author: EUGENE A. WRIGHT, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eustorgio PENA-GARCIA, Defendant-Appellant.
    No. 74-1595.
    United States Court of Appeals, Ninth Circuit.
    Oct. 30, 1974.

      Charles M. Sevilla, Deputy, Federal Defenders, Inc. (argued), San Diego, Cal., for defendant-appellant.
    Stephen V. Petix, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.
    Before DUNIWAY and WRIGHT, Circuit Judges, and BURNS, District Judge.

       Of the District of Oregon.

   OPINION

EUGENE A. WRIGHT, Circuit Judge:

Having been convicted on four counts of transporting illegally admitted aliens [8 U.S.C. § 1324(a)], defendant on this appeal argues two points: (a) the trial court erred in failing to suppress evidence taken in a roving checkpoint search 55 to 60 miles north of the Mexican border, and (b) the defendant was denied a fair trial and the effective assistance of counsel because of conduct of the trial judge. While we conclude that we must reverse and direct a new trial on appellant’s second point, we direct that the mandate be stayed pending decision by the Supreme Court in United States v. Brignoni-Ponce, 499 F.2d 1109 (9th Cir. 1974) (en banc), cert. granted, - U.S. -, 95 S.Ct. 40, 42 L.Ed.2d 48, Oct. 15, 1974, or United States v. Guana-Sanchez, 484 F.2d 590 (7th Cir. 1973), cert. granted, 417 U.S. 967, 94 S.Ct. 3169, 41 L.Ed.2d 1138, June 17, 1974.

Two border patrol agents operated a roving checkpoint in July 1973 well north of the international border with Mexico on California highway S22. Pursuant to their practice of stopping every northbound vehicle, they followed and stopped an automobile driven by defendant. One passenger in the front seat and three others lying down in the rear were found to be Mexican citizens who were illegally within the country. Upon being arrested, the defendant indicated that he had picked up the passengers as hitchhikers. At trial he reiterated this explanation and denied having learned at the time that they were illegally admitted aliens or having agreed to accept payment in return for the ride.

The aliens supported the hitchhiker theory at trial, testifying that they had climbed a fence at the border, walked some distance, hailed a passing car, begged for a ride and promised to pay money to defendant after obtaining work. One alien witness was cross-examined about a statement given to the arresting agents, and indicated that he had not first been warned of his rights. The trial judge interrupted and continued to interrogate, cross-examine, threaten and intimidate the witness and to threaten defense counsel with contempt.

The trial judge persisted. The witness corroborated his written statement except the portion which stated that he had made prior arrangements with the defendant in Mexico to pay $200 for transportation. Again, the judge interrupted cross-examination by the defense counsel. He continued to cross-examine and threaten. Finally, having intimidated the witness and defense counsel, the court concluded:

THE COURT: We will leave it to the jury. I have never seen such — I want to keep under control but it urks (sic) me when there is any attempted perjury. Do you hear me — and perjury is telling the untruth under oath.

We conclude that the trial judge went too far. A federal judge has the right and duty to facilitate the orderly progress of a trial by direct participation. Questions which aid in clarifying testimony of a witness, expedite examination or confine it to relevant matters are proper if made in a nonprejudicial manner. However, the judge cannot conduct his questioning in such manner as to convey to the jury the impression that he has formed an opinion as to the truth of the witness’ statement or the verdict that should be returned. Where the parties are represented by competent counsel, the judge cannot usurp their role. And most certainly he cannot take on the task of the prosecution. This happened here. Without detailing all of the instances of undue interruption, we conclude that the cumulative effect was so pervasive and prejudicial as to require a new trial.

We held in United States v. Brignoni-Ponee, supra,, that a stop and interrogation by a roving patrol without “founded suspicion” were illegal and the fruits thereof were inadmissible. The opinion referred to United States v. Guana-San-chez, supra. We are now informed cer-tiorari has been granted by the Supreme Court in each of these cases.

Reversed and remanded, but the mandate herein will not be issued until the Supreme Court has acted.

      . THE COURT:
      Did any of tire agents give you such a ■warning either in Spanish or in English?
      THE WITNESS : In English.
      THE COURT: In English?
      THE WITNESS : No, in Spanish.
      THE COURT: They did give it to you in Spanish?
      THE WITNESS: Yes.
      THE COURT: Well, why did you tell me they didn’t give it to you?
      THE WITNESS: They didn’t read them, to me over there but they read them over here.

        THE COURT: No, at the station before you made the statement.
      THE WITNESS : Yes, I think so.
      THE COURT: Well, you admit it now?
      THE WITNESS: Yes.
      THE COURT: Any nobody threw you
      around at the station, did t'.iey?
      THE WITNESS : No.
      THE COURT: And nobody hit you?
      MR. GOODPASTER [defense counsel! : Your Honor, if I may.
      THE COURT: Be quiet. Nobody hit you, did they?
      THE WITNESS: No.
      THE COURT: All right. Now, you can proceed.
      I don’t like that sort of nonsense. I want the truth.
      BY MR. GOODPASTER:
      Q. Señor Fletes-
      THE COURT: It is the truth that we want and we will get it.
      All right, proceed.
      BY MR. GOODPASTER:
      Q. Señor Fletes, you stated earlier that you were scared and that was the reason that you made this statement that you saw him.
      You just did state that you, yourself, were not threatened or injured in any way. Why is it that you were scared?
      A. It scared me when he grabbed me by the arm and he pulled me out of the car.
      Q. Did anything else scare you ?
      A. No.
      Q. Is Michael Fletes Sernas your brother?
      A. Yes.
      THE COURT: Now, let me ask you this.
      Your brother has testified that he had agreed to pay the defendant Two Hundred Dollars ($200.00).
      Were you there when he did that?
      THE WITNESS: Yes.
      THE COURT: Then you heard it said?
      THE WITNESS: Yes.
      THE COURT: Well, why did you say that you didn’t know anything about Two Hundred Dollars ($200.00) ?
      THE WITNESS: (No audible response.)
      THE COURT: Speak up-loudly-loudly.
      Why did you say that you didn’t know about Two Hundred Dollars when you heard your brother offer him the Two Hundred Dollars ($200.00)?
      THE WITNESS : (No audible response.)
      TIIE COURT: Give us the truth.
      MR. GOODPASTER: Your Honor, the defendant is not lying.
      THE COURT : Be quiet.
      MR. GOODPASTER: Your Honor, the court--
      THE COURT: I said to be quiet or I will hold you in contempt. I have a right to question the witnesses.
      Speak up.
      THE WITNESS : About the Two Hundred Dollars ($200.00)?
      THE COURT: That is correct.
      THE WITNESS: I asked the individual for a ride. If I could find a job I would later reward him with Two Hundred Dollars ($200.00).
      THE COURT: You said that to him, you would also pay him Two Hundred Dollars; is that correct?
      THE WITNESS : Well — no—well—I don’t know what to tell you.
      THE COURT: Tell me the truth.
      THE WITNESS : Well, this is the truth.
      THE COURT: All right. What did you tell him?
      TIIE WITNESS: That I was going to pay him.
      THE COURT: You told him that you would pay him Two Hundred Dollars ($200.-00)?
      THE WITNESS: Yes.
      TIIE COURT: After you got a job?
      THE WITNESS: Yes, after I found a job.
      THE COURT : Is that the truth?
      THE WITNESS: Yes.
      THE COURT: The absolute truth?
      THE WITNESS: Yes.
      THE COURT: All right, proceed.
      THE WITNESS : This is the truth.
      BY MR. GOODPASTER:
      Q. Señor Fletes-
      THE COURT: You see, I don’t like falsehoods when a man is on the witness stand sworn to tell the truth.

      . BY MR. GOODPASTER:
      Q. Your statement says that, “I met a man in Tecate. My brother and two friends was with me, also.”
      THE COURT: I don’t like subordination (sic), either.

      . Note 3 on p. 967.

        3. THE COURT: Then you jumped the line and you met him again in the United States?
      THE WITNESS: Yes, this is the true, [sic]
      THE COURT: Then he picked you up and started driving you?
      THE WITNESS: Yes.
      THE COURT: All right. That is what I want is the truth.
      I don’t like subordination.
      MR. GOODPASTER: I don’t believe it was subordination.
      THE COURT : I have my doubts.
      MR. GOODPASTER: I believe that he was testifying truthfully the last time.
      THE COURT: Now, once again, what is the truth and nothing but the truth? What you said in here?
      THE WITNESS: Yes, what is on that paper.
      THE COURT: I am showing you Exhibit “A”.
      That is the true, [sic]
      THE WITNESS : All right.
      (Whereupon, a document is passed to the defendant.)
      THE COURT: That is what I want is the truth.
      MR. GOODPASTER: Your Honor, I take exception. I believe that you threatened the witness.
      THE COURT: Proceed.
      It looks to me like there has been some swirly business here and I don’t like it and I am telling you in the Public Defender’s Office that I don’t go for that sort of thing.

      . Williams v. United States, 93 F.2d 685 (9th Cir. 1937); Ochoa v. United States, 167 F.2d 341 (9th Cir. 1948). Spindler v. United States, 336 F.2d 678 (9th Cir. 1964), cert. denied 380 U.S. 909, 85 S.Ct. 894, 13 L.Ed.2d 797 (1965). See also United States v. Cole, 491 F.2d 1276, 1278 (4th Cir. 1974).

      . United States v. Carrion, 463 F.2d 704, 709 (9th Cir. 1972); United States v. Goodman, 457 F.2d 68, 73 (9th Cir.), cert. denied 406 U.S. 961, 92 S.Ct. 2073, 32 L.Ed.2d 348 (1972), United States v. Porter, 441 F.2d 1204, 1214-1215 (8th Cir.), cert. denied 404 U.S. 911, 92 S.Ct. 238, 30 L.Ed.2d 184 (1971).
      “When it becomes necessary during the trial for [the trial judge] to comment upon the conduct of witnesses, spectators, counsel, or others, or upon the testimony, he should do so in a firm, dignified and restrained manner, avoiding repartee, limiting his comments and rulings to what is reasonably required for the orderly progress of the trial, and refraining from unnecessary disparagement of persons or- issues.”
      American Bar Association Project on Standards for Criminal Justice, Standards Relating to The Function of the Trial Judge 81 (Approved Draft 1972). See also Special Committee on Standards of Judicial Conduct, American Bar Association Code of Judicial Conduct 10 (1972), Canon 3, A. (3).

      . United States v. Carrion, supra; United States v. Nazzaro, 472 F.2d 302, 308 (2d Cir. 1973); United States v. Hoker, 483 F.2d 359, 368 (5th Cir. 1973).'

      . United States v. Harris, 501 F.2d 1 (9th Cir. 1974), United States v. Foster, 500 F.2d 1241 (9th Cir. 1974), United States v. Stephens, 486 F.2d 915 (9th Cir. 1973), United States v. Dellinger, 472 F.2d 340, 386 (7th Cir. 1972), cert. denied 410 U.S. 970, 93 S.Ct. 1443, 35 L.Ed.2d 706 (1973).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MARTZ CHEVROLET, INC., Respondent.
    No. 74-1023.
    United States Court of Appeals, Seventh Circuit.
    Heard Sept. 10, 1974.
    Decided Oct. 22, 1974.

      Elliott Moore, Deputy Associate Gen. Counsel, Stephen D. Quinn, Atty., National Labor Relations Board, Washington, D. C., for petitioner.
    Gary A. Marsack, Milwaukee, Wis., for respondent.
    Before FAIRCHILD, PELL and TONE, Circuit Judges.
   PER CURIAM.

This case is before the court on an application by the National Labor Relations Board for the enforcement of a cease and desist order issued by the Board against Martz Chevrolet, Inc. The Company has refused to recognize and bargain with the Union, District No. 10, International Association of Machinists and Aerospace Workers, AFL-CIO, which the Board had certified as the exclusive representative of the Company’s service employees. The Board found that the Company’s refusal was an unfair labor practice in violation of sections 8(a)(1) and (5) of the National Labor Relations Act, as amended, 29 U.S.C. § 158, and ordered the Company to bargain with Union.

At issue is the validity of the ballot which proved to be the decisive vote for a consent election conducted on August 15, 1972. Altogether 26 employees voted in the election. Of the undisputed ballots, 11 were cast for the Union, and 11 against. Three ballots were challenged by the Company or the Union. One other ballot, the focus of the present case, had been declared void by the Board agent conducting the election because, in addition to an “X” marked in the box signifying a “Yes” vote for the Union, the words “Do I ever” were scrawled across the bottom of the ballot. After a hearing and the resolution of the challenges and other objections to the election, the tally stood at 12 votes for and 12 against the Union. Thus, decision on the validity of the voided ballot would determine the outcome of the election.

In his report on the investigation of the election, the Regional Director found the Board agent’s invalidation to have been erroneous, so he reinstated the ballot. The Board itself concurred in the Director’s ruling and certified the election. Upon the Company’s refusal to accept this decision, an unfair labor practice proceeding was instituted resulting in the cease and desist order which the Board now seeks to enforce.

The Company contests the validation of the ballot on two grounds. First, it maintains that the Regional Director had no authority to consider the issue of validity because the Union did not object to the agent’s action until after the expiration of the 5-day period allowed under NLRB Rule § 102.69(a) for filing all objections to the election; and that the Director’s investigation and rulings therefore went beyond the scope of the properly raised objections and were unfair to the Company. Second, the Company argues that the Regional Director erred on the merits as well by holding that the questioned ballot was not an invalid “signal” ballot, which by identifying the voter broke the rule of secrecy.

The Company’s defense to the unfair labor charge has been that the certification was improper. In general, the court may only review a certification to determine whether the NLRB abused its discretion. See Macomb Pottery Co. v. N.L.R.B., 376 F.2d 450, 452 (7th Cir. 1967) and the cases cited therein. The court may refuse enforcement of an order finding the employer guilty of unwarranted refusal to bargain if: (1) the aggrieved party was not accorded a fair hearing; or (2) challenges affecting the results were erroneously decided as a matter of law. N.L.R.B. v. Joclin Mfg. Co., 314 F.2d 627, 631-632 (2d Cir. 1963).

Therefore, in charging that the Regional Director abused his discretion by extending the investigation of the election beyond the boundaries authorized by Rule § 102.69, the' Company must show that this action effectively denied it the fair hearing to which it is entitled. The argument that the Union’s failure to object specifically to the voiding of the ballot precluded the Regional Director from any reexamination of the matter is similar to one explicitly rejected by this court in these words:

“The director may properly decline to consider objections of the parties that are not timely brought to his attention. But this limitation does not preclude his consideration of matters which he may choose to investigate independently, regardless of the fact they may be included in the objections.” N.L.R.B. v. Realist, Inc., 328 F.2d 840, 843 (7th Cir. 1964), cert. denied, 377 U.S. 994, 84 S.Ct. 1921, 12 L.Ed.2d 1046 (1964).

In the instant case, the Company argues that the doctrine of Realist is only applicable to situations in which the additional matter to be investigated is in the general category described by a timely objection. For in Realist the Regional Director had merely expanded his investigation to include another incident of alleged employer misconduct, even though the Union had not included this specific incident among their timely objections to the employer’s pre-election conduct. We do not agree that Realist is so limited. There the court relied on the general principle that the Board has broad discretion in setting up procedures to guarantee “the fair and free choice of bargaining representatives by employees,” in finding that the Board did not unreasonably exercise its discretion.

The Board has an especially strong interest in assuring that its agents will conduct elections according to the law and the policies of the Board. In light of this interest, it was entirely proper for the Regional Director to conclude that under the circumstances he should include within the scope of his investigation the conduct of the Board’s agent. He interpreted Rule § 102.69 as permitting such an action on his part. The full Board agreed. It is for the Board to regulate its own procedures and interpret its own rules, so long as it does not act unfairly or in an arbitrary and discriminatory manner. See N.L.R.B. v. A. J. Tower Co., 329 U.S. 324, 329-331, 67 S.Ct. 324, 91 L.Ed. 322 (1946).

In the present case, the Regional Director’s investigation of the election was initiated by the written, timely filed objections of the Union and the challenges by both sides. The Union called his attention to the problem of the voiding of the ballot when it requested in a phone conversation, after the expiration of the period for filing supplemental objections, that the Regional Director look into the matter. The Company was promptly notified by phone of the request. It does not appear that the Company protested at this time that the Regional Director was not authorized to consider the issue of validits1', or that it chose to argue the merits. Rather, as the respondent’s brief explains, the Company simply assumed that no reevaluation of the invalidation would take place. Once the Regional Director released his report and recommendations, the Company filed exceptions accompanied by full briefs stating its arguments in opposition to the report and recommendations, including many of the arguments put forth here. The Board considered those arguments and overruled the exceptions. The Company thus had both adequate notice and opportunity to be heard. On this record, we find that the Board correctly decided that the Company was not deprived of its right to a fair hearing or otherwise prejudiced by the Regional Director’s consideration of the void ballot issue.

The Regional Director’s decision on the merits of the question of the validity of the ballot was based on well-established policies of the Board. Irregular methods of marking ballots, for example, by using a check mark or blocking in the appropriate box instead of using an “X” as required by the instructions, may be a means by which a voter establishes to others that he voted a particular way, but as long as the irregularity does not inherently identify the voter and does clearly indicate his intent, such ballots are valid. Bridge-ton Transit, 124 N.L.R.B. 1047, 1048 (1959). Nor is a ballot invalid because additional words have been written on it to emphasize the voter’s feelings. George K. Garrett Co., 120 N.L.R.B. 484, 486 (1958), F. J. Stokes Corp., 117 N.L.R.B. 951, 954-955 (1957).

Under these standards, which the Board has discretion to adopt and follow, the ballot in this case was valid. The Board could properly determine that the voter merely emphasized his approval of the Union with the words written below his “X”, and that unlike the situation in which a voter signs his name or initials to a ballot, these words did not inherently identify the voter.

Since the Regional Director had the authority to investigate the invalidation of the ballot, and since his decision on the merits was not erroneous as a matter of law, the Board’s petition for the enforcement of its order of November 7, 1973 is hereby granted.

Application for enforcement granted.


author: FIELD, Circuit Judge: CRAVEN, Circuit Judge FIELD, Circuit Judge. CRAVEN, Circuit Judge,

text:
    UNITED STATES of America, Appellee, v. Rocco PAOLICELLI, Appellant.
    No. 74-1229.
    United States Court of Appeals, Fourth Circuit.
    Argued July 24, 1974.
    Decided Oct. 18, 1974.
    Rehearing Denied Dec. 18, 1974.

      Plato Cacheris, Alexandria, Va. (Hundley & Cacheris, Alexandria, Va., on brief), for appellant.
    Thomas K. Moore, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.
    Before CRAVEN, BUTZNER and FIELD, Circuit Judges.
   FIELD, Circuit Judge:

Waiving his right to a jury, Roeco Paolicelli was tried to the court and convicted of making a false declaration to a federal grand jury in violation of 18 U. S.C. § 1623. Appealing his conviction, Paolicelli’s assignments of error include (1) that his responses to questions before the grand jury were literally accurate and were not false as a matter of law and, (2) that the Government failed to establish that the declarations made by him were material to the grand jury’s inquisition.

The charges against Paolicelli stemmed from his appearance before a grand jury which was investigating the activities of his employers, the Pomponio brothers, and particularly their alleged bribery of one Paul S. Fry to influence him relative to certain business transactions. One of the items was a Continental Mark III automobile allegedly given to Fry by the Pomponios in December of 1968. The record indicates that while the automobile was in fact purchased by the Pomponios, the purchase order and specifications were placed with the dealer by Paolicelli. Before the grand jury Paolicelli was asked whether he had purchased a vehicle from the dealer to which he responded in the negative. The record shows that his answers were something less than responsive and during the questioning counsel for the Government made it clear that in using the term “purchase” or “buying” he was attempting to elicit from Paolicelli whether he had placed an order or otherwise indicated to the dealer the specifications relative to the Continental Mark III. The examination closed with this exchange:

“Q. My question to you is: did you — and I’m not saying that you did and that I have any definite evidence that you did or didn’t, I just want to get it fairly definite on the record that you did not tell a Mr. Lyon at O’Brien and Rohall the specifications that you wanted with regard to a Continental Mark III.
A. No, sir, I don’t remember.
Q. If you had, you would remember?
A. I’m pretty sure, if it comes to that type of car.
Q. Have you ever ordered a Continental Mark III in your life ?
A. No, sir.
Q. Or got involved in the purchase of one in any way?
A. No, sir.”

The foregoing questions and answers excerpted from Paolicelli’s grand jury testimony were included in the indictment.

Relying upon Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973), Paolicelli takes the position that since the automobile was purchased by the Pomponios and not by him his answers were literally accurate and cannot support his conviction. We, of course, recognize the validity of the premise that if a party does not understand the question and gives a non-responsive answer, such an answer is not perjurious, nor can a charge of perjury “be sustained by the device of lifting a statement of the accused out of its immediate context and thus giving it a meaning wholly different than that which its context clearly shows.” Fotie v. United States, 137 F.2d 831, 842 (8 Cir. 1943). However, we agree with the Government that the questions and answers in the present case, running from the general to the particular was precisely the kind of questioning which the Supreme Court indicated in Bronston would be sufficient to support a charge of perjury. The answer to Paoli-celli’s additional contention that he was confused by the questioning is that the district judge as the finder of the facts resolved this issue against him and we accept that finding. The record demonstrates that the minds of the Government counsel and Paolicelli did, in fact, meet on the definition of the words being used in the interrogation, and in the context thereof Paolicelli’s denial that he had ever been involved in any way in the purchase of the Continental Mark III was a false declaration knowingly made by him.

The second issue raised on this appeal by Paolicelli with respect to the materiality of his statements is, of course, one of law, Brooks v. United States, 253 F.2d 362 (5 Cir. 1958), cert. denied, 357 U.S. 927, 78 S.Ct. 1374, 2 L.Ed.2d 1372; United States v. Alu, 246 F.2d 29 (2 Cir. 1957), and the record amply supports the conclusion of the district court. The latitude of materiality with respect to grand jury proceedings was stated in United States v. Stone, 429 F.2d 138, 140 (2 Cir. 1970).

“However, materiality of statements made in a grand jury investigation may more readily appear than that of similar evidence offered on an issue in civil or criminal litigation, since the purpose of the investigation is to get at facts which will enable the grand jury to determine whether formal charges should be made against someone rather than prove matters directly at issue. * * * Leads to further inquiry may be of material worth to an investigation. Thus the test of materiality is whether the false testimony has the natural effect or tendency to impede, influence or dissuade the grand jury from pursuing its investigation.”

The relationship between the interrogation of Paolicelli and the grand jury’s objective in investigating the possible bribery of Fry by the Pomponios is obvious and his false statements in respect thereto assuredly tended to impede the grand jury’s investigation.

We have carefully considered the other assignments of error and find them to be without merit. Accordingly, the conviction is affirmed.

Affirmed.

CRAVEN, Circuit Judge

(dissenting):

This perjury conviction rests on murky answers to imprecise questions about defendant’s minor role in the purchase of a Lincoln Continental five years previously. Everyone agrees the defendant did not “buy” the car in any sense of the word. All that he did was initiate the purchase made by his bosses, transmit special equipment specifications and confirm the order by telephone. The final retail purchase order ran to Paul Fry. The car was titled in Fry’s name, and one of the Pomponios, defendant’s employers, paid by check delivered directly to the salesman. The subsequent delivery to Fry occurred without the defendant’s participation. There is no evidence the defendant knew the purchase was to bribe Fry or that he even knew Fry was to receive the car. Yet the majority concludes that the prosecutor “made it clear that in using the term ‘purchase’ or ‘buying’ he was attempting to elicit from Paolicelli whether he had placed an order or otherwise indicated to the dealer the specifications relative to the Continental Mark III.”

I think the record points strongly in the opposite direction. In light of Bronston’s observation that “[p]recise questioning is imperative as a predicate for the offense of perjury,” 409 U.S. at 362, 93 S.Ct. at 602, I do not think a prosecutor can be excused from the repeated application of the words “buy” and “purchase,” themselves words of art, to a set of facts that everyone agrees did not amount to buying or purchasing. He especially cannot be excused when, as here, the prosecutor himself had knowledge of the facts and the defendant was a bricklayer with a grade-school education, who had, as a matter of fact, actually bought a car for himself from the same dealer.

The defendant expressed his obvious confusion with the questioner’s attempts to pinpoint a transaction involving a Continental Mark III in which the defendant was neither the purchaser nor the ultimate recipient:

Q. [Y]ou did not purchase an automobile at O’Brien and Rohall?
A. . . . You’re confusing me now.
A. ... I don’t remember buying it.
Q. I’m talking about a Continental Mark III.
A. No, sir, not that I recall.
Q. You didn’t buy a Continental Mark III, or place the order or have anything to do with the purchase of a Continental Mark III at O’Brien and Rohall ?
A. No, sir, I don’t remember buying the car.
Q. When I say “buying”, I’m talking about place the order and nothing else.
A. That I, myself, went and placed an order that says I want a certain carl
Q. Right.

(Emphasis added.) To the defendant’s last answer above, which showed him still responding in the context of a car for himself, the prosecutor responded with a confirmatory “Right,” followed immediately by:

Q. If you had, you would have remembered buying a Continental Mark III?
A. [Yes, if] I had laid out any money for a car like that, I think— I bought a Cougar from them, that’s what I bought.
Q. You bought a Cougar from them?
A. That’s right.

(Emphasis added.)

Finally, the prosecutor got somewhat on target and began to ask questions that related to defendant’s limited participation in the transaction. It is defendant’s answers to these questions that are held false. Where the majority errs, I respectfully suggest, is in failing to read the answers in the context of the preceding questions:

Q. My question to you is: did you . . . tell a Mr. Lyon at O’Brien and Rohall the specifications that you wanted with regard to a Continental Mark III?
A. No, sir, I don’t remember.
Q. If you had, you would remember?
A. I’m pretty sure, if it comes to that type of car.
Q. Have you ever ordered a Continental Mark III in your life?
A. No, sir.
Q. Or got involved in the purchase of one in any way ?
A. No, Sir.

The first three questions, though perhaps merely ambiguous seen alone, were consistent with the preceding questions relating to the purchase of another car by the defendant — one for his own use. The answers were contextually truthful, and the majority does not indicate otherwise. The perjury conviction must therefore rest on the premise that the last question brought about the necessary meeting of the minds: that it clearly signaled to the defendant that the direction of the previous dozen questions was being reversed; that the defendant now suddenly understood that “purchase” didn’t mean purchase but meant telephoning an order in for his boss; and that with instant insight the defendant then knew the inquiry was whether he placed an order for his employers for a Continental Mark III to be purchased and delivered later by them to an unknown third party. Maybe so, but I respectfully suggest that one last question in a long series isn’t enough for clarity, and that the prosecutor failed to carry his burden of pinning “the witness down to the specific object of the questioner’s inquiry.” Bronston v. United States, 409 U.S. at 360, 93 S.Ct. at 601.

I would reverse.

ORDER DENYING REHEARING

FIELD, Circuit Judge.

Upon consideration of the appellant’s petition for rehearing and suggestion for rehearing in banc, the appellee’s response in opposition thereto, and the appellant’s supplemental argument;

Now, therefore, with the concurrence and approval of Circuit Judge BUTZ-NER and in the absence of a request for a poll of the entire court as provided by Appellate Rule 35(b), it is adjudged and ordered that the petition for rehearing is denied.

Circuit Judge CRAVEN would grant the petition to rehear and adheres to his dissent.

CRAVEN, Circuit Judge,

dissenting from the denial of the petition to rehear:

I would grant the petition and reverse the conviction on the authority of United States v. Wall, 371 F.2d 398 (6th Cir. 1967).

      . 18 U.'S.C. § 1623 reads in pertinent part as follows:
      “(a) Whoever under oath in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

      . In his brief and oral argument counsel for the defendant attached considerable significance to a typographical omission in the first question quoted in the indictment. However, it is clear from the record that the defendant and his trial counsel relied upon the transcript of the grand jury testimony and were neither misled nor prejudiced by such omission. Additionally, the failure to raise this issue at or prior to trial in the district court constituted a waiver of this technical defect. See Pifer v. United States, 158 F.2d 867 (4 Cir. 1946) ; Rule 12(b)(2), Fed.R.Cr.P.

      . The prosecutor asked the following series of questions of defendant before the grand jury:
      Q. Have you ever had occasion to purchase an automobile for the Pomponio -group?
      A. No, sir, not that I know — I’ve dealt with a lot of the cars though.
      Q. What cars ?
      A. When I say “dealt with them”, took them to the garage or had them worked on or something like that and picked them up.
      Q. But you have never been down to order a car for them, have you?
      A. Not that I know of. I’ve ordered trucks.
      Q. Did you ever order a car for Mr. Lou Pomponio, Sr.?
      A. No, I don’t remember it. I don’t remember ordering the car, no. I remember ordering a ear that I was using myself, yes, which was an LTD.
      Q. You ordered a car that you were using yourself?
      A. Yes, that’s right, a company car.
      Q. Is it your testimony that you have never ordered a car for Mr. Louis Pomponio, Sr., or for any of the Pomponio corporations?
      A. Let’s put it this way: they allow me to go ahead and buy a car and I buy it. If that’s purchasing, yes, I have done it that way.
      Q. Who was the car for?
      A. For me. I used it on the job.
      Q. But you have never bought a car or ordered a car or had anything to do with the purchase of a car that was not for your use on the job?
      A. Not that I can remember, no. I don’t remember doing anything like that. I remember going — when my brother-in-law, Mr. Pomponio, bought his car, I went with him — and this was quite a while ago we’re talking about. I went to see the car, the color and — I brought him up there, he took a car back — I don’t remember how the thing goes, but to actually buy the car, no, I don’t remember.
      Q. When I say “buy”, I don’t mean pay for the car. I don’t want to split hairs with you. What I’m talking about is the whole general circumstance of going in and talking to the salesman, telling the salesman what you want in the way of a car.
      A. Not that I know of, no.
      Q. You never purchased — are you familiar with O’Brien and Roliall?
      A. Yes, I bought a car there.
      Q. For yourself?
      A. I had service done there. I’ve done quite a bit of service there.
      Q. Did you buy a car there for Mr. Pom-ponio?
      A. No, sir, not that I know of.
      Q. Did you buy a car there for Mr. Paul Fry?
      A. No, sir.
      Q. You did not?
      A. No, sir, not that I know of.
      Q. Have you ever placed an order for an automobile at O’Brien and Rohall?
      A. I don’t remember ever buying a car or purchasing.
      Q. How many cars have you purchased?

        A. I bought two cars.
      Q. Did you purchase either one of those at O’Brien and Rohall?
      A. No, sir.
      Q. If you had purchased a car at O’Brien and Rohall, you would have remembered, would you not?
      A. I would, yes.
      Q. But your testimony is that you did not purchase an automobile at O’Brien and Rohall?
      A. You’re putting something to me like I’m positive that I did and you have got me thinking whether I did or did not. You’re confusing me now.
      Q. No, I just want to get your testimony.
      A. I don’t remember. I don’t remember buying it.
      Q. You don’t remember buying one there?
      A. I bought a Cougar, I think, but that’s way back.
      Q. At O’Brien and Rohall?
      A. I think so, I don’t remember. I had a Cougar—
      Q. I’m talking about a Continental Mark III.
      A. No, sir, not that I recall.
      Q. You didn’t buy a Continental Mark III, or place the order or have anything to do with the purchase of a Continental Mark III at O’Brien and Rohall?
      A. No, sir, I don’t remember buying the ear.
      Q. When I say “buying”, I’m talking about place the order and nothing else.
      A. That I, myself, went- and placed an order that says I want a certain car?
      Q. Right.
      A. No, sir, I — Iwas just going to tell you something else, but no.
      Q. If you had, you would have remembered buying a Continental Mark III?
      A. I’m pretty sure, that’s an expensive car. If I had laid out any money for a car like that, I think — I bought a Cougar from them, that’s what I bought.
      Q. You bought a Cougar from them?
      A. That’s right.
      Q. My question to you is: did you — and I’m not saying that you did and that I have any definite evidence that you did or didn’t, I just want to get it fairly definite on the record that you did not tell a Mr. Lyon at O’Brien and Rohall the specifications that you wanted with regard to a Continental Mark III.
      A. No, sir, I don’t remember.
      Q. If you had, you would remember?
      A. I’m pretty sure, if it comes to that type of a car.
      Q. Have you ever ordered a Continental Mark III in your life?
      A. No, sir.
      Q. Or got involved in the purchase of one in any way?
      A. No, sir.
      The indictment was based upon the answers to the last four questions:
      Q. My question to you is: did you tell a Mr. Lyon at O’Brien and Rohall the specifications that you wanted with regard to a Continental Mark III?
      A. No, sir, I don’t remember.
      Q. If you had, you would remember?
      A. I’m pretty sure, if it comes to that type of a car.
      Q. Have you ever ordered a Continental Mark III in your life?
      A. No, sir.
      Q. Or got involved in the purchase of one in any way?
      A. No, sir.

      . When a perjury conviction turns on the particular language involved, the defendant’s intellectual, educational, and environmental background must be considered. United States v. Rose, 215 F.2d 617 (3d Cir. 1954). The irony here is that it was the prosecutor, not the defendant, that had so much difficulty with the language.


author: IRVING R. KAUFMAN, Chief Judge:

text:
    UNITED STATES of America ex rel. Rodney R. HAYMES, Petitioner-Appellant, v. Ernest L. MONTANYE, Superintendent, Attica Correctional Facility, Smith, Deputy Superintendent, Attica Correctional Facility, Respondents-Appellees.
    No. 20, Docket 74-1208.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 13, 1974.
    Decided Oct. 4, 1974.
    Margery Evans Reifler, Deputy Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., on the brief; Samuel A. Hirsho-witz, First Asst. Atty. Gen., of counsel), for respondents-appellees.
    Herman Schwartz, Amherst, N.Y. (Edward I. Koren, Amherst, N.Y., on the brief), for petitioner-appellant.
    Before KAUFMAN, Chief Judge, and SMITH and TIMBERS, Circuit Judges.
   IRVING R. KAUFMAN, Chief Judge:

It is clear beyond cavil that American prisons have failed dismally to fulfill the ambition of contemporary penologists that prisoners should be treated and rehabilitated. Although it is impossible to deny that many are sentenced to prison as punishment, however, we cannot condone the idea that the mere fact of incarceration permits a prisoner to be punished at the whim of those charged with his confinement. Rodney Haymes, formerly an inmate at New York’s Attica Correctional Facility, initiated this § 1983 action seeking damages for the confiscation of a “legal petition” which he circulated while in custody there, and for his alleged summary punishment two days later by transfer without a hearing to the Clinton Correctional Facility. We reverse the summary judgment dismissing his complaint.

A brief recitation of the facts will aid in framing the issues we are called upon to decide. Haymes was discharged as inmate law clerk in Attica’s law library on the morning of June 7, 1972. During the afternoon of that same day, prison authorities seized from Haymes a document which he was circulating among the inmates in the “A” block recreational yard. The writing, prepared by Haymes at the request of other prisoners and signed by 82 inmates, was addressed to Judge Curtin of the United States District Court for the Western District of New York. Although it requested no relief, the petition stated that the signatories were being deprived of legal assistance because of the removal of Haymes and John Washington, another inmate law clerk, from the library. The document charged that law library officer Edward Brady went “out of his way to circumvent inmates legal assistance.” It also alleged this to be the reason for the removal of Haymes and Washington from their positions in the library.

Although no explanation for the confiscation was given at the time, Deputy Superintendent Harold Smith stated in an affidavit submitted in response to Haymes’s complaint that the papers were seized because Haymes had not asked permission to circulate them, and none of the signors had requested legal assistance, despite the provision of Rule 21 of the Inmate’s Rule Book:

21. Inmates are prohibited, except upon approval of the Warden, to assist other inmates in the preparation of legal papers.

While there is some question whether Rule 21 was in fact widely circulated, Smith stated that Haymes had been cautioned on several occasions not to assist other inmates who had not requested and received approval. A notice from former Superintendent Montanye, posted on the cell block bulletin boards April 25,1972, also stated:

In all instances where inmates desire assistance in the use of the Law Library, they are to present their problems to Correction Officer Brady, who will assist them to the extent necessary or will assign inmates on the Law Library staff to particular cases.
Under no circumstances are inmates to set themselves up as “legal counselors” and receive pay for their services.

Haymes protested the confiscation, asserting that the petition was protected as a special letter under Administrative Bulletin #20, which provides:

9. Special correspondence to public officials: You may write to the President of the United States, Members of Congress, and to any Judge. . . . The letter will not be read or censored.

The real impact of the events leading to the seizure was felt when, two days later, on June 9, 1972, Haymes was transferred without a hearing from Attica to the Clinton Correctional Facility. Although both institutions are maximum security facilities, Clinton is several hundred miles farther away from Haymes’s home in Buffalo. After his transfer, Haymes wrote twice to Superintendent Montanye protesting the confiscation of the papers and requesting their return. He received no response.

Haymes then began this § 1983 action, alleging that his transfer without hearing to Clinton, in retaliation for his disobedience of Rule 21, deprived him of due process. His complaint also alleged that the petition being circulated was not “legal assistance” but “special correspondence” protected by Administrative Bulletin #20, and that its confiscation was therefore improper. He sought $1500 in compensatory damages for the time he was deprived of the document, and $1500 punitive damages “for the various acts of reprisals taken against” him. Haymes thereafter retained counsel. After considering affidavits and exhibits submitted to him, the judge, on Montanye’s motion, “dismissed” Haymes’s “application for relief under the Civil Rights Act.” Since there is no indication that Judge Curtin found Haymes’s claims to be frivolous, see 28 U.S.C. § 1915(d), and because he considered matters outside the pleadings, see'F.R.Civ.P. 12(b), his disposition perforce was summary judgment. F.R.Civ.P. 56. Judge Curtin held 'that the seizure of the document, because it represented unauthorized legal assistance, was proper under Rule 21. He also found no violation of due process in Haymes’s transfer. In effect, therefore, Judge Curtin decided that the alleged punitive nature of the transfer was not material. The district judge reasoned that, because no claim was made that “the facilities at Green Haven [sic] are harsher or substantially different from those afforded to petitioner at Attica,” the defendants were entitled to judgment as a matter of law.

It is black letter law that the issue on an appeal from a summary judgment is whether the pleadings, affidavits, and other papers before the district court show a “genuine issue as to [some] material fact,” requiring a trial, F.R.Civ.P. 56(c). Haymes claims that the circumstances of his transfer raise two such issues: whether he was moved to Clinton Correctional Facility as punishment for his disobedience of prison rules and policies, and whether the effects of transfer were sufficiently harsh to make denial of a hearing a violation of due process. If the district court had permitted him to establish a punitive animus behind his transfer, the argument proceeds, he would not have been required to establish that Clinton’s facilities were “substantially different” from those at Attica. Rather, Haymes argues, implicit in the very fact of his dislocation are deprivations at least as severe as those which may be imposed as punishment pursuant to the New York Correctional Rules and Regulations. Since some form of hearing is required before a misbehaving inmate can be made to suffer the specified sanctions, summary transfer for similar misbehavior may amount to a denial of due process. We see merit in this contention.

I.

We find it difficult, in the absence of a trial, record, to look upon the circumstances of the transfer as a mere coincidence. The papers reveal that less than forty-eight hours after Haymes was ordered to cease collecting signatures without permission in the recreation yard, he was shipped to the Clinton Correctional Facility hundreds of miles away. But in granting summary judgment, the district court deprived Haymes of an opportunity to prove a causal connection between the two events, finding in effect that the harm he suffered did not warrant affording a hearing irrespective of the motive for the transfer. We do not disagree with the assertion that not every inmate who must endure the burden alleged by Haymes deserves a full panoply of procedural armor. Removal of inmates to other facilities may be justified by any of a number of concerns quite proper to the administration of prison systems. One scarcely needs to be reminded of the sad events at Attica prison three years ago to understand the explosive potential flowing from the lamentable conditions which confront many prisoners. Although such circumstances neither excuse the need for reform nor justify sacrificing the inmate on the altar of security, they may on occasion render it necessary to take summary action to avert imminent riot. Overcrowding and the not unrelated hazards to health may also call for a prompt response by prison authorities. We certainly have no intention of unnecessarily placing prison officials in a strait jacket. But, generally, in such cases the reasons for transfer are extrinsic to the inmate’s behavior, and the decision whether to transfer may not be advanced in any way by providing notice and a hearing to the transferee. Moreover, although the dislocation suffered by the transferred prisoner may be burdensome, the need to avoid more general harm may outweigh his individual claim.

Transfer intended as punishment, however, presents a situation wholly different from the administrative removal of an inmate to another facility. When harsh treatment is meted out to reprimand, deter, or reform an individual, elementary fairness demands that the one punished be given a satisfactory opportunity to establish that he is not deserving of such handling. While some discretion may be appropriate in an administrative determination of the need to avoid violence and unrest, the specific facts upon which a decision to punish are predicated can most suitably be ascertained at an impartial hearing to review the evidence of the alleged misbehavior, and to assess the effect which transfer will have on the inmate’s future incarceration. Indeed, in situations where punitive sanctions other than transfer are imposed, the New York correctional system has established procedures which recognize both the demands of elementary fairness and the suitability of an impartial hearing. It is to these regulations that we now turn.

II.

Four years ago the New York Commissioner of Corrections published, pursuant to authority given him by statute, see N.Y. Correction Law §§ 112, 137 (McKinney Supp.1974), Procedures for Implementing Standards of Inmate Behavior. 7 N.Y.C.R.R. § 250 et seq. These rules, presently in force, are intended to be applied in instances where an inmate violates a rule or regulation governing his behavior, or fails to comply with an instruction given him by an employee of the department of corrections. Section 250.1. The code provides that minor infractions may be dealt with merely by counsel, warning, or reprimand. Section 251.5. Other standards apply to more persistent refractory behavior, and to misbehavior involving danger to life, health, security, or property. Reports of such conduct are required to be made in writing to the superintendent, §§ 251.4, 251.5(b), and are reviewed at least weekly by the prison adjustment committee. Section 252.-3(a)-(c). The committee also looks at the information in the inmate’s file; it may direct a further investigation, and must “obtain from the inmate as full and complete an explanation of his behavior in the situation as possible.” Section 252.3 (c)-(e). With the concurrence of at least two of the three members, the committee may then impose limited restrictions, the most serious of which is confinement in a special housing unit for a period of one week. Section 252.5. Where punitive sanctions are to be imposed, a “superintendent’s proceeding” is provided before an impartial employee, at which formal written charges are filed, and notice and assistance given the inmate. The charge must be supported by substantial evidence, which is to include an interview with one or more of those who witnessed the incident. Sections 253.1 to 253.4. Punishment may then be imposed, including loss of privileges, change of program, confinement up to 60 days, special diet, loss of good behavior allowance (“good time”), and a requirement of restitution for intentional damage to state property. Section 253.5. Transfer is not specified among the sanctions to which a superintendent’s proceeding may give rise.

We have recounted New York’s prescribed procedure at some length in order to emphasize the disparity in treatment accorded inmates punished thereunder, and those who are summarily transferred for rule infractions. Had Haymes’s action in circulating the petition been considered merely a minor infraction, it ordinarily would have received nothing more than a reprimand. Had it threatened danger to prison security, or had Deputy Superintendent Smith’s allegation that Haymes had on other occasions rendered unauthorized legal assistance proved true, a report would have been filed for adjustment committee review. If Haymes had been thought to deserve one of the enumerated punitive sanctions, a full superintendent’s proceeding would have been held. It is, of course, much to the credit of the New York correctional system that such thorough, specific, and sensitive procedures have been codified to govern the enforcement of standards for inmate behavior. But it would be anomalous indeed, “both from a due process and an equal protection point of view, if the prison authorities could accomplish by transfer a procedure-free punishment which they could not accomplish within their own walls.” Gomes v. Travisono, 490 F.2d 1209, 1215 (1st Cir. 1973).

III.

Haymes’s allegation that his transfer was intended as punishment for his violation of Rule 21 would not merit relief, however, absent a showing that the move to the Clinton Correctional Facility in fact had consequences sufficiently adverse to be properly characterized as punitive. In granting summary judgment, the district court found that there was no allegation that the facilities at Clinton were “harsher or substantially different from those afforded to petitioner at Attica,” citing Wells v. McGinnis, 344 F.Supp. 594, 596 (S.D.N.Y. 1972) (administrative transfer). Whatever may be the standards governing the need for hearing prior to administrative transfer, however, see Newkirk v. Butler, supra, note 4, we do not think it dis-positive that both Attica and Clinton are maximum security facilities with similar programs. Rather, we find that the hardship involved in the mere fact of dislocation may be sufficient to render Haymes’s summary transfer — if a trial establishes that it was punitive — -a denial of due process.

The facts of this case may provide a good illustration of the real hardship in being shuttled from one institution to another. After being sent to Clinton, Haymes found himself several hundred miles away from his home and family in Buffalo, New York. Not only was he effectively separated by the transfer from his only contact with the world outside the prison, but he also was removed from the friends he had made among the inmates at Attica and forced to adjust to a new environment where he may well have been regarded as a troublemaker. Contacts with counsel would necessarily have been more difficult. A transferee suffers other consequences as well: the inmate is frequently put in administrative segregation upon arrival at the new facility, 7 N.Y.C.R.R. Part 260; personal belongings are often lost; he may be deprived of facilities and medications for psychiatric and medical treatment, see Hoitt v. Vitek, 361 F.Supp. 1238, 1249 (D.N.H.1973); and educational and rehabilitative programs can be interrupted. Moreover, the fact of transfer, and perhaps the reasons alleged therefor, will be put on the record reviewed by the parole board, and the prisoner may have difficulty rebutting, long after the fact, the adverse inference to be drawn therefrom. One can easily comprehend the bitterness which may be engendered by the capricious infliction of such unwarranted sanctions. Small wonder, then, that the American Correctional Association has recognized that “[i]n any penal system embracing several institutions, transfer from one to another is often an effective disciplinary procedure as well as an administrative necessity.” American Correctional Ass’n, Manual of Correctional Standards 416 (1972).

IV.

Because of the disposition we reach upon Haymes’s claim that his transfer without hearing may have denied him due process if it was punitive in nature, we need not consider whether a genuine issue of material fact is raised by the allegation that the confiscated petition was special correspondence protected by Administrative Bulletin #20. We note, however, that the mere fact that the petition requested no relief does not automatically withdraw it from the category of “legal assistance” governed by Rule 21. If those who signed the letter did not expect the court to act on it of its own accord — a fact which is not at all clear — they at least thought, as Haymes’s brief admits, that the matter would be “referred . . . for investigation to other agencies, such as the FBI, interested public interest lawyers, or others . . . . ”

Nor do we think that the prohibition of unauthorized legal assistance should be rendered nugatory in any situation where the product of the forbidden collaboration happens to be a letter written to a public official. The concern underlying prison rules on legal assistance is that “strong-willed inmates might exact hidden and perhaps non-monetary fees” in return for legal advice, thereby presenting a menace to prison discipline. See Sostre v. McGinnis, 442 F.2d 178, 202 & n.47 (2d Cir. 1971) (en banc), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 and 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972); Johnson v. Avery, 393 U.S. 483, 488, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). It would be shortsighted indeed to permit subversion of this obviously rational policy by so transparent a ruse as a mere change of salutation on legal documents.

Reversed.

      . Haymes stated in Ms affidavit submitted to the district court that he had never been given a rule book, nor had one been published since 1969.

      . N.Y. Dep’t of Correction, Administrative Bull. No. 20, Jan. 31, 1972. The Bulletin was published shortly after this court decided, in Sostre v. McGinnis, 442 F.2d 178, 200 (2d Cir. 1971), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 and 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), that censorship of inmate letters to courts, lawyers and public officials violated the first amendment rights of prisoners.

      . 42 U.S.C. § 1983 (1970). Although the case has been characterized throughout as a habeas corpus proceeding, the district court properly treated it from the outset as an action under the Civil Rights Statute.

      . After all these years of reviewing prison problems, we are not too myopie to notice the distinct possibility of arbitrary, misguided, or disingenuous invocation of administrative justifications for transfer. Although we must to some extent rely upon the good faith of prison officials, the individual inmate is not left unprotected against such abuses. See Newkirk v. Butler, 499 F.2d 1214, 1217 (2d Cir. 1974).

      . See Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 2976, 41 L.Ed.2d 935 (1974) (holding that “[s]ince prisoners in Nebraska can lose good-time credits only if they are guilty of serious misconduct, the determination of whether such behavior has occurred becomes critical, and the minimum requirements of procedural due process appropriate for the circumstances must be observed.”)

      . The authority to transfer inmates is given by § 23 of the Correction Law, N.Y. Correction Law § 23, (McKinney Supp.1974), which provides:
      1. The commissioner of correction shall have the power to transfer inmates from one correctional facility to another. . . . The transfer shall be in accordance with rules and regulations promulgated by the department for the safe delivery of such inmates to the designated facility.
      No provisions are set out governing the proper occasions for transfer, or the procedure for determining whether such an occasion in fact exists.

      . Although Haymes’s complaint did not recite many of the deprivations we have enumerated, it is important to note that he was able to retain counsel only shortly before the district court rendered summary judgment. We think it proper that “the allegations of [a] pro se complaint [should be held] to less stringent standards than formal pleadings drafted by lawyers . ” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) (per curiam). The charge that he was punished by the fact of transfer at least entitled Haymes to a hearing to explain why the transfer was onerous to him.


author: Van DUSEN, Circuit Judge.

text:
    UNITED STATES of America v. Lawrence JANIEC, Appellant in No. 74-1281 et al. Appeal of Samuel LAYTHAM, in No. 74-1282.
    Nos. 74-1281, 74-1282.
    United States Court of Appeals, Third Circuit.
    Submitted Aug. 22, 1974.
    Decided Oct. 30, 1974.
    Certiorari Denied Feb. 24, 1975.
    See 95 S.Ct. 1331, 1332.
    Joel D. Lowinger, Millburn, N. J., for appellant Janiec.
    Thomas F. Campion, Shanley & Fisher, Newark, N. J. (Joseph L. Cook, Newark, N. J., of counsel), for appellant Laytham.

      Jonathan L. Goldstein, U. S. Atty., John J. Barry, Richard S. Zackin, Asst. U. S. Attys., Newark, N. J., for appellee.
    Before KALODNER, VAN DUSEN and WEIS, Circuit Judges.
   OPINION OF THE COURT

Van DUSEN, Circuit Judge.

Movants-appellants challenge a February 28, 1974, district court order (a) denying their motions for reduction of their sentences, and (b) further amending sentences as previously amended on July 26, 1973, by deleting that portion of such July 26 order which provided that movants serve their federal sentences in state custody.

Movants were originally sentenced on July 30, 1971, to confinement for terms of 20 years each, after entering guilty pleas to Count I of an indictment (Criminal No. 106-70, D. N.J.) charging them with bank robbery in violation of 18 U. S.C. § 2113(a). While appeals filed by movants challenging these sentences were pending, they were sentenced by the New Jersey state court to prison terms of 13-19 years, following guilty pleas, for the same bank robbery and related crimes. Such state prison terms were directed to be concurrent with the July 30, 1971, federal sentences. On June 23, 1972, this court reversed a September 21, 1971, district court order denying motions by movants (a) for reduction of sentence pursuant to F.R. Crim.P. 35 and (b) for disclosure of presentence reports, and directed that the case be “remanded for resentencing.” See United States v. Janiec, 464 F.2d 126 (3d Cir. 1972). On September 15, 1972, the district court vacated the sentences of July 30, 1971 (10a, Laytham Appendix), and sentenced each movant to the custody of the Attorney General for 12 years, with the provision that each of them should be eligible for parole at any time determined by the U. S. Board of Parole pursuant to 18 U.S.C. § 4208(a)(2). At the end of the sentencing proceeding, the sentencing judge made these two statements with reference to movants’ requests to be imprisoned in a New Jersey institution near their families:

A. As to defendant Janiee (16a of Laytham Appendix):
“Now, under this proviso, Mr. Lowinger [counsel for Janiee], after you have taken the necessary steps in the State Court, find out what that Judge is going to do with that concurrent sentence imposed, being imposed, and then this Court will seriously consider making this sentence a suspended sentence in light of the State sentence.”
B. As to defendant Laytham (p. 7 of 9/15/72 transcript in Criminal No. 106-70, D. N.J.):
“. . . Mr. Laytham: You contact the state authorities and find out, what, if anything, they are going to do about that state.matter, because this Court will seriously consider giving this man a concurrent sentence pursuant to the proper notice of motion filed under Rule 35.”

The court also made clear at that sentencing proceeding that counsel for mov-ants could make application for resen-tencing under F.R.Crim.P. 35 within 120 days (17a, Laytham Appendix).

On January 9 and 10, 1973, motions for reduction of sentence under F.R. Crim.P. 35 by Janiee and Laytham, respectively, were filed. On July 27, 1973, the district court filed orders dated July 26, 1973, providing, inter alia,, as follows (Janiec Appendix, 23-24):

“The matter having been opened to the Court . . . for an Order pursuant to Rule 35 . and it appearing that the above named defendants are both presently incarcerated under sentence of this Court and are at the same time serving a concurrent sentence pursuant to the Order of the Honorable Chester A. Weidenbur-ner, Judge of the Union County Court of the State of New Jersey, and it being' deemed in the interest of all parties that the defendants above named serve their sentence pursuant to the sentence of the Honorable Chester A. Weidenburner and the Court having considered the matter:
“It is on this 26th day of July, 1973, Ordered That:
“A. The sentences heretofore entered in the above captioned matter are hereby vacated and the defendants are hereby resentenced to a term of twelve (12) years to be served concurrently with that imposed by the Honorable Chester A. Weidenburner, Judge of the Union County Court of the State of New Jersey, under the care and custody of the proper officials of the New Jersey State Department of Institutions and Agencies, credit to be given for the time already served, and subject to the rules and regulations of the New Jersey State Department of Institutions and Agencies, Division of Correction and Parole; }>

On August 8, 1973, the Acting Warden at the United States Penitentiary, Atlanta, Georgia, wrote the Assistant United States Attorney for the District of New Jersey, inter alia, as follows (DJA-Defendant Janiec Appendix-26):

“To comply with the recommendations of Honorable Lawrence A. Whipple, Judge, United States District Court for the District of New Jersey, order in Criminal Case No. 106-70, issued July 26, 1973, in the case of Lawrence Janiec, we have endeavored to transfer Janiec to the State of New Jersey, Department of Institutions and Agencies.
“. . . they do not wish to accept Janiec in their system for concurrent service of sentence.”

Apparently because the New Jersey authorities refused to take custody of movants, movant Janiec filed on September 7, 1973, a notice of motion for reduction of the July 26, 1973, sentence, denominated as Motion for Order Amending Order Vacating Sentence (Document 83 in Criminal No. 106-70, D. N.J.). This notice stated that the application would be presented to the court on October 8, 1973. The docket entries indicate that the hearing on this motion was held on October 9, 1973, but no transcript of this hearing appears in either the district court file or the appendices. The docket entries indicate that the motion was denied at the time of the October 9 hearing. Apparently at that hearing counsel for defendant Laytham orally made an application for suspension of sentence, which was denied on October 9.

On February 28, 1974, the district court denied the September and October 1973 applications of movants for reduction of their sentences in a formal order, which deleted the portions of its July 26, 1973, sentencing order making the sentence concurrent with the state sentence and providing for the transfer of mov-ants from federal to. state custody. The deletions included these words, appearing above at page 5:

“under the care and custody of the proper officials of the New Jersey State Department of Institutions and Agencies, credit to be given for the time already served, and subject to the rules and regulations of the New Jersey State Department of Institutions and Agencies, Division of Correction and Parole;”

Movants filed timely appeals from the above February 28,1974 order.

I.

The district court had jurisdiction to modify the September 15, 1972, sentences in July 1973 in view of the motions filed in early January 1973 to reduce such sentences. See note 3 above. Similarly, the court had jurisdiction to modify the July 1973 sentences in February 1974, in view of the motions made by movants in September and October 1973. These motions were basically applications to suspend the sentences of imprisonment and, as such, were motions to reduce sentence under F.R.Crim.P. 35.

Also, we reject the contention of movants that the July 1973 sentence was void because the court had no power to make it concurrent with the March 1972 state sentences. Insofar as the concurrency language of a sentence attempts to prescribe the place of confinement, it is surplusage and ineffective, as indicated under II below. We agree with the reasoning of Joslin v. Moseley, 420 F.2d 1204, 1205 (10th Cir. 1970), where the court said that use by a federal district court in a federal sentence of concurrency language with a state sentence did not make the federal sentence void. See also United States v. Herb, 436 F.2d 566 (6th Cir. 1971); Hash v. Henderson, 385 F.2d 475 (8th Cir. 1967); Montos v. United States, 261 F.2d 39 (7th Cir. 1958). Cf. Ledesma v. United States, 445 F.2d 1323 (5th Cir. 1971). Such language was not necessary to define the term of the sentence (12 years). 18 U. S.C. § 3568 makes clear that such term started to run in 1971, when movants were “received at the penitentiary, reformatory or jail for service of such sentence. . . . ”

II.

Chapter 305 of Title 18 provides that the Attorney General of the United States “shall designate the place of confinement where the [federal] sentence shall be served.” 18 U.S.C. § 4082(a). Although the Attorney General may “designate as a place of confinement any available, suitable, and appropriate institution or facility, whether maintained by the Federal Government or otherwise,” 18 U.S.C. § 4082(b), a federal court has no authority to designate “a place of confinement.” For this reason, that portion of the July 26, 1973, sentences which provided that the federal sentence was to be served “under the care and custody of the proper officials of the New Jersey State Department of Institutions- and Agencies” was an illegal sentence beyond the power of a federal court. Furthermore, 18 U.S.C. § 4085(a) provides that when “any federal prisoner has been indicted ... or convicted of a felony in any court of record of any State . . . the Attorney General shall, if he finds it in the public interest to do so, upon the request of the Governor . . . cause such person . . . to be transferred to a penal or correctional institution within such State . . . .” The record, makes clear that neither the Governor of New Jersey nor any of its officials agreed to the transfer of movants to a New Jersey institution.

Under these circumstances, it would appear that those portions of the July 26, 1973, sentences which were deleted by the February 1974 order challenged in this appeal, constituted an illegal sentence and, hence, could be corrected by the district court “at any time.” See F.R.Crim.P. 35. In any event, they were surplusage and ineffective under the decisions cited above at page 986.

We note that where a defendant, convicted of an offense against the United States pursuant to Title 18, comes before the district court for sentencing, having previously been sentenced for a state crime and being in state custody, the district court may recommend to the Attorney General that any federal sentence of confinement imposed and made concurrent with the state sentence shall be served in the state institution where such defendant has been confined by the state authorities. See United States v. Myers, 451 F.2d 402, 404 (9th Cir. 1972); Hoffman, Sentencing Philosophy, p. 34 (Appendix F to Smith, As A Matter of Fact (Federal Judicial Center, 1973)); Hunter, The Offender Who Violates Both Federal and State Law, 30 F.R.D. 291, 295 (1961).

Former Chief Judge Hoffman (now Director of the Federal Judicial Center) uses this language in his Sentencing Philosophy (p. 34):

“It is not legally permissible to direct that a federal sentence run concurrently with a state sentence then being served. However, as the Attorney General has the right to designate the place where the defendant shall serve his federal sentence, the court may recommend to the Attorney General that the state penitentiary be designated as the place where the defendant shall serve his federal sentence.”

As stated in United States v. Herb, supra (436 F.2d at 568) :

“We recognize that district courts not infrequently recommend that the federal sentence be served concurrently with prior state sentences, and that the Attorney General normally complies with such recommendation by designating an appropriate state penal institution as the place of confinement under the federal sentence.”

III.

Movants’ contention that it was an abuse of discretion for the district court to refuse to suspend the 12-year sentence of imprisonment, as requested in the September and October 1973 motions, is rejected. This court has characterized movants as two bank robbers with “a long history of crime.” See United States v. Janiec, supra at 464. The sentencing judge has done his best to arrange for the service of the imprisonment terms in New Jersey, but the penal authorities of that state have frustrated his efforts. Since the confinement terms are well below the statutory maximum limit imposed in 1971 and the sentencing judge had all relevant factors affirmatively directed to his consideration, through the emphasis placed on the pre-sentence reports by our June 1972 decision, there has been no abuse of discretion reviewable on appeal. See United States v. Fessler, 453 F.2d 953, 954 (3d Cir. 1972); Government of the Virgin Islands v. Rodriguez, 423 F.2d 9, 11 (3d Cir. 1970).

The reliance by movants on the longer term of the 1972 state sentence as assuring at least a 12-year confinement term is illusory, since the state court might suspend its sentence or a pardon might be issued, in which event the federal district court could not reimpose sentence if the federal sentence had been suspended. See United States v. Corson, 449 F.2d 544, 550-51 (3d Cir. 1971).

For the foregoing reasons, the February 28, 1974, district court order will be affirmed.

      . The Janiee Appendix (16a) contains a copy of a March 17, 1972, Union County, New Jersey, court sentence of Janiee, providing for confinement of not less than 13 years and not more than 19 years with the provision that the term is “to run concurrently with sentence imposed by the U.S. District Court ... on 7/30/71.”

      . It is noted that in Laytham’s motion (Document 79 in Criminal No. 106-70, D.N.J.), the court said: “[T]his matter is addressed to the discretion of the court.”

      . The United States Attorney, in his supplemental brief, concedes that there is substantial authority to support the authority of the district court to reduce a sentence under F.R.Crim.P. 35 more than 120 days after the sentence to be changed, where a motion for such reduction has been filed within the 120-day period, even though that Rule provides : “The court may reduce a sentence within 120 days after the sentence is imposed . . ..” See, e. g., Leyvas v. United States, 371 F.2d 714, 719 (9th Cir. 1967); Dodge v. Bennett, 335 F.2d 657 (1st Cir. 1964); United States v. Koneski, 323 F.2d 862 (4th Cir. 1963); Irizzary v. United States, 58 F.R.D. 65 (D.Mass.1973); United States v. Ursini, 296 F.Supp. 1152 (D.Conn. 1968); see also 2 Wright, Federal Practice and Procedure (Criminal), § 587 at p. 573; 8 A Moore’s Federal Practice (2d ed.), If 35.02 [2] at p. 35-6. Wright, supra, contains this language:
      “Literally read, the time limits then would apply to the order of the court reducing sentence and the court could not act after the time had gone by even though a prompt motion liad been made. Fortunately the courts have avoided so singular a result and have interpreted the time period as related to the filing of a motion for reduction of sentence.”
      But cf. United States v. Olds, 426 F.2d 562, 565 (3d Cir. 1970);. 8A Moore, supra, n. 10.1 at p. 35-6. Also, it would appear that the district court had jurisdiction to correct any illegal portion of the September 1972 sentence at any time. See page 987 below.

      . Although a notice of appeal was filed by Janiee on October 31, 1973 (Document 86 in district court file), appealing “from the Orders entered October 24, 1973 changing sentence,” such an order does not appear in the district court file and this appeal was never docketed in this court.

      . See page 2A of transcript of Chambers Conference held October 10, 1973 (Document 87 in Criminal No. 106-70, D.N.J.). At this Chambers Conference, the United States Attorney asked that the July 26, 1973, sentencing order be amended to delete that portion of such order “which deals with the transfers of the defendants . . .,” since the correspondence with the representatives of the U.S. Bureau of Prisons and the New Jersey State Department of Institutions and Agencies disclosed that it could not be carried out (pp. 2A-3 of Document 87). At that conference, counsel for mov-ants asked the court to reconsider its decision of the previous day to deny the motion to amend the July 26, 1973, sentence by suspending the federal sentence (pp. 3-5 of Document 87).
      At the termination of the conference, the court orally announced (p. 5 of Document 87) :
      “The Court: The order of the Court is as follows:
      “1. I will deny the application to amend this sentence, granting either one or both of these defendants a suspended sentence.
      “2. The order of July 26, 1973, will be amended as requested by the Department of Justice.
      “Let the record further note that in the event that either one or both of these defendants are able, through their counsel to arrange for their transfers to the State of New Jersey to serve their sentences, this Court will reconsider an application at that time.
      “Furthermore, let the record note that I deny the application of both counsel to issue a writ of habeas corpus to produce these defendants before this Court.”

      . Since movants have been lawfully in federal custody under criminal charges since 1971, they remain in federal jurisdiction until their 12-year sentences have been served, unless and until the federal authorities officially waive the right to retain custody. See Hall v. Looney, 256 F.2d 59, 60 (10th Cir. 1958). Although the district court and the Bureau of Prisons have indicated a possible willingness to waive the federal jurisdiction and custody on condition that assurances are given of service of a specified prison term in state custody, such assurances have never been given. See letter of August 8, note 5 above at p. 986 and note 7 below.

      . This authority has been delegated to the Bureau of Prisons under 28 C.F.R,. § 0.96.

      . See, for example, letter of August 8, 1973, mentioned at page 986 above, and page 1 of October 3, 1973, letter from counsel for Jan-iec at DJA 27.

      . F.R.Crim.P. 35 provides, inter alia, “The court may correct an illegal sentence at any time. ...” See United States v. Herb, supra at 568; Peterson v. United States, 432 F.2d 545, 546 (8th Cir. 1970).

      . See bottom of Cr. Form 25a (Judgment and Commitment) for space to make such recommendation.

      . United States v. Wiley, 278 F.2d 500 (7th Cir. 1960), relied on by movants, is factually inapplicable to this record and it has been limited to its facts. See United States v. Rook, 424 F.2d 403, 406 (7th Cir. 1970).

      . Also, the following contentions of mov-ants are rejected:
      A. The July 26, 1973, sentencing order is illegal because movants were not present at the time it was announced, even though that sentencing order determined motions to reduce sentences under F.R. Orim.P. 35. The testimony of movants could not have elucidated any factual issues since none were in dispute. The mov-ants wanted elimination of the federal sentences, which the district court had no obligation to grant.
      B. The sentence was illegal because it imposed double punishment for the same crime, even though movants entered guilty pleas to both federal and state crimes. See Cox v. Kansas, 456 F.2d 1279 (10th Cir. 1972); Hill v. Beto, 390 F.2d 640 (5th Cir. 1968).