author: BARRETT, Circuit Judge. HOLLOWAY, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Duane WATTS, Defendant-Appellant.
    No. 74-1312.
    United States Court of Appeals, Tenth Circuit.
    Argued Jan. 20, 1975.
    Decided March 17, 1975.
    Holloway, Circuit Judge, concurred in result and filed opinion.
    James L. Treece, U. S. Atty., and Robert R. Marshall, Asst. U. S. Atty., Denver, Colo., for appellee.
    Irvin L. Mason¡ Durango, Colo., for appellant.
    Before SETH, HOLLOWAY, and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

Duane Watts (Watts) appeals from the Trial Court’s judgment finding him guilty of involuntary manslaughter and adjudging him to be a Juvenile Delinquent under the provisions of the Federal Juvenile Delinquency Act, 18 U.S.C. §§ 5031-5037.

Watts, an Indian and a minor aged 17 at the time of the alleged offense, was initially charged by complaint with the offense of murder arising from the stabbing death of his brother, Calvert Watts. He was thereafter indicted for voluntary manslaughter. Subsequently, upon failure of the United States Department of Justice to consent to Watts’ being charged as an adult, and with the consent of Watts and his counsel, the prior indictment was dismissed and an Information, charging Juvenile Delinquency-Manslaughter, was filed. At trial Watts attempted, unsuccessfully, to establish that he had acted in self defense in stabbing his brother during an altercation.

On this appeal Watts contends: (1) that his right to due process was violated by reason of the failure of adequate notice being provided to his parents; and (2) that the Trial Court erred in allowing the prosecution to make use of grand jury proceedings against him.

I.

Watts’ chief allegation, i. e., that he was denied due process because his parents were not given notice of the charges against him, nor were they advised of his right to counsel, etc., is premised solely upon the Supreme Court’s landmark decision in In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). While Watts baldly claims that the federal courts have consistently followed the Supreme Court’s mandate in this regard, he has cited no cases squarely holding on this point, nor have we, through our own research, uncovered any such authority. The question of whether the failure of notice to a juvenile’s parents, standing alone, constitutes sufficient grounds for the reversal of a determination of juvenile delinquency under the Federal Act, we find to be of first impression before this court.

In establishing standards for the type of notice which would comport with due process requirements for juvenile delinquency proceedings, the Court in Gault held:

Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must “set forth the alleged misconduct with particularity.” . . . even if there were a conceivable purpose served by the deferral proposed by the court below, it would have to yield to the requirements that the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. Due process of law requires notice of the sort we have described— that is, notice which would be deemed constitutionally adequate in a civil or criminal proceeding. It does not allow a hearing to be held in which a youth’s freedom and his parents’ right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet. (Emphasis supplied). 387 U.S. at 33-34, 87 S.Ct. at 1446.

While Gault, supra, dealt specifically with the constitutionality of a state scheme for juvenile proceedings, the rights enumerated by that decision are based upon protections afforded by the United States Constitution and, consequently, we view them to be equally applicable to federal proceedings dealing with juvenile offenders under the Federal Juvenile Delinquency Act.

Although the express language in Gault requiring that notice be given to both the juvenile and his parents is unequivocal, we are not convinced that the failure of such notice to the parents must lead in all cases to the automatic reversal of the juvenile’s adjudication as a delinquent.

Our review of the decision in Gault and our search of other authorities does not convince us that there exists a separate and independent due process right to notice of delinquency proceedings belonging to the parents of the juvenile defendant, Watts. However,, because the parents are not parties to the present action we need not now decide whether such a right exists, and if so whether it has been violated. Further, we do not and need not decide what remedy may be available or appropriate.

Instead, our concern on this appeal is solely with whether a violation of the standard established in Gault requiring that notice be given to a juvenile’s parents constitutes such a deprivation of the juvenile’s right to due process as to, per se, require a reversal of the determination of his delinquency.

Preliminarily, we note the following language from the Supreme Court’s recent decision in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975), which concerned the type of due process notice which must be given students prior to their suspension:

. the interpretation and application of the Due Process Clause are intensely practical matters and “the very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895 [81 S.Ct. 1743, 6 L.Ed.2d 1230] (1961). (Emphasis added).
419 U.S. at 578, 95 S.Ct. at 738.

Similarly, we find applicable the Court’s statement in Gault that the due process standards established therein are to be “intelligently and not ruthlessly administered.” 387 U.S. at 21, 87 S.Ct. 1428.

In Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), the Supreme Court recognized that certain procedural safeguards (in that case the Miranda warnings) were not themselves rights protected by the Constitution but were, instead, prophylactic measures laid down to insure that basic rights were not violated. This being so, where only the prophylactic safeguard has been violated but the basic right has not, reversal is not necessarily required.

In Holloway v. Wain wright, supra, the Court stated that the purpose underlying statutes requiring notice to parents is to “furnish a safeguard to minors accused of crimes by requiring that the opportunity be made available for consultation and advice with the individuals, who, society must assume, are those most vitally concerned with the minor’s best interests.” 451 F.2d at 151. The basic right protected by such safeguards is that of the child to be made aware of the charges against him and to be assured a reasonable opportunity to prepare his defense. Kemplen v. State of Maryland, 428 F.2d 169 (4th Cir. 1970). In this regard, the parents’ function would seem to be similar to that of legal counsel.

Watts has made no contention that he was not made fully aware of the charges against him or that he was in any way prejudiced in preparing his case due to the failure of notice being given to his parents. There is no allegation here that Watts was denied the opportunity to confront and cross-examine all adverse witnesses or to secure the presence of favorable witnesses or present evidence in his own defense. Unlike the factual situation in Gault, the record here reveals that Watts himself had adequate written notice of the precise charges against him well in advance of the hearing and was at all material times represented by competent counsel. Furthermore, Watts’ mother and his stepfather were obviously available to assist him with his defense, as evidenced by the fact that they were present at trial and testified in his behalf.

We do not intend hereby to condone the Government’s failure to notify, or even attempt to notify, the juvenile’s parents. Such notification may often be the only practical method of insuring that a juvenile is accorded fundamental due process rights mandated by In Re Gault. Where, as here, however, it is clear that the juvenile has not, in fact, been denied due process (even though there has been a technical violation of a prophylactic safeguard established to protect that right), we see no need for a per se rule requiring reversal. Cf., In Re State in Interest of Harrell, 254 La. 963, 229 So.2d 63 (1969).

The law cannot realistically require that officers investigating serious crimes make no errors whatsoever, and before such error will be penalized it must be determined that such sanction serves a valid and useful purpose. Michigan v. Tucker, supra. There is no allegation here that the investigating officers’ failure to notify Watts’ parents was willful. Further, there has been no showing made that the Government’s case was in any way enhanced by its failure to supply such notice. A “deterrence” argument is not, therefore, applicable here. Nor are we convinced that a reversal, under the circumstances presented by this case, would in anywise enhance the “fact finding process.” See, MeKeiver v. Pennsylvania, 403 U.S. 528, 543, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).

Finally, we agree with the conclusion of the District Court in Walker v. State of Florida, 328 F.Supp. 620 (S.D.Fla. 1971), aff’d. 466 F.2d 485 (5th Cir. 1972):

Gault established that in “loss of liberty proceedings” the juvenile, with respect to certain constitutional rights, is to be treated as an adult. No more was required, no less was offered.
328 F.Supp. at 624.

Under the total circumstances of this ease, we agree with the conclusion of the trial court and hold that Watts was not denied the fundamental “fair treatment” mandated by In Re Gault.

II.

Watts next asserts error in that the trial court permitted the prosecutor to use grand jury proceedings against him. The basis of this allegation rests upon Watts’ unsupported contention that the Government, in attempting to impeach two of its witnesses, may have relied upon transcripts of their prior testimony before the grand jury. He asserts that such use amounted to a subversion of criminal procedure and requires reversal, citing United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958).

The Government contends that it did not use grand jury transcripts to impeach these witnesses, but rather relied upon statements made by these witnesses to the investigating authorities on the night of the incident. Suffice it to say that if such statements were made to- the investigating officers (which Watts does not dispute), they could have been properly used to impeach these witnesses’ testimony. In light of this, we see no possibility of prejudicial error to Watts even if these same, or similar, statements were also transcribed during the grand jury proceedings and hence thereby were independently available to the Government from another, perhaps tainted, source. Rule 52(a) Fed.R. Crim.P., 18 U.S.C.; Jennings v. United States, 364 F.2d 513 (10th Cir. 1966), cert. denied 385 U.S. 1030, 87 S.Ct. 760, 17 L.Ed.2d 677 (1967); Gay v. United States, 322 F.2d 208 (10th Cir. 1963).

We affirm.

HOLLOWAY, Circuit Judge

(concurring in result):

I concur fully in Part II of the court’s opinion. As' to Part I, I agree with the result reached but am unable to agree with the analysis of the due process requirements laid down by In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. I cannot agree that the failure to give notice to the parents may be viewed a mere technical violation of a prophylactic safeguard, and not a constitutional infringement.

The Supreme Court spoke in plain terms of the due process requirements involved in Gault, 387 U.S. 1, 33, 87 S.Ct. 1428, 1446, 18 L.Ed.2d 527. The Court recognized the requirements that:

the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation. Due process of law requires notice of the sort we have described — that is, notice which would be deemed constitutionally adequate in a civil or criminal proceeding. (Emphasis added).

Again, as to the nature of the requirement of parental notice, the Court made it unmistakably clear that “ . the Due Process Clause of the Fourteenth Amendment requires that the child anil his parents must be notified of the child’s right to be represented by counsel . . . ” Id. at 41, 87 S.Ct. at 1451.

In McKeiver v. Pennsylvania, 403 U.S. 528, 532, 91 S.Ct. 1976, 1980, 29 L.Ed.2d 647, the plurality opinion reaffirmed the constitutional stature of the notice requirements spelled out by Gault, stating that “Due Process, in that proceeding, was held to embrace adequate written notice. . . . ”

In Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 1190, 14 L.Ed.2d 62, the Court had earlier stressed the fundamental nature of the due process requirement of notice:

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

Moreover, as the majority opinion in the instant case notes, n. 1, the Congress recognized that the 1974 amendment to the Federal Juvenile Delinquency Act prescribing notice to the parents was necessary “to guarantee certain basic procedural and constitutional protections to juveniles under Federal jurisdiction,” Senate Report No. 93-1011, 1974 United States Code Congressional and Administrative News, p. 4264. The Report stated that the Act had not been changed since Gault “ . . . to reflect those due process rights.” Id.

Thus, we are not dealing here with a procedural gloss, but with the essence of due process. Due process consists, in large part, of procedure.

Moreover the notice to the parents, along with other essentials, is not merely for protection of their right to custody, see Gault, supra, 387 U.S. at 34, 87 S.Ct. 1428, but is notice required for the juvenile’s benefit to insure that the parents may have a reasonable opportunity to participate in preparing and presenting the juvenile’s case. Cf. Brown v. Cox, 467 F.2d 1255, 1261 (4th Cir.). Such notice therefore is an essential ingredient of due process guaranteed for the juvenile’s protection, and the failure to afford it was a constitutional infringement of his rights.

Recognizing that a constitutional error was involved, there remains the question whether the error was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705. I feel the omission must be viewed under this test, applied in light of the purpose of the parental notice requirement.

The record does not show whether the parents were able to give assistance in the preparation of the juvenile’s case before trial. However the case was not complicated. It is clear that the defendant had the assistance of retained counsel at the arraignment on March 22, 1974, when the delinquency proceeding was commenced with defendant’s consent, and at trial on April 10, 1974. Further, the defendant was 17% years of age and had the ability and opportunity to discuss preparation with trial counsel.

Moreover at the trial, both the defendant’s mother and stepfather participated in the presentation of defendant’s case at trial by giving testimony tending to support the position of self-defense developed by the defendant and his counsel. The mother brought to the trial parts of a broken bottle said to have been used by the deceased brother in the fight between him and defendant Watts.

On consideration of the record as a whole, I conclude that the constitutional error was harmless beyond a reasonable doubt, and agree that the trial court’s determination should be affirmed.

      . While the U.S. Attorney correctly pointed out in his brief that at the time of these proceedings the Federal Act did not require that notice be given to the juvenile’s parents, we deem it significant to note that such a requirement has been included in a recent amendment to that Act. Section 503 of the Juvenile Justice and Delinquency Prevention Act of 1974 (P.L. 93-415; 88 Stat. 1109) amended Section 5033 of Title 18 U.S.C. to read:
      Whenever a juvenile is taken into custody for an alleged act of juvenile delinquency, the arresting officer shall immediately advise such juvenile of his legal rights and shall immediately notify the Attorney General and the juvenile's parents, . of such custody. The arresting officer shaii also notify the patents, ... of the rights of the juvenile and of the nature of the alleged offense. (Emphasis added).
      We further note the implicit recognition by the Congress that from the time of the decision in In Re Gault, the Federal Juvenile Delinquency Act has been deficient in providing for those safeguards which the court there mandated:
      Finally, it is necessary to amend the Federal Juvenile Delinquency Act to guarantee certain basic procedural and constitutional protections to juveniles under Federal jurisdiction. The Committee believes that the Act should provide for the unique characteristics of a juvenile proceeding and the constitutional safeguards fundamental to our system of justice. Six years after the Supreme Court in In Re Gault, decried the lack of certain due process protections in juvenile proceedings, the Federal Juvenile Delinquency Act has not been changed to reñect those due process rights. (Emphasis added). Senate Report No. 93-1011; 1974 U.S.Code Cong. and Admin.News, p. 5312 (October 15, 1974).

      . In this regard, we note that while parents must be given notice in proceedings wherein custody is at^ stake, Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965), and while the Court in Gault spoke in terms of the “interest” of parents in retaining custody of the juvenile as partial justification for their being given notice, we also take notice of certain distinctions between this case and those in which the right to notice has been clearly afforded parents. For example, unlike custody proceedings between divorced parents, or those in which the state is attempting to take custody from parents on charges of nonsupport, etc., here there is no direct attack upon the parents’ right to custody. Rather, any effect upon custody is purely incidental to the main function of the proceedings, i. e., to determine delinquency. Secondly, any deprivation suffered by parents following a delinquency proceeding will not necessarily be in the nature of a permanent deprivation of all parental rights, as is relied upon as justification for notice in Armstrong, supra. We further observe that the due process standards set forth in Gault (including the right to notice) were specifically held to apply only to that part of'the juvenile proceedings in which delinquency is determined and not to that stage of the proceedings in which the disposition of the delinquent child is at issue, Gault, supra, 387 U.S. at 27, 87 S.Ct. 1428. It is only at this latter stage that the matter of custody is actually determined. It would therefore seem that any right to notice belonging to the parents based upon the contention that custody is at stake would be applicable, if at all, only to this latter stage of the proceedings, and hence, Gault would not seem to be a reliable authority for a claim of such right.
      Finally, we recognize that there are several cases holding that the Federal Constitution does not require that a minor’s parents be notified prior to the commencement of criminal proceedings against him (even though, presumably, “custody” of the child is as much at stake in those proceedings as it is in delinquency proceedings). See, Adams v. Wainwright, 445 F.2d 832 (5th Cir. 1971), cert. denied 404 U.S. 860, 92 S.Ct. 160, 30 L.Ed.2d 103 (1971); Holloway v. Wainwright, 451 F.2d 149 (5th Cir. 1971).

      . We are not unmindful of the fact that Watts’ own counsel presumably had it within his own power to notify the juvenile’s parents.had he felt strongly that his client would have been materially benefited by their being so informed. His failure to do so may have been a trial tactic to preserve technical error.

      . Indeed, their reliance upon the Federal Act’s lack of such a requirement seems reasonable in light of the fact that Congress had not changed the Act to include such a requirement until some 7 years after the decision in In Re Gault.

      . The Court restated this proposition from Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865.

      . Of course, this age factor cannot excuse the lack of the required notices but, in a proper case, I feel it may be considered as a relevant factor in determining whether such a constitutional error was harmless.

      . The stepfather lived in Buena Vista and the mother at Towaoc at the time of trial. While the record does not show the facts, defendant’s brief states that his natural father lives on the Ute Reservation in Southwest Colorado. Brief of Appellant, p. 4. The defendant testified he had lived with his stepfather in the summer of 1973, after getting out of school in Albuquerque and that he lived with his grandmother at Towaoc from September, 1973, through January, 1974.
      The trial court determined at the time of arraignment on March 22, 1974, that defendant should be released on his own recognizance on the condition he not leave the near vicinity of the stepfather in Buena Vista. Thus, the stepfather and the mother appear to be the appropriate persons that these facts cause us to consider in connection with the parental notice requirement.


source: Caselaw Access Project

author: SEITZ, Chief Judge.

license: Public Domain

text:
    GOVERNMENT OF THE VIRGIN ISLANDS v. Alberto NAVARRO, Appellant in Nos. 74-1700 and 74-1988, et al. Appeal of Julio COLON, Jr., in No. 74-1763 and No. 74-1898. Appeal of Israel MIRANDA, in No. 74-1701 and No. 74-1869. Appeal of Sixto PINERO, Jr., in No. 74-1702.
    Nos. 74-1700-74-1702, 74-1763, 74-1869, 74-1898 and 74-1988.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 5, 1974.
    Decided March 18, 1975.
    Certiorari Denied June 23, 1975.
    See 95 S.Ct. 2662.

      Stanley M. Poplow, Poplow & Abram-son, Philadelphia, Pa., for appellants.
    Julio A. Brady, U. S. Atty., John S. Wilbur, Jr., Asst. U. S. Atty., Chris-tiansted Island of St. Croix, V. I., for appellee.

      Before SEITZ, Chief Judge, VAN DU-SEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

SEITZ, Chief Judge.

These appeals are from defendants-appellants’ conviction of first degree murder and assault in the first degree after a jury trial in the District Court of the Virgin Islands and from denial of their motions for judgments of acquittal or for new trials. Defendant Julio Colon, Jr., was charged and convicted as the perpetrator of the offenses; defendants Israel Miranda, Alberto Navarro and Sixto Pinero, Jr., were convicted on the basis of their having aided and abetted Colon in the commission of the crimes.

Because all defendants convicted as aiders and abettors challenge the sufficiency of the evidence to sustain their conviction, it will be necessary to set forth the facts in some detail.

April 1, 1974, was a holiday in the Virgin Islands, and the day’s activities included a performance by a local band at Cramer Park, St. Croix. A large crowd gathered at the park, including all defendants and Leroy Ford, an off duty policeman whose brother, Joseph Ford, was a member of the performing band. In mid-afternoon, a stabbing occurred at the east end of the park. Under Patrolman Ford’s supervision the injured man was placed in an automobile for transportation to a hospital. Instead of immediately leaving the park, however, the car proceeded northward towards the beach from whence shots were then heard. Patrolman Ford, accompanied by his brother, walked in the direction of the shooting to investigate.

According to the policeman’s testimony, as he and his brother Joseph neared a large genip tree on their return to the bandstand, “two Puerto Ricans was coming toward my direction.” These men were later identified by Patrolman Ford as defendant Colon and Marcial Santana. At trial, Ford testified that when he identified himself as a policeman, Colon responded with an obscenity and came forward to scuffle with Joseph Ford. During this fight, a crowd estimated by one witness to include as many as 25 people gathered near the fight scene. Three government witnesses, however, testified to the existence of a group of five or six young men who, according to one witness, came “close together” around the struggle. Evaristo Rios, a spectator, identified defendants Miranda, Pinero and Navarro as part of this group whose members in unison yelled “kill him” in Spanish while Joseph Ford and Colon fought. With the help of Rios, Patrolman Ford broke up the fight.

As he was disengaged from the struggle, Joseph Ford warned his brother that Santana, Colon’s companion, had a gun. Patrolman Ford walked toward Santana to search him, but was spun around from behind and. distracted. One witness at trial, Rudy Williams, indicated that the policeman was pulled around by members of the group of men of “Spanish birth” who had come “close together” around the fight scene. Williams and another witness, Joseph Gumbs, testified that at this time a gun was passed “from one to the next” among members of this group.

When Patrolman Ford searched Santana he found no gun. He testified that while he looked elsewhere for the gun, defendant Colon circled around the group and shot Joseph Ford in the chest from a distance of approximately eight feet. Joseph Ford fell to the ground near the base of the genip tree behind which Patrolman Ford and Rios immediately took refuge. Both Ford and a park employee, Ben Hur Brady, testified that Colon fired a second shot, which lodged in a branch some two feet above the policeman’s head.

Thereafter, the guns of both Colon and Ford misfired when the two attempted to exchange further shots. The policeman was rushed from behind by a group which Rios testified included Miranda, Navarro and Pinero and was hit in the head with a shell wielded by Pine-ro, according to the testimony of Brady. Although Brady did not specifically see Miranda or Navarro engaged in this assault, he did, however, testify that Miranda, Navarro and Pinero all kicked the body of Joseph Ford before leaving and that Pinero hit the body with a rock. Medical evidence at trial established that the body of Joseph Ford had lacerations over the right temple and a deep wound above the left eye.

Brady testified that after the attack, all four defendants left the scene in a yellow Volkswagen. The driver of the car, Jose Gonzalez, testified, however, that he drove only Miranda, Navarro and ' Santana from the park.

All defendants testified at trial. Their testimony revealed that the four were from the same neighborhood and had known each other for some time. Julio Colon recalled that on April 1 he had heard two shots fired while he was at the bar in the band pavilion, but stated that he left with a stranger in a yellow Volkswagen without seeing or hearing anything else. Sixto Pinero denied having heard any shots at the park that day or seeing anyone with a gun. Alberto Navarro claimed that he heard shots but left. shortly thereafter with Gonzalez, Santana and Miranda in a yellow Volkswagen. Israel Miranda admitted seeing the incident as described by other witnesses, but testified that he walked away from the scene and left with Gonzalez, Navarro and Santana.

Sufficiency of the Evidence

Defendants Miranda, Navarro and Pinero assert on appeal that there was insufficient evidence in the record on which the jury could find beyond a reasonable doubt that they aided and abetted Colon in the offenses charged: the murder of Joseph Ford and the assault of Leroy Ford “by firing at [him] with a revolver.” In examining the evidence to determine whether it is in fact sufficient to support the jury verdict of guilty, this Court must view the evidence in the light most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Cades, 495 F.2d 1166, 1169 (3rd Cir. 1974). Furthermore, we are bound by the jury’s determination of credibility and its decision to accept the testimony of witnesses who contradicted the defendants. Government of the Virgin Islands v. Gereau, 502 F.2d 914, 921 (3rd Cir. 1974) cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42 L.Ed.2d 839 (1975).

Viewed in this light, the testimony at trial establishes the following sequence of events with respect to these defendants:

1. They were members of a group of five to six men identified as “Puerto Ri-cans” or of “Spanish birth” who closed in around the fight between Joseph Ford and Colon and yelled “kill him” during the course of that struggle;

2. A gun was passed from Santana among some members of that group while Patrolman Ford was spun around and his attention diverted by members of the group;

3. After Joseph Ford was shot, all three defendants kicked the body and Pinero hit the body with a rock; and

4. All three defendants engaged in a physical assault on Patrolman Ford after Colon fired at him, with Pinero identified as striking the policeman in the head with a shell.

The question to be determined is whether this evidence is sufficient to support a finding that the defendants aided and abetted Colon in his attacks on the Fords.

In order to be convicted as a principal in the commission of a crime on the basis of aiding and abetting the perpetrator, an individual must have a “purposive attitude” to see the venture succeed and must participate in the criminal endeavor at least to the point of encouraging the perpetrator and “participate in it as something that he wishes to bring about . . . United States v. Peo-ni, 100 F.2d 401 (2d Cir. 1938) quoted in Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919 (1949). In determining whether a defendant has associated himself with and participated in a criminal undertaking, care must be taken that speculation is not permitted to substitute for evidence. United States v. Barber, 429 F.2d 1394 (3rd Cir. 1970). This axiom is particularly apt in any case where a number of spectators view the events because there is the possibility that mere bystanders might have been erroneously identified as aiding the commission of the crime.

We are of the opinion, after careful review, that the evidence in this case substantiates the jury’s finding of complicity on the part of these defendants in Colon’s crimes. The jury could have found that the defendants, by yelling “kill him” when Colon grappled with Joseph Ford, encouraged and induced him to subsequently shoot Ford. The significance of these words of encouragement is increased by the fact that they came from a group of neighborhood friends of Colon whose close proximity to the fight could itself have been viewed by the jury as an encouragement. Cf. United States v. Thomas, 469 F.2d 145 (8th Cir. 1972). Furthermore, some members of the group actively facilitated the murder by diverting Patrolman Ford while Santana’s gun was passed among them to Colon.

The physical attacks on Patrolman Ford and on the body of his brother weigh heavily against the defendants. Although generally proof showing one to be an aider and abettor relates to events occurring before the charged crime of the perpetrator, evidence of acts subsequent to the commission of the crime is competent to prove a common design, and is significant in evaluating the conduct prior to the commission of the offense of one charged as an aider and abettor. United States v. Thomas, supra; People v. Kolep, 29 Ill.2d 116, 193 N.E.2d 753 (1963). At a minimum, defendants’ attacks upon the Ford brothers after the shooting ceased pointedly demonstrate that the defendants approved of Colon’s conduct and give rise to an inference that they shared his criminal purpose of engaging in a general assault on the Fords. Viewed against the background of this conduct, the earlier exhortation to “kill him” takes on added significance as an encouragement to Colon.

The jury had a right and an obligation to consider all the facts and circumstances respecting the defendants in determining the question of their criminal liability as aiders and abettors. Our review of that evidence convinces us that there was sufficient evidence to support the jury verdict and that the district court did not err in denying the motions of defendants Miranda, Navarro and Pinero based on insufficiency of the evidence.

Jury Charge

The same three defendants also urge that the trial court erred in its charge to the jury on the elements necessary to constitute one an aider and abettor. The court instructed the jury as follows:

To aid and abet one another in the commission of a crime means to assent to an act or to lend countenance or approval to it by active participation or by encouraging it in some other manner. Mere presence at the scene of the crime or knowledge that a crime is being committed, or acquiescence, is not, in itself, sufficient to constitute a person as an aider and abettor. The assistance may consist of either overt acts or oral expressions.

Defendants contend that the instruction was deficient in that the court failed to advise the jury that the defendants could not be convicted of aiding and abetting the commission of a crime unless their acts or words had been done or spoken with the intention of effecting the crimes.

We note at the outset that no objection to this portion of the court’s charge was made by any of the defendants’ attorneys when an opportunity for objections was offered at trial. In view of this failure to comply with the mandate of Rule 30, F.R.Crim.P., that objections to the charge must be made before the jury retires, we could sustain defendants’ challenge only if the charge as given constituted plain error. Rule 52(b), F.R.Crim.P.

Defendants urge that the charge is grossly deficient when assessed against the standards established in Hicks v. United States, 150 U.S. 442, 14 S.Ct. 144, 37 L.Ed. 1137 (1893). In Hicks the evidence showed that the defendant had sat astride a horse beside one Colvard while Rowe, an acquaintance of .the defendant, had repeatedly raised and lowered a rifle aimed at Colvard. Each time the rifle was lowered the defendant laughed, and on the last occasion pulled off his own hat and said to Colvard “pull off your hat and die like a man.” Rowe then shot and killed Colvard, and the defendant was tried as an aider and abettor.

The Supreme Court found error in that portion of the charge in which the trial judge advised the jury that the defendant could be found guilty “if the facts show that he either aided or abetted or advised or encouraged” the perpetrator. This instruction was deficient because it failed to inform the jury that the acts or words which constituted aiding or abetting must have been used by the defendant with the intention of encouraging the perpetrator. The Court was concerned lest possibly innocent words be the basis of liability because they had the effect of inciting the perpetrator even though they were used for a different purpose.

In this case, however, the charge given by the district court contained elements of affirmative conduct not present in the Hicks charge. The definition of aiding and abetting given by the trial judge required that the defendants “assent to an act,” or lend “countenance or approval to it by active participation.” The inclusion of such elements in the charge largely removes the possibility that the defendants could have been found guilty regardless of the intent with which they spoke and acted.

Furthermore, a charge must be viewed in its factual setting in order to determine if plain error exists. Herzog v. United States, 235 F.2d 664 (9th Cir.), cert. denied, 352 U.S. 844, 77 S.Ct. 54, 1 L.Ed.2d 59 (1956). Such a view of the charge here also distinguishes this case from Hicks. In Hicks, the only evidence that the defendant might have aided or abetted Rowe was that he laughed, spoke the quoted words to the victim, and, under duress according to the defendant’s testimony, left with Rowe. The case against Miranda, Navarro and Pinero, however, included testimony of more active participation, including words of encouragement to Colon, assistance in passing the murder weapon, and attacks on the Ford brothers after Colon ceased firing.

Under the circumstances of this case, we conclude that the court’s charge, while not a model instruction on aiding and abetting, was not so deficient that it could have given rise to a miscarriage of justice and thus did not constitute plain error of which this court should take notice under Rule 52(b).

Identification Procedures

Defendants Colon and Navarro challenge the procedures through which they were confronted by witnesses who ultimately identified them at trial. Treatment of the issues raised by these procedures will require an elaboration of the facts surrounding the confrontations.

On April 1, the evening of the incident at Cramer Park, Ben Hur Brady was shown six mug shot books containing several hundred pictures. From these photographs, he identified Colon as the individual who had done the shooting and Santana as the individual accompanying Colon at the initial confrontation with the Fords.

The next day, April 2, all four defendants and Jose Gonzalez were at the police station for questioning. The defendants, all of Puerto Rican descent, were in a small room with at least three detectives, including two of Puerto Rican heritage, and were apparently standing in an unformed line near a desk. Evaristo Rios, who had been brought to the station to give a statement, walked through the room in which the defendants were waiting to a back room. Through a one-way mirror from that room he identified Colon, Navarro, Miranda and Pinero as having been involved in the incident at Cramer Park.

Patrolman Ford was then brought into the room in which the defendants were standing. Initially he pointed out Gonzalez and left the room. After entering and leaving a second time, this time with a detective and another policeman, Ford identified Colon as the individual who had shot his brother.

While he was at the station on April 2, mug shots were taken of Navarro; that afternoon twelve photos, which included pictures of all four defendants and four other individuals, were shown to Brady at Cramer Park. On that occasion, Brady identified Miranda, Navarro and Pinero as being involved in the incident and again identified Colon.

Defendants Colon and Navarro contend that the “showup” procedure at the police station was so suggestive that the in-court identifications of both of them by Rios, and of Colon by Ford, should have been suppressed. Navarro also contends that Brady’s photographic identification of him was achieved through im-permissibly suggestive means, while Colon urges suppression of the Ford and Rios identification on the additional ground that he was not provided counsel prior to the showup. No challenge is made to Brady’s photographic identifications of Colon, and defendants Miranda and Pinero do not attack the identification procedures on appeal.

While the use of a showup rather than a lineup and the presence of more than one picture of the defendants in the photographs shown Brady on April 2 may have been “suggestive” to some degree, this does not dictate that the witnesses’ in-court identifications be suppressed. In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court explicitly reaffirmed the proposition that the underlying rationale of decisions such as Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (photographic identifications), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) (one man showup), is that a defendant is denied due process when the identification procedure is so suggestive as to create “a very substantial likelihood of irreparable misidentification.” The question is whether “under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” Neil, at 199, 93 S.Ct. at 382. Neil identified five criteria to be weighed in determining the likelihood of misidentification: (1) the opportunity for the witness to view the criminal at the time of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’ prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation.

In applying the Neil criteria to this case we find that the district court’s denial of motions to suppress the in-court identifications was not error. Patrolman Ford and Evaristo Rios had an unimpeded opportunity to view the individuals involved in the incident at close range during the course of the fist fight and subsequent shootings. Ben Hur Brady viewed the physical attacks on the policeman and h’is brother from a distance of approximately 40 feet, but he had seen all defendants earlier in the day at the park and thus had some familiarity with their faces. All witnesses were intent on the shooting incident, with Patrolman Ford and Rios in the very center of the proceedings from beginning to end. The testimony at the suppression hearing indicates no lack of certainty on the part of Rios in identifying all four defendants at the police station or on the part of Brady in selecting Colon and Navarro from photographs sliown him. Although Patrolman Ford entered the interrogation room twice before identifying Colon, he was certain in his identification when made and testified that no suggestions were made to him while he was out of the room. Finally, the length of time between the incident and the identifications was in no case more than 24 hours, thus insuring that the witnesses’ memory of the incident and of those involved was fresh.

Weighing all the factors, and considering evidence cited by defendants though not discussed here, we conclude under the “totality of the circumstances” that the challenged identifications of Colon and Navarro were reliable, were not the product of unduly suggestive procedures, and that there was no substantial likelihood of misidentification of the defendants.

Neither do we feel that the in-court identification of Colon by Ford and Rios should be subject to the exclusionary rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), because counsel had not been provided Colon prior to the police station showup. After an evidentiary hearing, the district judge specifically found that Colon was not under arrest at the time of the police station confrontation and therefore was not entitled to counsel, relying on Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). This finding was not clearly erroneous and effectively -disposes of Colon’s claim. Furthermore, even if we held that the showup was conducted after Colon’s freedom had been restrained, the failure to provide counsel would not taint the identifications, since the presence of counsel is not constitutionally required at a confrontation held after arrest but before the initiation of "judicial criminal proceedings.” Id.; United States v. Coades, 468 F.2d 1061 (3rd Cir. 1972); United States v. Miramon, 470 F.2d 1362 (9th Cir.), cert. denied, 411 U.S. 934, 93 S.Ct. 1909, 36 L.Ed.2d 395 (1973).

Since we have determined that admission of the in-court identifications violated neither the defendants’ due process rights nor their right to counsel, we conclude that the trial judge did not err in permitting the identifications to go to the jury.

Jury Array

Defendant Colon urges that we remand his case for an evidentiary hearing on the make-up of the array from which his jury was chosen. Colon contends that the array was constitutionally suspect because its composition was only 12% Puerto Rican while 40% of the population of St. Croix is allegedly of Puerto Rican extraction.

This challenge was raised in the district court, but not, as Colon concedes, in a manner that complied with the provisions of the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-69 (1970). Compliance with the procedural provisions of the Act is the exclusive means of challenging the jury on the basis of a violation of the statute. 28 U.S.C. § 1867(e); United States v. Arnett, 342 F.Supp. 1255, 1258 (D.Mass.1970).

Defendant contends, however, that his failure to comply with the statutory procedures does not preclude a constitutional attack on the composition of the jury array. Even if such a constitutional attack was permissible in this case, a question which we do not decide, the defendant is not entitled to a remand of his case because he failed at trial to take any steps to establish a prima facie case of discrimination. The jury challenge was made orally after the array had been summoned into court and was accompanied by no proffer of evidence other than counsel’s unsupported statement that the array of 50 names from which defendant’s jury was to be chosen did not adequately reflect the Spanish population of St. Croix. There was no request for an evidentiary hearing. Not even an allegation was made that the master jury wheel from which the array was drawn did not contain a proportionate representation of members of the Spanish community. Indeed, for aught that defendant offered at trial, the selection of an array allegedly under-representative of Puerto Ricans may have resulted from pure chance in the drawing of names from a jury wheel which reflected a cross-section of the community.

The defendant was not entitled to a jury of any particular composition so long as the selection process which produced his jury did not operate to “systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The burden was on the defendant to establish a prima facie case of systematic exclusion. See Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Wright v. Smith, 474 F.2d 349 (5th Cir.), cert. denied, 414 U.S. 853, 94 S.Ct. 149, 38 L.Ed.2d 102 (1973). In the absence of even an offer at trial to shoulder this burden we are unwilling to remand in order to provide defendant a second opportunity to develop a record on this issue for purposes of this appeal.

The judgment of the district court will be affirmed.

      . Violations, respectively, of 14 V.I.C. §§ 922(a)(1) and 295 (1964). Colon was sentenced to mandatory life imprisonment on the murder count and to a consecutive six year sentence for assault.

      . 14 V.I.C. § 11.(1964) punishes as a principal anyone who “aids, abets, counsels, commands, induces or procures” the commission of a crime. All three defendants convicted of aiding and abetting Colon were sentenced to concurrent prison terms of life imprisonment (murder count) and five years (assault).

      . Although named in the information filed against these defendants, Marcial Santana was not tried with them because he could not be apprehended.

      . Because more favorable to the government, we accept for purposes of this appeal Brady’s testimony that the display of photographs was made to him at Cramer Park on April 2, 1974, rather than Detective McBean’s uncertain statement that the showing was made “more or less” on April 3, 1974.

      . We need not reach, therefore, the difficult question of whether failure to comply with 28 U.S.C. § 1867(a) bars assertion of even a constitutional challenge in the same action and whether United States v. Rickus, 351 F.Supp. 1386 (E.D.Pa.1972), aff’d mem., 480 F.2d 919 (3rd Cir.), cert. denied, 414 U.S. 1006, 94 S.Ct. 365, 38 L.Ed.2d 243 (1973), was correctly decided. Compare Paige v. United States, 493 F.2d 22 (9th Cir.), cert. denied, 417 U.S. 935, 94 S.Ct. 2649, 41 L.Ed.2d 238 (1974) and United States v. Greene, 160 U.S.App.D.C. 21, 489 F.2d 1145 (1973); with United States v. De Alba-Comrado, 481 F.2d 1266 (5th Cir. 1973).

      . Defendant has not contended that the array in this case was chosen other than in accordance with the jury selection plan of the District Court of the Virgin Islands, adopted and approved pursuant to 28 U.S.C. § 1863. Under that plan a jury wheel of a minimum of 1,000 names is chosen at random from the voter register of St. Croix and from that wheel jury arrays are chosen at random as needed. 5 V.I.C. App. V, Rules 65-67 (Supp.1973).


author: FEINBERG, Circuit Judge:

text:
    Robert BEGINS and Patricia Begins, Plaintiffs-Appellants, v. Paul PHILBROOK, Commissioner of the Vermont Department of Social Welfare, Defendant-Appellee.
    No. 482, Docket 74-2140.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 14, 1975.
    Decided March 25, 1975.

      Zander B. Rubin, St. Johnsbury, Vt. (Vermont Legal Aid, Inc., on the brief), for plaintiffs-appellants.
    Dean B. Pineles, Asst. Atty. Gen., Montpelier, Vt., for defendant-appellee.
    Before HAYS and FEINBERG, Circuit Judges, and HOLDEN, District Judge.

       Of the United States District Court for the District of Vermont, sitting by designation.

   FEINBERG, Circuit Judge:

Robert and Patricia Begins appeal from an order of the United States District Court for the District of Vermont, Albert W. Coffrin, J., dismissing as moot their complaint against Paul Philbrook, Commissioner of the Vermont Department of Social Welfare. Plaintiffs attack a Vermont regulation that makes ineligible for welfare benefits any family owning two operable motor vehicles, without regard to the value of the automobiles. The suit was brought pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§. 2201, 2202, and jurisdiction is based on 28 U.S.C. §§ 1343(3), (4). Plaintiffs allege that the “two-car” Regulation violates their federal constitutional rights and the federal laws and regulations governing the Vermont Aid to Needy Families with Children (AFNC) program. Because we believe that the district court erred in dismissing the complaint, we reverse and remand for further proceedings.

For the purposes of this appeal, we must take as true factual allegations made in the district court. According to the papers before us, Robert and Patricia Begins live in South Burlington, Vermont, with their five children, ranging in age from four to twelve. Robert Begins is a construction worker whose employment is seasonal. He uses a car to commute to and from work in all parts of northern Vermont. Patricia Begins normally uses a car for ordinary domestic chores and for transporting her large family. Plaintiffs’ youngest child has serious coronary and respiratory problems and often needs immediate medical attention, making it necessary to have an automobile available.

In late November 1973, plaintiffs applied for assistance from the Vermont Department of Social Welfare in the category of AFNC-unemployed father. At that time, plaintiffs were denied aid because of the two-car Regulation, which is reproduced in the margin. Plaintiffs then owned two cars — a 1966 Mercury purchased four years before for $695, and a 1962 Jeep bought five years earlier for $1,500. Both cars had seriously deteriorated and had little resale value. In late January, plaintiffs again applied for benefits and were granted assistance on condition that they make a bona fide effort to sell one of the cars. Under the two-car Regulation, “assistance may be granted provisionally, for a period not to exceed 60 days,” but if the “sale is not completed within 60 days, assistance shall be terminated.” See note 2 supra.

In February 1974, plaintiffs filed this action challenging the Regulation, along with an application for a temporary restraining order. This application was apparently not acted upon. The complaint originally sought the convening of a three-judge court and both injunctive and declaratory relief. According to an amended complaint filed in May 1974: While plaintiffs were still receiving “provisional” benefits, they were told by an employee of the Vermont Department of Social Welfare that if they did not transfer ownership of one of their cars their welfare payments would end immediately. Rather than risk this, plaintiffs sold their 1962 Jeep for $250, without speaking to counsel. However, plaintiffs still “need and want two cars” because Mr. Begins “needs a car to look for work, and in his work as a construction laborer, and Mrs. Begins needs a car for domestic affairs.” Apparently because of the sale of one car, plaintiffs dropped their request for injunctive relief and seek a declaratory judgment only.

In June 1974, defendant moved to dismiss the amended complaint on the ground that the action was moot because plaintiffs no longer owned two cars. Shortly thereafter, plaintiffs moved to amend their complaint again to include a claim for damages for denial of assistance in November 1973. Defendant’s motion to dismiss for mootness was heard in July, and granted a few days later in a one-page order which cited Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), and North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971), as authority. This appeal followed.

II

By citing the two Supreme Court cases just referred to, the district judge obviously had in mind not just mootness but also the requisites for a declaratory judgment action, since Golden v. Zwick-ler is concerned primarily with the latter. The two concepts blend together here in a way that suggests the difficulty of analyzing them separately. Thus, even without a post-complaint change in position by plaintiffs here, that is, even if plaintiffs had never owned two cars, the question would still remain whether the complaint stated an “actual controversy” under the Declaratory Judgment Act, 28 U.S.C. § 2201. But the fact that plaintiffs did only recently own two cars adds substance to the allegation that they “need and want two cars.” Keeping in mind, then, that more is involved here than whether plaintiffs’ claims have been extinguished by events after they sued, we turn to the decisions relied upon by the district court and some of those referred to by the parties in their excellent briefs.

In North Carolina v. Rice, the issue was whether a more drastic sentence imposed upon Rice after a second trial violated federal due process under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). At the time the case came before the Supreme Court the later sentence had already been served. Although neither party urged that the case was moot, the Court raised the issue. Pointing out that “[njullification of a conviction may have important benefits for a defendant . . . , but urging in a habeas corpus proceeding the correction of a sentence already served is another matter,” the' Court remanded for reconsideration of mootness since the record was “unilluminating as to whether there may be benefits to respondent” under state law in having the sentence reduced after it had been served. 404 U.S. at 248, 92 S.Ct. at 405.

Golden v. Zwickler involved a challenge to a New York law prohibiting distribution of anonymous literature in an election campaign. Plaintiff Zwickler had been convicted in a state court of violating that statute in connection with a 1964 congressional campaign. The conviction was later reversed on state law grounds. Plaintiff then sued in the federal district court for declaratory and injunctive relief, alleging that he wanted to distribute handbills against the same Congressman in 1966. After intermediate proceedings not here relevant, a three-judge court declared the statute unconstitutional. 290 F.Supp. 244 (E.D.N.Y.1968). The Supreme Court reversed because Zwickler had not established “the existence ... of the elements governing the issuance of a declaratory judgment.” 394 U.S. at 110, 89 S.Ct. at 960. Quoting from its decision in Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941), the Court emphasized that:

The difference between an abstract question and a “controversy” contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.

394 U.S. at 108, 89 S.Ct. at 959. The Court then pointed out that the particular Congressman whom Zwickler had attacked in his handbill had become a New York State Supreme Court justice and that “it was most unlikely” that he “would again be a candidate for Congress.” 394 U.S. at 109, 89 S.Ct. at 960. This precluded a finding of a controversy of “sufficient immediacy and reality” to justify declaratory relief against the New York statute.

Neither North Carolina v. Rice nor Golden v. Zwickler justified dismissal of the complaint in this case. The former raised the question whether there were harmful “collateral consequences of an already completed course of action” ; Rice had served his sentence and there was real doubt that a favorable judgment would have any practical benefit for him at all. In the latter case, the bite of the New York statute for Zwickler was no longer real and immediate since the only candidate against whom he wished to circulate handbills was not going to run for Congress. Cf. Spomer v. Littleton, 414 U.S. 514, 94 S.Ct. 685, 38 L.Ed.2d 694 (1974). Plaintiffs’ position stands in sharp contrast. For practical purposes, defendant’s course of. action has not already ended; the Regulation still stands and defendant clearly intends to enforce it against plaintiffs should the occasion demand. If plaintiffs were not now on welfare, if they had never owned a second car, if they did not swear to a need for a second car, or if there were a believable possibility that they would not be threatened with loss of benefits if they again purchased a second car, the case might be different. But plaintiffs are now subject to the very prohibition which they seek to challenge, and their allegations suggest not some subjective fear, but rather assert both “present objective harm” and the “threat of specific future harm.” Lecci v. Cahn, 493 F.2d 826, 829 (2d Cir. 1974). The continuing harm to plaintiffs is their loss of a second car they allegedly need; the threat, of course, is the loss of welfare benefits should they yield to their need and acquire another car. In Lecci, relied on by defendant, we held moot a challenge to a New York criminal statute prohibiting political activities by policemen. The plaintiff in that case, however, had left the police force and expressed no desire to return to it. Defendant also cites Kerrigan v. Boucher, 450 F.2d 487 (2d Cir. 1971), where a Connecticut boarding house lien law was under attack. But in holding the complaint properly dismissed there, we pointed out that the boarder had left his room and there was “no indication at all that he had failed to pay his rent to his new landlord or that detention of his personal effects is even remotely threatened.” 450 F.2d at 489. Here, the relationship between the parties and the present harm to plaintiffs have continued, and the threat of loss of benefits is real, not remote.

Defendant also relies heavily on United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), cited by us in Leed, supra. In United Public Workers, the Court ruled that it lacked the power to issue a declaratory judgment striking down the Hatch Act as to all but one of the plaintiffs, who alleged merely that they wished “to engage in ‘political management and political campaigns,’ to persuade others to follow [their] views” by all lawful means. The Court held that “[s]uch generality of objection is really an attack on the political expediency of the Hatch Act, not the presentation of legal issues,” and would call for the rendering of an impermissible advisory opinion. 330 U.S. at 89, 67 S.Ct. at 564. The Court reached the merits and upheld the Act, however, as to one of the plaintiffs who was immediately threatened with loss of his job for specified political activity he had engaged in. We believe that plaintiffs’ situation is much closer to the latter than the former state of facts.

We also think that the recent decision in Super Tire Engineering Co. v. McCor-kle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974), is instructive. There, employers whose plants had been struck challenged New Jersey’s policy of providing unemployment benefits to strikers as an improper interference with the free collective bargaining' structure established by the federal labor laws, since it would theoretically encourage strikes. The respondent union maintained that the suit for declaratory relief was mooted by the end of the strike. The Supreme Court disagreed, noting that the availability of welfare benefits for strikers “is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the [employers].” 416 U.S. at 122, 94 S.Ct. at 1698. Along the continuum of fact situations from the purely speculative to the ripe and real, this case — like Super Tire — is much closer to the latter. The Regulation’s presence threatens direct and immediate injury to plaintiffs’ economic position. See 416 U.S. at 125, 94 S.Ct. 1694.

Defendant argues that Mr.. and Mrs. Begins may decide to abide by the Regulation and not buy another car. But on this record, which demonstrates plaintiffs’ special need for transportation, denying them access to the courts until they make such a purchase is an unduly restrictive interpretation of the Declaratory Judgment Act. Cf. Abbott Laboratories v. Gardner, 387 U.S. 136, 153, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Moreover, even if plaintiffs did buy another car, they would have to sell it within the “provisional” 60 days or lose AFNC benefits which, by hypothesis, are badly needed. There is clearly no guarantee that the underlying issues, which are of public significance, could be fully and finally decided by the courts in that short time. Without regard to the merits, then, the issue would be “ ‘capable of repetition, yet evading review’ ” in the pattern of Super Tire, supra, 416 U.S. at 125, 94 S.Ct. at 1700.

Plaintiffs have alleged facts which show that the challenged Regulation is adverse to their present interest and that the controversy is of “sufficient immediacy and reality” to warrant a declaratory judgment. They should not be required to go beyond that.

Judgment reversed and case remanded for further proceedings.

      . Plaintiffs’ argument is based on the proposition that the Social Security Act and regulations implementing it contemplate that decisions made by a state on whether an applicant for welfare benefits is entitled to assistance will be rationally related to the need of the applicant. The two-car Regulation, however, results in an eligibility determination without regard to the value of the vehicles owned by the applicant. Thus, a family might own one Cadillac worth $10,000 and still receive benefits, but if it owns two virtually worthless automobiles, as plaintiffs claim they did, it will be denied benefits. Plaintiffs urge that because the Regulation is not rationally based on need, it denies them due process and equal protection of the law. Furthermore, since the state Regulation establishes a condition of eligibility unrelated to need, it conflicts with federal law and regulations and is void under the Supremacy Clause of the Constitution. We express no view on the merits of these claims.

      . Section 2263.4 of the Vermont Welfare Assistance Manual, according to the text supplied by defendant, provides as follows:

        Automobiles

      An automobile is defined as any passenger car, truck or jeep, registered or unregistered that is in intact condition, stored, or on blocks. An intact vehicle includes all major operating parts, such as engine, transmission, wheels, steering mechanism, etc.
      A non-operable automobile minus operating parts is considered junk and thus does not come within the definition of automobile; however, the salvage value of a junked automobile may represent a substantial resource requiring individual evaluation.

        One automobile per assistance group, regardless of its value, shall be excluded from consideration within the limitation on combined resources. Ownership of more than one automobile by members of an assistance group shall disqualify the group except as follows:
      1. Additional automobile(s) which qualify as “income producing property” shall be considered under the provisions applicable to such property (see Income Producing Property).
      2. Additional automobile(s) which would qualify as “income producing property,” except that the assistance group member is not presently operating the vehicle because he is incapacitated or disabled, shall be considered under the provisions applicable to such property, provided that:
      a. The grant of public assistance is based on the incapacity or disability of the assistance group member making use of the vehicle; and
      b. The vehicle was used to produce income immediately preceding the onset of incapacity or disability; and
      c. The individual will more probably than not require the vehicle to produce income at the end of the period of incapacity or disability; and
      d. The duration of incapacity or disability is not expected to exceed one year.
      When an applicant indicates willingness to sell additional vehicles which would otherwise disqualify an assistance group, and all other eligibility conditions are met, assistance may be granted provisionally, for a period not to exceed 60 days, pending disposition of such additional automobiles. If sale is not completed within 60 days, assistance shall be terminated. (See also Application Decisions — Money Grant.)
      When assistance has been granted under the provisions for considering an additional “income producing” vehicle during incapacity of its operator, actual use to produce income shall be resumed at the end of 12 months. If, at the end of 12 months, it is not possible to use such vehicle(s) to produce income, the vehicle(s) must be sold within 60 days, in order to qualify for continued assistance. [Emphasis added.]

      . Amended complaint, par. 9d.

      . It is not clear whether this motion was granted. In any event, plaintiffs concede that under Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), this claim for retroactive welfare benefits after an improper denial of assistance would be barred by the eleventh amendment unless consented to by the state. Accordingly, they do not press the" issue on appeal.

      . Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), rev’g 261 F.Supp. 985 (E.D.N.Y.1966).

      . See Note, The Mootness Doctrine in the Supreme Court, 88 Harv.L.Rev. 373, 380 (1974).

      . Sanders v. Wyman, 464 F.2d 488 (2d Cir. 1972), cert. denied, 409 U.S. 1128, 93 S.Ct. 950, 35 L.Ed.2d 261 (1973), is even more readily distinguishable. Not only were plaintiffs in that case no longer in a position to complain of alleged illegal governmental action, but defendants had entered into stipulations apparently agreeing to the objectives of the suit.

      . Brief for Appellee, at 18-19.

      . Defendant appears to concede that if plaintiffs did buy a replacement vehicle there would be a justiciable issue, at least during the 60-day period. Brief for Appellee, at 11.


author: STEVENS, Circuit Judge.

text:
    Coye C. MASON and Lois T. Mason, Plaintiffs-Appellees, Cross-Appellants, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.
    Nos. 74-1299, 74-1300.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 12, 1974.
    Decided March 17, 1975.

      James R. Thompson, U. S. Atty. and Gary L. Starkman, Asst. U. S. Atty., Chicago, 111., Scott P. Crampton, Asst. Atty. Gen., Jonathan S. Cohen, Atty., Tax Div., Dept, of Justice, Washington, D. C., for United States.
    Stuart Duhl, Chicago, 111., for Mason.
    Before CASTLE, Senior Judge, and STEVENS and SPRECHER, Circuit Judges.
   STEVENS, Circuit Judge.

Before 1969 taxpayer sold property to a charity for a stated price substantially equal to the fair market value of the property; the price was paid by the charity’s delivery of a small amount of cash and an unsecured long-term promissory note in the amount of the balance. The market value of the note was substantially lower than its face amount. The questions presented by this appeal are (1) whether the taxpayer made a gift to the charity and, if so, (2) whether the benefit conferred on the charity is being returned to taxpayer as installments of principal, plus interest at the low rate specified in the note, are paid. We affirm the district court’s judgment in favor of the taxpayer.

The essential facts were determined by a jury’s answers to special interrogatories. Taxpayer was one of three owners of a corporation operating a blood bank. His interest in the corporation had a market value of $117,000. When the business was sold to a charity in 1966, taxpayer and another shareholder with a like interest each received $4,507.50 in cash and an unsecured note for $112,689.42, payable in 20 annual installments of principal plus interest at the rate of 4% per annum. At the time of the sale, each note had a market value of $81,000. Thus, in exchange for a capital asset worth $117,000, taxpayer received consideration (including the' cash as well as the note) worth $85,-507.50. Was the difference of $31,492.50 a gift?

The Commissioner disallowed the deduction claimed by taxpayer on his 1966 return; taxpayer paid the deficiency plus interest, and then commenced this refund suit. The issues in the district court were quite different from those presented to us. The factual issues, determined by the jury, were (1) the value of the asset which taxpayer sold; (2) the value of the promissory note which taxpayer received; and (3) whether taxpayer intended to make a gift to the charity. The government apparently did not question taxpayer’s entitlement to a deduction for a charitable contribution under his version of the facts. As a matter of law, however, the government argued on alternative theories that taxpayer’s gross profit on the sale was taxable as ordinary income rather than capital gain. First, the government contended that capital gains treatment was permissible only to the extent of the difference between taxpayer’s basis and the market value of the note; second, the government argued that the difference between the face value and the actual value of the note was “original issue discount.” Neither of these contentions is pursued here; instead, the government now argues that if taxpayer did make a gift to the charity, the benefit originally conferred is being returned pro tanto as each installment of principal is paid and, therefore, the receipt of the payments should be treated as ordinary income under the so-called “tax benefit rule.” See Southwestern Illinois Coal Corp. v. United States, 491 F.2d 1337, 1339 (7th Cir. 1974).

We first consider the government’s objections to taxpayer’s charitable contribution deduction and then its argument that a fraction of each installment payment is a partial restoration of the donated property.

I.

The government does not dispute the proposition that a bargain sale may constitute a gift. See, e. g., Singer Co. v. United States, 449 F.2d 413, 418, 196 Ct.Cl. 90 (1971). Nor does the government expressly argue that the jury’s finding that taxpayer intended to make a gift is unsupported by the evidence. It does make two rather narrow arguments on the gift issue. First, it argues that the requisite intent did not arise until two months after the transfer was completed; and second, it argues that there could have been no gift because, in the language of the House Committee Report quoted in Singer, supra, taxpayer’s contribution was not “made with no expectation of a financial return commensurate with the amount of the gift.”

The first argument fails to differentiate between the intent to make a gift — which must be present at the time of the transfer — -and the intent to claim a deduction — which need only arise at the time a tax return is prepared. A taxpayer need not know at the time of making a gift that he is entitled to such a deduction. As the Supreme Court has stated, “the parties’ expectations or hopes as to the tax treatment of their conduct in themselves have nothing to do with the matter.” Commissioner v. Duberstein, 363 U.S. 278, 286, 80 S.Ct. 1190, 1197, 4 L.Ed.2d 1218. Accordingly, the fact that taxpayer may not have been aware of the possibility that he might obtain a tax deduction until after the transaction was consummated is irrelevant to the critical question whether he intended to confer a benefit on the charity at the time of the sale.

The second argument overlooks the importance of determining the amount of the gift at the time it was made. Since only the difference between the value of the transferred asset and the value of the consideration received could even arguably be characterized as the “amount of the gift” within the meaning of the Singer formulation, it is necessary to determine whether, apart from the note itself, the taxpayer expected to receive any additional consideration commensurate with the value of that difference. The government appears to be arguing that the ultimate payment of the face value of the note will bring him additional consideration “commensurate with the amount of the gift.” But payment of that note in accordance with its terms cannot enhance the value of the consideration received, measured as of the date of the gift, or reduce the value of the transferred asset. It therefore does not minimize— and certainly does not eliminate — the difference in values which represents the subject matter of the gift in this case.

This case is, therefore, completely unlike the Singer case. In Singer, taxpayer made bargain sales of sewing machines to certain charitable groups. In some cases the sales were expected to produce additional business for the company; in others, no such ancillary benefit was anticipated. In both situations the court determined whether, apart from the payment of the bargain price itself, the taxpayer expected to receive additional consideration which, if commensurate with the amount of the gift, would defeat the deduction. In the case before us there is no suggestion that taxpayer will receive any financial return other than the payment of the purchase price. The anticipated receipt of these future payments was fully included in the valuation of the initial consideration received at the time of transfer. Since, prior to 1969, it was well settled that a “bargain sale may produce a charitable contribution,” see, e. g., Singer, supra, 449 F.2d at 418, we find no merit in the government’s legal objection to the charitable deduction.

II.

The government’s “tax benefit” argument also rests on a misconstruction of the character of the gift. If, as we are convinced it should be, the gift is identified as the difference between the value of the consideration paid by the charity and the value of the property received by the charity, both measured as of the date of the gift, it necessarily follows that payment of the note in accordance with its terms will not diminish the amount of the gift, or restore to taxpayer any benefit which he has conferred upon the charity.

The need to consider the government’s tax benefit argument arises only after (a) we have decided that a gift was made at the time of the bargain sale on January 1, 1966, and (b) a subsequent event has occurred which arguably constitutes a restoration of at least a part of the subject matter of the gift. Thus, our analysis of this issue starts from the premise that the difference between the value of the transferred asset and the value of the consideration was a gift. And since the only taxable year under review in this case is 1966, the government’s claim to a setoff rests entirely on the hypothesis that a payment or payments made by the charity in that year reduced that difference. In that year, however, the charity merely made the cash downpayment and delivered taxpayer a check for the first installment payment under the note. The gift issue was resolved by focusing attention on the time of the transfer; the “tax benefit” argument must be resolved by focusing on the time of the alleged restoration of the subject matter.

It is clear that the tax benefit rule applies to the recovery by a donor of a gift he makes to a charity; to the extent that the earlier charitable contribution deduction gave rise to a tax benefit, the taxpayer must report the return of the gift property as ordinary income. In Alice Phelan Sullivan Corp. v. United States, 381 F.2d 399, 180 Ct.Cl. 659 (1967), the taxpayer had made two gifts of real property to a charity with the stipulation that the property be used for certain purposes. Seventeen years later, the charity returned the property. The Court of Claims held that the corporation had to report the return of the property as ordinary income, taxable at the tax rates in effect in the year of recovery.

In this case, however, the donee has not returned the subject matter of the gift to the donor. The payment of the note in accordance with its terms does not eliminate,or even modify, the bargain aspect of the sale by the taxpayer to the charity. If additional consideration had been delivered to the taxpayer subsequent to the closing — perhaps by the substitution of a note bearing a higher interest rate — the application of the tax benefit rule would be called into play. But subsequent events which may merely change the value of the note— such as, for example, a change in prevailing interest rates, or a change in the financial status of the obligor, or even a record of making installment payments regularly when due and thereby possibly changing the risk factor which may have played a part in appraising the original value of the note — do not provide the donor with any additional consideration or involve any restoration of the subject matter of the gift within the meaning of the tax benefit rule. We therefore hold that the government has failed to establish any right to a setoff under that rule as applied to the tax year at issue in this case.

III.

The taxpayer has cross appealed from the district court’s determination that $193.92 of original issue discount arose out of the transaction and was taxable as ordinary income. Although the government has not resisted this appeal, taxpayer has not persuaded us that the district court committed reversible error in this respect. See notes 3 and 8, supra. Accordingly, the judgment of the district court is

Affirmed.

      . The Tax Reform Act of 1969 (Pub.L. 91-172) amended the charitable contribution deduction provisions of the Code to disallow deductions for the gift of partial interests in property, see § 170(f)(3)(A) of the Code. We need not consider whether taxpayer would have been entitled to a deduction had this transaction taken place after the effective date of this Act.

      . 365 F.Supp. 670 (N.D.Ill.1973).

      . The $117,000 figure represents 45% of $260,-000 the total value of the business as appraised by Southwest Blood Banks, an Arizona organization which was prepared to pay that amount in cash for the business (Tr. 72). Actually, taxpayer owned a fraction of a share more than 45% and, therefore, the portion of the total purchase price allotted to his shares was $117,196.92. The fact that the jury apparently rounded this figure off to an even $117,-000 gave rise to the modest original issue discount mentioned infra in n. 8.

      . The first paragraph of the note provided for a 10-year payout. However, the second paragraph provided that no default would occur so long as the obligor paid current interest and no less than 50% of the semiannual payments of principal. The net effect of the two paragraphs was to give the charity the right to extend the term of the note to 20 years. Although the note provided for a higher interest rate after “maturity,” and although the date of the maturity is arguably only 10 years after issuance of the note, the appraiser who valued the note did not so construe it, and the government offered neither evidence nor argument in support of that construction in the district court. In these circumstances, we must accept the jury’s special finding as adequately supported by the record.

      . The corporate executor of the estate of Dr. Grimm, the other principal selling shareholder, appraised the decedent’s note as worth $80,-776.03. That valuation was accepted for Federal Estate and Illinois Inheritance Tax purposes. The discount (as compared with the face value of $112,689.42) was attributed to the low interest rate, the lack of security, and the credit standing of the obligor. The jury apparently rounded off the appraised value to an even $81,000, a figure slightly more favorable to the government. In any event, the government does not now challenge that figure for purposes of this appeal.

      . After the jury returned its verdict resolving the factual issues, the legal issues were presented to the court by cross motions for summary judgment filed by the respective parties. In its opinion disposing of those motions, the district court stated: “The Government admits [taxpayer] was entitled to the charitable deduction.” 365 F.Supp. at 675.

      . The district court held that § 453(b) of the Internal Revenue Code required use of the face amount of the note to compute taxpayer’s capital gain, and that § 1001(b) was inapplicable to an installment sale. See 365 F.Supp. at 672-674.

      . “Original issue discount typically arises where an issuer sells its debt obligation.on the market for cash at a price less than the face amount of the obligation.” Commissioner v. National Alfalfa Dehydrating & Milling Co., 417 U.S. 134, 143, 94 S.Ct. 2129, 2134, 40 L.Ed.2d 717 (emphasis in original). In this case, if the government had persuaded the jury that the market value of taxpayer’s interest in the blood bank was about equal to the market value of the note, then the difference between that value and the face amount of the obligation could represent original issue discount. However, as the facts were found by the jury, the only such discount that could result was the amount of $196.92, obviously produced by the rounding off process. The government does not press the original issue discount argument in this court.

      . There is ample evidence to support the finding that taxpayer intended to make a gift to the charity. Although the government disputed the valuation issues in the district court, for purposes of appeal it acknowledges that the property which taxpayer transferred to the charity was worth over $30,000 more than the consideration which he received. The magnitude of the economic benefit conferred upon the charity is itself strongly probative of a donative intent. Taxpayer testified that originally he had been willing to charge the charity no interest, Tr. 22, and that
      “we felt that the terms that we established for the not-for-profit corporation were rather minimal and rather generous on our part, but we were interested in being certain that the blood bank survived and continued its work.” Tr. 23.
      He concluded that the note received did not have a market value equal to its face value, Tr. 23-24, and that he had intended to confer a benefit on the corporation. Tr. 65. James Egan, taxpayer’s attorney and a member of the board of directors of Chicago Blood Donor Service, reported that, when the sale was being arranged, “Doctor Mason and Doctor Grimm . . . were very emphatic in saying that they wanted the terms to be as liberal as possible.” Tr. 96. He reported that the other board members felt that the doctors were being “very generous in the method in which they were transferring these assets." Tr. 98.
      Moreover, to the extent that it is necessary to inquire into taxpayer’s motivation in conferring a benefit upon the charity, cf., Commissioner v. Duberstein, 363 U.S. 278, 286, 80 S.Ct. 1190, 4 L.Ed.2d 1218, the evidence respecting taxpayer’s participation in the organization and development of the blood bank provides a credible explanation for his desire to see the charity continue to function effectively in the future.
      It is not our function to make an initial appraisal of the evidence to decide whether we would have concluded that taxpayer had the requisite donative intent. This is a function which a jury is particularly well qualified to perform. As the Supreme Court stated in Du-berstein:

      “Where a jury has tried the matter upon correct instructions, the only inquiry is whether it cannot be said that reasonable men could reach differing conclusions on the issue.” 363 U.S. at 290-291, 80 S.Ct. at 1199.
      The evidence in this case, viewed in the light most favorable to the taxpayer, supports the finding that a gift was intended. See also Hannigan v. Sears, Roebuck & Co., 410 F.2d 285, 287-288 (7th Cir. 1969), cert. denied, 396 U.S. 902, 90 S.Ct. 214, 24 L.Ed.2d 178.

      . “Furthermore when Congress put together the Internal Revenue Code of 1954, the following statement was made in reference to section 162(b) of the Internal Revenue Code:
      Subsection (b) is derived from section 23(a)(1)(B) of the 1939 Code. This section provides that no business deduction is available for any contribution which would be deductible as a charitable gift, were it not for the percentage limitation on such gifts. This was the rule for corporations under section 23(a)(1)(B) of the 1939 Code and this section now extends the rule to individuals. No substantive change is made in the application of this rule. As under present law, it applies only to gifts, i. e., those contributions which are made with no expectation of a financial return commensurate with the amount of the gift. For example, the limitation would not apply to a payment by an individual to a hospital in consideration of a binding obligation to provide medical treatment for the individual’s employees. It would apply only if there were no expectation of any quid pro quo from the hospital. [H.Rep.No.1337, 83rd Cong., 2nd Sess., p. A44 (3 U.S.C.C.A.N. (1954) pp. 4017, 4180); S.Rep.No.1622, 83rd Cong., 2nd Sess., p. 196, 3 U.S.C.C.A.N. (1954) pp. 4621, 4830-4831.] [Emphasis supplied]”
      449 F.2d at 420.

      . Indeed, whether a gift to an eleemosynary organization qualifies as a charitable contribution depends on various factors, among which is whether the charity qualifies as an exempt organization under § 501(c) of the Code. In this case, the successor corporation’s § 501(c)(3) qualification was not learned until early 1967. Thus, whether taxpayer was not aware that he might claim a tax deduction until after Dr. Grimm’s death is irrelevant to the important question of whether he intended to confer a benefit on the charity at the time of the sale.

      . In the gift tax area the tax court has squarely held that if a promissory note bearing an especially low interest rate is used to pay the purchase price, the amount of the gift must be measured by reference to the fair market value of the note, rather than its face value. In Gertrude H. Blackburn, the court stated:
      “It seems to us that it would be unrealistic for us to hold that a note with a face value of $172,517.65, bearing interest only at the rate of 2‘A per cent per annum and having 34'/2 years to run, had a fair market value on the date of its receipt equal to its face value. Undoubtedly, petitioner was fully justified in believing that the note would be paid in full according to its terms, but that factor alone does not determine the fair market value of a note. Other factors such as the rate of interest which the note bears and the length of maturity must be considered.
      “After a careful consideration of all the evidence we have concluded that the note, secured by the mortgage, had a fair market value of $134,538.30 at the time it was received by petitioner on December 31, 1947. That figure should be used in a computation of petitioner’s gift tax arising from the gift which she made to her two children on December 31, 1947.”
      20 T.C. 204, 207 (1953).
      The I.R.S. has announced that it will not follow the contrary conclusion reached in Johnson v. United States, 254 F.Supp. 73 (N.D.Tex. 1966). See Rev.Rul. 73-61, Int.Rev.Bull. 1973-5, 15.

      . The rationale of Singer would be applicable if, for example, in exchange for the bargain sale taxpayer had expected that the blood bank might employ him to perform various professional services for a consideration roughly commensurate to the value of the bargain sale to the charity.

      . Similarly, the courts have held that gifts of the use of real property to a charity give rise to charitable contribution deductions in the amount of the fair market value of the rental income forgone. See Threlfall v. United States, 302 F.Supp. 1114 (W.D.Wis.1969); Pas-sailaigue v. United States, 224 F.Supp. 682 (M.D.Ga.1963); Thriftimart, Inc., 59 T.C. 598 (1973); Priscilla M. Sullivan, 16 T.C. 228 (1951).

      . Alternatively, the gift might be characterized as the value to the charity of the taxpayer’s willingness to forgo the receipt of the fair market rate of interest on this note over this extended period of time. The fact that the taxpayer will ultimately be paid the principal sum does not mean that the charity has not been benefited or that the taxpayer has in fact recovered that which he has forgone.

      . There is a dispute on the record as to whether taxpayer actually collected on the note during 1966, the only tax year in question in this case. While a check for payment due July 1, 1966 was received and reported on the taxpayer’s 1966 tax return, he contends that it was never cashed and was later cancelled. Thus, taxpayer argues that there can be no government setoff on a tax benefit theory for that year. The government responds that taxpayer in fact admitted cashing the check some two years later (Tr. 24), and that the receipt of the check in 1966 gave rise to income, and any concomitant setoff, in that year. We need not resolve this dispute because we conclude that the government is not entitled to a setoff in any event on its tax benefit theory.

      . This is clear from the accepted tax benefit rule:
      “The general rule, not expressly stated in the Code but developed through the case law, is that, if an amount deducted from gross income in one taxable year is recovered in a later year, the recovery is income in the later year.” 1 Mertens, Law of Federal Income Taxation § 7.34, p. Ill (Rev. 1974) (footnotes omitted).

      . An earlier Court of Claims decision, Perry v. United States, 160 F.Supp. 270, 142 Ct.Cl. 7 (1958), recognized that the return of property by a charity could give rise to the application of the tax benefit rule. In that case, however, the court concluded that the value of the property returned should be taxed at the rates prevailing at the time the deduction had originally been taken.

      . The government argues that the holding in Alice Phelan Sullivan Corp. v. United States, supra, requires us to apply the tax benefit rule in this case because the Sullivan taxpayer was not allowed any charitable contribution deduction for the use of the donated property during the period between its gift and its return. But no such deduction was claimed in that case. The original deductions were measured by the total value of the fee interests which had been donated to charity. When the fees were returned 15 years later, the recoupment was taxable as income. Had the property been worth less when it was returned, whether on account of deterioration resulting from use or merely because of market fluctuation, only the value at the time of return would have been taxed. But that result follows from the fact that the tax benefit rule focuses on value at the time of recoupment and has nothing to do with the fact that, in theory at least, the taxpayer might originally have made a gift of the temporary use of the property rather than his entire interest in it.

      . We therefore are not required to decide whether original issue discount may arise from the issuance of a note in exchange for property other than cash — a question left open in Commissioner v. National Alfalfa Dehydrating & Milling Co., 417 U.S. 134, 146-147, 94 S.Ct. 2129, 40 L.Ed.2d 717 — or whether we would have computed the amount of the discount as $193.92 or $196.92.


author: PER CURIAM.

text:
    Eric C. NICKERSON, Plaintiff-Appellant, v. UNITED STATES of America, Appellee.
    No. 74-1368.
    United States Court of Appeals, First Circuit.
    Argued March 4, 1975.
    Decided March 28, 1975.

      Raymond A. LaFazia, Providence, R. I., with whom J. Renn Olenn and Gunning, LaFazia, Gnys & Selya, Providence, R. I., were on brief, for plaintiff-appellant.
    William A. Friedlander, Atty., Tax Div., Dept, of Justice, with whom Scott P. Crampton, Asst. Atty. Gen., Washington, D. C., Lincoln C. Almond, U. S. Atty., Providence, R. I., Gilbert E. Andrews, Elmer J. Kelsy and Wesley J. Filer, Attys., Tax Div., Dept, of Justice, Washington, D. C., were on brief, for appellee.
    Before COFFIN, Chief Judge, McEN-TEE and CAMPBELL, Circuit Judges.
   PER CURIAM.

Plaintiff Eric Nickerson and his son Warren jointly own Nickerson’s Garage in Little Compton, R. I. In January 1974 the Internal Revenue Service filed a tax lien on all Warren’s property. In June the service levied on and took possession of the garage, denying Eric access to the premises and certain of his own personal property located thereon. This levy was released two days later when Warren agreed to make payments satisfying his outstanding tax liabilities. In July Eric brought suit to obtain a declaration that the government had no right to seize property held jointly with his son or owned outright. He also sought an injunction restraining the United States from levying on these interests to satisfy Warren’s tax deficiencies. The district court dismissed on jurisdictional grounds and Eric appeals.

It is well settled that the United States may not be sued absent • a waiver of its sovereign immunity. See, e. g., Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 18 L.Ed.2d 244 (1967). Nickerson claims to have found such a waiver in 26 U.S.C. § 7426(a), which he alleges should be construed to permit such suit whenever there has been a levy even if, as in the present case, the levy has been released and is no longer outstanding. While the wording of the statute does not specifically foreclose such a construction at least one court has refused to enjoin a threatened first levy noting that the statute reaches only “existing” levies, American Pacific Investment Corp. v. Nash, 342 F.Supp. 797, 799 (D.N.J.1972), and no other court has exercised jurisdiction absent such a levy. This construction derives support from the fact that the exclusive remedies of subsection (b) seem to contemplate an existing levy. Mindful of the principle that waivers of sovereign immunity are to be strictly construed, McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 96 L.Ed. 26 (1951), we believe the district court correctly held § 7426 inapplicable.

Nickerson also adverts to 28 U.S.C. § 2410(a)(1) providing that the United States may be named a party in a civil action to quiet title to property in which it claims a lien, but the lien against Warren’s property does not encumber Eric’s joint interest, so this section is inapplicable. Shaw v. United States, 331 F.2d 493, 497-98 (9th Cir. 1964). Finally, the Declaratory Judgment Act, 28 U.S.C. § 2201, does not confer jurisdiction but merely grants an additional remedy in cases where jurisdiction already exists. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950). Hence it does not avail Nickerson.

Affirmed.

      . “(a) Actions Permitted.—
      (1) Wrongful levy. — If a levy has been made on property or property has been sold pursuant to a levy, any person (other than the person against whom is assessed the tax out of which such levy arose) who claims an interest in or lien on such property and that such property was wrongfully levied upon may bring a civil action against the United States in a district court of the United States. Such action may be brought without regard to whether such property has been surrendered to or sold by the Secretary or his delegate.”

      . The last sentence of the subsection is intended to preserve jurisdiction even after the levy has been executed and the property sold. It does not support the contention that an action may be brought after a levy has been released.

      . In United Pacific Insurance Co. v. United States, 320 F.Supp. 450 (D.Ore. 1970), the court held that a notice of lien entitled “Tax Levy” was in fact the equivalent of a levy for purposes of this section. If this was the correct result it is obviously confined to the specific circumstances in question. The court acknowledged that it had no jurisdiction when there had been no levy.

      . In Shaw a tax lien against the husband’s joint interest was held not to encumber the wife’s joint interest in the same property, and the court held that she had no cause of action under § 2410. Pettengill v. United States, 205 F.Supp. 10 (D.Vt. 1962) is distinguishable in that it involved a tax lien against the husband’s interest in property owned by the entireties with but a single title and not liable under local law for his sole debts. Moreover, the court held that the government had waived its jurisdictional objection.