text:
    UNITED STATES of America and Albert J. Valentas, Internal Revenue Agent, Plaintiffs-Appellants, v. HUMBLE OIL & REFINING COMPANY, Defendant-Appellee.
    No. 72-3029.
    United States Court of Appeals, Fifth Circuit.
    Jan. 18, 1974.
    Rehearing and Rehearing En Banc Denied March 7, 1974.

      Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Mary J. McGinn, Attys., Charles E. Anderson, Tax. Div., Dept, of Justice, Washington, D. C., for plaintiffs-appellants.
    Walter B. Morgan, Lee Hill, Houston, Tex., for defendant-appellee.
    Before GEWIN and MORGAN, Circuit Judges, and GORDON, District Judge.
   GEWIN, Circuit Judge:

This appeal emanates from an order denying enforcement of an Internal Revenue Service (IRS) summons issued to Humble Oil Company seeking information concerning oil leases it had executed with certain unidentified lessors. Unlike the great majority of cases in which the propriety of enforcing a summons is questioned, the IRS here attempted to employ a summons to obtain information merely as part of its research concerning noncompliance with certain provisions of the Internal Revenue Code. Neither Humble nor those about whom information was sought were the object of any investigation for noneompliance with the tax laws. Be-cause enforcement of the summons would result in an unprecedented expansion of the IRS summons power, we affirm.

I

On November 2, 1972, Internal Revenue Agent Albert Valentas issued a “John Doe” summons to Humble Oil & Refining Company, ordering it to produce the following:

[Rjecords of Humble . . . for the calendar year 1970 concerning mineral leases surrendered during the year without production obtained on the leasehold, such records to show the following facts:
Name, address and social security number of lessor.
Amount of lease bonus.
Month and year lease executed.
Legal description of property leased.
The above information is requested only for leases where the lease bonus exceeded $10,000.

The interest of the IRS in this information was spawned by the availability of tax advantages and a concomitant potential for tax abuse attendant upon the use of lease bonuses. An outgrowth of the competition between oil companies for access to oil and gas, these bonuses are paid by the companies to the owners of mineral rights in exchange for favorable lease agreements. Where the agreement providing for a bonus possesses the at-' tributes of a lease and where the bonus is tied to production of the mineral, the owner of mineral rights may claim a depletion allowance against the bonus.' However, if he elects to do so and the lease is subsequently surrendered by the lessee without production of the mineral, he must restore the amount of depletion to his taxable income in the year the lease is surrendered. The IRS was prompted to conduct its research project by the prospect of noncompliance with these restoration requirements. Humble’s lessors became a subject of its inquiry.

After having been apprised of Humble’s refusal to furnish the information' requested, the IRS filed a petition with the district court to enforce the summons under § 7604(b) of the Internal Revenue Code. At the hearing on the petition to enforce, Valentas, the only’ witness called by either party, testified' that he was one of six agents perform^ ing research in local industry and business practices to measure tax compliance and take corrective action if necessary. He stated further that his research indicated the possibility of lessor noncompliance with the Code requirements concerning restoration of income. The summons was issued merely to expedite the research process. Humble’s lessors were not reputed to be more likely to evade the restoration requirements than those of other oil companies.

In response to the petition for enforcement, Humble admitted that some leases for which bonuses had been paid were surrendered in the year in question (1970) without having been utilized for oil and gas production. Humble estimated that between one hundred and two hundred lessors were in the group of interest to the IRS and that their leases were for bonuses of approximately $5,500,000 out of a total of $74,000,000 worth of leases written off in 1970. Its objection to the enforcement of the summons was upheld by the district court.

II

The IRS based its right to issue the summons and to have it enforced upon the provisions of 26 U.S.C. §§ 7601 and 7602.

Section 7601 reads as follows:

§ 7601. Canvass of districts for taxable persons and objects
(a) General rule. — The Secretary or his delegate shall, to the extent he deems it practicable, cause officers or employees of the Treasury Department to proceed, from time to time, through each internal revenue district and inquire after and concerning all persons therein who may be liable to pay any internal revenue tax, and all persons owning or having the care and management of any objects with respect to which any tax is imposed.

It is pursuant to this section, which imposes a duty on the IRS “to canvass and to inquire”, Donaldson v. United States, 400 U.S. 517, 523, 91 S.Ct. 534, 27 L. Ed.2d 580, 585 (1971), that Valentas was conducting the research project. He sought to facilitate his inquiry by utilizing the summons power set forth in section 7602:

§ 7602. Examination of books and witnesses
For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary or his delegate is authorized-— (1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry;
/ (2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and
(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry.

We reiterate that Valentas concedes that at the time he issued the summons, the IRS had not initiated an investigation of any of Humble’s lessors. Rather, it was merely in the process of accumulating data concerning compliance with restoration requirements. In essence, the IRS maintains that it is empowered to conscript citizens into its service to perform the function of accumulating data for its research projects.

A. Basis For the Decision

We begin our consideration of whether sections 7601 and 7602 support this contemplated use of the summons power by endeavoring to delimit the grounds upon which this case shall be decided. Humble contends both that the IRS exceeded its statutory authority when issuing the summons and that the compass of the summons was too broad to warrant enforcement. We address only the first contention.

Our self-imposed restraint requires us to consider an area of the law which is not commonplace. Admittedly, a court is ill-advised to voluntarily enter relatively obscure areas of the law when settled legal concepts may be available in resolving the issue presented. Our seeming temerity is justified, however, because such settled legal concepts — the compass of the summons — may not bé availing or satisfactory. Although the bifurcated attack that Humble makes , has been proffered frequently with some justification, the two defensive grounds asserted are distinguishable and do have a varying impact upon the enforceability of a summons. It is hence instructive to highlight the ramifications of the two objections interposed to enforceability and to underscore the importance of the’ statutory authority issue in this case.

Although a summons may be “so unrelated to the matter properly under inquiry as to exceed the investigatory power”, United States v. Morton Salt Co., 338 U.S. 632, 652, 70 S.Ct. 357, 369, 94 L.Ed. 401, 416 (1950); Cf. United States v. Harrington, 388 F.2d 520, 523 (2d Cir. 1968); United States v. Theodore, 479 F.2d 749, 754-755 (4th Cir, 1973); United States v. Williams, 337 F.Supp. 1114, 1116 (S.D.N.Y.1971), a decision bottomed upon the second ground asserted, the scope and breadth of the summons, would have a different impact upon the petition to enforce than would one predicated upon the statutory authority ground, as we conceive it. The- Fourth Circuit’s decision in United States v. Theodore, supra, illustrates both the manner by which these two grounds converge, and their differential effect on a petition to enforce.

In Theodore, the court countenanced that part of a summons which required a tax preparer to produce a list of names of his clients if not otherwise available to the IRS, but refused to sanction the attempt to obtain copies of the returns the tax preparer had filed. Its reasoning was both that -the language in section 7602 “only allows [the] IRS to summon information relating to the correctness of a particular return or to a particular person and does not authorize the use of open-ended Joe Doe summonses” and that the summons, as it related to copies of the return was “too broad and too vague to be enforced.” United States v. Theodore, supra 479 F. 2d at 755. Since absent a statutory grant in the first instance, the IRS would possess no more authority to enforce an overbroad summons than one narrowly tailored to further legitimate objectives, cf. United States v. Morton Salt Co., 70 S.Ct. 357, 338 U.S. at 653, 94 L.Ed. at 416, one can conclude that despite the use of language bespeaking a statutory authority resolution, the Fourth Circuit relied primarily on the ground that the summons was too broad and vague to be fully enforced. Humble’s objection to the fact that this is a John Doe summons, compliance with which would be burdensome, lends itself to treatment akin to that enunciated in Theodore. But were this court to adopt the rationale posited in Theodore, Humble might still be compelled to produce the names of its lessors.

Moreover, there is a salient difference between a scope of the summons issue, characteristically portrayed in Theodore, and the statutory authority issue as presented in the case before us. In Theodore, the impetus behind issuance of the summons by special agents was that they had already ascertained the tax preparer’s delinquency in complying with code requirements in filing his clients’ returns and hence placed him under investigation. In contrast, neither Humble nor any of its lessors is under investigation for filing faulty tax returns.

Having identified the basis upon which the case is to be decided, we consider the applicable law and the contentions advanced by the IRS in support of its issuance of the summons.

B. Research — Investigation Dichotomy

Although the summons power provisions of the Internal Revenue Code are to be liberally construed, a court must be careful to insure that its construction will not result in a use of the power beyond that permitted by law. Justice Harlan acknowledged as much in United States v. Powell, 379 U.S. 48, 58, 85 S.Ct. 248, 255, 13 L.Ed.2d 112, 120 (1964): “It is the court’s process which is invoked to enforce the administrative summons and a court may not permit its process to be abused.”

The IRS maintains that the accommodation between the broad powers given under section 7602 and the need to prevent the abusive use of the judicial process was struck in United States v. Powell, supra, where the Supreme Court, in rejecting the contention that probable cause was a precondition to the enforcement of a summons, announced that the Commissioner:

must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner’s possession, and that the administrative steps required by the Code have been followed. .

United States v. Powell, 379 U.S. at 57-58, 85 S.Ct. at 255, 13 L.Ed.2d at 119. Claiming that the Commissioner has satisfied this four-fold test, and seeking to pretermit further judicial inquiry, the IRS asserts that Powell also precludes the interposition of any additional circumscriptions, i. e., a research-investigation dichotomy, upon the summons power. We have great difficulty accepting this view.

Initially, we would note that the usq of the term “investigation” preceding the enunciation of the four-fold Powell test would support the view that it is in-apposite where the investigative processes of the IRS have not already begun. The Powell decision, like that in United States v. Morton Salt Co., supra, upon which it relied, was addressed to whether the IRS may investigate merely upon suspicion, as opposed to probable cause, that the law is being violated. The probable cause-suspicion and not an investigation-research dichotomy was at issue in Powell.

Our conclusion that Powell is not the sole» measure of the summons power of the IRS is buttressed by the fact that the courts have superimposed several additional constraints upon the use of this power, even when the IRS is engaged in an investigation. The prohibition against issuance of a summons, the sole objective of which is to gather information in aid of a criminal prosecution would, if the IRS position were viable, seem to be derived from the legitimate purpose element of the Powell test. Nevertheless, courts have uniformly refrained from treating it as subsumed within this rubric. For example, in Donaldson v. United States, supra, the Supreme Court evaluated a criminal purpose objection without even referring to Powell, see 400 U.S. at 530-536, 91 S.Ct. 534, 27 L.Ed.2d at 589-592, and in United States v. Theodore, supra, the Fourth Circuit entertained the same objection before passing upon Theodore’s contention that the contemplated use of the summons was beyond that envisioned by the statute. An additional constraint superimposed, that' a summons cannot be vague or overbroad, would also, under the IRS’ view, invariably fall within the relevant and material requirement of Powell. We again discern a defect inherent in this construction because information sought by a summons can be relevant and material but yet so burdensome to produce that enforcement should be denied.

Having concluded that Powell does not preclude the imposition of additional constraints upon the summons power, we consider whether, as the IRS maintains the power of section 7602 is coterminous with the power to canvass and inquire of section 7601.

Our starting point is a comparison of the language contained in the two sections. Section 7601 empowers the Secretary of the Treasury or his delegate to make inquiries concerning all persons who may be liable to pay any internal revenue tax. Section 7602, on the other hand, authorizes the IRS to examine books and records for the purpose of ascertaining the correctness of any return and the making of a return where none has been filed. The distinction between a section 7601 inquiry and a section 7602 examination, though perhaps elusive when these words are viewed in a vacuum, becomes more salient when one considers first, that the inquiries are to be conducted of “all persons” while examinations are to be made of “any person”, and second, that the inquiries may occur to the extent the Secretary deems it practicable and from time to time while the examination may occur for the purpose of ascertaining the correctness of any return. The language variances in these two sections amplify the attributes we ascribe to the differing IRS functions contemplated by sections 7601 and 7602 and confirm our observation that the canvass power can be employed rather cavalierly while the summons power can be utilized only when IRS scrutiny of a taxpayer or a group thereof becomes particularized or focused. We agree with the district court that “[t]here must be some nexus between information sought and a specific investigation of specific individuals before the government can compel third parties, at their own expense, to give information to the Internal Revenue Service.” United States v. Humble Oil & Refining Company, 346 F.Supp. 944, 947 (S.D. Tex.1972). Before a section 7602 summons may issue, the IRS must have traversed the data gathering stage and initiated an investigation.

A contrary conclusion would require us to indulge in two untenable assumptions. The first such assumption is that the aforementioned language variances between the two sections are merely fortuitous. This explanation loses its force, however, in view of the fact that similar terminology is employed in related sections of the statute. Section 7605(b) of the Code limits the IRS summons power by proscribing unnecessary examinations or investigations, as opposed to inquiries. Its relationship to section 7602 was clearly established in United States v. Powell, supra. The second untenable assumption is that while the IRS cannot, by issuing an expansive summons, conduct a “fishing expedition” while engaged in an investigative function, it can do so pursuant to a research project. It would indeed be anomalous to maintain that “[t]he personal interest cannot be so blithely-brushed aside”, Venn v. United States, 400 F.2d 207, 212 (5th Cir. 1968), in the former situation, but can be brazenly ignored in the latter.

Moreover, it is not without some significance that the IRS itself has relied upon its summons power almost exclusively when an investigation as opposed to a data accumulating project was underway. Those cases in which a sum--mons is issued almost invariably involved a special agent, as opposed to one, like Valentas, from the auditing division of Internal Revenue. And as Mr. Justice Douglas observed in his concurrence in Donaldson v. United States, 400 U.S. at 537 and n. 1, 91 S.Ct. 534, 27 L.Ed.2d at 593 and n. 1, a special agent is assigned to a case only upon an indication or allegation of criminal conduct. Thus, the IRS in its practices attendant to issuing summonses has made only a limited use of its section 7602 summons power.

Finally, while not of controlling importance, we do take note of the fact that in other areas of potential tax abuse, Congress has expressly required taxpayers to report information bearing upon the tax liability of third parties. See, e. g., 26 U.S.C. § 6049 (1970) (requiring reporting by an individual who makes payments of- interest aggregating $10 or more to another person during a calendar year and by a corporation, with an outstanding bond debenture, note, etc. as to which there is during any calendar year an amount of original issue discount aggregating $10 or more). Such requirements would seem to constitute an implicit recognition that absent a particularized investigation, the IRS lacks the ability to obtain this information by other means, i. e., the summons power. Needless to say, however, Congress could enact a statute imposing similar reporting requirements, if it was so inclined.

The only authority which may possibly militate against the conclusion we reach is derived from dicta contained in cases decided by the Seventh and Ninth Circuits, and a district court decision in United States et al. v. Clayton and Co. et al., 369 F.Supp. 6 (S.D.Miss.1973). In Tillotson v. Boughner, 333 F.2d 515 (7th Cir.), the Seventh Circuit, in dismissing an objection to a John Doe summons, remarked that “[sjection 7601(a) of the Code authorizes the Internal Revenue Service to investigate the tax liability of taxpayers. To implement such investigation, section 7602 of the Code gives the Service broad powers of discovery.” Tillotson v. Boughner, supra, at 516. A similar affinity between the two sections was acknowledged in DeMasters v. Arend, supra at 86-87. Nevertheless, whatever force the IRS position derives from these dicta is attenuated by the fact that both these circuits share in the disapprobation of IRS summonses so broad in scope as to amount to fishing expeditions, see Tillotson v. Boughner, supra, at 516; Hubner v. Tucker, supra, a disapprobation inconsistent with the countenancing of rambling explorations pursuant to research projects. Moreover, we are firm in our conviction that these dicta fail to accord sufficient weight to the language variances of the two sections. See Bisceglia v. United States, supra, 486 F.2d 706.

In Clayton, supra, the IRS sought certain designated records relating to the suppliers of soybeans to Paymaster Oil Company for a specified period. After acknowledging that the examination envisaged by the summons was exploratory in nature, the district court upheld the petition to enforce with the truncated reasoning that “[n]owhere in the act [section 7602] or any regulation having the force and effect of law is there to be found any requirement that the records sought to be examined must be records relating to the tax liability of any particular person.” United States et al. v. Clayton and Co. et al., supra. A contrary view is expressed in Mays v. Davis, 7 F.Supp. 596 (W.D.Pa.1934) and Bisceglia v. United States, supra.

In Mays v. Davis, supra, the IRS initiated a petition for enforcement against a trust officer of the Union Trust Company to compel him to produce books, papers and records which disclosed the “names and addresses of the beneficiaries of trusts created by will where the widow, a beneficiary, has elected to take under the will . . . where the will provides for payment to her of income of the trust estate; and where income was paid to the widow” and all records showing “the name of each such trust.” As in the instant case, neither the trust officers nor an unidentified taxpayer was under investigation. In considering whether this use of the summons power comported with the predecessor to section 7602, the court stated that “to grant the prayer thereof would be to grant a mere . [exploratory] search for information on the part of the petitioner, and that not being within the law that the petition should be refused.” Mays v. Davis, supra. In Bisceglia, the IRS issued a summons to the vice president of the Commercial Bank of Middles-boro, Kentucky which had deposited $20,000 in one-hundred dollar bills in a Federal Reserve Bank. These bills, being paper thin and apparently held for a long period of storage, were suspected of not having been reported for income tax purposes by the depositors at the Commercial Bank. It was uncontroverted that the IRS neither suspected nor was investigating a particular person or identified taxpayer but merely sought to ascertain first the depositor’s identity and only then whether any income tax delinquency had occurred. In maintaining that section 7602 would not support the issuance of the summons, the Sixth Circuit reasoned that:

In this section, Congress has not authorized the IRS to examine records pertaining to the financial affairs of an indefinite number of unspecified persons for the purpose of ascertaining the identity of one or some of those persons who may be taxpayers and liable for taxes.

Bisceglia v. United States, supra, 486 F.2d at 710. We believe that Mays and Bisceglia constitute the more compelling view.

Ill

Thus, we hold that the Internal Revenue Service is not empowered by section 7602 to issue a summons in aid of its section 7601 research projects or inquiries, absent an investigation of taxpayers or individuals and corporations from whom information is sought. Section 7602 simply cannot be read to give the IRS an unrestricted license to enlist the aid of citizens in its data gathering projects. A contrary conclusion would eviscerate judicial constraints upon the summons power and raise serious constitutional questions. Moreover, in view of the particular need for judicial surveillance of the summons power when the summons is directed not to a taxpayer, but to a third party, see Bisceglia v. United States, supra at 711; United States v. Harrington, supra, 388 F.2d at 523, quoted approvingly in United States v. Theodore, supra, 479 F.2d at 754; Venn v. United States, 400 F.2d 207, 211-212 (5th Cir. 1968), we feel that our decision accommodates both the legitimate personal interests of the citizenry and the need of the IRS to investigate noncompliance with the tax laws, unencumbered by obtrusive judicial monitoring.

The order of the district court, denying the petition to enforce the summons, is affirmed.

      . The use of the term research as opposed to investigation underscores the difference between the language in sections 7601 and 7602, upon which the IRS relies.

      . See 3A Summers, Oil & Gas, § 586 (2d ed. 1958) :
      “In the earlier oil and gas leases the lessor usually acknowledged the receipt of one dollar or other nominal sum as a consideration for the lease. Such recital was undoubtedly made to satisfy the technical requirement of consideration, although both parties to the lease fully realized that the prospective rents and' royalties resulting from development, and possibly the delay rentals for the privilege of extending the drilling period, were the real considerations for the lease. These last-named considerations became more or less fixed, so that if the lessor’s land was fully developed and operated he could expect to receive no more from one lessee than from another. As the competition among lessees for leases upon desirable or proven oil and gas lands became keener, in order to secure desirable leases, they instituted the practice of bidding against each other by offering the lessor a cash bonus for the lease, rather than by agreeing to deliver to him, a larger proportion of the oil or gas actually produced, or to pay him the value of such larger proportion. Where the competition is great, lessees often agree to pay to lessors many thousands of dollars by way of a bonus in order to secure a desirable lease. Such bonus may be paid in cash, or the payment of a portion of the sum may be deferred. Where the payment of a portion of the bonus is deferred, it is common practice for the parties to agree that the deferred portion shall be paid out of tlfe lessee’s portion of the first oil and gas produced.”

      . See Douglas v. Commissioner of Internal Revenue, 322 U.S. 275, 64 S.Ct. 988, 88 L.Ed. 1271 (1944).

      . 26 U.S.C. § 7604(b) (1970):
      “(b) Enforcement. — Whenever any person summoned under section 6420(e)(2), 6421 (f)(2), 6424(d)(2), or 7602 neglects or’ refuses to obey such summons, or to produce books, papers, records, or other data, or to give testimony, as required, the Sec-'-retary or his delegate may apply to the judge of the district court or to a United States commissioner for the district with-,, in which the person so summoned resides or is found for an attachment against him as for a contempt. It shall be the duty of the judge or commissioner to hear the - application, and, if satisfactory proof is made, to issue an attachment, directed to some proper officer, for the arrest of such person, and upon his being brought before him to proceed to a hearing of the case; and upon such hearing the judge or the United States commissioner shall have power to make such order as he shall deem proper, not inconsistent with the law for the punishment of contempts, to enforce obedience to the requirements of the summons and to punish such person for his default or disobedience.”

      . Yalentas testified that the IRS had not served summonses on Texaco, Gulf, áhell, Standard Oil of California, Standard Oil of Indiana, Atlantic Richfield Company, Mobil, Union Oil of California, or Sun Oil Company.

      . Humble’s argument, that enforcement of the summons would constitute an unreasonable search and seizure, was not reached by the district court. Its opinion is reported at 346 F.Supp. 944 (S.D.Tex.1972).

      . Although the power of the IRS to investigate is akin to that of the grand jury in terms of its breadth, see United States v. Turner, 480 F.2d 272, 279 (7th Cir. 1973); United States v. Weingarden, 473 F.2d 454, 459 n. 9 (6th Cir. 1973); United States v. Widelski, 452 F.2d 1, 4 (6th Cir. 1971); United States v. McKay, 372 F.2d 174, 176 (5th Cir. 1967); Falsone v. United States, 205 F.2d 734, 742 (5th Cir. 1953), it differs from the grand jury’s in terms of its source. The grand jury’s authority is inherent, while the Internal Revenue Service’s, like that of all administrative agencies, must find support in enabling legislation. Cf. United States v. Security State Bank & Trust, 473 F.2d 638 (5th Cir. 1973).

      . Humble alleged in its answer to the petition to enforce that the information sought in the summons was readily ascertainable from an examination of records in the offices of the city clerk, the tax assessor and tax collector, and that its production of the information sought would be burdensome. On cross-examination, Valentas maintained that an examination of land records was inadequate for IRS purposes because “Humble Oil Company did not have that many leases recorded or documents issued that were recorded.” As Humble’s attorney pointed out, however, this argument overlooks the fact that information was sought, in furtherance of merely a research project, and hence a mere sampling of Humble leáses presumably obtainable from land records, should have sufficed to enable the IRS to ascertain the degree of compliance with Code restoration requirements. Moreover, there is no indication that the sampling process should have been limited to Humble leases in view of the fact that many other oil companies held leases of a similar nature. Were we to bottom our decision solely on Humble’s “burdensomeness” contentions, we would consider remanding the case to the district court for a hearing upon this issue, with Humble having the burden of proof.
      Humble’s burdensomeness contention is to be distinguished from a claim that’ the IRS already had the information in its possession in the form of returns filed. Had Humble proffered this argument in its answer to the petition to enforce, then the obligation would be “upon the Commissioner to demonstrate that the material requested is not within his possession or, that if it is technically within his possession, he has no practical way of obtaining the desired item.” United States v. Theodore, supra 479 F.2d at 755.

      . A panel of this court has recently subscribed to the Seventh Circuit decision in United States v. Turner, supra, and that part of the Fourth Circuit opinion in United States v. Theodore, supra, which held that a summons seeking the names, addresses and social security numbers of clients and customers of a tax preparer was not itself overbroad or vague. See United States v. Carter, 489 F.2d 413 (5th Cir. 1973). Unlike in Theodore, supra, the Garter court did not remand for a determination of whether the information sought was otherwise available to the IRS, the latter being a third limitation on enforceability set forth in United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964). Thus, were we to base our opinion upon Humble’s vagueness and overbreadth contentions, Garter would tend to support the proposition that the names of I-Iumble’s lessors could be obtained by the IRS.

      . See also United States v. Turner, 480 F.2d 272 (7th Cir. 1973); United States v. Widelski, 452 F.2d 1 (6th Cir. 1971); United States v. Berkowitz, 355 F.Supp. 897 (E.D. Pa.) aff’d, 488 F.2d 1235 (3rd Cir. 1973).

      . See, e. g., United States v. Widelski, 452 F.2d 1, 4 (6th Cir. 1971); United States v. Giordano, 419 F.2d 564, 569-570 (8th Cir. 1969), cert. denied, 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648 (1970); United States v. McKay, 372 F.2d 174, 176 (5tli Cir. 1967); DeMasters v. Arend, 313 F.2d 79, 87 (9th Cir. 1963); Falsone v. United States, 205 F.2d 734, 742 (5th Cir.), cert. denied, 346 U.S. 864, 74 S.Ct. 103, 98 L.Ed. 375 (1953); United States v. Northwest Pennsylvania Bank & Trust Co., 355 F.Supp. 607, 614 (W.D.Pa.1973).

      . See United States v. Weingarden, 473 F.2d 454, 458 (6th Cir. 1973); United States v. Pritchard, 438 F.2d 969, 971 (5th Cir. 1971); United States v. Monsey, 429 F.2d 1348, 1351 (7th Cir. 1970); United States v. Michigan Bell Telephone Co., 415 F.2d 1284, 1286 (6th Cir. 1969).

      . The IRS quotes extensively from Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946) and United States v. Morton Salt Co., supra for support. Because the Supreme Court relied heavily on these cases in Powell, we do not feel that we are performing a disservice to the IRS by couching its argument in Powell terms. Moreover, the IRS made clear in oral argument that its position rested upon an application of Powell. '

      . Courts have repeatedly admonished that they will not place their imprimatur upon a summons issued in order to harass an individual, see, e. g., United States v. Roundtree, 420 F.2d 845 (5th Cir. 1969); United States v. Pritchard, 438 F.2d 969 (5th Cir, 1971), where a criminal charge is pending against a taxpayer, see United States v. White, 477 F.2d 757, 761 (5th Cir. 1973),. rehearing granted en banc, 487 F.2d 1335; United States v. Stamp, 147 U.S.App.D.C. 340, 458 F.2d 759, 777-780 (1971), cert. denied, 409 U.S. 842, 93 S.Ct. 104, 34 L.Ed. 2d 81 (1972) ; United States v. Bell, 448 F.2d 40 (9th Cir. 1971); United States v. Troupe, 438 F.2d 117 (8th Cir. 1971), or where enforcement would contravene the attorney-client privilege, see, e. g., Reisman v. Caplan, 375 U.S. 440, 449, 84 S.Ct. 508, 11 L.Ed.2d 459, 466 (1964), or the privilege against self-incrimination. See United States v. Couch, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed. 2d 548 (1973) ; United States v. White, supra. Although these circumscriptions on the summons power would, like the criminal purpose limitation, conveniently fit under the legitimate purpose concept, very few courts have even cited Powell in applying the aforementioned proscriptions. See United States v. Weingarden, supra; United States v. Pritchard, supra; United States v. Roundtree, supra.

      . See, e. g., United States v. Theodore, supra 479 F.2d at 754; United States v. Harrington, supra 388 F.2d at 523.

      . See, e. g., United States v. Theodore, supra; In re Ryan, 430 F.2d 658, 659 (9th Cir. 1970) rev’d on other grounds, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971). See also United States v. Dauphin Trust Co., 385 F.2d 129 (3d Cir. 1967), cert. denied, 390 U.S. 921, 88 S.Ct. 854, 19 D.Ed. 2d 981 (1968) (treating expansiveness of summons as an issue distinct from Powell limitations).
      Those courts impervious to objections to the burdensomeness of production as a basis for denying enforcement adopt the Powell relevant and material test as the sole measure of the compass of a summons. See United States v. Luther, 481 F.2d 429, 432 (9th Cir. 1973) ; United States v. Giordano, supra; United States v. Williams, 337 F.Supp. 1114, 1116 (S.D.N.Y.1971).

      . 26 U.S.O. § 7605(b) (1970) :
      (b) Restrictions on examination of taxpayer. — No taxpayer shall be subjected to unnecessary examination or investigations, and only one inspection of a taxpayer’s books of account shall be made for each taxable year unless the taxpayer requests otherwise or unless the Secretary or his delegate, after investigation, notifies the taxpayer in writing that an additional inspection is necessary.

      . See, e. g., United States v. Theodore, supra, 479 F.2d at 754; United States v. Dauphin Trust Co., supra, 385 F.2d at 131; First National Bank of Mobile v. United States, 160 F.2d 532, 534 (5th Cir. 1947) ; cf. Hubner v. Tucker, 245 F.2d 35, 41 (9th Cir. 1957) ; United States v. Northwest Pennsylvania Trust Co., supra, 355 F.Supp. at 614. Oontra United States v. Giordano, supra, 419 F.2d at 568.

      . See United States v. Couch, supra; Donaldson v. United States, supra; United States v. Powell, supra; Bisceglia v. United States, 486 F.2d 706 (6th Cir. 1973) ; United States v. Cromer, 483 F.2d 99 (9th Cir. 1973) ; United States v. Turner, supra; United States v. Theodore, supra; United States v. Mid-West Business Forms, Inc., 474 F.2d 722 (8th Cir. 1973) ; United States v. Schwartz, 469 F.2d 977 (5th Cir. 1972) ; United States v. Richardson, 469 F.2d 349 (10th Cir. 1972) ; United States v. Pritchard, supra; United States v. Stribling, 437 F.2d 765 (6th Cir.) cert. denied, 402 U.S. 973, 91 S.Ct. 1661, 29 L.Ed.2d 137 (1971) ; United States v. Monsey, supra; United States v. Davey, 426 F.2d 842 (2d Cir. 1970) ; United States v. Michigan Bell Telephone. Co., supra; Venn v. United States, supra; United States v. Harrington, supra; Tillotson v. Boughner, 333 F.2d 515 (7th Cir. 1964) ; In re Magnus, Mabee & Reynard, Inc., 311 F.2d 12 (2d Cir. 1962) cert. denied 373 U.S. 902, 83 S.Ct. 1289, 10 L.Ed. 2d 198 (1963) ; Hubner v. Tucker, supra; Falsone v. United States, supra; United States v. Berkowitz, supra; United States v. Jones, 351 F.Supp. 132 (M.D.Ala.1972). Our research reveals that it is only in two cases, United States v. Weingarden, supra, and United States v. Widelski, supra, that a court noted that a general agent issued the summons. In three cases, United States v. Giordano, supra; United States v. Clayton & Co. et al., 369 F.Supp. 6 (S.D.Miss. 1973) and United States v. Williams, supra, the court did not indicate whether a special or general agent was the issuer.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Wesley Lee WILLIAMS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-1130
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 23, 1974.
    Wesley Lee Williams, pro se.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald F. Ederer, Asst. U. S. Atty., El Paso, Tex., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 509, Part. I.

   PER CURIAM:

This appeal is from the district court’s summary denial of Williams’ second motion to vacate judgment and sentence under 28 U.S.C. § 2255. We vacate the ruling below, and remand the cause for further proceedings.

Appellant Williams was convicted by a jury on three counts of an indictment charging violations of 21 U.S.C. § 174, and was sentenced on October 2, 1969 to serve three concurrent sentences of five, ten, and ten years. He and one of his co-defendants appealed the judgment of conviction based upon the sole issue of the validity of the search which produced the contraband he was found guilty of importing. We rejected the contention and affirmed the convictions, sub nom., United States v. Reagor, 5th Cir. 1971, 441 F.2d 252.

One month after this Court refused to rehear the appeal, the appellant filed a motion to vacate in the district court. He contended that the trial court erred in denying him a hearing on his competency to stand trial and that he was prejudiced by the trial judge’s conduct during the trial. On November 8, 1971, the district court concluded that the petition lacked merit, although no reasons were assigned, and summarily denied the appellant leave to proceed in forma pauperis in that court. Pursuant to Rule 24(a), F.R.A.P., the appellant addressed a motion for leave to appeal in forma pauperis to the district court. This was filed in that court on November 29, 1971, but as of this date has never been ruled upon.

In December of 1972, the appellant filed his second § 2255 motion. As grounds for relief he alleged:

(1) The requirements of the Jencks Act were not met when the court inadvertently failed to supply him or counsel with certain pretrial reports prepared by a Government witness, thereby depriving him of the right to confront the witness against him, and of his right to compulsory process for obtaining favorable witnesses;
(2) He was denied effective assistance of counsel; and
(3) The Government knowingly used perjured testimony against him.

In his motion, the appellant also claimed that “the issues presented herein have never before been presented to this or any other court or judge for the reason that petitioner has previously been without knowledge of asserting his rights or that he was entitled to redress for the errors committed by the court in the premise.”

Two days after it was filed, the district court summarily denied the motion finding that “all matters set out therein have been heretofore heard and disposed of by this Court, and the Appellate Court, and presents no new matter entitling Petitioner to any relief.”

It is obvious from the aforestated brief history of Williams’ attacks on his conviction that the issues raised in his latest § 2255 motion have never been before the district court or this Court. Therefore such a finding by the district court is clearly erroneous. Accordingly, the judgment denying relief must be vacated, and the cause remanded for further consideration. Prior to the court’s consideration of the merits of the appellant’s contentions, it should make an initial determination of whether any of the claimed errors contained in motion filed December 6, 1972 were deliberately withheld by Williams in his previously denied § 2255 motion. See Sanders v. United States, 373 U.S. 1, 18, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963).

Vacated and remanded.

      . The provisions formerly found in 21 U.S.C. § 174, repealed, October 1970, are now found in 21 U.S.C. § 960, § 963. Williams was convicted of conspiracy to receive, conceal, and facilitate the transportation and concealment of 9 grams of heroin; receipt, concealment, and facilitation of transportation and concealment of heroin; and importation of heroin.

      . On January 7, 1972, the appellant filed a petition for mandamus witli the 'district court, seeking a ruling on his outstanding motion. The petition was denied by that court on February 29, 1972, again without assignment of reasons.

      . One of the codefendants with whom Williams was tried has also raised this issue in a section 2255 motion; see Reagor v. United States, 5 Cir., 1973, 488 F.2d 515.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Arturo GUZMAN-GUZMAN, Defendant-Appellant.
    No. 73-2537
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 25, 1974.
    John J. Pichinson, Corpus Christi, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., Robert Darden, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

This direct criminal appeal raises the single issue whether the district court correctly admitted certain inculpatory statements made by Guzman-Guzman, defendant-appellant, after he had been arrested and properly warned of his rights to counsel and to remain silent. He challenges the district court’s conclusion that he knowingly and voluntarily waived these rights. We affirm.

Guzman-Guzman was arrested on December 15, 1972, and charged with possessing with intent to distribute one-hundred twenty-five (125) pounds of marihuana, a violation of Title 21, Unit.ed States Code, Section 841(a)(1). On that date, two border patrol agents engaged in other business observed a pick-up truck which appeared to be on fire, parked along the side of U.S. Highway 281, approximately three miles north of Premont, Texas. As the agents approached to render assistance, the driver got into the truck and drove off, leaving behind a smoldering pile of marihuana. The agents gave chase, and apprehended the driver of the truck, who was subsequently identified as the appellant.

Guzman-Guzman was arrested and advised of his rights, which he acknowledged that he understood. A search of the truck revealed bricks of marihuana in the cab and under the hood, whereupon Guzman-Guzman was turned over to customs agents to be taken to Corpus Christi, Texas for incarceration. During the drive to Corpus Christi, the customs agents again gave the appellant his Miranda warnings, and he again acknowledged that he understood them. He then admitted that he had purchased the marihuana in Mexico for three thousand dollars ($3000) and identified the seller, and also confessed that he had intended to take the marihuana to Houston to sell it. At trial, the defendant’s counsel objected to the admission of these statements on the ground that his client had not knowingly and intelligently waived the constitutional rights of which he had been warned. His objections were overruled and the statements admitted. On May 2, 1973, Guzman-Guzman was found guilty by a jury verdict and sentenced to serve four years in prison and a special parole term of two years.

The contention that the voluntary waiver requirements of Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, were not met here is without merit. The proper construction of Miranda in such cases was fully elaborated in United States v. Montos, 5 Cir. 1970, 421 F.2d 215, 224, cert. denied, 397 U.S. 1022, 90 S.Ct. 1262, 25 L. Ed.2d 532:

When a defendant warned of his rights makes statements without a lawyer present, the prosecution may use these statements at trial only if it sustains its “heavy burden” of demonstrating that the defendant “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L. Ed.2d 694 (1966). See also Gilpin v. United States, 5 Cir. 1969, 415 F.2d 638; Moll v. United States, 5 Cir., 1969, 413 F.2d 1233. ... An express statement that the individual does not want a lawyer is not required, however, to show that the individual waived his right to have one present. See Bond v. United States, 10 Cir., 1968, 397 F.2d 162, 165. All that the prosecution must show is that the defendant was effectively advised of his rights and that he then intelligently and understandingly declined to exercise them. See Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962).

Here, the Government met its “heavy burden” by producing three witnesses who testified that the defendant was twice advised of his rights and that he twice acknowledged that he understood them. Guzman-Guzman did not contradict this testimony at trial. As in Montos, the two sets of warnings, admittedly understood, “effectively advised [the defendant] of his rights and he then intelligently and understandingly declined to exercise them,” and made a seriously incriminating statement. In these circumstances, the admission of such a statement constitutes no affront to Miranda.

The judgment appealed from is affirmed.


text:
    Charles James WIGGINGTON, Petitioner-Appellant, v. W. J. ESTELLE, Director, TDC, Respondent-Appellee.
    No. 73-2315.
    United States Court of Appeals, Fifth Circuit.
    Jan. 25, 1974.
    Robert G. Richardson, Staff Counsel, Harry W. Walsh, Staff Counsel for Inmates, Huntsville, Tex., for petitioner-appellant.
    Robert C. Flowers, Thomas M. Pollan, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
    Before COLEMAN, AINSWORTH and GEE, Circuit Judges.
   PER CURIAM:

Appellant Wiggington was convicted in 1964 in Dallas County, Texas, State Court in No. E-6120-IJ of burglary and sentenced to life imprisonment, an enhanced penalty under Texas law imposed after proof of two prior convictions, one of which was a burglary conviction in Dallas County, Texas, on April 10, 1951 in No. 5403-B.

In this habeas corpus case the sole question for decision is whether Wiggin-ton was represented by counsel at the time of the entry of his plea of guilty in No. 5403-B. If not, the basis for the enhanced penalty would fail.

Appellant has exhausted state court remedies and has been denied relief in the United States District Court below, from which he brings this appeal.

The Trial Judge below adopted the findings of the United States Magistrate that the record of proceedings in the Texas State Court affirmatively shows that Wiggington was represented by counsel in No. 5403-B.

These findings are not clearly erroneous; in fact, we believe they are correct. The trial docket entry in No. 5403-B affirmatively discloses that Wig-ginton was represented by Attorney Fred Harris. Mr. Harris, now Judge Harris, testified in the state habeas proceedings that he had no recollection of representing appellant. The transcript of proceedings at the time of the entry of the guilty plea, however, shows the following:

“Charles James Wigginton, having been sworn, testified as follows, to wit:

DIRECT EXAMINATION BY MR. HARRIS:

Q. Mr. Wigginton, that is true, is it?

A. Yes.

Q. That is all.

THE COURT: You are pleading

guilty to the offense just like the indictments said?

A. Yes sir.”

Judge King who accepted the guilty plea in No. 5403-B could not independently recall the case but testified that defendants in his court routinely had counsel on the entry of pleas of guilty.

Under these circumstances, and especially in view of the affirmative showings in the transcript and docket entries that appellant was represented by counsel, the District Court correctly concluded that appellant’s petition was without merit.

Affirmed.


text:
    David D. CLYATT, Petitioner-Appellant, v. Dr. Allen AULT, Director, Georgia Diagnostic Center, Respondent-Appellee.
    No. 73-2953
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 25, 1974.
    Murray M. Silver, Atlanta, Ga. (Court-appointed), for petitioner-appellant.
    Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, David L. G. King, Jr., Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, 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:

Petitioner was convicted and sentenced in state court on four counts of violating the Georgia Drug Abuse Control Act. He filed his petition for writ of habeas corpus in the United States District Court under 28 U.S.C. § 2254, seeking relief on four grounds: 1) that his state court conviction was obtained by the use of evidence illegally seized under an invalid search warrant; 2) that the state trial court, in determining the validity of the search warrant, considered more information than appeared on the face of the affidavit; 3) that the state court admitted evidence of a crime entirely separate and distinct from the offense charged; and 4) that the state court denied petitioner due process of lav/ and his right to an impartial jury by overruling his motion for a mistrial because one of the jurors, while standing in the hallway of the courthouse after the first day of the trial, witnessed the arrest of petitioner for another offense. The district court found each of these contentions to be without merit and dismissed the petition. On this appeal petitioner challenges the order of the district court only as it relates to the fourth alleged basis for relief. We affirm.

The district court held an evidentiary hearing on April 19, 1973, at which petitioner, the arresting officer, and Mrs. Stout, the juror who allegedly witnessed the arrest, testified. Petitioner testified that, following the proceedings on the first day of the trial, Mrs. Stout was standing at the elevator about three yards away from petitioner and his attorney when two detectives approached. On the basis of evidence adduced at trial that day, the detectives arrested petitioner for possession of marijuana, handcuffed him, and led him away. Petitioner argues that Mrs. Stout must have heard the detectives tell petitioner he was under arrest and the reason therefor, and must have seen him handcuffed.

Mrs. Stout testified, however, that she merely saw petitioner standing at the elevator with his attorney and two officers. She said that she did not recall seeing petitioner handcuffed and did not overhear any discussion among the persons standing at the elevator. Petitioner argues that Mrs. Stout’s memory was very hazy, and notes that she testified that the detectives were in uniform when in fact they were not.

The district court issued its order on May 29, 1973, dismissing the habeas petition. In that order the court stated:

Petitioner has established that he was arrested in the hall of the courthouse while the trial was in progress and has also established that a juror was present when this transpired. However, by the juror’s own testimony, it has been established that she never “witnessed” the arrest of petitioner. (Record on Appeal, p. 391).

Thus, the district court obviously chose to accept Mrs. Stout’s recollection of the events that took place in the courthouse hallway.

We have no difficulty agreeing with petitioner that the detectives acted improperly by making the arrest in the courthouse at a time when jurors might have been present. A finding of impropriety or poor judgment on the part of law enforcement officers, however, is not sufficient to require a federal court to grant habeas relief, even if such impropriety might have been grounds for acquittal under prior state court decisions. The mandate to the federal courts under 28 U.S.C. § 2254 is that they

shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

(emphasis added).

The district court held that petitioner’s incarceration was not in violation of the Constitution or of any federal law. Specifically, after conducting an evidentiary hearing on the matter, the court concluded that Mrs. Stout had not “witnessed” the arrest in the courthouse hallway and that petitioner had not been denied a fair and impartial jury. On the basis of the evidence presented we might or might not have reached the same factual conclusion as to what Mrs. Stout observed. It is not our role, however, to make an independent assessment of the facts.

We should not attempt, as an appellate court, to decide where the truth lies among the several witnesses, without hearing or seeing them, and in derogation of the right and duty of the Trial Court to make credibility choices.

Kimbrough v. Beto, 5 Cir. 1969, 412 F. 2d 981, 983. See also Chaney v. City of Galveston, 5 Cir. 1966, 368 F.2d 774, 776. From our reading of the testimony presented at the evidentiary hearing, we are satisfied that the findings of the district court are not clearly erroneous. Fed.R.Civ.P. Rule 52(a). Because we uphold the findings of the district court, we need not decide the question of whether, if Mrs. Stout had “witnessed” the arrest and handcuffing, petitioner would be entitled to habeas relief.

Affirmed.


text:
    UNITED STATES of America, Respondent-Appellee, v. Sherman Lee HART, Petitioner-Appellant.
    No. 73-3139
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 28, 1974.

      Sherman Lee Hart, pro se.
    Donald E. Walter, U. S. Atty., L. Edwin Greer, Asst. U. S. Atty., Shreveport, La., for respondent-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

Appellant Hart pled guilty to an indictment charging him with distribution of heroin. He received a ten-year prison sentence with a three-year special parole term to follow his imprisonment. Subsequently he filed a “motion for modification or reduction of sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure,” which sought resentencing under the Narcotic Addict Rehabilitation Act, 18 U.S.C.A. §§ 4251-4255. The district judge denied his motion, and we affirm.

If a defendant is to get NARA rehabilitative sentencing the court must determine that he is an eligible offender and believe that he is an addict; then the court may, in its discretion, place him in the Attorney General’s custody for an examination preliminary to treatment. In the instant ease the district judge did not believe' that Hart qualified for NARA sentencing. In his order denying Hart’s Rule 35 motion the district judge said:

We have carefully reviewed the record and conclude that prior to and upon sentencing of petitioner we made an affirmative determination that petitioner was not an “Eligible offender” in accordance with 18 U.S.C. § 4251, and in our discretion afforded by 18 U.S.C. § 4252, did not order an examination.

Although the district judge did not elaborate on his view that appellant was not an eligible offender, we presume the basis for ineligibility would be 18 U.S.C.A. § 4251(f)(2). That provision disqualifies those convicted of making narcotic sales, unless the sales were made for the purpose of appeasing the seller’s addiction. Unfortunately there is nothing in the record that touches on appellant’s purpose in making the sale that resulted in his conviction. Were his status as an ineligible offender the only basis for the district judge’s decision, we would have to consider remanding this case for an evidentiary hearing. See United States v. Phillips, 6th Cir. 1968, 403 F.2d 963; United States v. Porter, D.Minn.1967, 277 F.Supp. 655. But cf. Ramos v. United States, 9th Cir. 1970, 432 F.2d 423.

The district court, however, relied on section 4252 as well as section 4251(f). Section 4252 allows a judge to refuse NARA relief if he believes the offender is not an addict or if, after exercising his discretion, he simply chooses not to grant relief. The probation officer’s presentence report provides some support for a belief that Hart was not an addict. Furthermore, the district judge stated that he exercised his discretion at the time of sentencing and consciously chose not to sentence Hart under the NARA. Therefore we must uphold his decision to deny Hart NARA rehabilitation.

Affirmed.

      . 18 U.S.C.A. § 4251(f)(2) provides: “Eligible offender” means any individual who is convicted of an offense against the United States, but does not include—
      (2) an offender who is convicted of unlawfully importing or selling or conspiring to import or sell a narcotic drug, unless the court determines that such sale was for the primary purpose of enabling the offender to obtain a narcotic drug which he requires for his personal use because of his addiction to such drug.

      . 18 U.S.C.A. § 4252 provides, in pertinent part:
      If the court believes that an eligible offender is an addict, it may place him in the custody of the Attorney' General for an examination to determine whether he is an addict and is likely to be rehabilitated through treatment.

      . The probation officer, in his presentence report, said that Hart advised him he was “completely free from physical symptoms of drug addiction at this point” and stated that “there have been other instances during ¿he last ten years when he has been physically free of Heroin but chose to resume its use.” There is, of course, the possibility that Hart is an addict in the sense that he is one who “habitually uses any narcotic drug . so as to endanger the public morals, health, safety, or welfare . . . ” even if he is not physically addicted to heroin. 18 U.S.C.A. § 4251(a).

      . The district judge’s considered rejection of NARA sentencing distinguishes this case from United States v. Hollis, 5th Cir. 1971, 450 F. 2d 1207, which we remanded to the lower court for initial consideration of NARA applicability.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alberta C. DRUMMOND, Defendant-Appellant.
    No. 72-3473
    Summary Calendar.

    United States Courl; of Appeals, Fifth Circuit.
    Jan. 28, 1974.
    Rehearing Denied Feb. 27, 1974.
    Chester Bedell, Jacksonville, Fla., for defendant-appellant.
    John L. Briggs, U. S. Atty., Harvey E. Schlesinger, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

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

   PER CURIAM:

This appeal is an effort by a defendant who has entered a plea of nolo con-tendere to obtain appellate review of denial of a motion to dismiss the case for failure to comply with the constitutional requirement of speedy trial.

This court en banc has disapproved the procedure of accepting a nolo plea with reservation of a right to appeal. United States v. Sepe, 486 F.2d 1044 (CA 5, 1973, en banc). While the parties interpret the record in different ways, it seems to us that what the trial judge did was to accept the plea with the understanding that, insofar as he was concerned, defendant’s right to appeal the speedy trial issue was preserved, although he recognized that the government would contend on appeal that the nolo plea operated as a waiver.

Turning to the merits of the speedy trial issue, and applying the four-part balancing test of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we are not able to say that the District Court erred in denying appellant’s motion. Appellant was indicted June 27, 1969, along with her husband, in nine counts charging tax fraud in evading income taxes for 1963, 1964 and 1965. The appellant did not assert a right to a speedy trial until her motion to dismiss was filed in September, 1972. The appellant herself was a contributor to the delay. She was arraigned July 25, 1969, at which time her counsel sought and was granted sixty days in which to file motions, subsequently extended another thirty days. When, in July, 1971, the case was set for trial in October, 1971, the appellant sought and was granted a continuance because of a' conflicting court engagement of her chief defense counsel.

A major factor in delay was dilatoriness of both sides in the discovery process. Defendant moved for production of documents and for a bill of particulars. The motions lay dormant for an extended period, without the government’s responding and without the court’s setting the motions for hearing. While the government’s failure to respond was out of keeping with a local rule of the court, the record does not disclose any effort by appellant to call the matter to the court’s attention or to move the discovery process out of the state of limbo in which it rested.

Appellant was not incarcerated. In fact, she was not even arrested — a summons was issued and she was immediately released on a $1,000 recognizance bond with no limitation on travel. Her major claim of prejudice is that her husband and codefendant died in April, 1970, and she was deprived of the opportunity of having him examine the numerous documents the production of which had been demanded and to confer with her and defense counsel concerning the documents. His death occurred approximately ten months after arraignment, and defense counsel, with court approval, had delayed three of these months before filing a motion to produce, and as just noted, once discovery motions were filed, there is no evidence that court action was sought by the appellant on either the motions or the government’s failure to promptly respond to the motions.

Affirmed.

      . The differing legal consequences urged by the parties to what was said demonstrates the desirability of discontinuing the “appeal by agreement” device.


text:
    John Brent TARLTON, Jr., Plaintiff-Appellant, v. Homer DILL, Lester Wilkerson, Keith Collier, George Killiam and Herb Gnepper, Defendants-Appellees.
    No. 73-3451
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 23, 1974.
    Rehearing Denied March 4, 1974.

      John Brent Tarlton, Jr., pro se.
    Robert B. Wilson, Asst. U. S. Atty., Lubbock, Tex., for H. Gnepper.
    R. W. Webb, Snyder, Tex., for Charl-sie M. Tarlton.
    George R. Killam, Jr., County Atty., Snyder, Tex., W. E. Smith, Asst. U. S. Atty.; Ft. Worth, Tex., Jack Boone, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

John Brent Tarlton, Jr., a federal prisoner, filed a Civil Rights action for damages against several named individuals. The district court granted Defendant Herb Gnepper’s motion for summary judgment, and Tarlton has taken this appeal from that ruling. Summary judgment motions on behalf of several other defendants were denied, and it is clear that except as to Gnepper the action is still pending below.

Since summary judgment was granted in favor of only one of the several defendants, it is not a final judgment ap-pealable of right under 28 U.S.C. Sec. 1291. Nor has there been any attempt to comply with the requirements of 28 U.S.C. Sec. 1292(b) governing interlocutory appeals, or an express determination by the district court that there is no just reason for delay and direction of entry of final judgment in favor of Gnepper. See Rule 54(b), F.R.Civ.P. Therefore the judgment appealed from lacks the requisite finality to be appeala-ble, and the appeal must be and is hereby dismissed for want of jurisdiction. McCormick v. Landrieu, 5 Cir. 1972, 469 F.2d 673; Ratner v. Scientific Resources Corp., 5 Cir. 1971, 462 F.2d 616; Bailey v. Rowan Drilling Co., Inc., 5 Cir. 1971, 441 F.2d 57.

Appeal dismissed.


author: BELL, Circuit Judge: RONEY, Circuit Judge

text:
    MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., Plaintiff-Appellee, v. David B. CLAYTON, Defendant-Appellant.
    No. 72-3639.
    United States Court of Appeals, Fifth Circuit.
    Jan. 21, 1974.

      W. W. Conwell, Peyton D. Bibb, Jr., Birmingham, Ala., for defendant-appellant.
    Drayton Nabers, Jr., Drayton T. Scott, Birmingham, Ala., for plaintiff-appellee.
    Before BELL, COLEMAN and RO-NEY, Circuit Judges.
   BELL, Circuit Judge:

In this diversity action appellee seeks to recover the proceeds of sale by appellant of stock received, held and sold as an innocent gratuitous transferee. The principal issue on appeal is whether Section 204 of the Restatement of Restitution entitles appellee to recover not merely the value of the stock at the time it was received by appellant, but rather its value when sold by appellant. The difference amounts to some $14,000.

Appellant’s argument arises from the failure of Section 204(b) to specify clearly whether “the value of the property which he originally received” is determined as of the date of receipt or the date of sale. In supporting the latter interpretation he quotes from Comment a to Section 204: “If the innocent donee makes a profit, he can keep the profit; if he incurs a loss, he need not make it good.”

We think it clear that appellant misreads Section 204(b), and has taken the quoted sentence out of context. As stated in Comment a, the theory of recovery under Section 204 is that an innocent gratuitous transferee should be liable to the extent of his unjust enrichment or the true owner’s loss, whichever is less. Should he be able to compensate the owner for his loss, without exhausting the proceeds of selling the property, he could retain the surplus. It is this “profit” which is referred to in appellant’s quoted sentence, and not the appreciation in value between receipt and sale. Since no such “profit” is present in this case, and since the appellant was unjustly enriched to the extent of the sum he received upon sale of the stock, the district court judgment is

Affirmed.

RONEY, Circuit Judge

(concurring):

A gratuitous transferee must return the original stock if he retained it. Under 204, if he has exchanged the original stock for other property, he may either (a) surrender the property received in exchange, or (b) pay the true owner whatever value the original stock has attained. The choice of repayment method is left in the hands of the gratuitous transferee. Thus he does not incur a loss if his exchange worked out badly and the exchanged property is worth less than the original stock. On the other hand, if the exchanged property has increased, and is worth more than the original stock has become worth, he may retain the increase. This is the meaning of Comment a to Section 204: “If the innocent donee makes a profit, he can keep the profit; if he incurs a loss, he need not make it good.”

If indeed Section 204 is applicable at all, the facts must be construed as Clayton’s having “exchanged” the original stock for $24,788. Thus, the Court was correct in permitting Clayton “to surrender the property which he acquired in exchange” for the original stock, the $24,788, rather than the value of the property which he originally received, which had become worth $52,260.

      . No Alabama cases control the point in issue here. Thus the district court and the parties looked to the Restatement for guidance in achieving an equitable result consistent with the Erie doctrine. Section 204 is as follows:
      “Gratuitous Transferee
      AVhere a person receives the title to property of which another lias the beneficial interest without notice of the other’s interest but without paying value, and being still without such notice exchanges it for other property, he is under a duty either
      (a) to surrender the property which he acquired in exchange, or, at his option,
      (b) to pay the value of the property which he originally received, the property which he acquired in exchange being subject to an equitable lien for such payment.”

      . At time of receipt the stock was worth $10,656. Appellant later sold it for $24,788. Appellee ultimately had to expend $52,260 to replace the stock, but did not seek to recover in excess of the amount of appellant’s unjust enrichment. The district court did not award interest on the $24,788, and appellee has not cross-appealed from this ruling.

      . This would occur if, for example, the owner replaced his stock at a price lower than that at which the gratuitous transferee sold it.

      . We are bolstered in this conclusion by the statement in Comment a that this rule is the same as is applicable where property is transferred by a trustee in breach of trust to an innocent donee. See Restatement of Trusts, Second § 292, Comment h, which states that the value at date of sale is controlling. Further, this interpretation is consistent with Restatement of Restitution § 202 (that an owner may recover from a conscious wrongdoer either his own loss or the wrongdoer’s unjust enrichment, whichever is greater), and § 203 (that an owner’s recovery from an innocent converter is the amount of his loss, regardless of whether this is more or less than the converter’s unjust enrichment).


text:
    Ronald LESTER, Plaintiff-Appellant, v. The HANOVER INSURANCE COMPANY, Defendant-Appellee.
    No. 73-3424
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 25, 1974.
    Ronald Lester, pro se.
    James W. Dorsey, Atlanta, Ga., 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:

On this appeal the appellant Lester complains of the action of the district court in granting the motion for summary judgment of the appellee Hanover Insurance Company in a diversity action for alleged slander. While summary judgment is granted sparingly and with caution, it is our conclusion that Lester has failed to demonstrate to this court that error was committed in granting the motion. Indeed it appears that the trial judge was both patient and lenient with Lester.

The facts were rather fully developed during extensive discovery and the submission of affidavits. The appellant was unable to add substance to the conclusory allegations of his complaint. Summary judgment is appropriate if there is no genuine issue as to any material fact to be resolved. Cf. Owens v. Diamond M Drilling Company, 487 F.2d 74 (5th Cir. 1973).

The judgment is affirmed.


text:
    Forrest D. AIKINS, Petitioner-Appellant, v. Harold J. CARDWELL, Warden, Arizona State Prison, Respondent-Appellee.
    No. 73-1321.
    United States Court of Appeals, Ninth Circuit.
    Jan. 16, 1974.
    Rehearing Denied Feb. 22, 1974.
    John J. Flynn, Tom Galbraith, Flynn, Kimerer, Thinnes & Galbraith, Phoenix, Ariz., for petitioner-appellant.
    Gary K. Nelson, State Atty. Gen., William J. Schafer, III, Chief Counsel Crim. Div., Phoenix, Ariz., for respondent-appellee.
    Before DUNIWAY, TRASK and WALLACE, Circuit Judges.
   PER CURIAM:

Forrest D. Aikins, a state prisoner, appeals from a denial of a petition for a writ of habeas corpus addressed to the United States District Court for the District of Arizona. The court’s jurisdiction was predicated on 28 U.S.C. § 2253.

Petitioner had been charged in the Superior Court of Maricopa County, Arizona, with one count of possession of heroin for sale and one count of possession of cocaine for sale, both in violation of Arizona Revised Statutes 36-1002.01. A pretrial motion to suppress evidence was denied after which trial was to the court without a jury in which the defendant was found guilty on both counts and sentenced to serve a term in the Arizona State Prison. The conviction was affirmed on appeal by the Arizona Court of Appeals, a petition for rehearing denied and petitioner’s application for review to the Arizona Supreme Court was denied. State v. Aikins, 17 Ariz. App. 328, 497 P.2d 835 (1972), petition for rehearing denied, No. 2538-PR (Ariz.Sup.Ct. Sept. 14, 1972).

The opinion of the District Court covers the critical issues raised by the appellant here and for the reasons stated there, 367 F.Supp. 401 (D.Ariz.1972), we affirm the judgment.


text:
    Sheldon POLAKOFF and Gloria Polakoff, Plaintiffs-Appellants, v. J. D. HENDERSON, Warden, U. S. Penitentiary, Defendant-Appellee.
    No. 73-3427.
    United States Court of Appeals, Fifth Circuit.
    Jan. 28, 1974.
    Sheldon Polakoff and Gloria Polakoff, pro se.
    John W. Stokes, Jr., U. S. Atty., William D. Mallard, Jr., Asst. U. S. Atty., Atlanta, Ga., for defendant-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.
   PER CURIAM:

This is an appeal from the district court’s dismissal of a damage suit, grounded on the Civil Rights Act and diversity jurisdiction, filed by a federal prisoner and his wife. The appellants sued the warden of the institution where the husband is confined, complaining that the warden has denied marital visitations to the appellants. The district court stated reasons for its ruling in a comprehensive memorandum opinion', which is reported as Polakoff v. Henderson, N.D.Ga.1973, 370 F.Supp. 690. We affirm the judgment below for the reasons stated in the district court’s said opinion.

Affirmed.

      . It is appropriate to dispose of this pro se case summarily, pursuant to this Court’s local Rule 9(c)(2), appellant having failed to file a brief within the time fixed by Rule 31, Federal Rules of Appellate Procedure. Kimbrough v. Beto, Director, 5th Cir. 1969, 412 F.2d 981.


text:
    Larry Michael LANE, Petitioner-Appellant, v. Buster KERN, Sheriff, Respondent-Appellee.
    No. 73-1035
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 28, 1974.
    Rehearing Denied Feb. 25, 1974.
    Michael Thornell, Houston, Tex. (Court-appointed but not under Act), for petitioner-appellant.
    Joe S. Moss, Asst. Dist. Atty., Houston, Tex., for respondent-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

After careful consideration of the record in this case it is our opinion that the order of the district court denying the petitioner-appellant’s application for habeas corpus relief and other relief must be vacated and the case remanded to the district court for further proceedings and consideration by that court. Accordingly, it is so ordered.

Vacated and remanded.


text:
    James P. THOMPSON, Petitioner, v. The UNITED STATES of America, U. S. Department of Transportation and the National Transportation Safety Board, Respondents.
    No. 73-2995
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 31, 1974.
    Jack Woods, College Station, Tex., for petitioner; James P. Thompson, pro se.
    Claude S. Brinegar, Sec. of Transp., U. S. Dept, of Transp., Donald Etra, Morton Hollander, Attys., U. S. Dept, of Justice, Fritz L. Puls, Gen. Counsel, Nat. Transp. Safety Bd., Washington, D. C., for respondents.
    Robert C. Nelson, Ft. Worth, Tex., for other interested parties.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

After carefully reviewing the order of the Transportation Department of the National Transportation Safety Board, we conclude that the Board’s order should be affirmed in all respects.

Affirmed.


text:
    Leila MOURNING et al., Plaintiffs-Appellees, v. FAMILY PUBLICATIONS SERVICE, INC., Defendant-Appellant.
    No. 71-1150.
    United States Court of Appeals, Fifth Circuit.
    Jan. 28, 1974.
    L. Edward McClellan, Larry S. Stewart, Miami, Fla., Robert S. Rifkind, New York City, William S. Frates, Miami, Fla., for defendant-appellant.
    Philip L. Coller, Miami Beach, Fla., M. Donald Drescher, South Miami, Fla., Leonard Helfand, Legal Service, Senior Citizens, Inc., Miami Beach, Fla., for plaintiffs-appellees.
    Alan S. Rosenthal, Michael C. Farrar, Dept, of Justice, Washington, D. C., for amicus curiae.
    Before COLEMAN, SIMPSON and RONEY, Circuit Judges.
   PER CURIAM:

On September 27, 1971, a judgment in favor of the plaintiffs-appellees was reversed by this Court, Mourning v. Family Publications Service, Inc., 449 F.2d 235. .

On April 24, 1973, the Supreme Court of the United States reversed the judgment of this Court, Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318.

The cause was remanded to this Court for further proceedings in conformity with the opinion of the Supreme Court.

Therefore, ordered.

The judgment of this Court rendered September 27, 1971, is hereby vacated and the judgment of the United States District Court from which the appeal was taken is hereby

Affirmed.


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    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. LOCAL 926, INTERNATIONAL UNION OF OPERATING ENGINEERS, Respondent.
    No. 72-3430.
    United States Court of Appeals, Fifth Circuit.
    Jan. 25, 1974.
    Rehearing and Rehearing En Banc Denied May 6, 1974.
    Robert J. Martin, Jr., J. R. Gold-thwaite, Jr., Atlanta, Ga., Bernard Du-nau, Gerald F. Treanor, Counsel, Intern. Union of Operating Engineers, Washington, D. C., for respondents.
    Elliott Moore, Acting Asst. Gen. Counsel, N.L.R.B., Washington, D. C., Walter C. Phillips, Director, Region 10, N.L. R.B., Atlanta, Ga., Jonathan G. Axel-rod, N.L.R.B., Washington, D. C., for petitioner.
    William W. Alexander, Jr., John M. Capron, Atlanta, Ga., for intervenor.
    Before COLEMAN, AINSWORTH and GEE, Circuit Judges.
   PER CURIAM:

After a careful consideration of the record, the briefs and the order of the National Labor Relations Board, we conclude that the order of the National Labor Relations Board is correct in all material respects and should be enforced.