United States v. 56 Cartons Containing 19,500 Copies of Mag., 373 F.2d 635 (4th Cir. 1967), rev’d sub nom. Potomac News Co. v. United States, 389 U.S. 47, 88 S.Ct. 233, 19 L.Ed.2d 46 (1967).

The materials in both United States v. Miller, 455 F.2d 899 (9th Cir. 1972) and United States v. Young, 465 F.2d 1096 (9th Cir. 1972) were substantially more explicit than those involved here. Cf. United States v. Arno, 463 F.2d 731 (9th Cir. 1972).

Reversed.

BYRNE, District Judge

(dissenting).

I respectfully dissent.

I do not agree that Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, 12 L.Ed.2d 793, requires or permits us to review the evidence de novo. A close reading of Jaeobellis clearly shows that it is only the Supreme Court which has the duty to apply the applicable rules of law upon the basis of an independent review of the facts of each case in all cases involving constitutional rights under the Due Process clause. “Hence, we reaffirm the principle that, in ‘obscenity’ cases as in all others involving rights derived from the First Amendment guarantees of free expression, this Court cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.” (Page 190, 84 S.Ct. page 1679) (Emphasis supplied).

If there is any doubt as to the court’s intention that the holding applied to the Supreme Court only and not to Courts of Appeals, it surely is dissipated by Chief Justice Warren’s dissenting opinion disagreeing with the majority ruling that the Supreme Court should make an independent de novo judgment on the question of obscenity. “However, protection of society’s right to maintain its moral fiber and the effective administration of justice require that this Court not establish itself as an ultimate censor, in each case reading the entire record, viewing the accused material, and making independent de novo judgment on the question of obscenity. Therefore, once a finding of an obscenity has been made below under a proper application of the Roth test, I would apply a ‘sufficient evidence’ standard of review — ”. (Pages 202-203, 84 S.Ct. page 1686) (Emphasis supplied).

Certainly, this court is limited to applying a “sufficient evidence” standard of review.

The evidence being sufficient to support the district court’s findings, I would affirm.


author: PER CURIAM.

text:
    Joseph A. SLABAUGH, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
    No. 72-1860.
    United States Court of Appeals, Sixth Circuit.
    March 9, 1973.

      Harry E. Youtt, Cleveland, Ohio, for appellant.
    Joseph T. MeGinness, Asst. U. S. Atty., Frederick M. Coleman, U. S. Atty., on brief for appellee.
    Before MeCREE and LIVELY, Circuit Judges, and KENNEDY, District Judge.

       Honorable Cornelia G. Kennedy, United States District Judge for the Eastern District of Michigan, sitting by designation.

   PER CURIAM.

This appeal concerns the refusal of a 21-year old male member of the Old Order Amish sect, who had been classified by his local draft board as a conscientious objector, to report for alternate civilian service. The alternate service which he was directed to perform consisted of work in a state hospital in a community other than the one in which he resided. He based his refusal on the conviction that obedience to the Commandment, “Thou shalt not kill” made it impossible for him to perform any service which might have the effect of even indirectly aiding the military establishment of the country in performing its mission. Also in reliance on Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), appellant has asked the Court to recognize the exceptional requirements which the Amish religion makes of its adherents and the disruptive effect on Amish values of a forced co-mingling with the world at large. In Yoder a great deal of evidence was introduced on the subject of whether forced attendance at public schools did have such a disruptive effect on Amish values. No evidence was produced by the appellant at his trial in the District Court that the alternate service ordered in this ease would have such an effect.

The appellant maintains that in cases where a religion makes the exceptional demands upon its adherents which the Amish faith is known to make, the members of such a religion are entitled to a total exemption from service based on the “free exercise of religion” provisions of the First Amendment rather than the statutory substitution of alternative civilian service provided for conscientious objectors. This Court considered a similar argument with respect to a member of Jehovah’s Witnesses in Rase v. United States, 129 F.2d 204 (6th Cir. 1942), and concluded that there is no constitutional grant of immunity from military service because of one’s religious convictions or activities. We continue to adhere to that decision. The Selective Service authorities recognized appellant’s sincere religious convictions and accordingly classified him as a conscientious objector who was exempt from military service. Having received this classification, appellant was entitled to fulfill his obligation of citizenship by performing alternate civilian service. His refusal to report for such service was a violation of 50 App. U.S.C. § 462, and the District Court so found.

It is ordered that the judgment of the District Court be, and hereby is, affirmed.


author: RONEY, Circuit Judge:

text:
    Lola Beth GREEN, Plaintiff-Appellant, v. BOARD OF REGENTS OF TEXAS TECH UNIVERSITY et al., Defendants-Appellees.
    No. 72-1542.
    United States Court of Appeals, Fifth Circuit.
    Feb. 13, 1973.
    Rehearing and Rehearing En Banc Denied May 9, 1973.
    Buford C. Terrell, Lubbock, Tex., for plaintiff-appellant.
    Sylvia Roberts, Baton Rouge, La., amicus curiae.
    Crawford Martin, Atty. Gen. of Tex., W. 0. Shultz, II, Asst. Atty. Gen., Austin, Tex., Carlton Dodson, Resident Counsel, Lubbock, Tex., Nola White, First Asst. Atty. Gen., Austin, Tex., James H. Milam, Lubbock, Tex., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and MOORE and RONEY, Circuit Judges.

       Hon. Leonard P. Moore, Senior Circuit Judge of the Second Circuit, sitting by designation.

   RONEY, Circuit Judge:

Dr. Lola Beth Green, Associate Professor of English at Texas Tech University, claims that she was refused promotion to the rank of full professor because of her sex. She sued the Board of Regents of Texas Tech University for damages under 42 U.S.C.A. § 1983. The District Court, 335 F.Supp. 249, concluding from the evidence that the decision not to promote plaintiff was based entirely on considerations other than her sex, denied relief. We affirm on the ground that the trial judge’s findings of fact are not clearly erroneous.

Dr. Green has taught at Texas Tech University since 1946, except for her absence during 1951-1953 when she worked on her doctorate. First a temporary instructor, she was promoted to Assistant Professor in 1953 and to Associate Professor in 1959. In the 1969-1970 academic year, she made timely application to the University for promotion. When denied, she complied with the appropriate administrative procedure. This action was brought when the Board of Regents refused to grant the promotion.

The District Court held an evidentiary hearing on both the merits of her claim and the administrative procedure through which plaintiff’s application was processed. A diagram of the procedure is as follows:

HEAD OF THE ENGLISH DEPARTMENT
(All professors of the English Department consider and vote upon the application and may submit statements-to the Head of the Department.)
DEAN OF THE COLLEGE OF ARTS AND SCIENCES
(Six-member Promotions and Tenure Committee of the Department of Arts and Sciences considers and votes upon the application to advise the Dean.)
GRADUATE DEAN VICE PRESIDENT OF ACADEMIC AFFAIRS PRESIDENT OF TEXAS TECH UNIVERSITY TENURE AND PRIVILEGE COMMITTEE OF TEXAS TECH UNIVERSITY
(Committee reviews for determination of compliance with due process. Applicant represented by attorney.)
ACADEMIC COMMITTEE OF THE TEXAS TECH UNIVERSITY BOARD OF REGENTS FULL BOARD OF REGENTS OF TEXAS TECH UNIVERSITY

Only at the first stage did Dr. Green’s application receive favorable consideration. Although her prior applications had failed to receive majority support from her own department, in 1969 plaintiff’s colleagues in the English Department voted 5 to 3 in favor of her promotion. Thereafter, at every level of review, Dr. Green’s application received a unanimous negative response.

At each stage of the procedure, questions unrelated to Dr. Green’s sex were raised regarding her qualifications as to teaching ability, scholarship, and university and community service. Professors and administrators at all levels of the review testified before the District Court as to their opinions of Dr. Green’s work and ability which led to a denial of the promotion. There would be no value in recounting this testimony. Even at the first stage, where her application obtained a majority for approval, two faculty members in the minority testified that Dr. Green was deficient in both teaching and research as evidenced, in their opinions, by students’ complaints about her teaching, the disinclination of graduate students to seek her direction on theses, and her failure to publish any substantial research. To emphasize that misogyny was no element of his decision, one of these professors explained that he had voted for promotion of two of the three women who had sought promotion in the English Department since he had been affiliated with the University.

Dr. Green’s application was even given special attention by an extra step in the review process: after the application went to the Vice President of Academic Affairs, plaintiff was given an opportunity to submit additional information, and the application was reconsidered by the Dean of the College of Arts and Sciences and his advisory committee.

The credibility of the witnesses and the weight to be given their testimony are within the province of the finder of fact and the findings of the Court must be sustained unless clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure. The findings and decision of academic administrative bodies are to be upheld by the courts when reached by correct procedures and supported by substantial evidence. Duke v. North Texas State University, 469 F.2d 829 (5th Cir. 1972); Ferguson v. Thomas, 430 F.2d 852 (5th Cir. 1970).

Dr. Green complains that the District Court refused to consider whether the University discriminated toward women as a class. The District Court considered, however, all the evidence, including comparative charts and statistics, .that was directly related to the denial of Dr. Green’s application for promotion. This was not a class action. On appeal, plaintiff .concedes that no relief is sought for a class. We perceive no error in the District Court’s determination as to what evidence was relevant to Dr. Green’s claim.

Plaintiff’s points of error concerning the alleged failure of the University to establish definite criteria controlling'.promotions in teaching rank; the Court’s holding that the University had not acted capriciously and had not abused its discretion; and the Court’s requirement of direct noninferential evidence of discrimination against plaintiff personally^ all fall under the positive finding by the Court that plaintiff’s application was given fair and impartial treatment and that the refusal of promotion was based on the facts of plaintiff’s record, without any regard being given to her sex. The University’s standards are matters of professional judgment, and here substantially every individual or committee in the institution’s reviewing body questioned Dr. Green’s competence. The Court’s findings are not clearly erroneous.

Affirmed.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eugene J. MATELICH, Defendant-Appellant.
    No. 72-2541.
    United States Court of Appeals, Ninth Circuit.
    Feb. 20, 1973.

      Shelton C. Williams (argued), of. Worden, Thane, Haines & Williams, Mis-soula, Mont., for defendant-appellant.
    R. E. Murray, Jr., Asst. U. S. Atty. (argued), Otis L. Packwood, U. S. Atty., Butte, Mont., for plaintiff-appellee.
    Before BROWNING and DUNIWAY, Circuit Judges, and KELLEHER, District Judge.

       Honorable Robert J. Kelleher, United States District Judge, Central District of California, sitting by designation.

   PER CURIAM:

Matelich appeals from his conviction after trial by jury of two counts, which were treated as one crime, of concealment of assets from a trustee in bankruptcy in violation of 18 U.S.C. § 152.

Appellant raises seven contentions, of which only two, alleging prejudicial error in admitting government’s exhibits, have any substance. One such exhibit is a portion of the transcript of appellant’s testimony at a bankruptcy hearing held on April 5, 1971, almost a year before the indictment of appellant. The other is a portion of a written F.B.I. report summarizing an F.B.I. interview with the appellant held on January 17, 1972.

It was error to receive in evidence any portion of the transcript of appellant’s bankruptcy testimony. The record reveals that on April 5, 1971, an asset hearing was held before a part-time referee in bankruptcy. Title 11 U.S.C. § 25(a)(10) provides:

“ . . .at the first meeting of his creditors, at the hearing upon objections, if any, to his discharge and at such other times as the court shall order [the bankrupt shall] submit to an examination concerning the conducting of his business, the cause of his bankruptcy, his dealings with his creditors and other persons, the amount, kind, and whereabouts of his property, and in addition all matters which may affect the administration and settlement of his estate or the granting of his discharge; but no testimony, or any evidence which is directly or indirectly derived from such testimony, given by him shall be offered in evidence against him in any criminal proceeding; except such testimony as may be given by him in the hearing upon objections to his discharge. . . . ” [italics added]

Although the record is not wholly clear, it does appear that the testimony of appellant at the April 5, 1971, hearing was given pursuant to the order of the referee in bankruptcy; thus, its admission into evidence was improper.

F.B.I. Special Agent Servel testified as to the substance of an oral interview he had with appellant using a typed statement to refresh his recollection. He testified that he had dictated the statement from notes made during the interview with appellant. Appellant objected to the admission of the exhibit on the grounds that the statement was the agent’s recollection of a conversation about which he had just testified and that the statement was irrelevant. The trial court judge sustained that objection. Subsequently, after appellee’s cross-examination of appellant, the agent’s statement was re-offered in evidence. Appellant renewed his objection on the grounds of irrelevancy, but the trial court admitted a portion of that statement.

The record is unclear as to the grounds for objection other than relevancy. Ap-pellee asserts that the admitted portion of the agent’s statement was used to impeach appellant’s cross-examination testimony. However, the statement was not admitted for any such limited purpose. While the statement could have been used for this purpose if properly utilized, it has no independent evidentiary value. It is not, as the Government characterized it, “the statement as given to Mr. Servel.” The statement is nothing more than the agent’s recollections of his interview with appellant. Although appellant’s objections were ill stated and perhaps technically inappropriate, their substance was that the statement has no independent evidentiary value. On' this basis and over this objection, the admission of a portion of the agent’s statement was error. See United States v. Albanese, 224 F.2d 879 (2d Cir. 1955); 3 Wigmore, Evidence § 763 (Chadbourn rev. 1970).

Appellant’s primary defense was that he did not conceal assets within the meaning of 18 U.S.C. § 152. Standing alone, the effect of the improperly received exhibits might not have constituted prejudicial error. But, when considered together, the effect of the inadmissible evidence must be considered prejudicial. In essence, appellant’s defense ■rested upon his credibility. Both inadmissible exhibits tended to impeach appellant. Indeed, the statement of the F.B.I. agent may have been accepted by the jury as substantive proof. This court cannot know what evidence influenced the jury, but it is celar that some jury members might have been persuaded to find appellant guilty on the basis of the documentary evidence which was inadmissible. See Leahy v. United States, 272 F.2d 487, 488 (9th Cir. 1959), cert. granted, 363 U.S. 810, 80 S.Ct. 1246, 4 L.Ed.2d 1152 (1960), cert. dismissed, 364 U.S. 945, 81 S.Ct. 465, 5 L.Ed.2d 459 (1961).

Reversed and remanded for a new trial.


author: SIMPSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Emmitt BRAGER, Defendant-Appellant.
    No. 72-3196
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 27, 1973.

      Walter J. Woodman, Waxahachie, Tex. (Court-Appointed) for defendant-appellant.
    Frank D. McCown, U. S. Atty., Ft. Worth, Tex., Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   SIMPSON, Circuit Judge:

Emmitt Brager pled guilty to a one count indictment charging violation of Title 18, U.S.C., Section 659, theft from interstate shipment of goods of a value in excess of $100, two boxes of electric drills. He was adjudged guilty and thereafter received a custodial sentence of eight years, which was within the maximum confinement term provided by the statute.

He appeals, urging (a) that the sentence he received is so excessive as to constitute cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution, and further (b) that since the trial judge admittedly based the length of the sentence in part upon appellant’s serious prior criminal record, he was twice put in jeopardy for the same offenses, in violation of his Fifth Amendment rights.

Despite the earnestness and ingenuity with which Brager’s contentions are argued by his counsel, we find no merit in either ground presented, and affirm.

As to the Eighth Amendment claim, see the following recent cases: United States v. Holley, 5 Cir. 1972, 463 F.2d 634, 639; United States v. Rojas-Colombo, 5 Cir. 1972, 462 F.2d 1091; United States v. Grene, 5 Cir. 1972, 455 F.2d 376, 377; United States v. White, 5 Cir. 1971, 447 F.2d 493, 494; Rener v. Beto, 5 Cir. 1971, 447 F.2d 20 (it does not matter that Rener is a Texas habeas case, since Robinson v. California, Note 2, supra, made the Eighth Amendment applicable to the states through the Fourteenth); United States v. Williams, 5 Cir. 1971, 446 F.2d 486; United States v. Ruacho-Acuna, 5 Cir. 1971, 440 F.2d 1199, 1201; Castle v. United States, 5 Cir. 1968, 399 F.2d 642, 652. Rojas-Colombo, supra, is concise and to the point: “There is no merit to Colombo’s sole contention, which is that imposition of the maximum sentence allowable violated the prohibition of the Eighth Amendment, to the United States Constitution against cruel and unusual punishment. (Citing cases).”

The Fifth Amendment double jeopardy claim is refuted by Williams v. New York, 1949, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337. There, after citing with approval Rule 32(c), F.R.Crim.P. dealing with pre-sentence investigations and reports, the Court observed:

“ . . .A recent manifestation of the historical latitude allowed sentencing judges appears in Rule 32 of the Federal Rules of Criminal Procedure. 18 U.S.C.A. That rule provides for consideration by federal judges of reports made by probation officers containing information about a convicted defendant, including such information ‘as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant . . . ’
“[A sentencing judge’s] task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant —if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information
“ . . . Today’s philosophy of individualizing sentences makes sharp distinctions for example between first and repeated offenders.” (Emphasis supplied) 337 U.S. 246-248, 69 S.Ct. 1082-1083.

As pointed out in the appellee’s brief, pages 8-9:

“The Constitutional propriety of considering a previous conviction in determining the sentence to be assessed for a subsequent offense is starkly obvious when one considers statutes which expressly provide for a greater penalty when a violation is a second or subsequent offense.”

Recidivist statutes have been uniformly upheld in the face of Fifth Amendment double jeopardy assaults, as being not punishment for a prior offense, but for the repetition of criminal conduct. See, among other cases, Graham v. West Virginia, 1912, 224 U.S. 616, 623, 32 S.Ct. 583, 56 L.Ed. 917; Beland v. United States, 5 Cir. 1942, 128 F.2d 795; Burton v. United States, 9 Cir. 1959, 272 F.2d 473.

Affirmed.

      . The statutory penalty under Title 18, U.S.O., ¡Section 659, for theft from interstate shipment of goods of the value of more than $100 is fine of not more than $5,000, or imprisonment for not more than ten years or both.

      . Brager also contends that because the trial judge took account, in imposing sentence, of his admitted addiction to heroin for the preceding “seven or eight years”, his Eighth Amendment right not to be subjected to cruel and unusual punishment was violated in this respect, citing Robinson v. California, 1962, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758. Robinson is clearly inapposite. There the Supreme Court struck down as violative of the Eighth Amendment a California statute under which Robinson had been sentenced for being a narcotics addict. The statute, said Mr. Justice Stewart for the Court, impermissibly made the “status” of narcotic addiction a criminal offense, rather than imposing punishment for the use, purchase, sale or possession of drugs. Here the trial judge in imposing sentence for interstate theft gave weight to Brager’s admission that he stole to support his habit of using heroin daily over a long period of time. It was clearly an exercise of judicial discretion to determine that society’s jjroteetion as well as Brager’s recovery, both stood to benefit from a long sentence.

      . In the ease sub judice, the trial judge relied upon a pre-sentence report in imposing sentence upon Brager. In keeping with Northern District of Texas practices and as permitted by Rule 32(c)(2), the Pre-sentence Report was disclosed to the defendant and his counsel. Its accuracy is not disputed.


text:
    Lillian N. WILSON, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 72-1766.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 31, 1973.
    Certiorari Denied June 18, 1973.
    See 93 S.Ct. 3014.

      William J. Beiswanger, Palm Beach, Fla., for petitioner-appellant.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Division, U. S. Dept, of Justice, Washington, D. C., Lee H. Henkel, Jr., Acting Chief Counsel, William D. Brackett, Atty., Internal Revenue Service, Washington, D. C., for respondent-appellee.
    Before BELL, DYER 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).

   ON PETITION FOR REHEARING

PER CURIAM:

The opinion of this court dated August 11, 1972, 464 F.2d 603, is withdrawn and the following opinion is adopted as the opinion of the court.

Mrs. Lillian Wilson appeals from a decision of the Tax Court which dismissed her case for failure to prosecute and adjudged her jointly liable for the income tax deficiencies of her now deceased husband. It is undisputed that Mrs. Wilson earned no income for the tax years in question, 1960-63, and that neither she nor her husband filed any returns for those years.

On September 11, 1968, the Commissioner issued a joint statutory notice for alleged deficiencies in the subject tax years. On December 11, 1968, Mr. and Mrs. Wilson both executed and filed in the Tax Court a petition for a redeter-mination of these deficiencies. Then on October 14, 1970, Mr. Wilson signed a proposed settlement decision. An order was entered requiring Mrs. Wilson to show cause why the petition should not be dismissed as to her for failure to prosecute and why a decision should not be entered against her to reflect the same deficiencies in tax as agreed to by her husband. After Mrs. Wilson failed to respond, the Tax Court, on November 25, 1970, entered its order of dismissal and decision. On January 10, 1971 Mr. Wilson died. On February 23, 1972, some 15 months after the Tax Court’s decision, Mrs. Wilson sought leave of that court to file a motion to vacate and for a new trial. On- the same day, the Tax Court granted leave to file but denied the substantive relief sought by the motions. The instant petition for review was filed on March 6,1972.

Our jurisdiction of this appeal is questioned by the Commissioner. 26 U. S.C.A. § 7483 (1967) provides that a petition for review must be filed within 3 months of the decision. Under F.R.A.P. 13(a), the 3 months may be extended where there has been a timely motion to vacate. The 3 months commences to run when the motion is adjudicated. Since the Tax Court accepted and acted upon the substance of this motion, we hold it timely filed. The 3 months began to run on February 23, 1972 and not on November 25, 1970. Thus, the petition for review was timely filed, and we have jurisdiction of this appeal.

Proceeding to the merits, Mrs. Wilson first argues that the joint statutory notice of deficiency was patently defective on its face because under 26 U.S.C.A. § 6212(b)(2) (1967) it could not be issued unless a joint return had been filed.. We hold, however, that her joinder in filing of the petition for rede-termination of the deficiencies set out in the joint notice operated to vitiate this objection. The filing of the petition fully acknowledged that the purpose of the deficiency notice, which is to give the taxpayer notice that a deficiency has been assessed and give him an opportunity to have the assessment reviewed by the Tax Court, was accomplished. Sor-rentino v. Ross, 425 F.2d 213 (5th Cir. 1970.)

Finally, Mrs. Wilson argues that her due process rights were violated since she received no notice of the Tax Court proceedings until June 23, 1971 when she received a copy of the Final Notice Before Seizure. It is undisputed that all correspondence from the Commissioner and the Tax Court was jointly addressed and mailed to the marital domicile.

Mrs. Wilson never appeared for any of the proceedings. She contends that she never saw any of the correspondence because her husband always intercepted the mail, and he never told her anything about their tax troubles. She admits she signed the petition for redetermination but states that she signed at the instigation of her husband without being told the nature of the document and without reading it. The notarized affidavit on the last page of the petition states that Mr. and Mrs. Wilson have read the petition and are familiar with its statements. We reject her disavowal and hold that the signing of the petition evinces that Mrs. Wilson was supplied with sufficient notice, which Mrs. Wilson’s own inaction and the actions of an overly solicitous husband cannot subvert.

The judgment of the Tax Court is Affirmed.

      . On this appeal Mrs. Wilson claims that there is no basis for holding her jointly liable with her husband since she earned no income during the years in question and filed no joint return therefor. Since this issue was not timely raised in the Tax Court, this court will not consider this argument on appeal. United States v. Hall, 440 F.2d 1277 (5th Cir. 1971); D. H. Overmyer Co. v. Loflin, 440 F.2d 1213 (5th Cir.), cert. denied, 404 U.S. 851, 92 S.Ct. 87, 30 L.Ed.2d 90 (1971); Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203 (5th Cir. 1969).


author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. V. J. PAYNE, aka Marvin Hunt, et al., Defendant-Appellant.
    No. 72-1215.
    United States Court of Appeals, Ninth Circuit.
    Feb. 7, 1973.
    John S. Lane, Long Beach, Cal., for defendant-appellant.
    William D. Keller, U. S. Atty., David P. Curnow, Eric A. Nobles, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff-appellee.
    Before ELY, HUFSTEDLER, and WALLACE, Circuit Judges.
   WALLACE, Circuit Judge:

After a six-day jury trial, Payne was found guilty of fourteen counts involving conspiracy, mail fraud, fraud by wire and interstate transportation of goods taken by fraud (18 U.S.C. §§ 371, 1341, 1343 and 2314). Payne appeals from this conviction on three grounds: that the trial court erroneously admitted into evidence proof of a prior conviction; that the trial court erred in admitting into evidence his prior statements; and that the evidence was insufficient to support the verdict. We reject all of these contentions and affirm the judgment.

The modus operandi of Payne and co-defendant William Shiller was to set up an office with appropriate trappings, establish a phony line of credit at a reputable bank and place orders with frozen food distributors. In reply to credit inquiries, they would invite the distributors to check with their bank. Also, they would provide a Dun and Bradstreet report which was made up from information they had furnished Dun and Bradstreet.

After a line of credit had been verified, the distributors would send a series of shipments of frozen food. In the meantime, Payne and Shiller would have arranged to sell the shipments to other frozen food buyers at discounted prices. When the shipments arrived, they would immediately transfer ownership to the new owner. Payne and Shiller kept the proceeds from all the discounted sales but usually paid the distributor for the first order only in a series of purchases.

EVIDENCE OF PRIOR CONVICTION

Mail fraud requires proof of specific intent. In meeting its burden, the government offered into evidence proof of a prior conviction for mail fraud in the form of a signed stipulation which was read to the jury. Not only did Payne fail to object, but he indicated his assent by joining in the stipulation. Under these circumstances, only plain error could survive for appellate correction. Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962); United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1936); Herzog v. United States, 226 F.2d 561, 569 (9th Cir. 1955), cert. denied, 352 U.S. 844, 77 S.Ct. 54, 1 L.Ed.2d 59 (1956). As the crime which resulted in the prior conviction was clearly a prior similar act, there was no error, plain or otherwise. See United States v. Larsen, 441 F.2d 512 (9th Cir. 1971); Fineberg v. United States, 393 F.2d 417 (9th Cir. 1968).

PRIOR STATEMENTS

After being properly advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Payne made statements to postal inspectors with his attorney present. Because his attorney also represented others involved in the crimes and was himself under suspicion, Payne claims that he was denied effective representation of counsel and that, therefore, those prior statements should have been excluded from the trial. Payne’s contention must be rejected for the reasons stated in United States v. Nystrom, 447 F.2d 1350, 1350-1351 (9th Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 542, 30 L.Ed.2d 545 (1971), where we said:

Appeal counsel has pointed to no evidence in the record of a conflict and this Court can find none. Appeal counsel has not shown that appellant’s defense was in any way impaired by the joint representation and the record does not show it was. This Circuit has consistently held that in order to find that a defendant was denied effective assistance of counsel by virtue of a joint representation there must be a showing of a conflict of interest between the jointly represented defendants. (Citations omitted.)

Payne has failed to show any harm from his counsel’s advice, nor has he shown that his counsel failed to give any needed advice.

SUFFICIENCY OF THE EVIDENCE

Payne’s final contention is that the evidence was insufficient to support a finding of guilt. In reviewing the evidence in the light most favorable to the government, Moody v. United States, 376 F.2d 525, 527 (9th Cir. 1967), Thomas v. United States, 369 F.2d 372, 373 (9th Cir. 1966), we find ample evidence to sustain the convictions.

Affirmed.

      . United States v. Kelem, 416 F.2d 346 (9th Cir. 1969), cert. denied, 397 U.S. 952, 90 S.Ct. 977, 25 L.Ed.2d 134 (1970), involved an appeal taken by Payne’s co-defendants in the ease in which Payne pleaded guilty. That case resulted in the prior conviction which was offered. The appellate court discussed the modus operandi of Payne and his then cohorts who, as in the instant case, used time delays and phony credit to defraud their victims.


text:
    Frank E. PELUSO, Appellants, Administrator of the Estate of Terry Peluso v. UNITED STATES of America. Louis J. PELUSO, Jr., and Patsy A. Peluso v. UNITED STATES of America.
    No. 72-1379.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) March 6, 1973.
    Decided March 6, 1973.
    James J. McCabe, Jr., Richard A. Kraemer, Philadelphia, Pa., for appellants.
    Carl J. Melone, Asst. U. S. Atty., Philadelphia, Pa., Harlington Wood, Jr., Washington, D. C., Robert E. J. Curran, U. S. Atty., Philadelphia, Pa., Morton Hollander, Robert M. Feinson, Dept, of Justice, Civ. Div., Washington, D. C., for appellee.
    Before GIBBONS and HUNTER, Circuit Judges, and MUIR, District Judge.
   OPINION OF THE COURT

PER CURIAM:

This is an appeal from an order of the district' court dismissing a complaint for failure to state a claim upon which relief may be granted. The suit is brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, as a survival action by the administrator and a wrongful death action by the parents of decedent, a member of the New Hampshire National Guard who died while on active duty with the United States Army at Fort Dix, New Jersey. At that post he complained of and received treatment for an abdominal condition. The appellants contend that his death was caused by the negligent treatment received from army doctors. The cause of death was acute peritonitis following a ruptured appendix which allegedly was improperly diagnosed and treated from August 23, 1970 to September 4, 1970.

In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court held that the United States is not liable for injuries to servicemen which are sustained while on active duty as a result of negligence of other armed forces personnel. Two of the three cases which were before the Court in Feres were medical malpractice eases, and one of these was also a wrongful death action. Thus the case is indistinguishable from this. Feres has consistently been followed by the Courts of Appeals. See, e. g., DeFont v. United States, 453 F.2d 1239 (1st Cir.), cert. denied, 407 U.S. 910, 92 S.Ct. 2436, 32 L.Ed.2d 2436 (1972); Hall v. United States, 451 F.2d 353 (1st Cir. 1971) (per curiam); Henning v. United States, 446 F.2d 774 (3rd Cir. 1971), cert. denied, 404 U.S. 1016, 92 S.Ct. 676, 30 L.Ed.2d 664 (1971); Lowe v. United States, 440 F.2d 452 (5th Cir.) (per curiam), cert. denied, 404 U.S. 833, 92 S.Ct. 83, 30 L.Ed.2d 64 (1971); Buckingham v. United States, 394 F.2d 483 (4th Cir. 1968) (per curiam); Dilworth v. United States, 387 F.2d 590 (3rd Cir. 1967) (per curiam); Bailey v. DeQuevedo, 375 F.2d 72 (3d Cir.), cert. denied, 389 U.S. 923, 88 S.Ct. 247, 19 L.Ed.2d 274 (1967).

The rationale of Feres was (1) that the relationship between a soldier and the United States was distinctly federal, while the Federal Tort Claims Act referred, for governing law, to the place where the act or omission occurred, and (2) that there was a federally funded care and compensation system for military personnel. For these reasons the Court concluded that Federal Tort Claims Act should not be construed to apply to armed services personnel for injuries not only in the course of but also arising out of activity incident to service. The appellant argues quite forcibly that the rationale of Feres was abandoned by the Supreme Court when it held in United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), that a veteran could recover for the negligent aggravation by Veterans Administration Hospital personnel of a service incurred injury, and in United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963), that federal prison inmates could recover for injuries caused by the negligence of prison supervisors. If the matter were open to us we would be receptive to appellants’ argument that Feres should be reconsidered, and perhaps restricted to injuries occurring directly in the course of service. But the case is controlling. Only the Supreme Court can reverse it. While we would welcome that result we are not hopeful in view of the number of recent instances in which, having been afforded the opportunity, it declined to grant certiorari. Possibly the only route to relief is by an application to Congress. Certainly the facts pleaded here, if true, cry out for a remedy.

The judgment of the district court will be affirmed.


author: WEICK, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Edmund Herman ROTHFELDER, Defendant-Appellee.
    No. 72-1617.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 8, 1972.
    Decided Feb. 28, 1973.
    Certiorari Denied June 25, 1973.
    See 93 S.Ct. 3066.

      Robert C. Greene, Asst. U. S. Atty., for plaintiff-appellant; John Milanow-ski, U. S. Atty., Grand Rapids, Mich., on brief.
    M. Robert Carr, East Lansing, Mich. (Court Appointed), for defendant-appel-lee.
    Before PHILLIPS, Chief Judge, and WEICK and MILLER, Circuit Judges.
   WEICK, Circuit Judge.

The Government has appealed under authority of 18 U.S.C. § 3731, as amended January 2, 1971, from the judgment of the District Court granting the defendant’s pretrial motion to dismiss the indictment which charged him with wil-fully failing to comply with an order of his Local Board to report for induction, in violation of 50 U.S.C. App. § 462. In passing upon the motion to dismiss, the Court, 338 F.Supp. 1164, considered the evidence in the Selective Service file, which disclosed the following facts:

On October 15, 1969, when the Local Board had received notice that Roth-felder was a full-time student at Lansing Community College, it reclassified him I-S(C). The minutes of the Local Board indicated a termination date of October, 1970. The Michigan State Selective Service Headquarters requested the file for review, then it wrote to the Local Board stating that normally a I-S (C) classification is made to expire at the end of the registrant’s academic year, and suggesting that the case be reviewed in June, “and if the registrant is not in summer school, his classification should be reopened and considered anew.” The Board followed the suggestion of the State Headquarters and classified Roth-felder in I-A. At that time Rothfelder was not enrolled in any school. The Appeals Board classified him in I-A and he was ordered to report for induction. Rothfelder was indicted when he failed to report.

The District Court, construing the applicable regulations (32 C.F.R. §§ 1622.-15 and 1622.25(b)), held that “academic year” meant a full twelve-month year, and it made no difference whether registrant was enrolled in the summer. The Court held that the change of classification from I-S(C) to I-A was illegal as a matter of law. It was influenced by the provisions of 32 C.F.R. § 1622.25(b), which includes a twelve-month period following the beginning of registrant’s course of study, but this regulation seems to apply to a II-S classification rather than a I-S(C) classification. The Court relied on Walsh v. Local Board No. 10, 305 F.Supp. 1274 (S.D.N.Y., 1969), and United States v. Wood, 329 F.Supp. 68 (D.N.H., 1971), and declined to follow contrary decisions in Peller v. Selective Service Local Board No. 65, 313 F.Supp. 100 (N.D.Ind., 1970) , and McLain v. Selective Service Local Board No. 47, 439 F.2d 737 (8th Cir. 1971). To the same effect is the unreported opinion of the Seventh Circuit in Robinson v. Hershey, No. 17,697, decided July 14, 1969.

In his brief Rothfelder challenges our jurisdiction to entertain this appeal.

The 1971 Amendment to § 3731 reads: “In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.” (18 U.S.C. § 3731 (Supp.1972))

In United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970), it was held that an appeal does not lie from a decision that rests, not upon the sufficiency of the indictment alone, but upon extraneous facts. If the indictment is dismissed as a result of a stipulated fact or the showing of evi-dentiary facts outside the indictment, which facts would constitute a defense on the merits at trial, no appeal is available.

This rule was recognized in United States v. Brewster, 408 U.S. 501, 506, 92 S.Ct. 2531, 33 L.Ed.2d 507 (1972), but the Supreme''Court found that the District Court did not rely on factual matter other than facts alleged in the indictment. In the present case, the District Court clearly did rely on facts not alleged in the indictment and based its decision on facts contained in the registrant’s Selective Service file. Its judgment operated as an acquittal. United States v. Findley, 439 F.2d 970 (1st Cir. 1971); United States v. Ponto, 454 F.2d 647 (7th Cir. 1971), affirmed en banc, 7 Cir., 454 F.2d 657. Cf., United States v. Weller, 466 F.2d 1279 (9th Cir. 1972); United States v. Apex Distrib. Co., 270 F.2d 747 (9th Cir. 1959). While these cases involve Section 3731 as it was pri- or to the 1971 Amendment, it is clear that under the Amendment no appeal is available from a judgment of acquittal.

The Government relies on language of the Supreme Court in United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), to the effect that there can be no double jeopardy until the defendant is put to trial before the trier of the facts. In that ease, however, the Court found double jeopardy because the trial court abused its discretion by aborting the trial and declaring a mistrial without the consent of the defendant.

The appeal is dismissed.


text:
    Samuel P. NORTON & Estate of Beatrice Norton, Deceased, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. Samuel P. NORTON & Estate of Beatrice Norton, Petitioners-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
    Nos. 71-1531, 71-1901.
    United States Court of Appeals, Ninth Circuit.
    Feb. 1, 1973.

      Samuel P. Norton, in pro. per.
    Donald H. Olson, Atty., Los Angeles (argued), Meyer Rothwacks, Atty., Grant W. Wiprud, Atty., Fred B. Ugast, Acting Asst. Atty. Gen., Johnnie M. Walters, Asst. Atty. Gen., Washington,' D. C., K. Martin Worthy, Chief Counsel, IRS, Washington, D. C., for respondent-appellee.
    Before WRIGHT and WALLACE, Circuit Judges, and CRARY, District Judge.

       Honorable E. Avery Crary, United States District Judge, Los Angeles, California, sitting by designation.

   PER CURIAM:

Taxpayers, husband and now deceased wife, filed petitions in the tax court for redetermination of the Commissioner’s assessment of additional taxes with penalties for the tax years 1953 through 1959. The cases were consolidated for trial. The tax court sustained the disal-lowance by the Commissioner of certain interest deductions and reduced certain income items. Taxpayers appealed, and a cross-appeal by the Commissioner followed. We affirm.

Between 1953 and 1955, taxpayers entered into four transactions from which the disputed interest and income items arose. Although somewhat complicated, the essence of the transactions was that taxpayers would borrow money from a financial institution (Gibraltar) and use these funds to purchase government securities. The securities were to be delivered to the lender as collateral for the loan. Gibraltar advised taxpayers in writing that it had received and was holding the securities as colláteral. That institution probably never had actual custody of the securities, but instead sold them on the same day they were purchased by taxpayers. Each of the transactions involved the transfer of essentially the same amount of money among taxpayers, Gibraltar and a brokerage firm, which purchased the securities, resulting primarily in book entries reflecting offsetting debits and credits. Taxpayers made 73 interest payments on the notes and received credits for alleged interest paid by the government on the securities. The net federal tax result of these transactions was that taxpayers reported large interest expense deductions and a slightly lesser amount of income, much of which was at long-term capital gain rates.

Finding the transactions a sham, the tax court disallowed these interest payments and deducted the interest income allegedly received from the securities, as well as the capital gains and losses resulting from their sale.

The question presented is whether there were valid indebtednesses requiring payment of true interest or whether these were paper tax shelters with form but no substance. See Int. Rev.Code of 1954, § 163(a); Knetsch v. United States, 364 U.S. 361, 81 S.Ct. 132, 5 L.Ed.2d 128 (1960); Deputy v. duPont, 308 U.S. 488, 60 S.Ct. 363, 84 L.Ed. 416 (1940). An obligation is not necessarily an indebtedness for purposes of interest deductions; taxpayers must actually secure the use or forbearance of money and pay interest therefor. duPont, supra, 308 U.S. at 497-498, 60 S.Ct. 363. This appears to us to be another child, albeit with a slightly different personality, of the “Livingstone” family which, with regularity, courts have found not to be legitimate. See Cahn v. Commissioner, 358 F.2d 492 (9th Cir. 1966) and cases cited therein. Specifically, we cannot distinguish this ease from our prior holding in MacRae v. Commissioner, 294 F.2d 56 (9th Cir. 1961), cert. denied, 368 U.S. 955, 82 S.Ct. 398, 7 L.Ed. 2d 388 (1962). “[T]here was nothing of substance to be realized beyond a tax deduction.” Knetsch, supra, 364 U.S. at 366. 81 S.Ct. at 135. See also Cahn, supra; Williams v. Commissioner, 323 F.2d 656 (9th Cir. 1963); and Kaye v. Commissioner, 287 F.2d 40 (9th Cir.1961).

Taxpayers contend they were unaware the institution actually was not holding the securities. Even if true, this would not dictate a different result. MacRae, supra, 294 F.2d at 59; Cahn, supra, 358 F.2d at 493-494.

The remaining issues raised by taxpayers do not merit comment. No constitutional rights have been violated.


author: JAMESON, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Candido FELIX and Gloria Felix, Defendants-Appellants,
    No. 72-2862.
    United States Court of Appeals, Ninth Circuit.
    Feb. 9, 1973.

      Clyde E. Sullivan (argued), Leon Taylor, Albuquerque, N. M., for defendants-appellants.
    James E. Mueller, Asst. U. S. Atty. (argued), Sarah Bailey, Asst. U. S. Atty., William C. Smitherman, U. S. Atty., Tucson, Ariz., for plaintiff-appel-lee.
    Before CHAMBERS and BARNES, Circuit Judges, and JAMESON, District Judge.

       Honorable William J. Jameson, Senior United ting by designation. States District Judge, District of Montana, sit-

   JAMESON, District Judge:

Each of the appellants, Candido Felix and Gloria Felix, was convicted on one count of importing 6.5 pounds of heroin and on a second count of importing 10 grams of cocaine, in violation of 21 U.S. C. § 952(a) and 18 U.S.C. § 2. It is contended that the district court erred in (1) holding that appellants did not have standing to'move for suppression of evidence, and (2) in denying Candi-do’s motion for acquittal.

Appellants were charged jointly with Joe and Kathy Santillanes with importation. Joe and Kathy were also charged with possession. The Government agreed to dismiss all counts against Kathy if she would testify truthfully to her knowledge of the involvement of Candi-do and Gloria. With the same condition, it was agreed that Joe would ‘ plead guilty to one count and the Government would dismiss the remaining three counts.

Standing

The contraband was seized at the Douglas, Arizona, point of entry from an automobile driven by Joe Santillanes. His wife, Kathy, was a passenger. The automobile was owned by and registered in the name of Joe Santillanes. Appellants were not in or near the automobile or the customs inspection station. They do not claim ownership of the automobile or the contraband and were not in possession of the contraband. They were not the persons against whom the search of the car was directed.

In urging standing to move for suppression appellants rely upon Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233, (1960) holding that where conviction flows from a person’s possession at the time of search he need not make “a preliminary showing of an interest in the premises searched or the property seized” to have standing for a motion to suppress under Rule 41(e) F.R.Crim.P. 362 U.S. at 263, 80 S.Ct. at 732. In applying the teachings of Jones and related cases, this court, in Diaz-Rosendo v. United States, 357 F.2d 124, 131-132, cert. denied 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83 (1966), held that where an accused is not on the “premises” where the search occurred and his conviction does not flow from possession of the contraband, he comes within the category recognized in Jones as “one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.” 362 U.S. at 261, 80 S.Ct. at 731.

More recently in United States v. Carrion, 463 F.2d 704, 706 (9th Cir. 1972) it was held that a co-conspirator in a conspiracy to smuggle and to receive and conceal illegally imported marijuana was without standing to move for suppression of evidence, since possession was not an essential element of the crime of which the accused was convicted. Here the appellants were “aiders and abetters” in the importation of the heroin, and their possession of the contraband was not an essential element of the offense. The court properly denied appellants’ motion to suppress for want of standing.

Sufficiency of Evidence

Appellants were convicted primarily, but not exclusively, upon the testimony of Kathy and Joe Santillanes. On May 26, 1972, Kathy and Joe drove from Albuquerque, New Mexico to Agua Prieta, Mexico, across the border from Douglas, Arizona. They parked near the Yolando Hotel.

Kathy testified that Gloria had arranged with Kathy to make the trip and paid her for it; that Gloria gave Kathy a bag containing the contraband, which Kathy and Joe concealed in the left quarter panel of the Santillanes car; and that Gloria told Kathy to bring the contraband to Kathy’s house in Albuquerque.

Both Kathy and Joe testified that on a prior date they met Gloria in Tijuana, Mexico, and that heroin was purchased from a Rose and Guillermo and transported by Kathy and Joe to Albuquerque. Gloria also paid Kathy for that trip.

As a part of the Government’s case in chief Kathy testified that on May 26, 1972 she saw appellant Candido, together with Gloria, Rose and Guillermo, near the Yolando Hotel. On rebuttal Joe testified that he saw Candido, Rose and Guillermo, as well as Gloria, near the Yolando Hotel, and that he saw Gloria and Candido having a conversation with Rose and Guillermo. This testimony was properly considered by the trial court. United States v. Calderon, 348 U.S. 160, 164, 75 S.Ct. 186, 99 L.Ed. 202 (1954); Benchwick v. United States, 297 F.2d 330, 335 (9th Cir. 1961).

There was evidence that C. F. Felix registered at a motel in Douglas, Arizona immediately across the border from Agua Prieta, on May 26, 1972, giving appellants’ address in Albuquerque and describing an automobile which was registered to appellants.

We agree with the district court that there was sufficient evidence to submit the case to the jury as to both defendants. While the contraband was delivered to Kathy by Gloria and the evidence against Candido was circumstantial, there was testimony that immediately prior to the delivery Candido was at the location near the Yolando Hotel with Gloria and that both Candido and Gloria were in conversation with Rose and Guillermo, from whom heroin had been purchased by Gloria on a prior occasion.

The evidence “considered most favorably to the government, was such as to permit a rational conclusion by the jury that the accused (Candido) was guilty beyond a reasonable doubt.” United States v. Nelson, 419 F.2d 1237, 1242 (9 Cir. 1969). We are “satisfied that the jurors reasonably could decide that they would not hesitate to act in their own serious affairs upon factual assumptions as probable as the conclusion” that Candido planned and participated with Gloria in the importation of the contraband. Id. at 1245.

Affirmed.

      . The court correctly instructed the jury on the essential elements of the offense and the proof necessary to show that the accused had aided and abetted in the commission of the offense. No exceptions were taken to the court’s charge.

      . As a part of appellants’ defense Gloria denied any participation in the importation and testified that she had never been in Mexico and that neither she nor Can-dido was in Agua Prieta or Douglas, Arizona on May 26, 1972. Candido did not take the stand.

      . While Candido did not testify himself, it does not appear that he elected to stand upon the record at the close of the Government’s case. Gloria’s testimony was directly related to appellants’ contention that neither Candido nor Gloria was in Agua Prieta, Mexico or Douglas, Arizona at the time of the importation.


text:
    Daniel COX, Plaintiff-Appellant, v. OTIS ENGINEERING CORPORATION, Defendant-Appellee.
    No. 72-3256.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 7, 1973.
    Charles R. Maloney, Martin A. Welp, Jr., New Orleans, La., for plaintiff-appellant.
    John J. Cooper, New Orleans, La., for defendant-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

Daniel Cox brought suit against Otis Engineering Corporation under the Jones Act, 46 U.S.C. § 688, and the General Maritime Law for injuries sustained while working as a wireman on the drilling barge, John Haywood. The District Court granted Otis’ motion for a summary judgment on the basis that Cox was not a seaman. We affirm.

Cox’s work as a wireline operator did not require him to be assigned to any particular drilling barge in the performance of his duties. Cox was to be on the John Haywood only for two days in performing his work as a wireman.

In Bodden v. Coordinated Caribbean Transport, Inc., 5 Cir., 1966, 369 F.2d 273 we said:

There are three essential elements in the term “seaman” as used in the Jones Act. First, the vessel on which the claimant is employed must be in navigation. Second, there must be a more or less permanent connection with the vessel, and third, the claimant must be aboard primarily to aid in navigation.

Id. at 274. See also Williams v. Avondale Shipyards, Inc., 5 Cir., 1971, 452 F.2d 955, 958 and Sennett v. Shell Oil Company, 325 F.Supp. 1 (E.D.La.1971). Thus, since Cox was not assigned permanently to a vessel, he cannot be classified as a seaman for purposes of the Jones Act. Offshore Company v. Robison, 5 Cir., 1959, 266 F.2d 769, 779.

We do not consider on appeal Cox’s claim under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., since that matter was not raised at the trial court level. See Coleman v. Associated Pipeline Contractors, Inc., 5 Cir., 1971, 444 F.2d 737, 740, and cases cited therein.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Willie MOBLEY, Jr., Defendant-Appellant.
    No. 72-2459.
    United States Court of Appeals, Ninth Circuit.
    Feb. 12, 1973.
    John Spyromilios (argued), Richard L. Romano, San Francisco, Cal., for defendant-appellant.
    Joseph E. Reeves, Asst. U. S. Atty. (argued), F. Steel Langford, Robert E. Carey, Jr., Asst. U. S. Attys., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
    Before KOELSCH, CHOY and GOODWIN, Circuit Judges.
   PER CURIAM:

Mobley appeals his conviction after trial to the court for refusing to report for civilian work in violation of 50 U.S.C. App. § 462(a). We affirm.

In June 1968, the Armed Forces Examining and Entrance Station (AFEES) gave appellant a pre-induction physical examination and found him acceptable for military service. However, the physical examination papers which AFEES sent to appellant’s local board, while indicating the results of a hearing test of both ears, included a blank audio-gram card. He contends that “the hearing test apparently was not administered” in violation of Army Regulation 601-270, Ch. 4, Sec. 2, ¶ 4-20H(3)(f), because of the blank audiogram card, and so his order to report for work was invalid. He had indicated in his report of medical history that he had had running ears and hearing loss.

The only evidence presented was appellant’s selective service file. It shows that a hearing test was given in recording the test results of both ears. “It is the settled general rule that all necessary prerequisites to the validity of official action are presumed to have been complied with, and that where the contrary is asserted it must be affirmatively shown.” Lewis v. United States, 279 U.S. 63, 73, 49 S.Ct. 257, 260, 73 L.Ed. 615 (1928); United States v. Neckels, 451 F.2d 709 (9th Cir. 1971); United States v. Crowley, 405 F.2d 400 (4th Cir. 1968). The record contains no evidence that the hearing test was not in fact administered.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Travis Milton POWELL, Defendant-Appellant.
    No. 72-2683.
    United States Court of Appeals, Ninth Circuit.
    Feb. 22, 1973.
    Joseph F. Ceniceros (argued), Gerald C. Doblie, of Bailey & Doblie, Portland, Ore., for defendant-appellant.
    D. Richard Hammersley, Asst. U. S. Atty. (argued), Sidney I. Lezak, U. S. Atty., Portland, Ore., for plaintiff-appel-lee.
    Before KOELSCH and WRIGHT, Circuit Judges, and NEILL, District Judge.

       Marshall A. Neill, United States District Judge, Spokane, Washington, sitting, by designation.

   PER CURIAM.

This appeal concerns the validity of a search warrant issued upon an affidavit in which the name given for one of the informants was wrong.

The government, at the hearing on appellant’s motion to suppress, adduced proof that the particular information appearing in the affidavit was in fact received from one Dorothy Francis, not Dolores Johnson, the source stated in the affidavit, and that the misnomer was due to an innocent mistake.

There was no evidence to the contrary, [compare United States v. Upshaw, 448 F.2d 1218, 1220-1221 (5th Cir. 1971)]. Nor does the evidence suggest that the showing of probable cause might have been deficient had the informant been correctly named [compare United States v. Pearce, 275 F.2d 318 (7th Cir. I960)].

We conclude that the error was not of the kind that would invalidate the warrant.

The judgment is affirmed.

      . As the Supreme Court did in Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 8S7 (1964), we assume that an inquiry into the factual accuracy of allegations in the search warrant affidavit may be made. See also, King v. United States, 282 F.2d 398 (4th Cir. 1960); United States v. Pearce, 275 F.2d 318 (7th Cir. 1960); United States v. Upshaw, 44S F.2d 1218 (5th Cir. 1971).


text:
    Robert J. BUTLER, Plaintiff-Appellant, v. Robert L. PHINNEY, District Director, Internal Revenue Service, Defendant-Appellee.
    No. 71-2046.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Feb. 9, 1973.
    Rehearing Denied March 7, 1973.
    J. Edwin Smith, Houston, Tex., for plaintiff-appellant.
    Fred B. Ugast, Acting Asst. Atty. Gen., Meyer Rothwacks, Tax Div., Dept, of Justice, Washington, D. C., Anthony J. P. Farris, U. S. Atty., Houston, Tex., for defendant-appellee.
    Before THORNBERRY, MORGAN and CLARK, Circuit'Judges.

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

   PER CURIAM:

The judgment of the district court, 330 F.Supp. 596, is vacated and the ease is remanded for further consideration in the light of Lucia v. United States of America et al., 5th Cir. 1973, 474 F.2d 565.

Vacated and remanded with directions.


author:
KUNZIG, Judge:
     NICHOLS, Judge

text:
    Donald S. WEIR, Jr. v. The UNITED STATES.
    No. 358-69.
    United States Court of Claims.
    Feb. 16, 1973.
    Nichols, J., concurred in an opinion.
    Carl J. Felth, Washington, D. C., attorney of record for plaintiff.
    James F. Merow, Washington, D. C., with whom was Asst. Atty. Gen. Harling-ton Wood, Jr., for defendant.
    Before COWEN, Chief Judge and DAVIS, SKELTON, NICHOLS, KASHI-WA, KUNZIG, and BENNETT, Judges.
   OPINION

KUNZIG, Judge:

In issue in this military pay case is whether the refusal of the Army Board for the Correction of Military Records (the Board) to upgrade plaintiff’s “discharge under conditions other than honorable”, is an error of law, where plaintiff is a fully competent, adult soldier with self-confessed homosexual tendencies, confirmed by psychiatric evaluation.

We held there is no error of law and the Board’s decision is correct.

Further in issue is whether plaintiff is estopped from obtaining a judgment for back pay on his subsequent, sworn claim that he lied to the Army to obtain a discharge, and that the Army improperly failed to ascertain that he lied.

We conclude plaintiff is so estopped. Having chosen voluntarily to announce himself under oath as a man with homosexual tendencies to avoid military duty, he cannot now be heard to complain of the consequences of his choice.

Only the question of entitlement is presently before this court, both parties having agreed to limit this phase of the case to the question of plaintiff’s right to recover, leaving quantum, if any, for further proceedings.

Plaintiff was born in 1942 in New Jersey. He graduated from Hamilton College in 1964, did a brief tour in the Peace Corps before being selected out during training as unsuitable, and then was, for a short time, successful as a real estate salesman in California. Early in 1965 plaintiff enlisted in the Army for three years in lieu of responding to the draft. After training as a power generator specialist, he was assigned to a missile battalion at Fort Hancock, New Jersey as a clerk in the battalion orderly room.

Sometime prior to August 12, 1965, plaintiff talked with the base chaplain and told him that he feared his homosexual inclinations would get him into difficulty with men in the barracks. Plaintiff was thereafter examined twice at the Mental Hygiene Consultation Service. First, a competent clinical phy-chologist, Lt. Rudy, examined him. Then both Lt. Rudy and a competent psychiatrist, Dr. Weltner, examined him at a second session.

On August 20, 1965, a report was prepared which made a psychiatric evaluation of plaintiff concluding he was fully competent and responsible for his actions. Elimination from the service was recommended with the diagnosis “sexual deviation — homosexuality.” On August 24, 1965, plaintiff was informed by a Major Rollins that he was an investigating officer conducting an investigation of homosexual activity. Major Rollins informed plaintiff of his legal rights. Plaintiff then made a sworn statement reading in pertinent part s follows:

I, Donald S. Weir, Jr., RA 19824015, have been counseled and advised of the basis of action recommended. I have a copy of the Commanding Officer’s report and copies of statements submitted to support the recommendations for elimination and the names of prospective witnesses to appear or to submit statements that will be used against me.
I have been offered counsel and I have declined to accept this offer.
I hereby waive hearing before a board of officers. I understand that if he, [sic] convening authorities direct a discharge, I will not be given another opportunity to appear before a board of officers before being discharged.
I would like to make the following statement.
I testify that I have a problem with homosexual tendencies which predates my coming on active duty with the US Army. These tendencies have trailed in my background since I was about nine (9) years old. Sporadically, these homosexual feelings supplant what society calls normal heterosexual activities. I have not engaged in these activities with military personnel at either this station or at my previous ones, Fort Belvoir and Fort Polk, respectively. Generally, these engagements were with casual acquaintances whom I have met while on either leave or pass. Since these tendencies could occur in the future, I believe my mission for the US Army would be impaired.

On August 31, 1965, plaintiff executed a further statement waiving a hearing before a board of officers and acknowledging he was aware of the adverse effect a “discharge under conditions other than honorable” might have upon him in subsequent civilian life:

I hereby waive hearing before a board of officers under AR 635-89 and accept discharge for the good of the service. I understand that my separation from the Army may be effected by a discharge under conditions other than honorable; that I may be deprived of many rights and benefits as a veteran under both Federal and State law; and, that I may expect to encounter substantial prejudice in civilian life in situations where the type of service rendered in any branch of the Armed Forces or the character of discharge received therefrom may have a bearing.

Plaintiff was discharged from the service because of homosexuality, as a Class II Homosexual, as outlined in AR 635-89 on October 12, 1965. He was reduced in rank to the lowest enlisted grade and discharged “under conditions other than honorable”.

After failing to obtain relief in various forums below, plaintiff now comes before this court stating that he carefully planned and fabricated the story to get out of the Army. He admits he lied under oath at the 1965 investigation and psychological and psychiatric examinations. Nevertheless plaintiff seeks:

(Although, as a result of his own fabrication, he never served any of this time and actually earned nothing.) 1. A money judgment paying him for the remaining period of his enlistment.
("Rightful" is his allegation.) 2. Restoration to his rightful grade.
(Although, again, as a result of his own fabrication, he wasn't in the service, so obviously couldn't have earned pro-3. Consideration for a promotion to which he would have been entitled. motion.)
4. Alteration of his (Because the Army owed him some sort of duty to find out he was lying, that he was not a homosexual after all, and that he was merely trying to avoid military service.) military record giving him an honorable discharge.

Surely, this must be the outstanding example of chutzpah to the nth degree.

' During the intervening years after being discharged, plaintiff had taken no action in this matter whatsover. A dismissal from employment, after it was found that he had falsified his service record, crystallized his desire to change the character of his discharge. He now seeks relief in this court.

There are two major issues in this case: the first being whether the defendant erred in not following its own discharge procedures properly; and the second being whether, in any event, plaintiff is estopped from asserting procedural error. We hold for the defendant on both points, each being able to stand on its own as alone justifying our decision.

I

Plaintiff argues that the Army failed to follow its own procedural regulations. AR 635-89, Section 2a does not permit homosexuals of either sex to serve in the Army in any capacity. Prompt separation of homosexuals is mandatory. However, Section 2b (1) adds that individuals who seek to avoid military service by an unverifiable assertion of homosexuality will not be processed under this regulation. Thus, whether plaintiff must be discharged under AR 635-89 depends upon interpretation of the phrase, “unverifiable assertion of homosexuality”. Section 4b of the same regulation attempts to clarify what the Army must do to verify. Its principal, lead sentence is as follows:

A commanding officer receiving information that an individual under his command is a homosexual or has engaged in an act of homosexuality, will inquire thoroughly and comprehensively into the matter and ascertain all the facts in the case, bearing in mind the peculiar susceptibility of such cases to possible malicious charges.

Plaintiff, in effect, contends that these regulations, together, require a comprehensive investigation, going perhaps into community life, past experiences, even college and school episodes. One might well question whether his enthusiasm for investigation would have been as great back in 1965. An “investigation” is clearly what plaintiff did not want if his present testimony that this was a fraud on the Army is to be credited. That an admission of homosexuality, confirmed by psychological and psychiatric examinations, might well be considered “verification” seems beyond his comprehension.

In addition, the phrase “malicious charges”, suggests that this part of the regulation was aimed at preventing vicious denunciations and libelous charges of sexual deviation by or against third parties. The very sentence in which these words occur clearly refers to the situation where charges are made that a third party is a homosexual, not where an individual admits it by sworn statement. A self-admission by a fully-competent adult cannot possibly come within the “malicious charges” warning contained in the exact same sentence. Language such as appears in this regulation should be given a common sense interpretation. Siegel v. United States, 18 F.Supp. 771, 84 Ct.Cl. 551 (1937).

Then, too, since modern, enlightened thinking regards homosexuality as an illness, not a crime, even more logical is an interpretation which would require psychological evaluation, rather than a criminal investigation . . . when the homosexual is self-confessed. Clearly, plaintiff knew his discharge might be other than honorable and that he might encounter substantial prejudice in later civilian life due to his admitted homosexuality. He signed a statement to that effect. Not a scintilla of evidence suggested at that time that he was lying.

Finally, an interpretation that sworn admission of homosexuality plus psychiatric confirmation is sufficient for military discharge is in accord with longstanding agency interpretation. JAGA 1960/4901 (October 28, 1960), Comment No. 2. Therefore, both for the reason that the agency’s established interpretation of the regulation is entitled to considerable weight, Barrington Manor Apartments Corp. v. United States, 459 F.2d 499, 198 Ct.Cl. 298 (1972); Cornman v. United States, 409 F.2d 230, 187 Ct.Cl. 486, cert. denied 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 424 (1969), and that the regulation, reasonably interpreted cannot be said to require the Army to conduct an investigation of plaintiff’s military associates or prior college and business associates especially where there was absolutely no indication that plaintiff was lying, we conclude that there was no procedural violation, but rather full adherence to appropriate Army regulations. A sworn admission of homosexuality plus psychiatric confirmation is sufficient to satisfy the provisions of AR 635-89.

II

It has long been a standing principle in this court that the conduct and admissions of a party operate against him in the nature of an estoppel when the other party detrimentally relies upon that conduct or those admissions. Mahoning Investment Co. v. United States, 3 F.Supp. 622, 629, 78 Ct.Cl. 231, 246 (1933), cert. denied 291 U.S. 675, 54 S.Ct. 526, 78 L.Ed. 1064 (1934). In the Mahoning case it was clearly stated that

[T]he vital principle is that he who by his language or conduct leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change of position is sternly forbidden. It involves fraud and falsehood, and the law abhors both.

Id.

There is no doubt in the instant case that the government took a position detrimental to itself when it relied upon the 1965 statements of the plaintiff and granted a premature discharge from the Army to a man who had been trained at government expense. The government is thus clearly entitled to invoke the doctrine of equitable estoppel to prevent the plaintiff from profiting from his earlier fabrications. The doctrine of equitable estoppel is an old doctrine to which we continue to adhere. Pacific Far East Line, Inc. v. United States, 394 F.2d 990, 1003, 184 Ct.Cl. 169, 194 (1968).

Plaintiff himself was content to be processed under the regulation as it was administered and most certainly benefited by the type of verification that was employed. He gained his discharge, yet was not then subject to public disclosure of his alleged problem. Plaintiff is subsequently estopped after he had benefited from the regulation and its implementation from claiming that something was amiss. Henneberger v. United States, 407 F.2d 1340, 187 Ct.Cl. 265, 267 (1969).

In light of the foregoing, we conclude that plaintiff is not entitled to recover. The petition is hereby dismissed.

NICHOLS, Judge

(concurring):

I join in the opinion and findings of the court, but desire to add a few words. It appears to me the really basic error Commissioner Day fell into was his disregard of the rule that a litigant seeking to take advantage of the failure of an agency to follow its own regulations, must show that the regulation involved was made to protect persons in the litigant’s class. The rule is discussed, and cases cited, in Chris Berg, Inc. v. United States, 426 F.2d 314, 192 Ct.Cl. 176 (1970). As there stated, if a regulation appears intended to define and state the rights of a class of persons, it is presumptively intended to benefit those persons. Insofar as the regulations here involved required independent corroboration of a competent soldier’s assertion of his own homosexuality, it appears to me they were intended to prevent avoidance of military service by false confessions. Such a purpose is not compatible with protection of the individual soldier, and indeed as Judge Kunzig rightly points out, could have required an investigation which might have forced plaintiff to defend himself against serious criminal charges, if plaintiff’s present interpretation is correct.

It would be a perversion of the judicial process for plaintiff to prevail in this action. However, I do not wish what is said about the claim herein to prejudice plaintiff at that time which sooner or later must come, when those who have resorted to means of avoiding military service even as bizarre as this, or more so, come under consideration for executive or legislative clemency.

       We are indebted to Trial Commissioner William E. Day for bis findings of fact, which have been adopted in their near entirety, and for Ms recommended opinion, though we have substituted our own in reaching a different result.

      . A position which would require a security clearance.

      . While under psychiatric examination, plaintiff described his homosexual contacts since entering military service as having occurred with civilians and as being promiscuous, i. e. plaintiff rarely had more than a single contact with a homosexual partner.

      . AR 635-89 as amended by Change 1, April 14, 1959 and Change 2, January 22, 1960 reads in pertinent part:
      Section I
      GENERAL
      1. Purpose. These regulations prescribe the authority, criteria, and procedures for the disposition of military personnel who are homosexuals or alleged homosexuals.
      2. Policy, a. Homosexual personnel irrespective of sex will not be permitted to serve in the Army in any capacity, and prompt separation of homosexuals, as defined in these regulations, is mandatory. Homosexuals are unfit for military service because their presence impairs the morale and discipline of the Army, and homosexuality is a manifestation of a severe personality defect which appreciably limits the ability of such individuals to function effectively in society.

        1>. The following classes of persons will not be processed under the provisions of these regulations:
      (1) Individuals who seek to avoid military service by an unverifiable assertion of homosexuality.
      (2) Those individuals who solely as a result of immaturity, curiosity, or intoxication have been involved in homosexual acts. Such individuals who are not eliminated from the service by sentence of court-martial and who are considered inept, unsuitable, or undesirable by reason of immaturity, alcoholism, or other character and behavior disorders may be eliminated from the service under other applicable regulations.
      (3) In those rare cases in which homosexual acts are symptomatic of an incapacitating mental illness such as psychosis, medical treatment will be provided and separation from the service by reason of the primary medical condition will be made, if indicated.
      * * * * *
      3. Definitions. For the purpose of these regulations the following definitions apply:

        а. Homosexual. An individual, regardless of sex, who demonstrates by behavior a preference for sexual activity with persons of the same sex.
      б. Homosexual act. Bodily contact between persons of the same sex actively undertaken or passively permitted with the intent of obtaining sexual gratification, or any proposal, solicitation, or attempt to perform such an act.

        e. Glass I. Class I consists of those cases which involve an invasion of the rights of another person, as when the homosexual act is accompanied by assault or coercion, or where the person involved does not willingly cooperate in or consent to the homosexual act, or, if the act is cooperated in or consented to, where the cooperation or consent was obtained by fraud. Class I also includes cases which involve a homosexual act with a child under the age of 16 years, without regard to whether the child cooperated in or consented to such an act.

        d. Glass II. Class II consists of those cases in which homosexual military personnel have engaged in one or more homosexual acts not within the purview of class I during active military service. Class II also includes all eases falling within class I in which it is determined not to prefer charges, or, if charges are preferred, not to refer them to a court-martial for trial, or such cases where trial is held but does not result in a punitive discharge. No distinction is made in the administrative handling of these cases involving homosexual acts because of the active or passive nature of the conduct of the participants.
      e. Glass III. Class III consists of those cases in which the homosexual individual involved has not engaged in a homosexual act during active military service, and those cases otherwise within the purview of these regulations but not falling within the purview of classes I or II.
      * # # * #
      Section II
      PROCEDURES
      4. Responsibility, a. It is the duty of every member of the military service to be alert to situations affecting discipline, morale, or security of the military forces. In this connection, overt homosexuality is not to be condoned, and when discovered, will be reported immediately through command channels to the commanding officer having jurisdiction over the individual concerned.
      ii. A commanding officer receiving information that an individual under his command is a homosexual or has engaged in an act of homosexuality, will inquire thoroughly and comprehensively into the matter and ascertain all the facts in the case, bearing in mind the peculiar susceptibility of such cases to possible malicious charges. * * *

      . Plaintiff served only nine months and eight days, a substantial part of which had been spent being trained at government expense.

      . Nor is there any evidence here that plaintiff, who now blames the Army for not “investigating far enough”, offered to cooperate in any way by giving names, addresses, dates, etc.

      . Plaintiff’s argument would reach the unsupportable result of placing a much greater investigative burden on the Army in accepting a self-admission of homosexuality than is placed on a Federal District Court judge in accepting a plea of guilty in a criminal action. Weaver v. United States, 454 F.2d 315 (7th Cir. 1971); United States v. Rizzo, 362 F.2d 97 (7th Cir. 1966).

      . The belief that fabrication about homosexuality in the easiest “escape route” from the service is not necessarily the case.
      It is a curious and interesting commentary on the general prejudice against homosexuals and the desire to eliminate them from the service that there would coexist a widespread belief held by responsible persons — then as today — that many individuals might profess homosexuality in order to evade (or seek a discharge from) military service. Such beliefs persist despite obvious evidence of a widespread and deep-rooted revulsion against homosexuality which would preclude the utilization of such evasive methods by non-homosexuals, particularly when more socially acceptable forms of simulation (e. g., physical illness) can be employed.
      L. West & A. Glass, Sexual Behavior and the Military Law, in Sexual Behavior and the Law 250, 254 (R. Slovenko ed. 1965); see generally Comment, Homosexuals in the Military, 37 Fordham L. Rev. 465 (1968-69).

      . This situation is not unlike a Conscientious Objector who is excused from certain military service because of his own beliefs without further substantiation. cf. Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970).