author: WILLIAM E. DOYLE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alex HARDING, a/k/a Mark Harding, Defendant-Appellant.
    No. 72-1648.
    United States Court of Appeals, Tenth Circuit.
    Submitted Dec. 21, 1973.
    Decided Jan. 28, 1974.

      William K. Hickey, First Asst. U. S. Atty. (James L. Treece, U. S. Atty., on the brief), for plaintiff-appellee.
    Edward H. Sherman, of Sherman & Sherman, P. C., Denver, Colo., for defendant-appellant.
    Before HILL and DOYLE, Circuit Judges, and BRATTON, District Judge.
   WILLIAM E. DOYLE, Circuit Judge.

The above case has been remanded to this court following the grant by the Supreme Court of a petition for writ of certiorari. The Supreme Court has vacated the judgment and has remanded to this court for further proceedings in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), together with the other decisions of the Supreme Court rendered simultaneously and also dealing with the obscenity issue.

Harding had been convicted in the United States District Court on a charge of knowingly receiving from an express company or other common carrier “obscene ... or other matter of indecent character . . .” which had been transported in interstate commerce contrary to 18 U.S.C. § 1462. During the Harding trial the defendant, through his present attorney, stipulated with the prosecution that the subject matter involved was obscene. Following conviction the judgment was appealed to this court and was affirmed in United States v. Harding, 475 F.2d 480 (1973).

There can be no question about the constitutionality of the statute in question since it has been upheld in United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973). Accordingly, the only issue which we need consider here now is the question whether the material involved in the Harding conviction was in fact obscene.

First, we consider whether the stipulation as to the obscene character of the material is to be regarded as invalid. The majority opinion in Miller recognizes that obscenity is a fact question which is to be determined by the jury on the basis of standards fixed by the trial judge. See Miller v. California, supra, 93 S.Ct. at 2615, 2618, 2619. We perceive no invalidity in stipulating to this matter of fact. See United States v. Harding, supra, 475 F.2d at 484, and see also United States v. Campbell, 453 F.2d 447 (10th Cir. 1972). The latter decision ruled that a stipulation as to “jointly possessed” was a fact susceptible to stipulation. Like the ultimate fact in controversy it is based on legal guidelines.

As we view it, the stipulation to obscenity is in effect a limited plea of guilty and there is no reason why this should not be permissible if it is done freely and voluntarily.

Second, we consider whether the modified standards contained in the Miller decision are capable of changing our view of the validity of the stipulation or the validity of the conviction. Relief can be granted from a stipulation in order to prevent manifest injustice. With that in mind we consider whether the change in the law has produced a changed condition which might call for the granting of relief from the stipulation.

The pre-Miller law or judicial guideline which was in effect when the accused here entered into the stipulation was the so-called Roth-Memoirs test which in its definition of obscenity set forth three elements which the prosecution had to establish:

1. That the dominant theme of the material taken as a whole appeals to a prurient interest in sex.

2. That the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters.

3. The material is utterly without redeeming social value.

In Miller the majority of the Court rejected the above mentioned test and set new guidelines as follows:

(a) Whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest.

(b) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.

(c) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The Court rejected the standard of “utterly without redeeming social value.” The Supreme Court declared that the limitations thus imposed were adequate to protect First Amendment rights, particularly in view of the existence of appellate power allowing an independent review of constitutional claims.

We conclude from reading Miller that the new standards are less exacting to the prosecution. Thus, proof of obscenity is much less difficult under these standards. We believe that material found to be obscene under the Roth-Memoirs test would unquestionably satisfy the test contained in Miller. Cf. United States v. Cote, 485 F.2d 574 (5th Cir. 1973); United States v. One Roll of Film, 481 F.2d 206, 209 (1st Cir. 1973).

We recognize that the cases cited above (Cote and One Roll of Film) did not involve a stipulation of obscenity. The courts there were able to examine the actual material and to make a judicial determination and say that if the material satisfied the Roth-Memoirs test, then a fortiori it satisfied the Miller test.

Noteworthy in our case is the fact that the parties stipulated not only to the obscene nature of the materials, but also to the factual description of the materials.

Due to the fact that we do not have materials before us we cannot go beyond this point, and for that reason we deem it necessary to remand the cause to the District Court for the purpose of a hearing at which the court should examine the materials and determine whether these materials are indeed obscene under the Miller test. If the court disbelieves or, for that matter, has a reasonable doubt as to whether the materials are obscene under the Miller test, then there would exist a basis for relieving the defendant from the stipulation which he entered.

On the basis indicated, the cause is remanded to the District Court for a hearing on the issue last mentioned.

      . In Campbell this court said:
      Stipulations as to facts freely and voluntarily entered into during trial are the equivalent of proof and on appeal neither party will be heard to suggest that the facts were other than as stipulated. Pryor v. Briggs Mfg. Co., 312 Mich. 476, 20 N.W.2d 279 (1945). For general background information concerning the conclusiveness of stipulations, see 50 Am.Jur. 610.
      453 F.2d at 451.

      . In Miller v. California, supra, 93 S.Ct. at 2670, the majority opinion said:
      If and when such a “serious doubt” is raised as to the vagueness of the words “obscene,” “lewd,” “lascivious,” “filthy,” “indecent,” or “immoral” as used to describe regulated material in 19 U.S.C. § 1305(a) and 18 U.S.C. § 1462, ... we are prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific “hard-core” sexual conduct given as examples in Miller v. California, supra .

      . If the materials are not available the court should conduct such hearing as is possible.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. 1,061.14 ACRES OF LAND, MORE OR LESS, IN STUTSMAN COUNTY, NORTH DAKOTA, and Adolph Roeszler and Mazie Roeszler, Landowners, Appellees, Everetts & Associates, Inc., a corporation, Appellant.
    No. 73-1425.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 18, 1974.
    Decided Feb. 13, 1974.
    Kenneth M. Moran, Jamestown, N. D., for appellant.
    Herman Weiss, Jamestown, N. D., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and ROSS, Circuit Judges. .
   PER CURIAM.

The Government through condemnation proceedings properly instituted acquired title to and possession of 1,061.14 acres of land, title to which was in Adolph and Mazie Roeszler. The date of taking was March 16, 1971. The Roeszlers in February 1967 had leased some 240 acres of the land here involved which contained gravel deposits to Everetts & Associates, Inc. (Everetts) for a ten-year period with royalty payments of seven cents a ton for sand and gravel removed. On November 3, 1970, this lease was extended for an additional ten-year term following the expiration of the original lease, with a royalty payment of twelve cents per ton during the ten-year extension.

The issue of just compensation on all interests in the real estate was tried to the court without a jury. After hearing all the evidence, the trial court (Chief Judge Benson) filed a memorandum opinion (not reported) incorporating detailed findings of fact, conclusions of law and the basis of decision, and a judgment entry awarding just compensation for the taking of $282,272.00. The court determined that $6,146.25 of the total amount should be paid to Everetts for its leasehold interest, the balance to be paid to Roeszlers.

For the purpose of clarification and simplification of the issues, we note the taking of the fee includes all lesser interests such as the gravel lease here in controversy, with the right of the owners of each interest to recover the value of their interest out of the total award. See Garrett v. United States, 407 F.2d 146, 152 (8th Cir. 1969).

No appeal has been taken from the total award. The Government has filed a statement with this court to the effect that it is willing to pay the total award and that the distribution of the award between owners of separate interests is a matter exclusively between the owners of the separate interests and is a matter with which the Government has no concern. See Scully v. United States, 409 F.2d 1061 (10th Cir. 1969).

Everetts alone has appealed from the final judgment. The appeal is based upon the ground that the amount awarded it for the termination of its leasehold interest by the condemnation is grossly inadequate and that the determination made is clearly erroneous.

As a basis for its determination of the fair market value of the leasehold interest, the court stated:

By reason of the location of the Roeszler gravel relative to the Jamestown market, and the quality and quantity of the gravel, the Court concludes the lease would have an economic value of 12$ per ton, which gave it a bonus value of 5$ per ton. The Court arrived at its fair market value of the lease by applying a 6% Inwood Coefficient of 4.917 to the actual bonus value, which was arrived at on the basis of an average yearly gravel removal by Everetts from the Roeszler pit of 25,000 tons, over six years, the unexpired term of the lease.

No allowance was made for the ten-year extension period on the basis that the economic value of the lease for such period did not exceed the 12‡ per ton royalty agreed upon.

Our examination of the record satisfies us that the lease award is supported by substantial evidence. The ten-year lease extension entered into some four months prior to the condemnation fixes the royalty for the extension period at 12$ per ton. Such extension was agreed upon after gravel had been extracted from the premises for several years under the prior lease and is evidence of the market value of the lease. Additionally, expert witnesses for the landowner fixed the economic value of the lease at 1$ per ton.

It is quite true that Everetts’ witnesses presented testimony that would support a substantially higher lease valuation. One of such experts based his valuation at least in part on the fact that it cost Everetts 14^ more per ton to process gravel in their newly leased pit. In refusing to give' weight to such evidence, the court stated:

Evidence of comparable costs of processing involved in a particular leased pit as compared to the leased pit in question, or evidence of future business losses and equipment necessary for extraction, or comparative processing per ton, particularly where it deals with only one individual gravel pit as compared to the leasehold in question, are all too speculative and uncertain to carry any weight in determining the value of the leasehold.

We agree.

It is the right and duty of the trial court as the fact finder in this case to determine the credibility of the witnesses, including expert witnesses, and the weight to be given to their testimony. United States v. 3698.63 Acres, 416 F.2d 65, 68 (8th Cir. 1969). A judgment supported by substantial evidence and not induced by an erroneous view of the law is entitled to be affirmed. See United States v. 421.89 Acres, 465 F.2d 336, 339 (8th Cir. 1972).

Everetts has failed to establish that the award made on its lease is clearly erroneous.

The judgment appealed from is affirmed.

      . Roeszlers in their brief argue that there is no substantial evidence to support any award on the lease and ask that we so determine. Roeszlers have taken no appeal from the judgment and thus are in no position to attack it. In any event, the contention wholly lacks merit,


author: EDWARDS, Circuit Judge.

text:
    UNITED STATES of America and Eldon E. Rolf, Special Agent, Internal Revenue Service, Petitioners-Appellants, v. Milton R. HENRY, Respondent-Appellee.
    No. 73-1274.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 12,1973.
    Decided Feb. 7, 1974.
    Robert E. Lindsay, Tax Div., Dept. of Justice, for petitioners-appellants; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and John P. Burke, Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief; Ralph B. Guy, Jr., U. S. Atty., Fred M. Mester, Asst. U. S. Atty., Jeffrey D. Snow, Trial Atty., U. S. Dept. of Justice, of counsel.
    Milton R. Henry, pro se.
    Before EDWARDS and LIVELY, Circuit Judges, and CECIL, Senior Circuit Judge.
   EDWARDS, Circuit Judge.

Appellant, United States, appeals from the denial of a petition to enforce a summons issued by the Internal Revenue Service under Sections 7402(b) and 7604(a) of the Internal Revenue Code of 1954. The summons was entitled “In the matter of the tax liability of Eddie Jackson” and was addressed to “Milton R. Henry, Attorney and Counsellor-atlaw.” Critical to the District Judge’s denial of enforcement were three facts:

1. Eddie Jackson at the time of the summons was under a'multicount indictment alleging conspiracy to violate and violations of the federal narcotic laws.

2. Milton Henry was Jackson’s lawyer in the pending narcotics law prosecution.

3. The language of the summons served on attorney Henry was sweeping.

The summons required Henry (the lawyer) to appear before an I.R.S. officer “to give testimony relating to the tax liability” of his client, Jackson, for the years 1968, 1969, 1970, and 1971, and to bring with him and produce for examination, the following:

“1. All records in your custody and control showing the dates and amounts of all fees, retainers, or any other form of deposit or compensation paid to you by or oh behalf of Eddie Jackson during the years 1968, 1969, 1970, 1971, and through January 31, 1972, for services performed by you for Eddie Jackson.
“2. All records in your custody and control showing the dates and amounts of all fees, retainers, or any other form of deposit or compensation paid to you by or on behalf of Eddie Jackson during the years 1968, 1969, 1970, 1971 and through January 31, 1972, for services performed by you for individuals, corporations, partnerships, or entities other than Eddie Jackson.
“3. All records in your custody and control showing the dates and amounts of any money or property received by you for or on behalf of Eddie Jackson for the years 1968, 1969, 1970, 1971, and through January 31, 1972.
“4. All records in your custody and control showing the dates and amounts of any disbursements made by you for or on behalf of Eddie Jackson during the years 1968, 1969, 1970, 1971, and through January 31, 1972.” (Emphasis in original.) .

In his motion to quash the summons, Henry stated that he had never met Jackson before December 15, 1971, and was not paid a retainer until January 1972. These statements the government accepted as fact before the District Judge and before us, but it insists upon full enforcement of the summons as to the month of January 1972. In this regard it asserts that the information may be important to a civil net worth tax claim against Jackson.

Henry’s motion to quash also advanced the claim of attorney-client privilege and pointed out that the Jackson indictment was brought by the Organized Crime Strike Force of the Attorney General’s Office, with whom I.R.S. agents cooperate.

The government’s brief asserts that the existence of the narcotics indictment and the fact that the summons happens to be served upon Jackson’s lawyer in that prosecution are wholly irrelevant to consideration of the motion to quash the summons. We do not see the matter that way—nor did the District Judge. In granting the motion to quash, he said:

“[I]t is important to emphasize that while the cases herein cited dealt only with the pendency, possibility or . probability of criminal prosecution for tax violations, the case at bar has the added, and significant, feature of a pending criminal narcotics conspiracy case. It is the possibility of the interplay between the two that creates what the Court considers to be an invidious situation.
“As to the tax matter alone, it does not appear -illogical to conclude that the purpose of the investigation is criminal prosecution only and that, therefore, Reisman, supra, [Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964)] is controlling. The presence of a special agent does not, of course, per se establish that (Donaldson, supra, 534, 535 [91 S.Ct. 544]) [Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971)]. The announced policy of the Strike Force to utilize Internal Revenue Code tools to pursue alleged narcotic traffickers and the statement of plaintiffs at the hearing that they were interested in ascertaining ‘net worth’ (a term generally associated with criminal prosecution) casts some doubt on the bona fides of plaintiffs. Nor was there any offer at the time of the hearing or subsequent thereto to dispel this doubt. Unanswered it sustains the Respondent’s burden.
“Perhaps more worrisome is the opportunity afforded to Plaintiffs to obtain information, not otherwise discoverable, relating to the pending criminal conspiracy case. It is noted that the summons is not restricted to, for example, an inquiry as to the date and amount of attorney fees paid, but requires that testimony be given by Respondent concerning a myriad of matters, i. e., fees paid by or on behalf of the taxpayer, or by him or on his behalf for the benefit of others, any ‘property’ or money otherwise received, and any disbursements made by Respondent for or on behalf of the taxpayer. It takes no great stretch of the imagination to forecast that such a broad inquiry could result in information that would not only benefit the government in its prosecution of the criminal conspiracy case, but could also result in the deprivation of some of taxpayer’s Constitutional and other rights and privileges, including the attorney-client privilege, a privilege recognized by the Supreme Court as a valid defense in the cited cases.” (Emphasis in original). (Footnote omitted.)

Like the District Judge, we, too, are concerned about the threat to both Fourth and Fifth Amendment values and to the attorney-client privilege which appears inherent in this case. This circuit has not been eager to restrict the information gathering activities of the I.R.S. in proper pursuance of its tax enforcement function. United States v. Cleveland Trust Co., 474 F.2d 1234 (6th Cir. 1973); United States v. Weingarden, 473 F.2d 454 (6th Cir. 1973); United States v. Stribling, 437 F.2d 765 (6th Cir. 1971); United States v. Artman, 435 F.2d 1375 (6th Cir. 1970); United States v. Held, 435 F.2d 1361 (6th Cir. 1970); United States v. Fruchtman, 421 F.2d 1019 (6th Cir. 1970); United States v. Michigan Bell Telephone Co., 415 F.2d 1284 (6th Cir. 1969).

In each of these cases we upheld the civil summons in a situation where, arguably at least, it could not only serve the purposes of tax collection but might likewise lead in the direction of tax fraud charges.

But we point out that in none of these cases was the subject of the tax investigation then under indictment in a pending federal prosecution where the information sought might be of material assistance to the prosecution, nor was the person upon whom the summons was served the lawyer for the subject of the pending prosecution in that case.

These distinctions apply with equal force to the two cases most favorable to the government’s position. Donaldson v. United States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971), and Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973). In neither case was there a pending criminal prosecution concerning the taxpayer under investigation, nor was the summons addressed to his lawyer in that criminal case.

In the fundamental case interpreting Section 7604(b), a unanimous Supreme Court said:

“[W]e hold that in any of these procedures before either the district judge or United States Commissioner, the witness may challenge the summons on any appropriate ground. This would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution. Boren v. Tucker, 9 Cir., 239 F.2d 767, 772-773, as well as that it is protected by the attorney-client privilege, Sale v. United States, 8 Cir., 228 F.2d 682.” Reisman v. Caplin, 375 U.S. 440, 449, 84 S.Ct. 508, 513, 11 L.Ed.2d 459 (1964).

In our instant case the District Judge’s finding that “the purpose of the investigation is criminal investigation only” is supported by the facts to which we have already referred and certainly is not “clearly erroneous.” It is further buttressed by the fact that the summons as applied to the only month now in issue sought “all records” pertaining to “any money or property received by you for or on behalf of Eddie Jackson.” This portion of the summons could not apply to Jackson’s civil liability, since the taxable year concerned in the investigation had not ended and Jackson had no civil liability as to any “income” paid on his behalf in January of 1972. But this information obviously could be useful to the government in its pending criminal conspiracy case against the taxpayer.

We note, of course, that the fundamental holding of Donaldson was:

“We hold that under § 7602 an internal revenue’ summons may be issued in aid of an investigation if it is issued in good faith and prior to a recommendation for criminal prosecution.” Donaldson v. United States, 400 U.S. 517, 536, 91 S.Ct. 534, 545, 27 L.Ed.2d 580 (1971).

We recognize that in Donaldson the criminal prosecution referred to was a criminal tax prosecution rather than, as here, a criminal prosecution wholly independent of the tax laws.

But where, as here, the information sought by the civil summons has an obvious and strong potential for supplying information needed in a pending federal criminal case, we believe the use of the civil summons is as much an abuse of process as if a criminal tax case had been recommended or had actually been begun.

The judgment of the District Court is affirmed.

      . The District Judge did not exclude the possibility that a civil summons directed only to the question of whether a fee or fees had been paid by Jackson to his lawyer, Henry, and if so, in what amount, might be valid and enforceable, nor do we. See United States v. Cromer, 483 F.2d 99 (9th Cir. 1973), and Colton v. United States, 306 F.2d 633 (2d Cir. 1962).


author: PER CURIAM. LAY, Circuit Judge

text:
    Michael T. RINEHART and Ronald H. Brown, Appellants, v. Lou V. BREWER, et al., Iowa State Penitentiary, Appellees.
    No. 73-1623.
    United States Court of Appeals, Eighth Circuit
    Submitted Jan. 17, 1974.
    Decided Feb. 8, 1974.
    Rehearing and Rehearing En Banc Denied March 5, 1974.

      Mark Schantz, Iowa City, Iowa, for appellants.
    Lorna Williams, Asst. Atty. Gen., Des Moines, Iowa, for appellees.
    Before MEHAFFY, Chief Judge, and LAY and ROSS, Circuit Judges.
   PER CURIAM.

This is a civil rights action by two state prisoners challenging the constitutionality of the hair length regulations of the Iowa State Penitentiary at Fort Madison, Iowa. The district court, in a memorandum opinion, upheld the validity of the regulations in the face of a broad range of constitutional claims. 360 F.Supp. 105 (S.D.Iowa 1973). In this appeal plaintiffs have narrowed their attack to the argument that the regulations constitute an unwarranted infringement of their right to govern their own personal appearance. For the reasons stated below we affirm the judgment of the district court.

On two prior occasions this court has summarily rejected identical challenges to similar regulations in other penal institutions. Ralls v. Wolfe, 448 F.2d 778 (8th Cir. 1971), aff’g per curiam 321 F.Supp. 867 (D.Neb.1971); Blake v. Pryse, 444 F.2d 218 (8th Cir. 1971), aff’g per curiam 315 F.Supp. 625 (D. Minn.1970). Plaintiffs argue that these cases should not be deemed controlling because they antedated our first public school hair regulation decision, Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971). Furthermore, plaintiffs argue that the “hands off” judicial attitude to review of prison administrative decisions reflected in Ralls and Blake has since been abandoned by us. To this effect plaintiffs cite McDonnell v. Wolff, 483 F.2d 1059 (8th Cir. 1973), and Moore v. Ciccone, 459 F.2d 574 (8th Cir. 1972). We reject both of these arguments.

The constitutional considerations presented by a public school hair regulation are qualitatively different from those involved in an otherwise similar prison 'regulation. Even if one ignores the prison administrator’s substantially greater concern over identification, security against contraband, and maintenance of peaceful relations among the institution’s patrons, a warden’s interest in hair length regulation is readily distinguishable from that of the public school principal. The primary function of the public school is to educate its students. Any concern over the maintenance of discipline is secondary to the purpose of education. The primary function of the prison, however, is to restore in the inmate population that minimal degree of personal discipline that is essential to a safe and orderly society. On the basis of this difference alone we feel Bishop v. Colaw is distinguishable and Ralls and Blake are controlling. As for plaintiffs’ contention that we have abandoned our restrained approach to review of matters involving prison administration, we disagree. We are, of course, always sensitive to any deprivation of a prisoner’s fundamental constitutional rights. Nevertheless, we also remain highly deferential to the discretion of the prison administrator where, as here, a reasonable disciplinary regulation is enforced with at least the minimal procedural fairness required by the constitution.

As plaintiffs recognize, we have already upheld a police department’s hair length regulation applicable to its officers. Stradley v. Andersen, 478 F.2d 188 (8th Cir. 1973). Thus, plaintiffs would have us grant to every convicted felon in prison the unqualified freedom to cater to his own tonsorial tastes that we have denied his arresting officer and the guard responsible for his safekeeping. We cannot accept such an anomalous result.

The judgment of the district court is affirmed.

LAY, Circuit Judge

(dissenting).

I respectfully dissent. Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971), recognizes that an indwelling characteristic of an individual’s personal liberty is the freedom of choice to develop one’s own personality and life style, which includes the right to grow and wear one’s hair in any way he or she chooses. The state has no real legitimate interest in forcing persons to conform in appearance. As with other areas of constitutional concern, in Bishop we determined that the state must demonstrate a compelling need before individual liberties can be restricted. The State of Iowa has shown none here. The various reasons suggested by the state are illusive when examined. The “ease of identification” argument possesses little logic if prison haircuts tend to be uniform. The “health and cleanliness” theory makes little sense if the prison is otherwise maintained in a sanitary way. The “safety and hidden contraband” justification loses substance when it is remembered that the prison authorities already conduct strip searches of the prisoner’s clothing and body crevices which provide less obvious areas for concealment. The majority opinion sustains the regulation restricting prison hair styles on the necessity of requiring prison discipline. It is difficult to accept this premise. Whether one is required to have his hair conform to a certain style or not will have insignificant effect upon the already highly regimented and restricted life within the parameters of heavily guarded prison walls.

If these men, who have obviously found it difficult to live within society’s mores, are ever to enjoy life within the law they must learn self control and discipline in an atmosphere where self respect is maintained and the human personality allowed to flourish. This cannot be achieved while the state pursues a policy which requires conformity beyond need.

I would reverse.

      . Stradley v. Andersen, 478 F.2d 188 (8th Cir. 1973), upheld a police department regulation governing hair styles of its officers on the basis that the hierarchy of a police department determined that an officer’s neat appearance was essential to maintain public respect. I fail to understand the anomaly suggested if prisoners may appear as they choose and police officers are required to do otherwise. Furthermore, since writing Stradley v. Andersen, I have had substantial doubts as to whether the need shown in Stradley justifies the restriction on the personal liberty of a police officer. On reflection there was no evidence developed in 'Stradley which demonstrated that a police officer could not carry out his duties just as efficiently with his own hair style as compared to the one insisted upon by his superiors. Cf. Miller v. Ackerman, 488 F.2d 920 (8th Cir. Dec. 19, 1973). A similar regulation of the Suffolk County, New York, police department was struck down by the Second Circuit Court of Appeals after Stradley was decided. Dwen v. Barry, 483 F.2d 1126 (2d Cir. 1973).


text:
    Max SLATTON, Jr., Plaintiff-Appellant, v. MARTIN K. EBY CONSTRUCTION CO., INC., d/b/a Eby and Associates of Arkansas, Defendant-Appellee.
    No. 73-1885.
    United States Court of Appeals, Eighth Circuit.
    Feb. 5, 1974.

      Henry Woods and Phillip H. McMath, Little Rock, Ark., on brief, for appellant.
    James W. Moore, Little Rock, Ark., for appellee.
    Before HEANEY, BRIGHT and ROSS, Circuit Judges.
   PER CURIAM.

This civil admiralty appeal is before us on the motion of the appellee, seeking summary dismissal pursuant to Rule 9(b) of the Rules of this Court. The motion is hereby granted and the appeal is dismissed.

Slatton brought this action under the Jones Act, 46 U.S.C. § 688, claiming that he was a member of the crew of a barge, that he was injured while working on the barge, and that his injury was proximately caused by the negligence of the defendant Martin K. Eby Construction Co., Inc. Slatton also alleged that the barge was unseaworthy in that it was not properly equipped or staffed.

The case was tried to a jury and the jury returned an $85,000 verdict for Slatton. Judgment was entered on the verdict, after deductions for Workmen’s Compensation benefits were made. The defendant then made the appropriate post trial motions, including a motion for new trial or remittitur. The trial court, concluding that the verdict was grossly excessive, ordered that:

if the plaintiff within the next 20 days enters a remittitur in the amount of $33,267.04 defendant’s alternative motion for a full or partial new trial will be denied. If the remittitur is not entered within that period of time, the Court’s judgment will be set aside and a new trial ordered on the issue of damages only.

Thereafter, Slatton failed to enter the remittitur and appealed.

The issue before us is whether an order granting a new trial solely on the issues of the amount of damages is appealable in an admiralty ease. We hold that it is not.

Were this not an admiralty case, the issue would be easily resolved as orders granting new trial are not appealable, but must be reviewed upon entry of final judgment. See, e.g., General Motors Corp. v. Lord, 488 F.2d 1096 (8th Cir. 1973). However, Congress has provided, in 28 U.S.C. § 1292(a) (3), that:

(a) The courts of appeal shall have jurisdiction of appeals from:
(3) interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed;

Both parties agree that the primary purpose of § 1292(a)(3) was to provide an immediate appeal in those situations where liability had been determined, but reference to a commissioner for the determination of damages was made. Thus § 1292(a)(3) was primarily enacted to avoid the delay and expense engendered by taking further evidence on the question of damages, when such an undertaking might be unnecessary if the decree as to liability should be reversed. St. Louis Shipbuilding & Steel Co. v. Petroleum Barge Co., Inc., 249 F.2d 905, 907 (8th Cir. 1957). See also Upper Mississippi Towing Corp. v. West, 338 F.2d 823, 825 (8th Cir. 1964); 9 J. Moore, Moore’s Federal Practice ft 110.19[3], 209-210 (1970). Plainly then this case does not present the normal situation in which Congress expected § 1292(a)(3) to apply, and we have recognized that “Section 1292 as a whole indicates that Congress intended appeals from interlocutory orders to be strictly limited to the unusual situations wherein such appeals are expressly authorized.” St. Louis Shipbuilding & Steel Co. v. Petroleum Barge Co., Inc., supra, 249 F.2d at 907.

Other courts have held that § 1292(a) (3) may apply in situations other than where the district court determined liability and ordered reference of the damage issue. As Professor Moore has said, “In general, . . . whenever an order dismisses a claim for relief on the merits it is appealable under § 1292(a) (3).” 9 J. Moore, Moore’s Federal Practice, supra, ¶ 110.19 [3] at 210 (emphasis supplied). Here we can find no dismissal of a claim on the merits. Rather we find that the district court determined that the plaintiff is entitled to some damage less than the amount of the jury’s award. In Barbarino v. Stanhope S.S. Co., 150 F.2d 54 (2d Cir. 1945), a longshoreman filed a libel against a steamship company to recover damages for personal injuries. The steamship company impleaded the longshoreman’s employer. After trial, the court awarded damages to the longshoreman and dismissed the steamship company’s action against the impleaded employer. The longshoreman then moved for reconsideration of the amount of damages, and the trial court granted a “new trial of the issues between the [longshoreman] and the [steamship company] only.” Id.

The steamship company appealed. The court of appeals dismissed the appeal, concluding that:

Obviously the granting of a new trial was neither a final order nor an interlocutory decree which determines any rights and liabilities between the [longshoreman] and the [steamship company].

Id. at 55.

As a consequence, we conclude that the district court’s order in this ease is not appealable, and the motion for summary dismissal must be granted.

      . A similar result has been reached in a Jones Act case tried in state court. Stevens v. Patterson Menhaden Co., 191 So.2d 692 (La.App.1966).


text:
    Benjamin I. DAVIS and Mollie M. (Myrtle S.) Davis, Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Appellant.
    No. 73-1477.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 12, 1973.
    Decided Feb. 6, 1974.

      Scott P. Crampton, Asst. Atty. Gen., Ernest J. Brown, Jonathan S. Cohen, William S. Estabrook, III, Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief, for appellant.
    W. Stuart McCloy, Sr., Memphis, Tenn., on brief, for appellees; McCloy, Dudley, Yawn & McCloy, Memphis, Tenn., of counsel; P. K. Seidman, Seidman & Seidman, Memphis, Tenn., of counsel, before Tax Court.
    Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and CECIL, Senior Circuit Judge.
   PER CURIAM.

The Commissioner of Internal Revenue appeals from the decision of the Tax Court, T.C.Memo. 1972-235. In an opinion announced by Judge Dawson, the Tax Court decided the case in favor of the taxpayers.

The sole question is whether the sale of a patent application which is not allowed by the Patent Office until ten months after the sale is the sale of “property of a character which is subject to the allowance for depreciation” within the meaning of § 1239(b) of the Internal Revenue Code. If so, the proceeds of the sale are taxable as ordinary income. If not, they are taxable as capital gains.

The Tax Court held that the patent application was not depreciable property or property subject to the allowance of depreciation and that the proceeds of the sale were entitled to capital gains treatment. We affirm, in conformity with Estate of Stahl v. Commissioner, 442 F.2d 324 (7th Cir. 1971), aff’g, 52 T.C. 591, and Lan Jen Chu v. Commissioner, 486 F.2d 696 (1st Cir. 1973), aff’g, 58 T.C. 598.

On April 22, 1965, taxpayer Davis acquired all of the inventor’s interest in an apparatus for skinning sausages. On March 4, 1966, Davis entered into an agreement selling all his rights, title and interest in the invention to a corporation controlled by him and his family for a total consideration of $2,250,000.00. On September 19, 1966, the inventor executed an application for letters patent in the invention. This application was filed in the Patent Office, along with the assignment of rights to Davis, on September 29, 1966. A notice of allowance was sent on January 27, 1967. The patent was issued on April 11, 1967. Reference is made to the decision of the Tax Court for a more complete recitation of the facts.

In Stahl the court held that patent applications for which a notice of allowance has been received have sufficiently matured so as to be property subject to depreciation and taxable as ordinary income. We agree that this is the correct standard under the statute.

The Commissioner argues that despite the fact that notice of allowance of the patent was not sent until some ten months after the sale of the application, the application was sufficiently matured to warrant treatment as a patent. It is asserted that the legislative intent behind § 1239 was to prevent situations in which a taxpayer sells appreciated property at current market price to his controlled corporation and thus, while keeping control over the property, reaps the benefits of both capital gains treatment for himself and depreciation deductions against ordinary income in his controlled corporation. Unquestionably this was done in the present case. This points up another tax loophole in the Internal Revenue Code. It is our view that only the Congress can plug that loophole.

Affirmed.


text:
    WESTCHESTER FIRE INSURANCE CO., Subrogee of Glens of Bingham Associates, and Robinson Brothers, Inc., Plaintiffs-Appellants, v. RING BROTHERS HEATING CO., and Prince Plumbing Co., jointly and severally, Defendants, v. HANOVER INSURANCE COMPANY, Garnishee-Defendant-Appellee.
    No. 73-1586.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 12, 1973.
    Decided Jan. 22, 1974.
    Davies, Rudzki & Zeder, Clair R. Carney, Detroit, Mich., on brief, for plaintiffs-appellants.
    Bell, Hertler & Hopkins, John W. Bell, John L. Hopkins, Jr., Pontiac, Mich., on brief, for appellee.
    Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and CECIL, Senior Circuit Judge.
   PER CURIAM.

The single question presented by this appeal is whether Michigan Compiled Laws § 600.6013, allowing interest on any money judgment from the date of filing a complaint, amends policies of casualty insurance that do not, by their terms, so obligate the insurer. The district court determined that it does not. We agree.

On October 19, 1972, appellants were awarded a money judgment in the district court for $140,236.28 in a diversity action for negligence. Hanover Insurance, which had defended Ring Brothers Heating Company, tendered to appellants an amount equal to the limits of its policy plus interest on the award calculated from the date of judgment. The applicable provision in the insurance policy provided:

III Supplementary Payments. The Company will pay in addition to the applicable limit of liability:
(a) All expenses incurred by the Company, all costs taxed against the insured in any suit defended by the Company and all interest on the entire amount of any judgment therein which accrues after entry of judgment and before the Company has paid or tendered or deposited in Court that part of the judgment which does not exceed the limit of the Company’s liability thereon; .... (Emphasis supplied).

Appellant contends that this policy provision was controlled by M.C.L. § 600.6013 which provided in pertinent part:

600.6018 Same; interest on judgment, rate, settlement
Sec. 6013. Interest shall be allowed on any money judgment recovered in a civil action, such interest to be calculated from the date of filing the complaint at the rate of 5% per year unless the judgment is rendered on a written instrument having a higher rate of interest in which case interest shall be computed at the rate specified in the instrument if such rate was legal at the time the instrument was executed.

Accordingly, appellant argues that the insurance contract was amended because of another policy provision that provides :

F. Conformity with Statute: The terms of this policy and forms attached hereto which are in conflict with the statutes of the State wherein this policy is issued are hereby amended to conform with such statutes.

Appellants also rely on Cosby v. Pool, 36 Mich.App. 571, 194 N.W.2d 142 (1971), where the statute was given retroactive application for an insurer that was obligated under its policy to pay interest accruing on verdict or after judgment even though the policy was issued prior to the enactment of M.C.L. § 600.6013. The former statute provided for interest only from the date of judgment.

We determine, however, that Cosby requires affirmance of the judgment below. In that case, the policy required the insurer to pay interest “accruing on verdict or after judgment,” and clearly because of the statute, interest accrued on the verdict from the date the complaint was filed. In this appeal, the policy provides for payment only of that interest “which accrues after entry of judgment” even if the total amount so paid exceeds the limits of liability. Arguably, Hanover might be liable under its insuring clause for interest from the date of filing the complaint if the inclusion of that amount would not exceed policy limits. That question, however, is not before us and we do not decide it.

The following language from the opinion in Cosby controls the issue before us.

An insurer can limit the risk it assumes. Cottrill v. Michigan Hospital Service (1960), 359 Mich. 472, 102 N. W.2d 179, It follows that the insurer should be liable only for the interest that accrues on the amount of risk it has assumed. Otherwise, it would be paying interest on a risk it did not assume and for which it did not charge premiums.
36 Mich.App. 571, 578-579, 194 N.W.2d 142, 146.

For the foregoing reasons and those in the memorandum opinion of the district court, the judgment is affirmed.

      . The Michigan Insurance Code, Michigan Compiled Laws §§ 500.3004, et seep, mandates the inclusion of certain provisions in liability insurance policies; and this court has held that, if designated insurance contracts fail to incorporate the statutory requirements, the mandatory provisions will be read into the contracts. New Amsterdam Casualty Co. v. Jones, 135 F.2d 191 (6th Cir. 1943). We observe, however, that the Insurance Code does not mandate the inclusion in a casualty insurance contract of a provision obligating the insurer to pay all interest from the date of filing to the date of judgment.


text:
    The UNITED STATES of America, Plaintiff-Appellee, v. Steve Louis KANDIS, aka Stve Romano, aka Steve Ramono, Defendant-Appellant.
    No. 73-1416.
    United States Court of Appeals, Tenth Circuit.
    Submitted on briefs Oct. 18, 1973.
    Decided Jan. 28, 1974.
    Rehearing Denied Feb. 27, 1974.
    Thomas A. Wallace, Denver, Colo., for defendant-appellant.
    Richard J. Spelts, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty., with him on the brief), for plaintiff-appellee.
    Before LEWIS, Chief Judge, and JONES and McWILLIAMS, Circuit Judges.

       Of the Fifth Circuit, sitting by designation.

   PER CURIAM.

This appeal follows a judgment and sentence entered by the District Court for the District of Colorado after a jury verdict determined Kandis to be guilty of a violation of 18 U.S.C. § 1014, knowingly making a false statement to a federally-insured bank for the purpose of obtaining a loan. Appellant asserts three contention's of trial error as grounds of prejudice requiring the conviction to be set aside. We hold each such contention to be without merit and affirm.

Kandis obtained two loans from the subject bank, one under the name Romano and another under the name Ramono. He was prosecuted under his true name Kandis, aka, Romano and Ramono. Obviously, evidence probing appellant’s identity and his use of other names in regard to the transaction properly probed the charge and the fact that the bank relied primarily upon the identity of a guarantor in making the loan did not negative the admissibility of such evidence. Appellant’s claim to the contrary must fail. United States v. Skolek, 10 Cir., 474 F.2d 582.

Next, Kandis argues that the court erred in allowing the witness Simeone, the guarantor of the subject notes, to claim a fifth amendment right to refuse to testify. Simeone was subpoenaed by the government but called by the appellant, and thereupon claimed the constitutional immunity. This privilege is personal to the witness, United States v. Skolek, supra, and extends to any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or could lead to other evidence that might be used against him. In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. Here, the evidence showed Simeone was personally present during the granting of the first loan, knowingly vouched for Kandis’ false identity and was clearly and deeply involved in the transaction. His right to immunity was firmly established and the ruling of the court was manifestly correct.

Finally, Kandis claims that the prosecution in rebuttal argument was allowed to argue a prejudicial non-evidentiary fact. Again, the claim is without merit. During the cross-examination of some prosecution witnesses counsel attempted to establish the possibility that some of the assets listed by appellant in his financial disclosure statement could have been owned by him under another name or by a corporation in which he owned stock. This possibility was renewed in argument as one not negatived by the prosecution. In rebuttal argument, the assistant United States attorney pointed out that the financial statement form had a specific place for the listing of corporate holdings which Kan-dis had left blank and proceeded to argue the inference that Kandis owned no such assets. Although there was no specific evidence of lack of such ownership the argument is well conceived and proper. United States v. Dota, 10 Cir., 482 F.2d 1005.

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Dale P. EWING, d/b/a Action Publishing Company, Defendant-Appellant.
    No. 638-70.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Nov. 12, 1973.
    Decided Feb. 4, 1974.

      Robert D. Keefe, Government Regulations Section, Crim.Div., Dept. of Justice, Washington, D. C., for plaintiffappellee.
    Robert T. Bertholdo, Encino, Cal., for defendant-appellant.
    Before SETH, ALDISERT  and McWilliams, circuit judges.

       Of the Third Circuit, sitting by designation.

   PER CURIAM.

When this appeal was previously before us, we affirmed the conviction of ten counts of violating 18 U.S.C. § 1461, knowing use of the mails for the delivery of obscene material. The Supreme Court has vacated the judgment and remanded to us for further consideration in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. 12 200-Ft. Reels of Super 8mm Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973); and Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993 (1973).

These decisions, in our opinion, require a reexamination of the facts of this case together with the determination of what may be the standards applicable to cases of this nature. We are not unmindful of the decisions of other circuits which hold that remand is not necessary. We are not prepared to hold or assume that in all instances the national standards are more lenient than all local standards.

The Court’s decisions of June 21 and 25, 1973, include cases arising under state law and under federal law. The Court did not express itself directly on the application of “community standards” to trials under the federal statute as compared to its statement as to the state laws in Miller, supra. See, however, United States v. 12 200-Ft. Reels, supra, 93 S.Ct. at 2669, and the reference therein to “these” standards. 12 200-Ft. Reels upheld an attack on the constitutionality of 19 U.S.C. § 1305(a), and the Court related the tests under that section to the examples in Miller. United States v. One Reel of Film, 481 F.2d 206 (1st Cir. 1973), considered a post-Miller forfeiture case also under 19 U.S.C. § 1305 as to a film seized upon entry into the country. The court there applied national standards to the seizure apparently for the very practical reasons expressed in the concurring opinion.

A consideration of the application of national or local standards should be initially made by the trial court in addition to the determination of what such standards may be.

The judgment of conviction is vacated and the cause is remanded to the district court for a new trial.

      . 445 F.2d 945 (10th Cir. 1971).


text:
    James ELLIS, Petitioner-Appellant, v. Raymond BUCHKOE, Respondent-Appellee.
    No. 73-1691.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 13, 1973.
    Decided Feb. 6, 1974.
    James Ellis, pro se.
    Frank J. Kelley, Atty. Gen. of Mich., Robert A. Derengoski, Sol. Gen., Thomas A. Carlson, Asst. Atty. Gen., Lansing, Mich., on brief for respondent-appellee.
    Before WEICK and MILLER, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   PER CURIAM.

This is an appeal from denial of a writ of habeas corpus by the district court. The petitioner, James Ellis, was convicted of first degree murder in the Michigan state courts. The petitioner admitted the homicide, but claimed that it resulted from his defense of another person. The jury, apparently unimpressed by his defense, found the petitioner guilty as charged.

After exhausting his state remedies, the petitioner filed his habeas corpus petition in the United States District Court for the Western District of Michigan, alleging fourteen errors. The district court referred the matter to a federal magistrate for a preliminary review, following which the magistrate submitted a Report and Recommendation dealing with and rejecting on their merits each of the claimed constitutional errors. While he examined no witnesses, he relied upon the transcript of the state court trial. The district court later heard an oral argument from petitioner’s counsel but held no formal hearing and made no independent examination of the state transcript. He subsequently adopted the magistrate’s recommendations and issued an order dismissing the petition.

The petitioner raises the same fourteen issues on appeal. Without reaching the merits, we are compelled to take notice of the propriety of the district court’s reliance on the magistrate’s Report and Recommendations in dismissing the petition. Although styled in the form of a Report and Recommendations, the document is actually an opinion disposing of the issues on their merits.

The Federal Magistrates Act of 1968, 28 U.S.C. §§ 631 to 639, provides in § 636(b):

Any district court of the United States, by the concurrence of a majority of all the judges of such district court, may establish rules pursuant to which any full-time United States magistrate, or, where there is no full-time magistrate reasonably available, any part-time magistrate specially designated by the court, may be assigned within the territorial jurisdiction of such court such additional duties as are not inconsistent with the Constitution and laws of the United States. The additional duties authorized by rule may include, but are not restricted to—
(1) service as a special master in an appropriate civil action, pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts;
(2) assistance to a district judge in the conduct of pretrial or discovery proceedings in civil or criminal actions ; and
(3) preliminary review of applications for posttrial relief made by individuals convicted of criminal offenses, and submission of a report and recommendations to facilitate the decision of the district judge having jurisdiction over the case as to whether there should be a hearing.

This Court in Wedding v. Wingo, 483 F.2d 1131 (6th Cir. 1973) held that a United States Magistrate had no authority to conduct an evidentiary hearing on a habeas corpus petition. In so holding the Court stated:

The Act granted authority to the Magistrate to conduct only a preliminary review of applications for post-trial relief in order to facilitate the decision of the District Court as to whether there should be a hearing.

Id. at 1133.

We recognize that the Magistrate in this case only reviewed the state court record and did not examine witnesses as did the magistrate in Wedding. This does not alter the fact that the magistrate did exceed his authority by deciding substantive issues on the basis of the state record. The Act is explicit that in applications for post-trial relief, the magistrate’s sole function is to conduct a preliminary review, not to pass upon the merits of the applications, nor even to decide whether there should be a hearing on the basis of the state record or on the basis of live testimony, but “to facilitate the decision of the District Court as to whether there should be a hearing.” In short, the decision to have a hearing as well as the disposition of the merits must be made independently by the Article III Judge himself, though he may utilize the services of the magistrate for assistance in deciding whether a hearing is necessary. It is clear to us that in post-conviction cases, the evaluation of an applicant’s claims to determine their validity, whether on the basis of the state record or by hearing testimony anew, is a judicial function which the Magistrate’s Act did not intend to be exercised by a Federal Magistrate but only by an Article III Judge. Any different interpretation of the Act could raise serious constitutional questions.

The analysis of the Federal Magistrates Act of 1968 in Wedding, though set in a somewhat dissimilar factual situation, is controlling in the disposition of the present case.

Thus, based on the limitations articulated in Wedding, we find that the district court erred in allowing the magistrate to go beyond facilitating “the decision of the District Court as to whether there should be a hearing” by making recommendations on the substantive issues.

The decision of the district court is reversed and remanded with instructions to make an independent determination on the merits of the petition. The court shall determine whether reliance on the state transcript is sufficient. In doing so he may give consideration to the magistrate’s recommendations in this respect.

      . The tendency of magistrates to conduct evidentiary hearings and to dispose of habeas corpus cases on their merits by writing opinions was noted and condemned by Professor David L. Shapiro in a recent law review article. Shapiro, Federal Habeas Corpus : A Study in Massachusetts, 87 Harvard Law Review 321 (1973).


text:
    Evelyn Joy ARNOLD, Judy Fort, Plaintiffs-Appellants, v. Roy BONDURANT, Individually and as Superintendent of Franklin County Board of Education, et al., Defendants-Appellees.
    No. 73-1497.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 26, 1973.
    Decided Feb 7, 1974.
    Arthur L. Brooks, Lexington, Ky., for plaintiffs-appellants; Brooks, Sullivan & Molloy, Lexington, Ky., on brief.
    Ben B. Fowler, Stites, McElwain & Fowler, Frankfort, Ky., for defendantsappellees.
    Before WEICK, EDWARDS and LIVELY, Circuit Judges.
   PER CURIAM.

Two nontenure school teachers in Franklin County, Kentucky, appeal from the dismissal of their complaints under 42 U.S.C. § 1983 (1970), after a full trial before a United States District Judge in the Eastern District of Kentucky. Both complained that their First Amendment rights of freedom of speech had been violated by either termination or restriction of their teaching employment.

As to appellant Fort, a review of this record warrants affirmance of the judgment of the District Court because, as found by the District Court, there was a failure of proof that her exercise of First Amendment speech rights played any role in her not being hired for summer school employment.

As to appellant Arnold, the record is not so clear. Arnold was a nontenure teacher who was employed for two years at the Peaks Mill School as both teacher an librarian. During the 1969-1970 school year she was involved in three episodes which arguably might have played a role in the superintendent’s recommending (with the School Board’s approval) that she not be rehired for the following school year.

1) At the beginning of the school year appellant Arnold was involved in a controversy of some proportions concerning the division of her time between library duties and teaching duties. The argument could not be resolved at the school and was carried to the offices of the superintendent and his assistants on a number of occasions.

2) Arnold was the acting president of the Teachers Association in Franklin County who led a four-day strike. The strike was ultimately terminated by an injunction and in Jefferson County Teachers Ass’n v. Board of Education of Jefferson County, 463 S.W.2d 627 (Ky.1970), cert. denied, 404 U.S. 865, 92 S.Ct. 75, 30 L.Ed.2d 109 (1971), the Court of Appeals of Kentucky held that under the public policy of Kentucky, the strike had been unlawful and the injunction had been valid.

3) During the strike Arnold wrote a letter to the newspapers which was critical of the Board. It is this letter which appellant Arnold urged that the District Judge accept as the real reason for the discharge.

None of the teachers was discharged during or after the strike, and the action of the superintendent and the Board in not rehiring Arnold came several months later. When Arnold asked for reasons for the refusal to rehire her, the Board referred to her “uncooperative spirit as evidenced by a delay in scheduling for a few weeks at the beginning of the school year” which concerned Arnold’s assignment to work in the library.

We, of course, as urged by appellants, have no doubt that even as to a nontenure teacher, boards of education cannot deny employment “on a basis that infringes his constitutionally protected interest—especially his interest in freedom of speech.” Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). See also Orr v. Trinter, 444 F.2d 128 (6th Cir. 1971), cert. denied, 408 U.S. 943, 92 S.Ct. 2847, 33 L.Ed.2d 767, rehearing denied, 409 U.S. 898, 93 S.Ct. 95, 34 L.Ed.2d 157 (1972).

The-District Judge who heard the evidence, however, held that appellant Arnold had failed to prove her case. The District Judge noted that the superintendent had said after the strike that he had “saved everybody else’s job,” and continued:

“If he could save all jobs, why didn’t he save the plaintiff, Mrs. Arnold’s job, and the answer is because he thought Mrs. Arnold would not fit into the school system because of the circumstances which arose in the fall of 1969 with reference to the schedule. That is the natural answer, that is the natural sequence of rationalization. He had no other reason, no unfriendliness or dislike or anything shown here between Mr. Bondurant and Mrs. Arnold. There is no proof. There was no reason to think that he would have any resentment against her because she walked out and because she was one of the leaders. I am satisfied that she was not the only vociferous person that walked out of the school.”

It is possible that if we had heard the evidence, we might have indulged somewhat more skepticism about the schedule argument being the sole reason for failure to rehire. We note, however, that the strike was judged to be illegal under Kentucky law and that appellant Arnold’s reliance in seeking federal intervention on a constitutional basis must be principally upon the newspaper letter critical of the School Board.

Additionally, there is strong evidence that the schedule problem at the beginning of the school year became a major issue—at least in the mind of the superintendent. He was quoted by several witnesses as having said at the time (well before both the strike and the letter) concerning appellant Arnold:

“With all the trouble she is causing out there now, if she were to reach tenure stage, she’d be a regular hell-cat.”

The findings of fact of the District Judge, of course cannot be set aside unless we can hold that they are “clearly erroneous.” Fed.R.Civ.P. 52(a). This record does not permit such a finding.

The judgment of the District Court is affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Sam GATES, Defendant-Appellant.
    No. 73-1923.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 10, 1974.
    Decided Feb. 8, 1974.
    Jay A. Charon, Gary, Ind., for defendant-appellant.
    John R. Wilks, U. S. Atty., Fort Wayne, Ind., Andrew B. Baker, Jr., Asst. U. S. Atty., Hammond, Ind., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, KILEY, Senior Circuit Judge, and SPRECHER, Circuit Judge.
   PER CURIAM.

Defendant-appellant,. Sam Gates, was indicted and convicted for possession of a firearm, which was not registered, in violation of 26 U.S.C. § 5861(d). He has appealed contending that the evidence was insufficient to sustain a conviction. We agree and reverse.

According to the evidence most favorable to the Government, the pertinent facts are as follows. On the evening of September 13, 1972 Officers Lewis DeLuna and Robert Nix of the Gary Police Department went to the Skyline Motel in response to a radio dispatch from headquarters in reference to a suspicious light-colored car. As the officers entered the parking lot of the Skyline Motel a light-colored car was departing and the officers proceeded to follow it for a short distance. After observing the occupants of the car look back at them the officers stopped the vehicle.

Melvin Jones, the driver of the car got out, walked to the rear, and met Officer DeLuna who questioned him about the vehicle registration and his driver’s license. At the same time Officer Nix walked over to the passenger side of the automobile. As he approached the vehicle Officer Nix testified that the passenger, Sam Gates, “appeared to be nervous and looked over his shoulder a couple of times and then again looked to the front towards the floor of the car. It looked like he was doing something with his hands, I can’t tell what, because I was approaching from the rear.” Officer Nix then requested that defendant step out of the vehicle. When the defendant left the vehicle Officer Nix saw a weapon laying on the floor of the vehicle and protruding from under the seat which defendant had been occupying. Defendant’s indictment, conviction, and this appeal followed.

We must ascertain whether the evidence together with all reasonable inferences and viewed in a light most favorable to the Government was sufficient to prove that defendant was guilty beyond a reasonable doubt of violating 26 U.S.C. § 5861(d). In so doing, we are guided in our determination by United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). In his concurring opinion Mr. Justice Brennan enunciated the quantum of proof necessary to sustain a conviction under 26 U.S.C. § 5861(d):

“To convict appellees of possession of unregistered hand grenades, the Government must prove three material elements: (1) that appellees possessed certain items; (2) that the items possessed were hand grenades; and (3) that the hand grenades were not registered. The Government and the Court agree that the prosecutor must prove knowing possession of the items and also knowledge that the items possessed were hand grenades. Thus while the Court does hold that no intent at all need be proved in regard to one element of the offense—the unregistered status of the grenades— knowledge must still be proved as to the other two elements. Consequently, the National Firearms Act does not create a crime of strict liability as to all its elements.” (Emphasis supplied.)

Using this criterion we find, upon a review of the record, that the Government failed to prove by sufficient evidence that defendant was guilty beyond a reasonable doubt of violating 26 U.S.C. § 5861(d).

The record reveals that the only evidence submitted by the Government connecting defendant with the firearm was: he appeared nervous; he looked over his shoulder; he looked to the front after looking over his shoulder; and, he appeared to be doing something with his hands. We think that the foregoing evidence was insufficient to sustain a conviction. There was no evidence to establish that defendant in any way exercised dominion or control over the firearm. Defendant was merely a passenger and nothing can be inferred from that that he had control over the firearm. Additionally, there was nothing to indicate that during the time defendant was a passenger he had any connection with the gun. The only relationship between the defendant and the firearm was mere proximity which, standing alone, was insufficient to sustain a conviction.

To find guilt under the charge the Government was required to produce more proof than it offered. The thrust of the Government’s evidence rested on suspicion and conjecture arising from defendant’s proximity to the firearm. This was not enough.

The judgment of conviction is reversed with directions that the district court enter judgment of acquittal for defendant.

      . Section 5861. Prohibited acts
      It shall be unlawful for any person—
      (d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record;

      . Melvin Jones was indicted with defendant, but was acquitted in a bench trial after electing to waive a jury trial.

      . The Government’s brief makes reference to testimony that defendant “bent forward.” There is, however, no testimony to this effect in the transcript.

      . There were no fingerprints found on the gun.


author: PER CURIAM:

text:
    Robert R. THONEN, Appellee, v. Leo W. JENKINS, President of East Carolina University, et al., Appellants. William SCHELL, Jr., Appellee, v. Leo W. JENKINS, Individually and as President of East Carolina University and his successors and Robert Morgan, Individually and as Chairman and Representative of the Board of Trustees of East Carolina University, Appellants.
    Nos. 72-1601, 72-1602.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 31, 1972.
    Decided Aug. 2, 1973.
    See also, 4 Cir., 455 F.2d 977.
    Andrew A. Vanore, Jr., Deputy Atty. Gen., of N. C. (Robert Morgan, Atty. Gen., on brief), for appellants.
    James E. Keenan, Durham, N. C. (Paul, Keenan & Rowan, Durham, N. C., on brief), for appellees.
    Before BOREMAN, Senior Circuit Judge, and CRAVEN and FIELD, Circuit Judges.
   PER CURIAM:

The defendants, officials of East Carolina University, appeal from an order of the district court expunging the record of disciplinary action taken against plaintiffs, and requiring that, if academically eligible, the plaintiffs be allowed to continue their education at East Carolina University.

While students at East Carolina University, Schell wrote a letter that was published in the school newspaper, of which Thonen was editor-in-chief. The letter was critical of parietal regulations and ended with a “four-letter” vulgarity referring to the president of the university. Disciplinary action was commenced against Thonen and Schell by officials of the university, and subsequently plaintiffs brought this suit in the United States District Court seeking appropriate relief, including readmission to the university to pursue their education.

At a plenary hearing below, the district court found: “No disturbances or disorders or interference in connection with any school or school related function occurred as a result of the printing of the letter . . . .” The district judge reasoned that the sanction imposed upon the students was in violation of the first amendment to the United States Constitution, and accordingly granted a preliminary injunction. We affirm.

In Healy v. James, 408 U.S. 169, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972), the Court made clear first amendment rights on college campuses are coextensive with those in the community at large. Thus, as to speech related activities, a university may legitimately “enforce reasonable regulations as to the time, place and manner of speech and its dissemination.” “But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”

The record reveals that university officials undertook to deny these college students the right to continue their education because one word in an otherwise unexceptionable letter on a matter of campus interest was deemed offensive to good taste. On at least one prior occasion the officials had remonstrated with the student editors about the use of vulgarity in the publication but had made it clear that they did not intent to act in a censorial fashion nor did they suggest that such vulgarity would not be tolerated in the future. It was only when the vulgarity was used in the open letter addressed to President Jenkins with respect to his dormitory policy that the school authorities viewed it as totally unacceptable and took disciplinary action against Thonen and Schell. That they may not do. The decisions of the Supreme Court make clear “that the mere dissemination of ideas-no matter how offensive to good taste-on a state university campus may not be shut off in the name alone of ‘conventions of decency.’ ” Papish, 410 U.S. at 670, 93 S.Ct. at 1199, 35 L.Ed.2d at 622.

Accordingly, for the reasons stated, the decision of the district court is

Affirmed.

BOREMAN, Circuit Judge, reserves the right to file a dissenting opinion.

      . In Mealy, the Court stated :
      Yet, the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960). The college classroom with its surrounding environs is peculiarly the “ ‘marketplace of ideas,’ ” and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom.
      408 U.S. at 180-181, 92 S.Ct. at 2346.

      . Papish v. Board of Curators, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618, 622 (1973). Police Dep’t v. Mosley, 408 U.S. 92, 98, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).

      . Police Dep’t v. Mosley, 408 U.S. at 95, 92 S.Ct. at 2290. Becent decisions of the Court make clear that the published letter is not obscene, Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), is not “directed to inciting or producing imminent lawless action [or] is likely to incite or produce such action,” Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969) ; and, is not otherwise unprotected. Papish, 410 U.S. at 670, 93 S.Ct. at 1199, 35 L.Ed.2d at 622. We note that the standards are less stringent, however, in the secondary school setting. Baughman v. Freienmuth, 478 F.2d 1345 (4th Cir., 1973) ; Quarterman v. Byrd, 453 F.2d 54 (4th Cir. 1971).


text:
    UNITED STATES of America, Plaintiff-Appellant, v. Ronald WILSON, Defendant-Appellee.
    No. 73-1869.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 14, 1973.
    Decided Feb. 14, 1974.
    Peter J. Kelley, Asst. U. S. Atty., for plaintiff-appellant; Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief.
    Kenneth M. Mogill, Detroit, Mich., for defendant-appellee; Cornelius Pitts, Detroit, Mich, on brief; Kenneth M. Mo-gill, Detroit, Mich., of counsel.
    Before PHILLIPS, Chief Judge, EDWARDS, Circuit Judge, and O’SULLIVAN, Senior Circuit Judge.
   PER CURIAM.

In this case the government appeals from an order by the United States District Court for the Eastern District of Michigan, Southern Division, granting defendant’s suppression motion pertaining to evidence seized under a search warrant. It was defendant’s contention (and the District Judge agreed) that the execution of the search warrant was faulty in that it was served six days after it was issued.

At the time involved in this case, the applicable rule, Federal Rules of Criminal Procedure 41(c) and (d), contained a ten-day limit in relation to service, but also provided that the search warrant should be executed “forthwith.” On October 1, 1972, after the events with which we are concerned here, Rule 41 was amended so as to omit the word “forthwith.”

Various Courts of Appeals had previously interpreted the rule as allowing for somewhat delayed service within ten days. See, e. g., United States v. Rael, 467 F.2d 333 (10th Cir. 1972) (five-day delay caused by lack of sufficient personnel); United States v. Harper, 450 F.2d 1032 (5th Cir. 1971) (nine-day delay resulting from a desire to arrest accomplices) ; United States v. Dunnings, 425 F.2d 836 (2d Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970) (nine-day delay resulting from a desire to arrest defendant); United States v. Nepstead, 424 F.2d 269 (9th Cir.), cert. denied, 400 U.S. 848, 91 S.Ct. 50, 27 L.Ed.2d 86 (1970) (six-day delay caused by desire to wait until illicit drugs were actually manufactured); United States v. McClard, 333 F.Supp. 158 (E.D.Ark.1971), aff’d, 462 F.2d 488 (8th Cir.), cert. denied, 409 U.S. 988, 93 S.Ct. 345, 34 L.Ed.2d 255 (1972) (delay of six days caused by weather and dispersal of force). The better reasoned of these cases appear to us to have allowed some delay where the cause or causes of the delay could appropriately be held to be “reasonable.” United States v. Harper, 450 F.2d 1032 (5th Cir. 1971); United States v. Dunnings, 425 F.2d 836 (2d Cir. 1969), cert. denied, 397 U.S. 1002, 90 S.Ct. 1149, 25 L.Ed.2d 412 (1970).

In our instant case the government’s rationale for the delayed service was that the informant who had made the purchase would have been endangered by service of the search warrant immediately on the heels of the purchase, that the agent wanted to wait until he had reason to know that a larger amount of heroin was likely to be present, and that in any event, he had ten days in which he could do it at his discretion. The appellee argues that the word “forthwith” means immediately or at least as soon as physically possible. This reasoning, however, does not take into account the fact that the rule does contain a ten-day limit and, as noted above, has been interpreted as allowing for some delay where good reason for it is shown.

Since the rule has been changed so as to give the Magistrate who issues the warrant the responsibility for designating the time for service “within a specified period of time not to exceed 10 days,” Fed.R.Crim.P. 41(c), this case has little precedential value. As to this cáse we follow what we have described as the. better reasoned of the cases above.

Evidence showed that the informant in this case had made a buy on the same day when the warrant was issued. The agent in charge of the case testified that in such a circumstance, he delayed the service of the warrant to conceal the identity of the informant, unless the government was going to take special measures to protect the informant.

We believe that protection of the informant did constitute reasonable grounds for the delay in this case, and that the finding to the contrary was clearly erroneous. We also believe that there was continuing probable cause on the date of the search and that the motion to suppress should have been denied.

The judgment of the District Court is reversed.


text:
    Clement A. TAVARES and Alice B. Tavares, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-1427.
    United States Court of Appeals, Ninth Circuit.
    Jan. 30, 1974.

      Howard William Bailey, Fresno, Cal., for plaintiffs-appellants.
    Dwayne Keyes, U. S. Atty., William R. Allen, Carolyn Just, U. S. Atty., Richard Y. Boulger, Asst. U. S. Atty. in Charge, Fresno, Cal., Michael C. Durney, Meyer Rothwacks, Chief, Appellate Section, Scott P. Crampton, Asst. Atty. Gen., U. S. Dept. of Justice, Tax Div., Washington, D. C. for defendant-appellee.
    Before MERRILL and WRIGHT, Circuit Judges, and KING, District Judge.

       Honorable Samuel P. King, United States District Judge for the District of Hawaii, sitting by designation.

   PER CURIAM:

Appellants-taxpayers protest the levy of the Internal Revenue Service upon bank accounts pursuant to notice of assessment following deficiency notice, all strictly in accordance with 26 U.S.C. § 6331. Appellants contend that Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), requires that a judicial hearing be had prior to the taking of their property. The District Court ruled against this contention and granted summary judgment for the United States. We affirm.

The issue is foreclosed by Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931). There it was stated:

“The right of the United States to collect its internal revenue by summary administrative proceedings has long been settled. Where, as here, adequate opportunity is afforded for a later judicial determination of the legal rights, summary proceedings to secure prompt performance of pecuniary obligations to the government have been consistently sustained.”

283 U.S. at 595, 51 S.Ct. at 611. And, later:

“[T]he right of the United States to exact immediate payment and to relegate the taxpayer to a suit for recovery, is paramount.”

283 U.S. at 599, 51 S.Ct. at 612.

As recently as 1972 the Supreme Court has noted the distinction between Sniadach, which involved a private creditor, and Phillips, indicating that the former cast no doubt on the continued force of the latter. Fuentes v. Shevin, 407 U.S. 67, 90-92, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).

Judgment affirmed.


text:
    FOSTER TRANSFORMER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-1853.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 4, 1974.
    Decided Feb. 15, 1974.
    J. Mack Swigert, Thorley C. Mills, Jr., Cincinnati, Ohio, on brief, for petitioner.
    Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Robert Sewell, John Ferguson, Warren Ogden, Attys., National Labor Relations Board, Washington, D. C., on brief, for respondent.
    Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and ROSENSTEIN, Senior Customs Judge.

       Senior Judge Samuel M. Rosenstein, United States Customs Court, sitting by designation.

   ORDER

This case is before the court on the petition of Foster Transformer Company to review a decision of the National Labor Relations Board, and the cross-application of the Board for enforcement of its order. Reference is made to the decision of the Board, reported at 205 N.L.R.B. 82, for a recitation of pertinent facts.

The court is of the view that the Board properly concluded that the company violated § 8(a)(5) and (1) of the Act by refusing to bargain with the certified representative of its employees, and that the Board did not abuse its discretion in overruling the objections of the Company to the election.

It is ordered that the order of the Board be enforced.

Entered by order of the court.


author: PER CURIAM;

text:
    William J. DORMAN, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Respondent-Appellant.
    No. 73-2058
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 25, 1974.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Enoch J. Whitney, Asst. Attys. Gen., Tallahassee, Fla., for respondent-appellant.
    James R. Pierce, Gainesville, Fla. (Court-appointed), for petitioner-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM;

The order of the District Court granting the writ of habeas corpus is reversed. Wainwright v. Stone, 414 U.S. 21, 94 S.Ct. 190, 38 L.Ed.2d 179 (1973).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Arthur J. BARTHOLOMEW, d/b/a Ecologistics Institute, Defendant-Appellant.
    No. 73-3140
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 22, 1974.
    John M. Edman, St. Petersburg, Fla. (Court-appointed), for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Ronald H. Watson, Asst. U. S. Attys., Tampa, Fla., for plaintiff-appellee.
    Before BELL, SIMPSON and MORGAN, Circuit Judges.

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

   PER CURIAM:

Appellant Bartholomew was convicted on eighteen counts , of a 25-count indictment charging violation of the mail fraud statute, Title 18, United States Code, Section 1341. On appeal Bartholomew alleges error by the district court in that he was (1) denied speedy trial; (2) admitted introduction of statements by appellant in violation of his Miranda rights; (3) improperly admitted records under the Federal Business Records Act, 28 U.S.C. § 1732.

After careful review of the record, we conclude that the appellant was given a fair trial and his assertions of error on appeal are without merit. The judgment of the district court is

Affirmed.


text:
    James G. ELLINGBURG, Appellant, v. Jerry LLOYD, Paramedic, Cummins Unit, Department of Correction, State of Arkansas, Appellee.
    No. 73-1910.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 15, 1974.
    Decided Feb. 20, 1974.
    James G. Ellingburg, pro se.
    Jim Guy Tucker, Atty. Gen., Little Rock, Ark., for appellee.
    Before HEANEY and BRIGHT, Circuit Judges, and DENNEY, District Judge.

       DENNEY, District Judge, District of Nebraska, sitting by designation.

   PER CURIAM.

James G. Ellingburg appeals from the dismissal of his 42 U.S.C. § 1983 petition. He alleged in the District Court that on October 26, 1973, the paramedic on duty at the Cummins Unit of the Arkansas Department of Corrections denied him “medication for [his] tubercular condition * * * ”.

The District Court, after reviewing its “experience” with the appellant, found:

Petitioner has evidently had tuberculosis in the past, and his present condition calls for medication which is administered to him by paramedical personnel employed at Cummins, including respondent, Jerry Loyd. Petitioner is assigned to duty as a night janitor which is a light job assignment compatible with his physical condition and with his age.
* * * * * *
This time he complains that respondent, Loyd, unreasonably delayed furnishing him with medication on October 26, 1973. The Court views the petition as frivolous * * *

We agree with the trial court’s characterization of the petition and affirm its action.

      . We assume that the District Court was acting pursuant to 28 U.S.C. § 1915(d).


text:
    Charles W. TOOMEY, Appellant, v. Peter G. NASH et al., Appellees.
    No. 73-1590.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 11, 1974.
    Decided March 1, 1974.
    Rehearing Denied March 20, 1974.
    Stanford C. Madden, Kansas City, Mo., for appellant.
    Donald Etra, U. S. Dept. of Justice, App. Section, Civ. Div., Washington, D. C., for appellees.
    Before MEHAFFY, Chief Judge, and GIBSON and WEBSTER, Circuit Judges.
   PER CURIAM.

On October 15, 1969, Charles W. Toomey was discharged from federal service as a field attorney with the National Labor Relations Board for “[rjepeated acts of conduct unbecoming a professional employee of the National Labor Relations Board.” His discharge followed notice of the proposed action, an agency hearing, and, because Toomey was a veterans’ preference eligible employee, a proceeding before the Civil Service Commission. 5 C.F.R. § 752.-03(1973). The discharge was approved by the Commission Board of Appeals and Review, whereupon Toomey filed a suit in the nature of mandamus and for declaratory relief in the United States District Court for the Western District of Missouri. Judge Collinson granted summary judgment in favor of appellees.

We have carefully reviewed the record. The findings of the District Court are not clearly erroneous, and no error of law appears in the case. Accordingly, we affirm on Judge Collin-son’s well-reasoned opinion. See Rule 14 of the Rules of this Court.

Affirmed.