author: VAN DUSEN, Circuit Judge.

text:
    Peter Joseph BIAGIARELLI, Appellant in No. 72-2139, v. Allyn R. SIELAFF, Commissioner of Corrections et al., Appellants in 72-2138.
    Nos. 72-2138, 72-2139.
    United States Court of Appeals, Third Circuit.
    Argued June 18, 1973.
    Decided July 26, 1973.

      Donetta W. Ambrose, Asst. Atty. Gen., Pittsburgh, Pa., Israel Packel, Atty. Gen., for appellant in No. 72-2138 and appellee in No. 72-2139.
    Michael A. Donadee, Neighborhood Legal Services Assn., Pittsburgh, Pa'., for appellee in No. 72-2138 and appellant in No. 72-2139.
    Before VAN DUSEN, ALDISERT and ADAMS, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This is a civil rights action arising out of a complaint filed by a prisoner, Peter Biagiarelli, who is confined in the Western Pennsylvania Correctional Institution at Pittsburgh. Jurisdiction was invoked pursuant to 28 U.S.C. §§ 1343 and 2201, and 42 U.S.C. §§ 1983 and 1985. Biagiarelli alleges that he has been deprived of certain of his constitutional rights, in particular his Eighth and Fourteenth Amendment rights, by having been placed in segregated confinement without a due process hearing. After hearing argument and testimony, the district court directed a declaratory judgment be entered in favor of the plaintiff. After careful consideration, the record requires that the district court order be vacated and the case remanded to the district court for proceedings consistent with this opinion.

Plaintiff charged in his complaint that he was taken from his cell on October 19, 1971, without notice or warning, and placed in solitary confinement, where he remained until December 24, 1971. The prison authorities defended their action on the basis that they had received information that Biagiarelli was involved in a conspiracy to escape from prison and that an emergency situation existed which required prompt action. The district court included this finding in its opinion (349 F.Supp. at 914):

“The prison authorities presented evidence that an emergency situation existed on October 19, 1971. They were unable to give him any hearing because they had received information of a conspiracy for a prison break in which plaintiff was involved from reliable sources, to wit: the Chief of Police of the City of Pittsburgh. In their judgment this emergency situation justified placing the plaintiff in solitary immediately for reasons of security.”

The defendants assert in their appeal that since Biagiarelli was placed in “administrative” segregation, as opposed to “punitive” segregation, he was not entitled to the minimal due process requirements set out by the district court. These included: (1) a written notice of charges; (2) a statement of the general nature of evidence supporting the charges; and (3) a hearing before a designated official where the prisoner has an opportunity to respond to charges. See note 3, supra.

The plaintiff has filed a cross-appeal contending that the opinion and order of the district court did not provide sufficient safeguards for a prisoner subject to isolation from the general prison population.

In Gray v. Creamer, 465 F.2d 179 (3d Cir. 1972), we were presented with the claim that “[the] plaintiffs’ Fourteenth Amendment right to due process of law was abridged by the circumstances of their transfers from the general prison population to ‘segregation’ or ‘punitive segregation.’ ” 465 F.2d at 184. In Gray we held that:

“. . . the transfer of a prisoner from the general prison population to solitary confinement without either notice of the charges or a hearing
does not, absent unusual circumstances ., meet minimal due process requirements.”

465 F.2d at 185.

The extent of the rights guaranteed to a state prisoner under the Fourteenth Amendment is not unlimited. As Judge Aldisert explained in Gittlemacker v. Prasse, 428 F.2d 1, 4 (3d Cir. 1970):

“To determine, with precision, those rights which follow an inmate into prison involves a process of weighing and balancing conflicting interests. The desire that there be a maximum opportunity for the exercise of rights and privileges may often collide with the practical necessities of managing and administering a complicated penal community. The task of striking the proper balance between these conflicting interests is generally within the competence of the prison authorities. Thus, the federal courts have been understandably reluctant to intervene in matters of state prison administration, recognizing that a wide latitude for judgment and discretion must be extended to prison officials.”

This case presents an example of the “unusual circumstances” referred to in Gray. Here the prison authorities, in order to maintain control and to insure the continued security of the institution, were entitled to postpone notice of the charges, or the holding of a hearing for a reasonable period of time. See Gray, supra, 465 F.2d at 185 n.6. This was not the ordinary case of a prisoner being placed in administrative or punitive segregation for disciplinary purposes, but the case of a prisoner alleged to have been involved in a conspiracy to escape from the prison.

We disagree with the district court’s order establishing a per se rule that the placement of a prisoner in solitary confinement, whether punitive or administrative segregation according to the previous Pennsylvania terminology, without written notice of the charge, a statement of the general nature of the evidence, and a hearing, constitutes a constitutional deprivation. See United States ex rel. Arzonica v. Scheipe, et al., 474 F.2d 720 (3d Cir. 1973).

We are not prepared to hold that the due process clause requires the prison authorities to provide a prisoner with a statement of the evidence, which forms the basis for the removal of the prisoner from the general prison population. Even where the question is raised at the time of a criminal trial in the federal courts, the defendant generally is not entitled to have the prosecution furnish him with a detailed statement of the evidence the prosecution plans to use.

Biagiarelli was only entitled to either written notice of the basis for his removal from the prison population and an opportunity to rebut the charge, or a hearing. When the notice reasonably should have been given, or the hearing held, depended on when the threat to the institution subsided, regardless of whether he was held in punitive or administrative segregation. It is not feasible for courts to adopt hard and fast rules that will apply to every institution, or to every situation that might arise within a particular institution. Emergency conditions may require prompt and decisive administrative actions, and what is reasonable must be measured against the urgency of the circumstance necessitating the action. See Arzonica, supra. This rule of reason involves the weighing and balancing of conflicting interests referred to in Gittlemacker v. Pras-se, supra, 428 F.2d at p. 4. See United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197, 1201 (3d Cir. 1973).

Since the notice of appeal was filed on October 30, 1972, the Bureau of Correction in Pennsylvania has issued new guidelines for all state correctional facilities. See Administrative Directive, Bureau of Correction, BC-ADM 801 (Parts I, III and IV are set forth in the Appendix). These regulations, which took effect on November 1, 1972, reflect a careful effort to comport with this court’s position in Gray and the district court should have an opportunity to consider them. It appears, however, that they do not provide for either .notice of the charges or a hearing where administrative custody, which may continue for at least 30 days before an interview with the Program Review Committee, is involved, even though no threatened prison breach or similar emergency is present.

The district court’s September 13, 1972, .Final Decree and Declaratory Judgment will be vacated and the case remanded for reconsideration in light of this opinion and Administrative Directive BC-ADM 801.

APPENDIX

BC-ADM 801

Administrative Directive

Subject:

Adjustment of Behavior

Commonwealth of Pennsylvania Department of Justice Bureau of Correction

I. SCOPE AND PURPOSE

Institutional life shall be governed by standards of behavior designed to promote correctional objectives and to maintain the general welfare of the institutional community. The laws of this Commonwealth, the rules and regulations of the Bureau of Correction and of the institution are a part of the standards of behavior governing each institution.

Behavior which deviates from such standards shall be handled by staff in the manner prescribed by this directive.

Such behavior shall be evaluated within the context of the total treatment plan of the individual, the effect of such behavior upon others and its consequences for the good order of the entire institution.

The methods used by staff shall be for the purpose of bringing about voluntary compliance with the standards prescribed. Sanctions shall be imposed only when necessary and in the degree necessary to regulate the unacceptable behavior.

* * A- A- * fl-

III. PROCEDURES

A. Behavior problems which may be resolved by immediate counseling, warning or verbal reprimand shall be dealt with accordingly by the staff person involved. More serious violations shall be the subject of a Misconduct Report.

The JBC-141 form (Misconduct Report) shall be changed in style to a three-sheet snap set, one copy of which must be given directly to the resident by the staff member who writes the Misconduct Report. No action on the Misconduct Report will be taken unless this is done. One copy shall be retained by the staff person who wrote the .misconduct. The third copy shall be forwarded to the Deputy Superintendent for Treatment Services.

As copies of the Misconduct Reports are received, the Deputy Superintendent for Treatment Services shall divide them into minor and major categories, consistent with the general intent of this directive. Major misconduct shall ordinarily be limited to acts which violate the penal laws of the Commonwealth or to repetitive violations of rules and regulations.

D. Minor Misconduct Reports shall be referred to the resident’s support team — the team to include the individual resident’s counselor, his housing unit officer and the relevant work and/or school supervisor. In the absence of any team member, his immediate supervisor shall substitute. The team shall be scheduled by the most appropriate member depending on the physical structure and general institutional procedures of each institution. The convening of the team shall be within 36 hours of the report, except that reports filed on Friday and Saturday shall be heard the following Monday. The team shall meet with the staff person who initiated the report and the resident involved at any convenient location. The meeting shall be conducted as an informal but private group discussion aimed at achieving consensus in terms of the situation rather than as an adversary proceeding. The primary objectives shall be to gain accurate knowledge of the facts, an understanding of the underlying causes of the behavior and to arrive at a sound decision for the treatment and control of the behavior exhibited. One or more of a wide range of alternative dispositions may be used as indicated by the individual situation, i. e., counseling, peer group interaction, group therapy, assessment of damages for property willfully destroyed, change of cell, restriction of privileges, reclassification with respect to custody or program status, and recommendation for transfer. Segregation status shall not be imposed by the support team. If the support team concludes on the basis of previous work with the resident that more serious sanctions may be appropriate, the team may refer the matter to the Hearing Committee with a written explanation regarding the referral. The decision of the team shall be reached in the presence of the resident and the staff member concerned when possible, but in all cases shall be given immediately to both parties along with the rationale for the decision. It will also be within the authority of the team to expunge the meeting from the record when they feel this warranted. As a general rule, Misconduct Reports handled by the team will not be formally entered against the resident’s record for purposes such as parole, commutation, etc., but shall be recorded on the JBC-14 form only.

E. Major misconducts shall be referred to the Hearing Committee which shall be composed of the Chairman who shall be the permanent member (Major of the Guard), the resident’s counselor or his immediate supervisor, and the resident’s work/school supervisor or his immediate supervisor. When the matter has been referred from the support team, the counselor and work supervisor shall always be replaced by a supervisor.

F. Where the case has been referred to the Hearing Committee, the resident shall be informed in writing of this fact and given a specific date for a formal hearing; he shall be permitted assistance in presenting his case from either any staff member or any resident in general population status; he shall be permitted to meet with the person he chooses an appropriate length of time before the hearing; he shall be permitted to call witnesses at the hearing, the number of which shall be regulated by the Chairman of the Hearing Committee. The hearing shall be conducted in the following manner:

1. The circumstances of the charge shall be read and fully explained by the Chairman.

2. The resident shall be permitted to admit or deny the charges.

3. The staff person writing the Misconduct Report shall present his information and may call witnesses to support his claim.

4. The resident may present information available to him and others, with help from whomever he has chosen to assist him.

5. The committee members may interrogate the person making the report, the resident and others as necessary.

6. Upon completion of the hearing, the Hearing Committee shall take the matter under advisement.

7. After the decision is reached by the committee, the presenting parties shall be called before the committee to hear the decision and to be advised of its rationale and consequences.

8. A committee decision shall be based upon substantial evidence.

9. The resident shall be informed that the decision of the Hearing Committee will be formally reviewed by the Program Review Committee upon the resident’s request. The resident shall indicate in the Misconduct Report whether he does or does not want a formal review and so attest by his signature.

G. The Hearing Committee may take the following actions:

1. Dismiss the charges.

2. Reprimand.

3. Adjust in accordance with measures outlined in III. D. above.

4. Invoke sanctions, including placement in Administrative Custody or the Behavior Adjustment Unit, but only when the acts of the resident indicate a continuing threat to himself or others.

H. The resident shall be entitled to have any decision of the Hearing Committee reviewed by the Program Review Committee, composed of the Deputy Superintendent for Operations, the Deputy Superintendent for Treatment Services and the Director of Treatment. In the absence of one of' the foregoing committee members, the Superintendent shall designate an appropriate substitute. This committee shall not only review such decisions upon the resident’s request, but shall also review weekly the program status of each resident in the Behavior Adjustment Unit, Administrative Custody, and Psychiatric Unit. This committee shall review the programming in these units and shall recommend changes when necessary.

I. Upon receiving a request for review .of the Hearing Committee’s decision, the Program Review Committee shall notify the interested resident and the Chairman of the Hearing Committee of the time set for the review. When that time arrives the hearing shall be held in the following manner:

The resident, with assistance if desired, shall present his objections to the decision. 1.

2. The Chairman of the Hearing Committee shall present the case for the decision.

3. The Program Review Committee may question the individuals regarding the facts and the rationale for the decision.

4. The Program Review Committee shall take the matter under advisement and promptly render the decision, together with the rationale, to all parties concerned.

5. The resident shall be given a written statement of the decision and its rationale.

6. The Superintendent shall formally review both the decision of the Hearing Committee and the decision of the Program Review Committee.

J. Alleged behavior which violates the penal laws of the Commonwealth may be referred by the Chairman of the Hearing Committee to the Superintendent or his designee for action in accordance with Administrative Directive No. 004.

K. Placement in Administrative Custody or the Behavior Adjustment Unit shall be to control the resident’s behavior until such time as he may be safely removed. This shall be formally reviewed by the Program Review Committee weekly. The resident shall be interviewed in person by this committee at least once every 30 days, and residents in this status for more than 30 days shall have their cases reported to the Commissioner of Correction, together with the rationale for such status and the particular programs prescribed.

IV. EMERGENCY BEHAVIOR CONTROL

Depending upon the situation, and the need for control, a resident may immediately be removed from his job, restricted in activities and/or confined to his own cell pending action as provided in paragraph III. A resident who poses a clear and present danger to himself or others may be placed in Administrative Custody or the Behavior Adjustment Unit on an emergency basis upon approval of the officer in charge pending action as provided in paragraph III. Otherwise a resident shall not be so confined until after disposition has been made in accordance with paragraph III.

      . The opinion is reported in 349 F.Supp. 913 (W.D.Pa.1972).

      . Plaintiff’s amended complaint sought to enjoin the defendants from confining him in solitary confinement without prior notice, or hearing, and a declaratory judgment that such confinement deprived him of due process of law and caused him to be subjected to cruel and unusual punishment. Plaintiff did not seek monetary damages.

      . That judgment provided, inter alia:

      “It is ordered that a declaratory judgment be and hereby is entered declaring that the procedures employed in placing or detaining plaintiff in solitary confinement, punitive or administrative segregation without notice of charges, statement of evidence or opportunity to respond violate plaintiff’s rights to due process of law as accorded him by the Fourteenth Amendment to the Constitution of the United States.
      *****
      “. . . a permanent injunction shall issue against defendants restraining them from placing plaintiff, causing him to be placed, or detaining him in solitary confinement, punitive or administrative segregation unless and until minimal standards of due process are met, which, at the very least must include the following:
      (1) he is given express written notice of the charges against him;
      (2) he is given a statement of the general nature of the evidence supporting the charges; and
      (3) he is granted a hearing before a designated official whereby he will have an adequate opportunity to respond to the charges against him.
      “It is further ordered that such procedures are to be utilized prior to the transfer of plaintiff to segregation unless the transfer is warranted by an emergency threatening the security of the institution; in such event, the designated procedures are to be implemented within 10 days thereafter.”
      349 F.Supp. at 918.

      . There was a dispute in the testimony as • to whether Biagiarelli was informed of the reason for his detention. He testified that “I was told I was there for suspicion, but they weren’t at liberty to give me the information why or what suspicion meant.” N.T. 7. The Deputy Supervisor for Operations, Charles Wehrle, stated: “I informed -him [Biagiarelli] that we had received information that there was a conspiracy, and that he was in the maximum security block pending the outcome of our investigation.” N.T. 19-20.

      . Plaintiff requests this court to grant:
      “(a) A declaration that a prisoner may not be isolated from the general prison population to solitary confinement without a due process determination of the grounds for the transfer;
      “(b) A declaration that a due process hearing be held prior to the transfer of a prisoner from the general prison population to solitary confinement, which includes the following elements:
      “(1) adequate written notice of the charges
      “(2) a summary of the evidence against him
      “(3) a hearing before an impartial decision maker
      “ (4) the opportunity to px-esent witnesses in his own behalf, and to cross-examine adverse witnesses
      “ (5) the right to be represented by counsel or lay advisor
      “(6) a written decision, based on evidence addreed [sic] at hearing, setting forth findings of fact and conclusions of law
      “(7) a right to appeal
      “ (c) A declaration that such ' rights must be accorded a prisoner regardless of tlxe label attached to the segregation, and that there is no permissible distinction between isolation for purposes of punishment, and isolation for purposes of administrative necessity.”

      “6. This is not to say, of course, that this notice or hearing must in all cases precede the transfer to solitary confinement; in some cases, as, for example, during a prison riot, notice and hearing must be delayed a reasonable period of time.

      . In Gray, we quoted this language of the Supreme Court from Hannah v. Larche, 363 U.S. 421, 442, 80 S.Ct. 1502, 4 L.Ed. 2d 1307 (1960), concerning the requirements of “due process”:
      “ ‘Whether the Constitution x-equires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden of that proceeding, are all considerations which must be taken into account.’ ” [Footnote omitted.]
      465 F.2d at 185.

      . We note that under the new regulations of the Pennsylvania Bureau of Correction (see Appendix), the term “Behavior Adjustment Unit” is used, apparently in place of punitive segregation. Section III — G—4 provides that, where a Major Misconduct Report is involved, placement of an inmate may be in Administrative Custody or the Behavior Adjustment Unit. See also Section IV.

      . The language quoted in Gray from Sostre v. McGinnis, 442 F.2d 178, 198 (2d Cir. 1971), which the district court apparently adopted in framing its decree, was restricted to “most cases” and not the unusual case where a conspiracy to escape from the prison is involved. Furthermore, quotations from other circuits do not establish rules of law in this circuit, particularly where the difference between the facts in the Gray ease and this case is so marked.

      . See note 7, supra, for comment on quotation from Sostre v. McGinnis, supra, appearing in Gray v. Creamer, 465 F.2d at 185.

      . See 1 Wright, Federal Practice and Procedure, Criminal, § 129 (1969 ed.).


source: Caselaw Access Project

author: GIBSON, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Frank RICHARDSON, Appellant.
    No. 73-1050.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 11, 1973.
    Decided Aug. 17, 1973.

      Thomas M. Larson, Asst. Federal Public Defender, Kansas City, Mo., for appellant.
    William A. Kitchen, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before GIBSON, LAY and ROSS, Circuit Judges.
   GIBSON, Circuit Judge.

Defendant Frank Richardson appeals from a denial of his motion, pursuant to Fed.R.Crim.P. 32(d) and 28 U.S.C. § 2255, to vacate his sentence and allow withdrawal of his guilty plea. He was charged in six counts with distribution of heroin in violation of 21 U.S.C. § 841(a)(2). He originally entered a plea of not guilty, but on July 10, 1972, the day his case came to trial, he entered a guilty plea to four counts of the indictment. The other two counts were dismissed.

Richardson was sentenced July 28, 1972, to ten years imprisonment on each of the four counts, sentences to be served concurrently. Subsequently, on September 6, 1972, the District Court set the original sentence aside and re-sentenced Richardson to a term of ten years plus a mandatory three-year special parole term as required by 21 U.S.C. § 841(b)(1)(A). Richardson, on September 20, 1972, moved the District Court to set aside his guilty plea, alleging that he did not fully understand the consequences of his guilty plea and that the resentence with its special parole term constituted an enlargement of the sentence previously rendered. After an evidentiary hearing, the District Court denied the motion.

“Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of such prior conviction, impose a special parole term of at least 3 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a special parole term of at least 6 years in addition to such term of imprisonment.”

Richardson raises two contentions on appeal: (1) his guilty plea was made without an understanding of its full consequences and thus violated Fed.R.Crim. P. 11, and (2), the addition of the special parole term was an enhancement of punishment violative of the Fifth Amendment’s protection against double jeopardy. Because of the result we reach on his first contention, we do not decide the merits of the double jeopardy claim.

Rule 11 of Fed.R.Crim.P. mandates that the district court must be satisfied that the defendant understands the nature of the charge and the consequences of his guilty plea. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). The question here posited is two-fold: one, is the “special parole term” a consequence of the guilty plea; and two, if so, -was the defendant aware of that consequence? We hold the special parole term is a consequence of the guilty plea and that the defendant was not sufficiently apprised of that consequence.

Prior to May 1, 1971, narcotic offenders were not eligible for probation or parole. 26 U.S.C. § 7237(d). In 1970, Congress, after a series of commission studies on the drug problem, passed the Comprehensive Drug Abuse, Prevention and Control Act, Pub.L. No. 91-513 (October 27, 1970), which became effective May 1, 1971. The rationale of that act included, aside from its rehabilitative provisions, the allowance of more flexibility in the imposition of sanctions. Although taking a hard line on narcotic pushers and authorizing substantial sentences on first offenders and still more severe sentences on repeaters, the Act injected a new type of restraint designated as a “special parole term” of varying length depending upon the type of drug offense and whether accused had a prior conviction. This mandatory special parole term is unique in that it is in addition to and not in lieu of any other parole term provided by law. Therefore, the nature of this special parole term mandated by 21 U.S.C. § 841(b)(1)(A), is a “consequence” of a guilty plea about which a defendant must be fully informed before acceptance of his guilty plea, and its application is governed by Moody v. United States, 469 F.2d 705 (8th Cir. 1972), holding that ineligibility for parole is a “consequence” of a guilty plea, and, therefore, a matter the court must determine is understood before a guilty plea may be accepted. As stated in Moody:

“The rationale underlying the view of the majority of the circuits is that a defendant, unaware at the time of entering a plea of guilty that he will be ineligible for probation or parole, does not plead with understanding of the consequences of the plea, since the nature of parole is so well understood that its availability may be regarded as assumed by the average defendant.” Moody v. United States, supra at 708 (citation omitted).

This same rationale is equally applicable here; for a defendant does not plead with understanding of the consequences of his plea when he is unaware of the nature of the mandatory special parole term that must be imposed upon a guilty plea if a sentence of imprisonment results.

“The court may refuse to accept a plea of guilty, and shall not accept such plea . . . without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.”

Citing Young v. United States, 433 F.2d 626 (10th Cir. 1970), cert. denied, 401 U.S. 995, 91 S.Ct. 1242, 28 L. Ed.2d 534 (1971) and United States v. Frontero, 452 F.2d 406 (5th Cir. 1971), the Government argues that Richardson was adequately advised of the consequences of his plea, since the assistant United States attorney included the special parole term in his recitation concerning the maximum possible sentence in the presence of the defendant, his counsel, and the judge. (See Appendix A). We agree that the understanding of the consequences of his plea need not necessarily be imparted by the trial judge as these cases recognize, but the trial judge must take steps to ascertain that the defendant is aware, inter alia, of the consequences of the proposed guilty plea. The adequacy of the defendant’s apprisement depends “upon the complexity of the charge as well as all of the surrounding circumstances,” Arthur Guy Eagle Thunder v. United States, 477 F.2d 1326 (8th Cir. 1973), and we would impose no requirement “that the Judge mount the bench with a script in his hand.” Sappington v. United States, 468 F.2d 1378, 1380 (8th Cir. 1972). Fuirther, due process does not require that a defendant be apprised of each and every right waived by a guilty plea, but defendant must be advised and understand the maximum penalty before the court accepts the guilty plea. United States v. Frontero, supra; Arthur Guy Eagle Thunder v. United States, supra.

Had the record shown that Richardson had been adequately advised of the consequences of his plea by a reliable source and that he understood these consequences either before entering his plea or in open court, we would find the necessary substantial compliance with Rule 11. Contrariwise, where the record is deficient in showing advice of and awareness of the maximum penalty, the judgment of conviction should be vacated and the defendant called upon to plead anew. Kotz v. United States, 353 F.2d 312 (8th Cir. 1965). We agree with the Court in McCarthy that “[t]here is no adequate substitute for demonstrating in the record at the time the plea is entered the defendant’s understanding of the charge against him.” McCarthy v. United States, 394 U.S. at 470, 89 S.Ct. at 1173. Like reasoning applies to the consequences of a plea.

Richardson’s testimony that he did not understand the meaning of parole is incredible and gives rise to skepticism concerning his other testimony. Richardson had previously been incarcerated for a federal offense and had unsuccessfully appeared before a parole officer. However, his contention that he failed to understand the nature of the special parole term is understandable, since we are here dealing with a concept substantially different than that usually connoted by the word “parole.” Parole generally denotes a release before a sentence is served. A violation of parole usually results at the most in being returned to the institution to serve the balance of the sentence. However, here the special parole term is a type of restraint that is imposed in addition to the general sentence and takes effect only after the general sentence, including any parole therefrom, has been served. Further, a violation of the condition of the terms of the special parole can result in an enhanced sentence for the length of the special parole term, which in effect constitutes a second sentence.

Since the special parole term possesses ramifications differing from ordinary parole and since the provisions of the special parole term are of recent origin, being enacted in October 1970, additional care should have been taken to make sure that the defendant understood this facet of the consequences of his guilty plea.

As we are convinced that the record does not adequately demonstrate that Richardson understood the consequénces of his guilty plea, the judgment of the District Court is reversed and the case is remanded with directions to vacate' the conviction and allow defendant to plead anew to the charges. McCarthy v. United States, 394 U.S. at 468-72, 89 S.Ct. 1166.

APPENDIX A
“THE COURT: Now, do you have an announcement, Mr. Pierce?
“MR. PIERCE [Richardson’s attorney] : I do, sir. ... As the Court knows, I have come here this morning with my client, Mr. Richardson, to try this case. Also I feel it is my duty as his attorney to tell him what I thought of the facts, that I know the government would be able to prove. . . .
“I discussed the matter with Mr. Richardson and he has advised me at this time, in the light of all the circumstances, that he wishes to change his former plea of not guilty to guilty to four of the six counts involved in this indictment.
“Now, is that right, Frank?
“MR. RICHARDSON: Yes, it is.
* * * * * *
“THE COURT: What is the maximum punishment on each count?
“MR. KITCHEN [Assistant U. S. Attorney] : Each count carries a maximum punishment of fifteen years’ imprisonment and a $25,000 fine. If the Court sentences the defendant to imprisonment, that imprisonment is followed by a minimum of a three-year special parole.
“THE COURT: Now, Mr. Richardson, you have had all the time you need to talk this over with your attorney, Mr. Pierce ?
“MR. RICHARDSON: Yes, I have.
* * * * X X
“THE COURT: Now, I understand the government has agreed that if you plead to these four counts that they will dismiss the other two counts, is that correct?
“MR. KITCHEN: Yes, your Honor, that’s right.
“THE COURT: Other than that
. has the government made you any promises of any kind to induce you to plead guilty?
“MR. RICHARDSON: No.
“THE COURT: Has anyone made you any promises that you might get off easier or that you might get paroled and might not get sentenced to prison or any sort of a promise to get you to plead guilty to these charges ?
“MR. RICHARDSON: No.
“THE COURT: Do you understand the charges, what you are charged with?
“MR. RICHARDSON: Yes, sir.
X X X X X X
“THE COURT: Each charge is distribution of heroin. You understand that ?
“MR. RICHARDSON: Yes, sir.
* * *>:• *x* -x- -x-
• “THE COURT: Now, do you have any reservation in your mind in any way that you are not really guilty of these charges ?
“MR. RICHARDSON: No, sir.
X X * X X X
“THE COURT: Now, Mr. Richardson, you understand that you have the complete right to have a jury determine your guilt or innocence on these counts, don’t you?
“MR. RICHARDSON: Yes, sir.
“THE COURT: Your attorney has told you that?
“MR. RICHARDSON: Yes, sir.
“THE COURT: And he’s told you, I understand, that he would be glad to try the case for you if you want to try it?
“MR. RICHARDSON: Yes, sir.
“THE COURT: That’s his business, he would try it. Are you pleading guilty because you know you are guilty of these charges ?
“MR. RICHARDSON: Yes.
“THE COURT: Very well, the Court will accept the plea of guilty and order a pre-sentence investigation on these charges.”

      . The relevant portions of the hearing below are set out as Appendix A to this opinion.

      . That section reads in part:

      . Fed-it-Crim-P. 11 provides in part:

      . Section 7237 of 26 U.S.C. was repealed (effective May 1, 1971) by Pub.L. No. 91-513, T. III, § 1101(b)(4)(A), 84 Stat. 1292.

      . The special parole term is separate from and begins after the regular sentence has been served, including any other parole. In case of a violation of the conditions of the special parole term, the original term of imprisonment will be increased by the entire period of the term, without regard to the length of time spent on special parole. 21 U.S.C. § 841(c). It thus differs in major respects from regular parole, the nature of which is assumed to be understood by the average defendant. Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969).

      . The essence of parole is a conditional release from prison before completion of sentence. 18 U.S.C. § 4203; Morrisey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). This is the concept of “parole” that the average defendant is assumed to have. Durant v. United States, 410 F.2d 689, 692 (1st Cir. 1969).


author: PER CURIAM:

text:
    David T. MASON, Plaintiff-Appellee, v. Francis D. DeGEORGE et al., Defendants-Appellants.
    No. 73-1676.
    United States Court of Appeals, Fourth Circuit.
    Argued July 16, 1973.
    Decided Aug. 13, 1973.
    Joseph B. Scott, Atty., U. S. Dept, of Justice (Harlington Wood, Jr., Asst. Atty. Gen., George Beall, U. S. Atty., Leonard Schaitman, Atty., U. S Dept, of Justice, Joel Cohen, Sarah Wilcox, Attys., Dept, of Health, Education and Welfare, on brief), for defendants-appellants.

      Joel J. Rabin and Diana G. Motz, Asst. Attys. Gen. of Md. (Francis B. Burch, Atty. Gen. of Md., Henry R. Lord, Deputy Atty. Gen. of Md., Judson P. Garrett, Jr., Asst. Atty. Gen. of Md., oñ brief) for plaintiff-appellee.
    Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges.
   PER CURIAM:

This appeal challenges the granting by the District Court of Maryland of an interlocutory injunction, under which the responsible officers of the Department of Health, Education and Welfare (hereafter referred to as HEW) were enjoined “from failing to provide funds to the Maryland State Department of Employment and Social Services sufficient to fund the public assistance programs administered by the Department of Employment and Social Services under Titles IV and XVI of the Social Security Act as amended, for the fourth quarter of fiscal year 1973. In computing the amount of funds, the defendants shall proceed as if the $24,682,831.00 drawn by the State of Maryland on March 19, 1973, had been paid to cover the fourth quarter Fiscal Year 1972 and the first quarter Fiscal Year 1973 for certain social services and such amount will not be offset in any way against monies otherwise due Maryland in the fourth quarter Fiscal Year 1973 or any future quarter * * *»

The action concerns the method established by HEW to make available to the States the federal grants available to participating States under the provisions of the co-operative federal-state welfare programs created under Titles IV and XVI of the Social Security Act. These federal grants are based on a percentage of state expenditures, as authorized under the Act. The procedure under which these grants are made available to the participating state is carefully spelt out both in Sections 603(b) and 1383(b), as supplemented or implemented in 45 C.F.R. § 201.5. Forty-five days before the beginning of each quarter, the state submits to HEW its estimate, supported by such data as may be appropriate, of the total sum to be expended by the state under the programs for that quarter. HEW reviews that estimate and then certifies to the Secretary of the Treasury the amount it estimates to be the federal share, based on (A) the State’s statement of its estimated expenditures and the amounts and sources of the State’s share of those expenditures, (B) records showing the number of recipients under the programs in the state and (C) “such other investigation as the Secretary may find necessary”, reduced or increased, however, to the extent that the estimate for any prior quarter was greater or lesser than the amount estimated to be proper for the quarter under review. The Secretary of the Treasury thereupon issues a letter of credit in the amount so certified to him by HEW, against which the state can draw funds as needed. The District Court, in reviewing this procedure, correctly emphasized that the letter of credit did “not itself constitute a grant, but merely constitute(s) the payment system.” Moreover, as the District Court properly construed the procedure a letter of credit may not be drawn against for any purpose not in the award grant against which the specific letter of credit was issued. At the end of the quarter for which an award has been made and a letter of credit is issued, the state reports to HEW its actual expenditures under the award and this provides the mechanism whereby HEW can adjust its award for the next quarter by either increasing or lessening to the extent there was either a deficit or surplus in the earlier amount awarded. The system thus established serves the interests both of the participating states and of the federal government. On the one hand, it provides a means whereby the federal government promptly makes available to the states the federal contribution and, on the other hand, it protects the federal government from over-funding state programs, an important consideration in the light of the present cost of federal borrowings.

The dispute between the parties arises out of the grant award made by HEW in favor of the State of Maryland on account of estimated expenditures for the second quarter of fiscal year 1973 (i. e., October through December, 1972). Because of a considerable expansion expected in the State’s programs for that quarter, a grant award in the amount of $38 million was made for the State of Maryland and a letter of credit was duly issued in favor of the State for that amount. The expected expansion did not occur; and, following the established procedure, Maryland in February, 1973, submitted its statement of expenditures made during the second quarter of fiscal year 1973. This report indicated that the federal share of such expenditures was approximately $6 million. When HEW prepared its grant award for the fourth quarter of fiscal year 1973 (i. e., April through June, 1973), it proceeded in accordance with its statutory duty to “reduce” by the amount of the unused second-quarter award (i. e., $32 million) the estimated $6 million federal share of expenditures for the fourth quarter. This resulted in a “negative grant award” of $26 million. It is, however, the contention of the State of Maryland that, during the third quarter of fiscal year 1973, an official of the State telephoned an officer in HEW, requesting an increase in Maryland’s letter of credit to cover the federal share in additional expenditures in the approximate amount of $25 million, claimed by the State to have been made under its public assistance programs in the fourth quarter of fiscal year 1972 and first quarter 1973, for which there had been no awards theretofore requested, reviewed by HEW or granted by HEW. The officer of HEW, it seems, increased the letter of credit as requested, despite the absence of any award. Funds as covered by this increased letter of credit were received by the State. According to the contention of HEW, on the other hand, this payment made on account of expenditures for which it asserts no valid award had been made was improper. Until there had been an award made by HEW, on the basis of a review of the State’s application for a supplemental award for these additional expenditures in earlier quarters, the State, according to HEW’s argument, was never legally entitled to be reimbursed for such claimed expenditures, made in earlier quarters, out of funds awarded exclusively for expenditures incurred in the third quarter of fiscal year 1973. Accordingly, the “negative award,” which eliminated any right of the State to an award for fourth quarter 1973, was, in the view of HEW, entirely proper and in keeping both with statutory authority and with valid departmental regulation. The State, however, urges that the increase in the letter of credit, authorized by telephone by an employee of HEW, operated as a supplemental award, even though the expenditures had not been reviewed by the proper division of HEW. For this reason, the State takes the position the “negative award” was improper. In keeping with this contention, the State brought this action to void this “negative award” and to require HEW to make awards'for expenditures estimated for fourth quarter, fiscal year 1973, and subsequent quarters, without reduction on account of such “negative award.” And, asserting irreparable injury, the State requested interlocutory relief, contending that unless such relief was granted, the entire public assistance programs of the State would be put in jeopardy, a “fiscal crisis” could be generated, and “the needy residents of the State who are recipients of its public assistance programs are likely to suffer irreparable injury.” Applying the three-pronged test established by this Court in Long v. Robinson (4th Cir. 1970) 432 F.2d 977, 979, the District Court granted an interlocutory injunction and the defendants have appealed under the authority of Section 1292, 28 U.S.C. We reverse and vacate the order of the District Court granting an interlocutory injunction.

An essential basis for a grant of an interlocutory injunction is a showing of irreparable harm. At the hearing in this Court, it was stated that the sums drawn by the State under the disputed letter of credit to meet expenditures made in the earlier quarters had not been paid out but were being kept in hand awaiting the disposition of this case. While this action is before the Court, such sums can be used by the State to cover any current or future awards, not covered by the issuance of contemporary letters of credit, until the “negative award” has been exhausted. In fact, that was the very purpose and effect of the “negative award.” Payment from such fund to meet, in whole or in part, future federal contribution is perfectly legitimate. The only inconvenience that the State may suffer from following such procedure is that it will be delayed in obtaining reimbursement for sums which it claims it was entitled to in fourth quarter of fiscal year 1972, April through June, 1972, and first quarter of fiscal year 1973, July through September, 1972, which it had previously not included in its statement of expenditures as filed by it in the regular course at the end of such quarters. This may be inconvenient but it represents no threat to either the current or future operations of its public assistance programs. But this inconvenience is attributable, in large part at least, to the fact that, when it submitted its statement of expenditures for the fourth quarter of fiscal year 1972 and the first quarter of fiscal year 1973, the State neglected to include such expenditures and is, therefore, in the position of being required to file a request for supplemental award to cover them. Clearly, the current operations of the State’s public assistance programs are not threatened by the failure of HEW to reimburse it for these past payments. The finding of irreparable harm was, in view of admissions made by the State in hearing before this Court, clearly erroneous. It is unnecessary for us to consider at this time the additional point made by HEW that the finding by the District Court that there is a reasonable likelihood that the State will prevail on the merits is likewise erroneous, though we might add that the issues between the parties seem more complex to us than apparently they did to the District Court.

Interlocutory Injunction vacated and cause remanded to the District Court for further proceedings.

      . See 42 U.S.C. §§ 603(b), 1383(b) (1970).

      . It was stated in oral argument in this Court that the State has filed an application for a supplemental award on account of these earlier expenditures and such application for a supplemental award is apparently under review now in HEW.

      . HEW indicated during argument that the State’s application for a supplemental award was being reviewed. It is hoped that such review may be expedited and HEW may make whatever is a proper certification in favor of the State on account of this application promptly, thereby eliminating this controversy between state and federal government and relieving the courts of any responsibility in this situation.


author: PER CURIAM: WALLACE, Circuit Judge

text:
    L. A. CONCRETE PUMPING, INC., a California corporation, Plaintiff-Appellant, v. Leo A. MAJICH et al., etc., Defendants-Respondents.
    No. 73-2189.
    United States Court of Appeals, Ninth Circuit.
    July 12, 1973.
    Dissenting Opinion Aug. 14, 1973.

      Stuart H. Young, Jr., Hill, Farrer & Burril'l, Los Angeles, Cal., for plaintiff-appellant.
    Wayne Jett, Los Angeles, Cal., for def endants-respondents.
    Before HASTIE, CHAMBERS and WALLACE, Circuit Judges.
   PER CURIAM:

This court declines to suspend the order of the district court dissolving the state court injunction which had been issued before removal.

Most or all of the acts restrained by the state court have already been accomplished. In order to provide effective relief now, some mandatory affirmative commands would have to be decreed. This, in our opinion, would put us in direct conflict with 29 U.S.C. § 104. We, to some extent, accept prior state action as valid in a case after removal to a federal court, but at least when we must re-cut the whole cloth we believe we are precluded by federal statutes from doing so in this case.

If either party desires to expedite the appeal, he may move to do so, proposing a schedule of necessary steps.

WALLACE, Circuit Judge

(dissenting) :

I respectfully dissent.

Whether a stay pending appeal will be ultimately helpful to the appellant is not the question before us. Nor is the question whether we must do anything else to make a stay effective. To me, the issue is whether a stay should be granted. The parties are free to make additional applications to the district court. Whether the district court, if it felt it had the authority, would require the notices to be recalled is not before us.

Appellee intimates that the NorrisLaGuardia Act would bar our ability to stay the district court’s dissolution of the state court’s injunction. I do not believe that Congress, in passing the Norris-LaGuardia Act, had any intention of frustrating this traditional power of the courts. In Chicago & N. W. Ry. Co. v. United Transp. Union, 422 F. 2d 979, 983-985 (7th Cir. 1970),- the Seventh Circuit held that the Act did not prohibit a district court from granting an injunction pending appeal. I believe the analogy to our ability to stay district- court proceedings is appropriate. Although the ease was reversed and remanded on other grounds, 402 U.S. 570, 91 S.Ct. 1731, 29 L.Ed.2d 187 (1971), the circuit court reaffirmed its reasoning upon remand. 471 F.2d 366 (7th Cir. 1972), cert. denied, 410 U.S. 917, 93 S.Ct. 965, 35 L.Ed.2d 279 (1973).

As to whether appellant has a reasonable opportunity to prevail on appeal, I feel, without attempting to predict, that appellant has a definite arguable ground. 29 U.S.C. §§ 101, 104 only forbid a court to “issue” preliminary relief. Here the district court was not asked to issue preliminary relief but merely to do nothing about a state preliminary injunction. Instead, the judge dissolved it. Whether state court injunctions should be dissolved upon removal has never been decided by the Supreme Court. See Avco Corp. v. Aero Lodge 735, 390 U.S. 557, 561 n. 4, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968).

Both sides claim assistance from Boys Market, Inc. v. Retail Clerks Local 770, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970). Certainly, the case recognizes there is an appropriate area of jurisdiction for state courts. “[T]here has never been a serious contention that Congress intended that the removal mechanism be utilized to foreclose completely remedies otherwise available in the state courts.” Id. 398 U.S. at 246, 90 S.Ct. at 1590.

I believe the Court has indicated a due concern that the state courts not be put out of the business of labor disputes. Although Boys Market was definitely limited to its facts, 398 U.S. at 253, 90 S.Ct. 1583, 20 L.Ed.2d 126, there is a serious question as to whether a case such as the present one should also produce a further narrowing of the Norris-La-Guardia prohibitions. This company in its efforts to obtain judicial relief is just as thwarted by removal if the resulting effect is the dissolution of the properly-granted state court injunction.

Both parties have argued the applicability of General Electric Co. v. Local 191, Electrical Workers, 413 F.2d 964 (5th Cir. 1969). In that case, the district court dissolved the injunction that had been granted in state court prior to removal. The Fifth Circuit affirmed holding that a failure to dissolve would be tantamount to issuing an injunction in violation of Norris-LaGuardia. It should be noted that the parties in the case stipulated that there was no applicable arbitration procedure and that the grievance mechanisms had been exhausted. Id. 413 F.2d at 965. The Supreme Court vacated the judgment in a per curiam decision, remanding it for consideration in light of Boys Market. 398 U.S. 436, 90 S.Ct. 1583, 20 L.Ed.2d 126 (1970). The Fifth Circuit ultimately disposed of the remanded case as moot since the strike was then over. 443 F.2d 608 (5th Cir. 1971). The appellant argues that the case indicates that Boys Market should not be limited to cases where an arbitration clause is available and I agree.

The district court’s reliance on Hiatt v. Schlecht, 400 F.2d 875 (9th Cir. 1968), is misplaced. The term “labor dispute” is not mentioned in the case. It was concerned solely with interstate commerce aspects of jurisdiction under 29 U.S.C. § 185(a).

The appellee’s reliance upon Martin Hageland, Inc. v. District Court, 460 F. 2d 789 (9th Cir. 1972), as dispositive is similarly misplaced. Although Hageland involved a similar welfare fund, it differs from the present case in important respects: the removal took place before an injunction had issued; the company sought an injunction against the union itself; and the company conceded its violations and the issuance of a valid delinquency notice.

A case close to the instant facts is Blankenship v. Boyle, 329 F.Supp. 1089, 1101 n. 6 (D.D.C.1971), which holds that the trustees’ management policies for a similar welfare fund did not present a “labor dispute” within the meaning of the Act. I believe that the present contractual interpretation questions are also not within the meaning of that phrase.

I note that in its reply brief the appellant attempts to bring itself within the specific facts of Boys Market by contending that arbitration procedures are available in a dispute of this nature. If that is correct, then the appropriate procedure for the district court would have been to enjoin the issuance of the delinquency notice and to order arbitration. Evaluation of this argument requires a logical reading of clauses I.B. 13 and 14 of the agreement. The argument may well have merit particularly because clause 14(a) states that the grievance procedures of Article V do-not apply to a dispute “between the parties concerning the payment or nonpayment of monies due the Trust Funds. . ” The argument asserts that the parties are only the union and the employers’ association. Since the suit involves the employer and the trustees of the Trust Funds, the grievance procedures may then be available.

Therefore, I believe the motion for a stay should be granted.


author: SEITZ, Chief Judge. ADAMS, Circuit Judge

text:
    UNITED STATES of America v. Evan Alexander THOMPSON, Appellant.
    No. 72-2024.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) March 22, 1973.
    Decided June 20, 1973.
    John David Egnal, Egnal & Egnal, Philadelphia, Pa., for appellant.

      Robert E. J. Curran, U. S. Atty., Carmen C. Nasuti, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
    Before SEITZ, Chief Judge and AL-DISERT and ADAMS, Circuit Judges.
   OPINION OF THE COURT

SEITZ, Chief Judge.

Defendant appeals his conviction by a jury and a resulting thirty month sentence for violations of the Selective Service Act.

About a month before trial, the defendant filed an affidavit under 28 U.S. C. § 144 (1970) seeking ,to disqualify the district judge for personal bias against him. In his affidavit, he characterized himself as a black militant. He stated his refusal to cooperate with the Selective Service System was because as a black man, he viewed the Armed Forces as the racist arm of an imperialistic nation. Additionally, he attached to his affidavit a copy of another affidavit filed by an attorney in a separate Selective Service case tried before the same judge. That attorney’s affidavit recited:

[D]uring a conversation with the [judge] in his chambers, that [judge] stated that in cases of Selective Service violation, it is his policy to sentence all violators to thirty (30) months in prison if they are good people. [The judge) also stated that the only time that he sentenced to a greater period of time was in the case of a black militant and that he sentenced him to four and one-half (4j4) years.

The defendant’s motion to disqualify was denied from the bench.

This court recently determined this same judge committed error in refusing to disqualify himself in a case involving a conscientious objector. United States v. Townsend, 478 F.2d 1072, (3d Cir. 1973). Since defendant does not contend he is a conscientious objector, Townsend is not directly controlling. We must, therefore, turn to a consideration of whether this defendant’s affidavit is sufficient under the statute.

In an affidavit of bias, the affiant has the burden of making a threefold showing:

1. The facts must be material and stated with particularity;

2. The facts must be such that, if true they would convince a reasonable man that a bias exists.

3. The facts must show the bias is personal, as opposed to judicial, in nature.

We think defendant’s affidavit alleges the material facts with the requisite particularity. Indeed, the Government does not contend to the contrary.

We next must examine the facts alleged in this affidavit to determine if they are sufficient to convince a reasonable man that the judge had a relevant bias. After evaluating this affidavit, we believe a reasonable man would conclude on the facts stated therein that the district judge had a special bias against defendant as one of those convicted of violating the Selective Service laws. The affidavit alleges the judge has stated he sentences all those convicted of violations of those laws to at least thirty months in jail no matter how “good” they are. This is despite the fact that a prison sentence upon conviction is not mandatory.

We do not mean to suggest that the allegations, if true, had the potential of affecting the fairness of the proceeding up until the rendering of the verdict. However, under § 144 a defendant is entitled to trial before a judge who is not biased against him at any point of the trial and, indeed, most importantly, at sentencing.

The district judge is vested with considerable discretion in the sentencing of convicted defendants. In order that he may make an informed use of this discretion, Fed.R.Crim.P. 32(c) (1971) requires a presentenee report in each case. Further, Fed.R.Crim.P. 32(a) requires the court, before imposing sentence, to permit a defendant to make a statement on his own behalf and to present information which might give cause for mitigation of punishment. A fixed view as to sentencing is thus inconsistent with the discretion vested in the trial judge that he may fulfill his mandate to tailor the sentence imposed to the circumstances surrounding each individual defendant, and frustrates the operation of those rules set up to effect such a result.

Finally, we are satisfied that the facts show that the allegations of bias was personal in the sense that it was directed against appellant as a member of a class charged with violation of Selective Service laws. It was not an allegation of judicial bias in favor of a particular legal principle. Neither was it an allegation of judicial bias based upon legal rulings by the judge adverse to defendant. See Ex Parte American Steel Barrel Co., 230 U.S. 35, 33 S.Ct. 1007, 57 L. Ed. 1379 (1913).

The distinction is important, for an allegation of “personal” bias is a proper basis for disqualification; an allegation of “judicial” bias is not. Defendant does not suggest that the personal bias of the judge arose from a prejudgment of the facts in the case before him. Rather, the alleged bias was directed against a class. We think the personal bias alleged was of such a nature and intensity to prevent the defendant, when convicted, from obtaining a sentence uninfluenced by the court’s prejudgment concerning Selective Service violators generally. Such an allegation against a class is sufficient under the statute. See Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed.2d 481 (1921). Therefore, we conclude that the judge should not have presided at defendant’s trial.

We need not consider whether the allegation of prejudice against black militants was sufficient for disqualification of the judge under the statute. Nor, in view of our ruling, need we rule on the other issues posed.

The judgment of conviction will be reversed and the case remanded for assignment to a different judge for a new trial.

ADAMS, Circuit Judge

(dissenting)'.

The majority opinion states that an affidavit alleging bias on the part of a trial judge must show, inter alia, that “the bias is personal, as opposed to judicial, in nature.” My dissent is prompted by what I believe to be the majority’s misinterpretation or misapplication of that standard.

The central facts in this case are not in dispute. Defendant was indicted for wilfully refusing to report for induction. He was tried to a jury, convicted, and sentenced by the trial judge to thirty months’ imprisonment. At no point in the proceeding has it been alleged that the defendant sought or had been denied conscientious objector status. Moreover, the defendant does not contend that the judge showed any prejudice towards him in the actual conduct of the trial.

Prior to his trial, defendant had unsuccessfully moved to have the trial judge disqualify himself on the basis of prejudice. In support of his motion, the defendant submitted an affidavit pursuant to 28 U.S.C. § 144. The affidavit alleged that the defendant had learned from his attorney of the bias and prejudice of the trial judge. The information upon which this assertion was based was an affidavit submitted in an earlier case, United States v. Townsend, heard by the same trial judge. The basic allegation of these several affidavits is that the trial judge had stated, in chambers, that:

“in cases of Selective Service violation, it is his policy to sentence all violators to thirty (30) months in prison if they are good people. [The judge] also stated that the only time he sentenced to a greater period of time was in the case of a black militant and that he sentenced him to four and one-half (4%) years.”

Defendant contended in his motion to disqualify, and on appeal in this Court, that this allegation sets forth a personal bias held by the judge against the defendant both as a Selective Service violator and as a black militant. The majority, holding that the statement that the judge as a policy sentences all Selective Service violators to thirty months showed personal bias, remands the case for a new trial before a different judge. I believe that the affidavit does not show personal bias and therefore dissent from the majority’s decision.

The statute addressed to recusation, 28 U.S.C. § 144, prescribes a pattern in which a party’s allegation of prejudice, if legally sufficient, must be accepted without opportunity for the judge to dispute the facts alleged or contest the innuendo in which the party may wrap the facts. Under the procedure set forth by the statute, the judge must stand mute. With so much power thus placed in the hands of a party, it becomes necessary to circumscribe carefully the types of allegations which may be deemed sufficient to justify disqualification, lest a party may by an affidavit go “judge-shopping,” a practice not approved in modern judicial administration. The majority has set forth a tripartite test that attempts to accomplish this narrowing. Though I agree with the verbalization of the test, if the third element of the standard is interpreted as the majority does, I fear the test would fail its purpose.

The majority states:

“3. The facts must show the bias is personal, as opposed to judicial, in nature.”

To show that the bias is personal not judicial, the majority holds that the bias must be against a class comprised of Selective Service violators. To me, this seems a misapprehension of the terms personal bias and judicial bias. The common characteristic of the class which includes the defendant is its involvement with and conviction for violation of the Selective Service laws. The very definition of the class is judicial and legal. Against this may be contrasted a class whose unifying trait is extraneous to the judicial process. Examples abound: a prejudice against women, a bias against long-haired youths, a bent against orientals.

Indeed the case most relied on by the majority, Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921), clearly illustrates this type of bias against a class. In Berger, several of the defendants were born either in Germany or Austria or were of immediate German extraction. The trial judge presumably inspired by the virulent anti-German atmosphere during World War I, had made statements which defamed and condemned as disloyal German-Americans. The Supreme Court held that the affidavit reciting these facts was sufficient to show personal bias requiring recusal.

To include within the term personal bias a class whose only common characteristic is that they have been adjudged in violation of a law is to distort or obliterate the distinction the majority has articulated in the enunciation of the three-pronged test.

The majority, holding that the allegation of uniform thirty-month sentencing, is indicative of personal bias against Selective Service violators, does not address the defendant’s second assertion that the judge is biased against black militants. In view of the thirty-month sentence received by the defendant, it can hardly be argued that, in sentencing, the judge in any way dealt less fairly with this defendant because the defendant might be considered a black militant.

For these reasons, I respectfully dissent from the majority’s holding that the defendant is entitled to a new trial because the original trial judge erred in not recusing himself.

Having stated my disagreement with the majority, I, nevertheless, must express my disquiet with the result I would reach in this Selective Service case, a type of case which remains as a troubling vestige of the Vietnam War. I am not convinced that a policy of uniformly imprisoning those who have refused to report for induction is necessarily the optimal course. However, these considerations cannot be allowed to deflect the proper resolution of this case. Therefore, I would affirm the conviction.

      . Under tlie statute, the judge must accept for purposes of the motion that all facts stated in the affidavit are true. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921). Therefore, for purposes of this opinion, we similarly must treat all the facts alleged as true. However, in so doing, we do not intend to express any opinion as to the actual truth of the facts alleged.

      . See United States v. Daniels, 446 F.2d 967 (6th Cir. 1971) ; cf. Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).

      . Compare United States v. Townsend, No. 72-1240, 478 F.2d 1072 (3d Cir. 1973).

      . No. 72-1240, 478 F.2d 1072 (3d Cir. 1973).

      . A limited application of the majority’s test seems especially appropriate in a situation in -which the facts alleged in the affidavit supporting the disqualification are double or triple hearsay.

      . The majority opinion indicates that the only danger perceived was the danger of unfair sentencing. “We do not mean to suggest that the allegations, if true, had the potential of affecting the fairness of the proceeding up until the rendering of the verdict.” Assuming that this statement is correct, the only disadvantage which any defendant before this trial judge faces is that of a “biased” sentence. Therefore, it is appropriate to limit the focus to the sentencing proceedings.

      . The defendant argues, on this appeal, that the trial judge erred both in the conduct of the trial and in refusing to find that the defendant’s induction date was illegally accelerated. Upon review of these contentions, I would hold that they are without merit.


author: MEHAFFY, Chief Judge.

text:
    UNITED STATES of America, Appellant, v. 373.10 ACRES OF LAND, MORE OR LESS, Situated IN CRITTENDEN AND POINSETT COUNTIES, ARKANSAS, et al., Appellees.
    No. 72-1714.
    United States Court of Appeals, Eighth Circuit.
    Submitted April 13, 1973.
    Decided Aug. 23, 1973.

      Peter R. Steenland, Atty., Dept, of Justice, Washington, D. C., for appel-•t lant.
    G. D. Walker, Jonesboro, Ark., for ap-pellees.
    Before MEHAFFY, Chief Judge, and BRIGHT and ROSS, Circuit Judges.
   MEHAFFY, Chief Judge.

This is a permissive interlocutory appeal under 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 from a pretrial order in a condemnation proceeding brought by the U. S. Army Corps of Engineers in the United States District Court for the Eastern District of Arkansas. The order that is the subject of this appeal denied the government’s motion to confirm that the United States already held title to the interests it was seeking to condemn. In this appeal the government claims that it holds title to the interests in dispute by virtue of an assignment made to the United States in 1939. The landowners concede that an assignment was made but deny that the assignment conveyed as broad an interest as the government now claims. For the reasons stated below we affirm the order of the district court.

Sometime prior to 1938 the U. S. Army Corps of Engineers and certain local Arkansas drainage districts agreed to engage in a joint flood control project in Eastern Arkansas. A portion of this project called for the widening and deepening of the channel of the Tyronza River. Prior to the commencement of any actual construction work on the Tyronza River portion of the project, the local drainage authorities obtained an agreement whereby the riparian landowners promised:

“ . . . to furnish without cost any land now owned or [which] may be acquired by them necessary for use in connection with [the] above mentioned project and [to] hold and save the said drainage districts and the United States Government free from liability for damages resulting from the aforesaid construction.”

After obtaining this agreement the local drainage districts assigned to the United States all the interests they had received under the agreement. Shortly after this original assignment the Corps of Engineers entered the lands in question and performed the construction work. At the time the drainage work was completed apparently all parties were satisfied. Nothing further occurred for more than twenty-five years. In 1965, however, the Corps of Engineers sought to re-enter the landowners’ property to perform dredging work on the channel and to clear the banks along the original route of the project. The landowners protested the re-entry and the government filed the condemnation action that is presently before us.

The sole issue at this stage of the proceeding is whether the landowners’ agreement quoted above granted a perpetual drainage easement or was instead merely a promise in the nature of a hold harmless agreement limited to the original construction of the project. If, as the government contends, a perpetual drainage easement was granted, then the United States would normally have a limited right of re-entry for the purpose of repairing and maintaining the drainage project within the boundaries of the original construction. If, on the other hand, the agreement was merely a hold harmless promise limited to the original construction, then the government would normally have no right of re-entry for any purpose even within the boundaries of the original project.

The evidence introduced by the parties in the district court can be easily summarized. The government introduced a copy of the landowners’ agreement and copies of the assignments by which the United States acquired the drainage districts’ rights under the landowners’ agreement. The government then focused the remainder of its proof on testimony tending to show that the re-entry in 1965 had not exceeded the boundaries of the original 1939 construction. The condemnees focused their case on first hand landowner testimony to the effect that the landowners had agreed to the entry in 1939 only on assurance by the drainage districts and the federal government that they only wanted “a temporary easement to dredge out the river.”

At the conclusion of the proof and argument the district court made the following oral findings:

“[T]he Court is of the opinion that . the Government has the burden on this issue, and that is to show what they acquired when they obtained the drainage districts’ rights.
“It may be, as [the government] argues, that . . . implicit in any right to clean a ditch is some, perpetual right to go back in and maintain it, but I cannot believe that that is the situation.
“I believe many drainage districts and other projects are organized solely for the[ir] original purpose, and that it is easy to set forth by language the fact that it is intended to be perpetual or make some indication that it is a perpetual right [that has been conveyed].
“Here you do have some . . .indication that the district was assigning to the Government, or intended to assign the Government, some perpetual rights . . ., but they couldn’t assign anything more than they got; . the Court has to look then to the voluntary conveyance, [the landowners’ agreement].
“I just don’t think a fair interpretation would indicate that these people were giving a permanent easement to go in there and maintain an improvement over all those years.”
“And, of course, the new easement that the Government [now claims title to] is clear. It says to ‘construct, operate and maintain,’ and it mentions a perpetual and assignable right and easement; whereas [the landowners’ agreement] was such an informal arrangement, it looks like they just wanted to clean out the outlet to the drainage district.
“Of course, the evidence is quite clear the drainage district didn’t touch it thereafter, the Corps of Engineers didn’t touch it thereafter, nobody touched it thereafter until 1965. So I am taking the view that the Government is condemning something that they have not acquired here from the drainage districts [by assignment of their rights under the landowners’ agreement] and that, therefore, they are going to have to compensate the landowners for the value of what they have taken.” Transcript pp. 48-50.

In this appeal the government does not contend that the district court’s findings of fact were clearly erroneous. Instead, the government argues that the district court erred in its application of the law by failing to recognize that a drainage easement necessarily carries with it an implicit right of re-entry for repair and maintenance of the drainage path. In support of this proposition the government cites numerous authorities. E. g., Ward v. City of Monrovia, 16 Cal.2d 815, 108 P.2d 425 (1940); Nixon v. Welch, 238 Iowa 34, 24 N.W.2d 476 (1946).

Even if we assume that these cases accurately express Arkansas’ law of easements, we cannot agree that the cases are applicable to the controversy before us. Each of the cases cited by the government involved disputes over the extent of the right of re-entry for maintenance and repair where the existence of a perpetual easement was already established. These cases, therefore, assumed the very fact that is the center of this dispute, i. e., whether there was a grant of any perpetual easement at all.

The primary authority for determining whether or not a perpetual easement was granted is the language of the agreement itself. The language of the agreement, however, does not conclusively establish on its face the permanence or temporality of the rights that the landowners conveyed. We must therefore look to the circumstances surrounding the transaction to determine the nature of its true meaning. See, e. g., Restatement of Property § 483.

Four factors persuade us that the district court was correct in holding that no permanent easement was conveyed by the landowners’ agreement. First, the conveyance by the landowners was essentially gratuitous in nature, and it would therefore be inequitable to expand the scope of the landowners’ gift beyond that reasonably contemplated by the language of their grant. See Restatement of Property § 483, comment g. Second, the drainage districts and the federal government had far greater experience and skill in dealing with the creation of easements than did the landowners. If the government and the drainage districts were in fact seeking a perpetual easement in 1938 it seems likely that they would have taken the fairly simple step of using language that would have assured the desired result. Third, there is nothing about the nature of the construction work done by the government that would tend to place owners or potential buyers on notice that future maintenance was contemplated. Fourth, the subsequent inaction of the parties strongly suggests that no part of the original plans had contemplated an on-going program of repair and maintenance of the river channel.

After reviewing the record carefully we feel compelled to agree with the district court. The government had the burden of proof on its motion to confirm title. The only proof introduced by the government was documentary evidence of the landowners’ agreement and its assignment. The government made no effort to challenge the condemnees’ testimony regarding the agreement, and it did not attempt to show any circumstances that would tend to show a perpetual easement had been intended by the parties. In short, the government simply failed to meet its burden of proof.

The order of the district court is affirmed and the cause is remanded for further proceedings in conformity with this opinion.


author: SCHATZ, District Judge.

text:
    UNITED STATES of America, Appellee, v. John Ellis LAWSON, Appellant.
    No. 73-1110.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 14, 1973.
    Decided Aug. 20, 1973.
    Certiorari Denied Jan. 7, 1974.
    See 94 S.Ct. 874.

      Jerome T. Bollato, St. Louis, Mo., for appellant.
    Jerry J. Murphy, Asst. U. S. Atty., St. Louis, Mo., for appellee.
    Before Mr. Justice CLARK, HEA-NEY, Circuit Judge, and SCHATZ, District Judge.

       Associate Justice Tom C. Clark, United States Supreme Court, Retired, sitting by designation.

       District Judge Albert G. Schatz, District of Nebraska, sitting by designation.

   SCHATZ, District Judge.

Appellant is here on appeal from his conviction on Count II of a two-count indictment charging him with knowingly and intentionally distributing a controlled substance in violation of 21 U.S. C. § 841(a)(1). The jury failed to return a verdict on Count I of the indictment which was based on a similar violation on an earlier date.

On appeal, Lawson assigns the following errors:

1) The district court erred in giving an instruction on circumstantial evidence in conjunction with one on reasonable doubt, thereby confusing and misleading the jury and;'

2) The district court erred in permitting the prosecution to comment on certain statements on rebuttal which he had not referred to in the first portion of his final argument, thereby depriving defendant of an opportunity to reply to said matters.

We will deal with these contentions in the order they are raised.

JURY INSTRUCTIONS

After the close of the evidence in the trial below, the district judge charged the jury as follows regarding “reasonable doubt”:

“It is not required that the government prove guilt beyond all possible doubt. The test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and common sense —the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt must, therefore, be proof of such a convincing character that you would be willing to rely and act upon it unhesitatingly. Putting it in another way, a reasonable doubt means a substantial doubt and not the mere possibility of innocence.” (Transcript at p. 136.)

Following said instruction, the jury was charged with the pertinent part of the Federal law involved; the language of the indictment; a definition of pertinent terms; the essential elements of the offense; the law on entrapment; reiteration of the burden on the government; and the following instruction relative to proving intent:

“Intent may be proved by circumstantial evidence. It rarely can be established by any other means. While witnesses may see and hear and thus be able give direct evidence of what a defendant does or fails to do, there can be no eyewitness account of the state of mind with which the acts were done or omitted. But what a defendant does or fails to do may indicate intent or lack of intent to commit the offense charged.” (Transcript at p. 141.)

Appellant contends that the giving of this “circumstantial evidence” instruction along with the one previously set forth on reasonable doubt was error under Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). Although appellant’s brief argues that an objection to the jury instructions was tendered, the record discloses otherwise. It is well settled that failure to object to the charge before the jury retires to consider its verdict defeats the purpose of Fed.R.Crim.P. 30 to “give the trial court fair opportunity to correct any mistake in his proposed charge to the jury,” United States v. Sargis, 460 F.2d 1329, 1330 (8th Cir. 1972), and thus renders the instruction unassailable on review in the absence of plain error. United States v. Sellaro (8th Cir., No. 71-1719, June 12, 1973); United States v. Folsom, 479 F.2d 1 (8th Cir. 1973); United States v. Hamlin, 432 F.2d 905,. 909 (8th Cir. 1970); United States v. Stead, 422 F.2d 183, 185 (8th Cir.), cert. denied, 397 U.S. 1080, 90 S.Ct. 1534, 25 L.Ed.2d 816 (1970). Lawson’s contention is that the instruction on the permissible evidence to be considered by the jury in finding intent, set forth above, violated the Supreme Court’s admonition in Holland v. United States, supra, 348 U.S. at 139-140, 75 S.Ct. 127, 99 L.Ed. 150, that when an adequate reasonable doubt instruction is given to the jury, an additional instruction on the effect of circumstantial evidence should not be included. The type of “circumstantial evidence” instruction spoken to in Holland was the following:

“(W)here the Government’s evidence is circumstantial it must be such as to exclude every reasonable hypothesis other than that of guilt.” Id. at 139, 75 S.Ct. at 137.

The Supreme Court in Holland, recognized that there was support for such an instruction, but stated that the “better rule” was that “(W)here the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.” (citations omitted) Id. at 139-140, at 137 of 75 S. Ct. This Court, has followed the instruction of the Supreme Court in Holland, on a number of occasions. See, e. g., United States v. Smith, 462 F.2d 456, 462 at n. 4 (8th Cir. 1972); United States v. Fryer, 419 F.2d 1346, 1350 (8th Cir.), cert. denied, 397 U.S. 1055, 90 S.Ct. 1399, 25 L.Ed.2d 672 (1970); United States v. Francisco, 410 F.2d 1283, 1290 (8th Cir. 1969). However, we deem it unnecessary to decide whether the giving of such a “circumstantial evidence” instruction along with one on reasonable doubt would possibly be plain error or not in this matter because the instruction given by the trial court herein by no means infringes upon the rule enunciated in Holland. The “reasonable hypothesis” instruction rejected by the Supreme Court is not the same instruction in either substance or form as the one given by the district court in this case, nor was such a “reasonable hypothesis” instruction given by the trial judge in any other portion of the charge. The instruction presently attacked by appellant merely informs the jury that the element of intent may be proved by circumstantial evidence. This. is an accurate statement of the law. See, e. g., Gay v. United States, 408 F.2d 923, 929 (8th Cir.), cert. denied, 396 U.S. 823, 90 S.Ct. 65, 24 L.Ed.2d 74 (1969); Jackson v. United States, 330 F.2d 679, 681 (8th Cir.), cert. denied, 379 U.S. 855, 85 S.Ct. 105, 13 L.Ed.2d 58 (1964) (holding that “knowledge and intent, because of their nature, must largely be proved by circumstantial evidence.”); Wiley v. United States, 257 F.2d 900, 906 (8th Cir. 1958) (Woodrough, J.). Not only does such a statement accurately reflect the law, but an instruction identical to the one given herein has been before this Court on prior occasions and given approval by us. Aron v. United States, 382 F.2d 965, 975 n. 3 (8th Cir. 1967). See, e. g., United States v. Wilkinson, 460 F.2d 725, 729-730 (5th Cir. 1972) (instruction with almost identical language, but including a more controversial portion not present herein); Louie v. United States, 426 F.2d 1398, 1402 (9th Cir.), cert. denied, 400 U.S. 918, 91 S.Ct. 180, 27 L.Ed.2d 158 (1970) (holding that an instruction which said the jury should determine intent from all circumstances in the case, was correct). Cf. Stewart v. United States, 395 F.2d 484, 492 (8th Cir. 1968) (holding that an instruction that “knowledge may be proved by defendant’s conduct and all the facts and circumstances surrounding the case” was a stock instruction and not erroneous). In light of the fact that the Court is satisfied that the “intent” instruction was not erroneous and that Holland is not apposite in this matter, we are convinced that the jury was properly instructed on the applicable law with no prejudice accruing to appellant.

ARGUMENT OF PROSECUTOR

The contention of appellant regarding this aspect of his appeal is that the prosecutor argued matter on rebuttal in his summation to the jury that was not argued in the first portion of his final argument, thereby preventing the appellant from replying to that argument. It is contended that this was prejudicial in light of the fact that the prosecutor, on rebuttal, referred to various alleged statements or admissions of appellant. This position is without merit.

First, appellant’s trial attorney failed to object or raise any issue at trial as to the impropriety of the prosecutor’s argument. The failure to timely object to an improper argument of government counsel precludes its assertion as error on appeal in the absence of plain error. As this Court stated in Petschl v. United States, 369 F.2d 769, 773 (8th Cir. 1966):

“(‘T)he power of a reviewing court to consider a question first presented on appeal is an exception to the rule that such a court will not consider errors not objected to at the trial. A trial judge ordinarily should not be held to have erred in not deciding correctly a question that he was never asked to decide.’ ” (citations omitted)

See, e. g., United States v. Goldenstein, 456 F.2d 1006, 1011-1012 (8th Cir. 1972); United States v. Brager, 455 F.2d 217, 219 (8th Cir. 1972); Tanner v. United States, 401 F.2d 281, 289-290 (8th Cir. 1968), cert. denied, 393 U.S. 1109, 89 S.Ct. 922, 21 L.Ed.2d 806 (1969); Terlikowski v. United States, 379 F.2d 501, 511 (8th Cir.), cert. denied, 389 U.S. 1008, 88 S.Ct. 569, 19 L.Ed.2d 604 (1967).

We have examined the argument and the record in detail and seriously question whether any error at all was committed, let alone the type that would merit invocation of the plain error rule to prevent a miscarriage of justice. The rebuttal of the prosecutor was confined to two areas, the entrapment issue and the issue of the credibility of the informant involved, one Mitchell. Both of these areas were spoken to with vigor in the defense counsel’s argument preceding the prosecutor’s rebuttal. Thus, appellant’s contention of error in failing to follow the rule enunciated in the case of Moore v. United States, 344 F.2d 558, 560 (D.C.Cir. 1965), that the government counsel should generally not be allowed to develop new arguments on rebuttal but should answer those propounded by defense counsel, is certainly without merit.

Furthermore; after a careful review of the context in which the so-called “statements” or “admissions” of appellant were brought up by the prosecutor on rebuttal, the claim of impropriety and prejudice is not persuasive. The rebuttal argument of the prosecutor was concerned with only two areas — the credibility of the informant, Mitchell, and the defense of entrapment. In the rebuttal, the prosecutor attempted to explain what the appellant was saying when he put forth said defense.

“I submit that an instruction will be given to you by Judge Webster on the defense of entrapment. Now basically what that is, is in a sense that John Lawson, the defendant, is saying, T was tricked, I was not predisposed to sell heroin, I didn’t want to sell heroin.’ ” (Transcript at p. 129.)

This certainly was argument only by way of explanation and did not purport to be an actual alleged statement of appellant. The prosecutor went on to rebut the entrapment defense by commenting on the evidence given by the informant, Mitchell.

“Let’s talk about Ed Mitchell’s testimony a little. Ed Mitchell says on May 22nd he goes in that house and he comes right out five minutes later. His testimony about the conversation inside, John says: ‘What’s going on?’ Something like that, and Ed Mitchell said, ‘I want to buy some stuff.’ ” (Transcript at p. 129.)

A careful reading of the testimony does indicate Mitchell did not testify that appellant said those exact words, but he clearly did converse with Mitchell according to the uncontroverted testimony. Either way this comment was certainly not prejudicial to appellant.

The only remaining “statement” that the prosecutor referred to in his rebuttal was again related to the entrapment defense.

“On July 11th, Ed Mitchell testified that prior to going out there he went to Dennis Harker and said, ‘I’ve got a deal set up with John Lawson.’ This indicates that John has said, ‘Okay, come on over to me.’ ” (Transcript at 130.)

It is important to note that the prosecutor is clearly not saying that appellant made that statement. He is only arguing that the evidence would support a reasonable inference or would “indicate” that appellant had the predisposition to deliver the heroin to Mitchell and that he was, therefore, not entrapped. As stated in Wakaksan v. United States, 367 F.2d 639, 646 (8th Cir. 1966), cert. denied, 386 U.S. 994, 87 S.Ct. 1312, 18 L.Ed.2d 341 (1967):

“The arguments of counsel must be confined to the issues of the case, the applicable law, pertinent evidence, and such legitimate inferences as may properly be drawn therefrom. When confined to the evidence or reasonable inferences, the arguments of counsel are not to be too narrowly limited.” (citations omitted)

It is clear that the prosecutor was only presenting by way of argument what the. jury could reasonably infer from the facts and circumstances to have been going through appellant’s mind at that time in terms of predisposition and thus the rebuttal was only a legitimate comment on the evidence and the reasonable inferences that could be drawn therefrom. The cases cited by appellant, United States v. Cotter, 425 F.2d 450, 453 (5th Cir. 1970) and United States v. Spangelet, 258 F.2d 338, 342 (2d Cir. 1958), are not apposite to the present case. In both of those cases, the prosecutor’s summation contained statements regarding his own personal knowledge of certain facts or of inferences that he personally drew. It is interesting to note that in Cotter the defendant also failed to object, and therefore the Court did not find the argument prejudicial or plain error.

A trial judge is under no duty to admonish the jury to disregard closing remarks of the prosecutor in the absence of any ting offensive or prejudicial, United States v. White, 456 F.2d 1021, 1022 (8th Cir. 1972), and this Court has recently indicated that broad discretion is reposed in the trial court to control closing argument. Bryant v. United States, 462 F.2d 433, 436 (8th Cir. 1972).

For the foregoing reasons, the judgment of conviction is affirmed.

      . THE COURT: Gentlemen, are there any exceptions or objections to the instructions as given?
      MR. REAP: Government has none, Your Honor.
      MR. HAMPE: Your Honor, the record may show the defendant has no objections to the instructions as given.