author: CLARK, Justice.

text:
    Audrey TULLOCK, Appellant, v. STATE HIGHWAY COMMISSION OF MISSOURI et al., Appellees.
    No. 74-1513.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 12, 1974.
    Decided Dec. 23, 1974.

      Walter Heiser, Legal Aid Society of the City and County of St. Louis, St. Louis, Mo., for appellant.
    Gregory F. Hoffmann, Florissant, Mo., and Joseph B. Moore, Asst. U. S. Atty., St. Louis, Mo., for appellees.
    Before GIBSON, Chief Judge, CLARK, Associate Justice, Retired,* and WEBSTER, Circuit Judge.
   CLARK, Justice.

Mrs. Audrey Tullock brought this suit, in forma pauperis, in the United States District Court for the Eastern District of Missouri, seeking injunctive relief from the efforts of appellee-State Highway Commission to evict her and her eight Supreme Court, Retired, sitting by designation. minor children from their rented home on the outskirts of St. Louis, Missouri, without providing her any relocation assistance. On appeal, the central question is whether 49 C.F.R. § 25.11(e), a Department of Transportation regulation restricting the availability of relocation benefits and services guaranteed to those displaced by federally-assisted highway projects, conflicts with the governing provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601 et seq. We conclude that it does.

I.

The essential facts are these. In November of 1970, appellant, an AFDC recipient, began renting a house at 5808 Dowling Street in Berkeley, Missouri, from its then owners, Mr. and Mrs. Benjamin A. Kelley, for $100 per month. On June 6, 1973, the state acquired ownership of this property, which is located on the right-of-way of a federally-assisted project to extend Highway 725 northward. Subsequently, on November 9, 1973, the State Highway Commission brought suit in St. Louis County magistrate’s court to dispossess her. In an order dated January 30, 1974, the magistrate gave appellant until June 10, 1974, to vacate the premises.

On June 11, 1974, Mrs. Tullock filed an administrative claim with appellee-Kriz, the District Engineer for the State Highway Commission, seeking relocation benefits, payments, and advisory services under the Uniform Relocation Assistance Act and requesting that she not be forced to vacate her rented home unless and until she was given such benefits. Simultaneously, the state moved forward to execute upon the magistrate’s court judgment by having appellee-Hoeh, the St. Louis County Sheriff, forcibly evict her. The filing of this suit and the issuance of a temporary restraining order prevented such action.

In a memorandum order dated July 2, 1974, the Federal District Court denied appellant’s motion for preliminary injunction on the ground that she had failed to exhaust her administrative remedies. In addition, the Court concluded that 49 C.F.R. § 25.11, the administrative regulation defining those to whom relocation benefits were available, was a correct interpretation of the statute and that appellant was properly excluded from eligibility thereunder. We cannot agree and therefore reverse and remand the action for further proceedings in keeping with this opinion.

II.

Appellees raise a number of attacks on the jurisdiction of the Federal Court and the justiciability of this action, all of which we reject. The State Highway Commission urges that it is immune from suit under the eleventh amendment, but this doctrine does not apply to suits seeking injunctive relief against state officials. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Moreover, by accepting the responsibility of administering relocation benefits under the federal statutes, the state has subjected itself to the same obligations as the federal government and thus has consented' to be sued. See Parden v. Railway of the Alabama State Docks’ Dept., 377 U.S. 184, 84 S.Ct. 1207, 12 L.Ed.2d 233 (1964). In addition, there is a state statutory waiver of immunity for nontort suits in Mo.Rev.Stat. § 226.-100, Y.A.M.S. Bush v. State Highway Commission, 329 Mo. 843, 46 S.W.2d 854 (1932).

It is further urged by appellees that the District Court was correct in holding that Mrs. Tullock has not exhausted her administrative remedies under 42 U.S.C. § 4633(b)(3). The short answer to this is that the State Highway Commission has already concluded that she is not eligible to receive' any relief under the statute; to require further administrative proceedings would be of no avail. Before Mr. Justice Blackmun, in its answer to Mrs. Tullock’s application for a stay, the State Highway Commission specifically stated that: “The Commission truly believes that its denial of appellant’s claim for relocation assistance was proper * * And when the Commission refers to “its denial,” we take it at its word.

Finally, appellee-Department of Transportation argues that the Uniform Relocation Assistance Act precludes judicial review of appellant’s claims. We disagree. The decision in Will-Tex Plastics Manufacturing, Inc. v. H.U.D., 346 F.Supp. 654 (E.D.Pa.1972), on which appellee relies, held only that judicial review of claims under the real property acquisition policies provisions of Title III of the Act was barred. In contrast, Barnhart v. Brinegar, 362 F.Supp. 464 (W.D.Mo.1973), has considered the question here at issue and concluded, correctly we think, that judicial review of claims relating to relocation assistance is permitted.

III.

We turn now to the merits. As we read the Uniform Relocation Assistance Act, its command is crystal clear. Whenever the acquisition of real property for a federally-assisted project will result in the displacement of any person after January 2, 1971, section 4622 requires the payment of a moving expense and dislocation allowance not to exceed $500, and section 4625 requires the establishment of relocation assistance advisory services “to minimize hardships to such persons in adjusting to relocation.” Most importantly, section 4625(c)(3) requires that an adequate supply of replacement housing be available prior to displacement, specifying that each relocation assistance advisory program:

assure that, within a reasonable period of time, prior to displacement there will be available in areas not generally less desirable in regard to public utilities and public and commercial facilities and at rents or prices witjiin the financial means of the families and individuals displaced, decent, safe, and sanitary dwellings, as defined by such Federal agency head, equal in number to the number of and available to such displaced persons who require such dwellings and reasonably accessible to their places of employment * * *.

In order to receive federal funds for any project which may result in the displacement of any person, states are' required by section 4630 to give assurances that they will provide the relocation benefits and services authorized under §§ 4622 and 4625, as well as make certain, that “decent, safe, and sanitary replacement dwellings” will be available in accordance with § 4625(c)(3).

Despite the undisputed fact that the State Highway Commission gave such assurances to the Federal Highway Administration, appellees are now attempting to renege on their commitment by refusing to furnish relocation benefits and services to Mrs. Tullock under the Act. It gives as its reason that appellant and her children are not “displaced persons” as defined by Department of Transportation regulations, specifically, 49 C.F.R. § 25.11(c). This regulation provides that:

A person who enters into occupancy of real property after the initiation of negotiations for that property or the issuance of a notice of intent to acquire that próperty by a given date, as the case may be, does not qualify as a displaced person for the purposes of this part.

Comparing § 25.11(e) with the statutory definition contained in the Uniform Relocation Assistance Act, we conclude that this regulation goes beyond the specific language of the statute and must be struck down. 42 U.S.C. § 4601(6) clearly states that:

The term “displaced person” means any person who, on or after January 2, 1971, moves from real property, or moves his personal property from real property, as a result of the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance * * *

Congress’ intent to include any displaced person, regardless of time of occupancy, within §§ 4622 and 4625 is highlighted by the provisions of § 4624 which permit the payment of additional sums of money for replacement housing if the displaced person has occupied the property involved “for not less than ninety days prior to the initiation of negotiations for acquisition of such dwelling.” As we read the whole statute, Congress has, indeed, recognized a distinction between those resident at the initiation of negotiations and those who become resident subsequently; nevertheless, both are entitled to relocation benefits. The distinction is that the former simply get more. We must accept as true that Congress says what it means and means exactly what it says. It follows that regulation 49 C.F.R. § 25.11(e) is inconsistent with the Act and is therefore invalid. As the Court stated in Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 134, 56 S.Ct. 397, 400, 80 L.Ed. 528 (1931):

The power of an administrative officer or board to administer a federal statute and to prescribe rules and regulations to that end is not the power to make law * * * but the power to adopt regulations to carry into effect the will of Congress as expressed by the statute. A regulation which does not do this, but operates to create a rule out of harmony with the statute, is a mere nullity.

IV.

Following the denial of the preliminary injunction by the District Court, appellant sought and was denied a stay pending appeal by this court on the understanding that Mrs. Tulloek would remain undisturbed in her present domicile until October 14, 1974. Upon the expiration of that voluntary postponement of action, an application for further stay was granted by Mr. Justice Blackmun, Circuit Justice for this circuit, during the pendency of the instant appeal. Since we conclude that Mrs. Tul-lock is eligible for relief under §§ 4622 and 4625 of the Uniform Relocation Assistance Act, the stay is therefore continued in effect while the District Court determines the details of her recovery under these sections. The judgment below is reversed and the cause remanded for the entry of a final decree in keeping herewith.

Reversed.

      . The impact of federally-assisted urbán renewal and highway construction projects cannot be overestimated. More than two million dwelling units were demolished by such projects in the years between 1950-68 according to one study by the National Association of Home Builders, and some 62,000 families and individuals were displaced by federal highway programs in 1970 alone. Until recently, those displaced were simply left homeless and without assistance of any kind. See Roberts, “Homes, Roadbuilders and the Courts: Highway Relocation and Judicial Review of Administrative Action,” 46 S.Cal.L. Rev. 51 (1972); Hartman, “Relocation: Illusory Promises and No Relief,” 57 Va.L.Rev. 745 (1971); Note, “Relocation: An Investigation into Relocation under the Federal-Aid Highway Program,” 7 Col.J. of L. and Soc.Prob. 466 (1971).

      . There are some inconsequential differences between the parties as to the facts. Appel-lees contend that at the time Mrs. Tullock rented the premises in issue she was advised by the owners that the State Highway Commission was negotiating with them for the acquisition of their property and that she would have to vacate when the sale was consummated. Further, appellees assert that after the eviction proceedings were filed: (1) Mrs. Tullock filed and later abandoned a counterclaim seeking relocation assistance and benefits; (2) agreed to deliver possession on June 10, 1974; and (3) agreed to pay $100 per month rental until such date. Mrs. Tul-lock counters that there are no such facts in the record. Since our disposition does not rest in any way on the resolution of these conflicting factual claims, we are not obliged to remand for a factual finding with regard to them. For our purposes it is sufficient that the trial court found that Mrs. Tullock was in possession of the property in issue on January 2, 1971 — the effective date of the Uniform Relocation Assistance Act- — -and that the appel-lees sought to displace her therefrom subsequent to that date.

      . To put teeth into this requirement, Congress has mandated that the federal agency causing ■ the displacement is to be the house-provider “of last resort” under section 4626, as follows:
      (a) If a Federal project cannot proceed to actual construction because comparable replacement sale or rental housing is not available, and the head of the Federal agency determines that such housing cannot otherwise be made available he may take such action as is necessary or appropriate to provide such housing by use of funds authorized for such project.
      (b) No person shall be required to move from his dwelling on or after January 2, 1971, on account of any Federal project, unless the Federal agency head is satisfied that replacement housing, in accordance with section 4625(c)(3) of this title, is available to such person.

      . Under 42 U.S.C. § 4633, the head of each federal agency involved in land acquisition programs or assistance which may cause displacements of residents must promulgate implementing regulations. The Department of Transportation has published its regulations at 49 C.F.R. §§ 25.1-25.263, which include the one here in dispute. As a subagency of the Department of Transportation, the Federal Highway Administration is subject to these regulations, though it has published similar regulations of its own which include a corresponding definition of “displaced person” to § 25.11(e). See 23 C.F.R. § 740.3(c).

      . The federal appellees urge that their “interpretation” of the statute should be given great deference. We note in this regard that none of the other federal agencies issuing implementing regulations have employed such a miserly definition of “displaced person” under the Act, but rather have remained true to the Congressional language. See, e. g., Department of Housing and Urban Development, 24 C.F.R. §§ 42.20(d), 42.55(a) and (b); Dept, of Health, Education, and Welfare, 45 C.F.R. § 15.4(e); Dept, of Agriculture, 7 C.F.R. § 21.207; Dept, of the Interior, 41 C.F.R. §§ 114-50.105, 201(f); Dept, of Labor, 29 C.F.R. § 12.3; Dept, of Justice, 28 C.F.R. §§ 52.13(k), 52.14; Economic Development Administration, 13 C.F.R. § 310.2(d); Dept, of the Navy, 32 C.F.R. § 742.205.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Leroy BAITY, Petitioner-Appellant, v. Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Respondent-Appellee.
    No. 74-1720.
    United States Court of Appeals, Eighth Circuit.
    Dec. 13, 1974.

      Leroy Baity, pro se. ,
    Bert C. Hurn, U. S. Atty., Kansas City, Mo., for appellee.
    Before GIBSON, Chief Judge, HEA-NEY and STEPHENSON, Circuit Judges.
   PER CURIAM.

Petitioner Leroy Baity appeals a dismissal of his petition for habeas corpus which was entered by the United States District Court for the Western District of Missouri by means of two separate orders dated April 4, 1974 and June 20, 1974. No judgment of dismissal has ever been entered on a separate document. We have concluded that we must dismiss the appeal for lack of jurisdiction.

Federal Rule of Civil Procedure 58 provides:

* * * Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided by Rule 79(a). * * *

This requirement is not met by a provision within a court’s memorandum opinion and order to the effect that judgment be entered. See 6A Moore, Federal Practice § 58.02; 11 Wright & Miller, Federal Practice and Procedure § 2785 at 14. Thus, although the judge captioned each of his two written opinions as an “Order * * * And Final Judgment,” the separate document requirement of the rule was not met.

The lack of a separate entry of judgment is not a mere technical defect which can be overlooked by this Court, but rises to jurisdictional status. Although some courts have indicated that failure to enter judgment may be a mere technical error if the judge “intended” judgment to be entered, see e. g. Superior Life Insurance Co. v. United States, 462 F.2d 945 (4th Cir. 1972); United States v. Evans, 365 F.2d 95 (10th Cir. 1966), the Supreme Court has subsequently declared that the separate document provision of Rule 58 “must be mechanically applied in order to avoid new uncertainties as to the date on which a judgment is entered.” United States v. Indrelunas, 411 U.S. 216, 222, 93 S.Ct. 1562, 1565, 36 L.Ed.2d 202 (1973) (per curiam). The defect is a jurisdictional one, because the jurisdictional basis of this appeal, 28 U.S.C. § 1291, provides that a “final decision” must have been rendered in the District Court. No final decision has been rendered within the meaning of that jurisdictional statute until a separate judgment has been entered. See Richland Trust Co. v. Federal Insurance Co., 480 F.2d 1212, 1213-1214 (6th Cir. 1973) (per curiam). Therefore, we lack jurisdiction to entertain this appeal.

Upon the entry of a separate judgment by the District Court and the docketing of an appeal in this Court, we will hear and determine the matter.

Appeal dismissed.

      . We have determined that the civil rules apply to this habeas action insofar as the form and entry of judgment are concerned. Federal Rule of Civil Procedure 81(a)(2) provides that the civil rules are applicable to habeas corpus proceedings, “to the extent that the practice in such proceedings is not set forth in statutes of the United States and has heretofore conformed to the practice in civil actions.” We see nothing in the limiting language of that clause to preclude application of civil rule 58 here. Certainly the criminal rules offer no guidance, as they speak only of the entry of judgments of conviction or acquittal. See Federal Rule of Criminal Procedure 32(b).

      . In the case before us, the reason for this rule is manifest, for the appeal is untimely if measured by the April 4 order, but is timely if measured by the June 20 order. The entry of judgment serves as a clear date upon which to commence tolling of the time for appeal.


author: PER CURIAM:

text:
    Joe Grady MURRAH, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-2634
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 30, 1975.
    Joe Grady Murrah, pro se.
    Roby Hadden, U. S. Atty., Tyler, Tex., Dennis R. Lewis, Asst. U. S. Atty., Beaumont, Tex., for respondent-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

Joe Grady Murrah appeals from the dismissal of his 28 U.S.C. § 2255 motion to vacate sentence and from the denial of his application for appointment of counsel to represent him on this appeal. The appellant basically contends that (1) he was denied effective trial counsel, (2) his indictment was faulty, (3) he was erroneously denied a preliminary hearing, and (4) the district court erred, in light of Wedding v. Wingo, 483 F.2d 1131 (6th Cir. 1973), aff’d 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974), in following a United States Magistrate’s recommendation that no evidentiary hearing be held on the § 2255 motion.

A careful examination of the record indicates to us that the first three contentions are totally without merit and that denial of counsel was appropriate. Appellant’s reliance on Wingo v. Wedding is also ill founded. Wingo v. Wedding stands for the proposition that in the event an evidentiary hearing is held, the Federal Magistrates Act of 1968, 28 U.S.C. §§ 631 — 639 (Supp.1973) demands that a district judge personally hear the evidence. There is, however, nothing in Wedding v. Wingo which prevents a federal magistrate from preliminarily reviewing applications for post-trial relief and submitting recommendations as to whether there should be a hearing. In fact, the Federal Magistrates Act explicitly allows magistrates to assume that responsibility and Wedding v. Wingo quite clearly supports the exercise of that authority by magistrates.

Judgment affirmed.


text:
    HARBOR TOWING CORPORATION, Appellant, v. SS CALMAR, her tackle, apparel, equipment, etc. and Calmar Steamship Corporation, a body corporate, Appellees. HARBOR TOWING CORPORATION, Appellee, v. SS CALMAR, her tackle, apparel, equipment, etc., and Calmar Steamship Corporation, a body corporate, Appellants.
    Nos. 74-1142, 74-1143.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 4, 1974.
    Decided Dec. 23, 1974.
    John T. Ward, Baltimore, Md. (Ober, Grimes & Shriver and John C. Baldwin, Baltimore, Md., on brief), for appellant in No. 74 — 1142 and for appellee in No. 74-1143.
    William R. Dorsey, III, Baltimore, Md. (Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellees in No. 74— 1142 and for appellants in No. 74 — 1143.
    Before WINTER, CRAVEN and RUSSELL, Circuit Judges.
   PER CURIAM:

In an interlocutory judgment as to liability, the district court found that both the Tug William E. Voyce, Jr., and the SS Calmar were at fault when they collided in the Brewerton Channel, Eastern Extension, of the Chesapeake Bay on February 6, 1972. Of course, the district court did not assess damages; but it, nevertheless, stated that in accordance with The Catharine v. Dickinson, 58 U.S. (17 How.) 170, 177, 15 L.Ed. 233 (1855), the present law would require the assessment of one-half of the total damages against each vessel. See also, Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 284, 72 S.Ct. 277, 96 L.Ed. 318 (1952). To this the court added that if it “were not bound by the existing [the Catharine] rule it would not require the Voyce to pay more than her own damage.” Harbor Towing Corporation v. Calmar Steamship Corporation, 364 F.Supp. 804, 807 (D.Md.1973).

Both ships appeal, each claiming that the other was solely at fault. Additionally, the Voyce asserts that if the district court’s determination that both ships were at fault is affirmed, damages should nevertheless, be apportioned between the two according to fault rather than divided equally.

From our study of the record and consideration of the arguments, both written and oral, we conclude that the findings of the district court on which it predicated its judgment of liability are not clearly erroneous and the judgment is correct. We affirm on the opinion of the district court.

Even though it had indicated what it would decide, the district court has not actually decided the issue of damages. It would therefore be premature for us to express any view. We note, however, that certiorari has been granted to review the holding in United States v. Reliable Transfer Co., 497 F.2d 1036 (2 Cir. 1974), cert. granted, - U.S. -, 95 S.Ct. 491, 42 L.Ed.2d 291 (1974), and it appears that the Supreme Court may well reconsider whether the admiralty rule of divided damages currently applied in collision cases should be replaced by a rule of damages in proportion to fault. Accordingly, we suggest to the district court that upon remand it may appropriately stay further proceedings to await the final decision in Reliable Transfer, so that it may proceed in accordance with the views expressed therein. In oral argument, counsel, when questioned, agreed that there was no compelling reason for an earlier decision.

Affirmed.


author: CROCKER, District Judge:

text:
    William N. GAGLIE, Petitioner-Appellee, v. Alfred ULIBARRI, Camp Administrator, Respondent, and UNITED STATES of America, Real Party in Interest, Appellant.
    No. 73-1484.
    United States Court of Appeals, Ninth Circuit.
    Dec. 17, 1974.
    P. Michael Drake, Asst. U. S. Atty. (argued), Tucson, Ariz., for appellant.
    William N. Gaglie, in pro. per.

      Before BARNES and GOODWIN, Circuit Judges, and CROCKER, District Judge.

       Honorable M. D. Crocker, United States District Judge, Eastern District of California, sitting by designation.

   OPINION

CROCKER, District Judge:

William N. Gaglie petitioned the U.S. District Court for the District of Arizona for a writ of Habeas Corpus or, in the alternative, for declaratory and injunc-tive relief that would direct the Administrator of the Federal Prison Camp at Safford, Arizona, where petitioner was confined, to supply him and all indigents in his custody, with an adequate law library to exercise their fifth .’amendment right to effective access to the courts, as required by Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.1970), aff’d sub nom., Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971).

The Government contends that the Bureau of Prisons Policy Statement 2001.2B issued May 8, 1972, granting all issues of U.S. Supreme Court Reports, Federal Reporter Second and Federal Supplement from May 1972 to the present, in addition to the books already at the Safford Prison Camp, is sufficient, particularly when considered with the other means available to gain access to the courts. It is noted by the Government that a program was initiated in September of 1972 between the Bureau of Prisons and the College of Law at the University of Arizona in which law students provide legal assistance to Safford prisoners who wish to file writs; in addition prisoners can seek the aid of the Public Defender’s office in preparing their writs. It is stressed by the Government that an extensive law library is not necessary, as Safford Prison is a minimum security prison and is composed of offenders having short sentences or offenders who have completed the major portion of long terms.

The U.S. District Court of Arizona, the Honorable James A. Walsh, U.S. District Judge, granted Summary Judgment in favor of William N. Gaglie. It was ordered that the Federal Prison Camp at Safford must fully comply with the provisions of the Bureau of Prisons Policy Statement 2001.2B and in addition the prison law library must contain United States Supreme Court Reports beginning with Volume 300, Federal Reporter Second beginning with Volume 275, and Federal Supplement beginning with Volume 200.

Upon consideration of the record, briefs and oral argument, we affirm the Summary Judgment. The record discloses that the Law School program which was instigated through the efforts of the appellee provides only limited legal aid for the prisoners. Due to the heavy case loads of public defenders’ offices, it is doubtful that the Public Defender’s Office would be adequately equipped to provide research assistance to prisoners on an effective scale. Certainly, a prisoner would have to have a reasonable understanding as to why he is approaching the Public Defender’s Office.

Instead of presenting reasonable alternatives as to which legal research materials should be made available to inmates at the Federal Prison to provide effective access to the courts, the Government contends that the implementation of Bureau of Prisons Policy Statement 2001.2B would be sufficient. In support of its position, the Government cites cases which would not be available to the ap-pellee if only the provisions of the Bureau of Prisons Policy Statement are complied with, as the cases cited predate May of 1972.

We are satisfied that the library suggested by the Government is not sufficient for petitioner to exercise his fifth amendment right to effective access to the courts, and that the library ordered by the court is sufficient. However, we do not decide whether some lesser number of research materials than ordered by the court would be sufficient, as the issue was not presented here or in the court below.

Judgment affirmed.


text:
    Jim L. NAPPER and wife, Jo Ann Napper, Plaintiffs-Appellants, v. ANDERSON, HENLEY, SHIELDS, BRADFORD & PRITCHARD, etc., Defendants-Appellees.
    No. 73-3746.
    United States Court of Appeals, Fifth Circuit.
    Jan. 31, 1975.
    Charles Ben Howell, H. Averil Sweit-zer, Dallas, Tex., for plaintiffs-appellants.
    D. L. Case, Jack Pew, Jr., Dallas, Tex., for defendants-appellees.
    ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
    (Opinion September 16, 1974, 5 Cir. 1974, 500 F.2d 634).
    Before BROWN, Chief Judge, and RIVES and DYER, Circuit Judges.
   PER CURIAM:

On consideration of appellants’ petition for rehearing, the panel adheres to its decision reported in 500 F.2d 634, that the district court properly dismissed the case for want of jurisdiction. Bell v. Hood, 1946, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939, does not require a different result.

Admittedly, the defendants have all along been citizens of Texas. It now appears that on August 23, 1971, the date of filing the complaint in the Texas federal district court, the plaintiffs were also citizens of Texas. The plaintiffs cannot complain that in good faith they considered themselves citizens of Arkansas, and were surprised by the contrary ruling, for on September 2, 1971, ten days after the complaint was filed, defendants moved to dismiss for lack of diversity. The amended complaint filed two years later, on September 25, 1973, sought recovery also on a claimed federal cause of action which we held to be nonexistent. There was never any basis of federal jurisdiction sufficient to support pendent jurisdiction of the state law claim.

The panel, therefore, declines to grant appellants’ petition for rehearing.

The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12), the Petition for Rehearing En Banc is denied.

      . See Hurn v. Oursler, 1938, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148; Mine Workers v. Gibbs, 1966, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218; Rosado v. Wyman, 1970, 397 U.S. 397, 404, 90 S.Ct. 1207, 25 L.Ed.2d 442; Moor v. County of Alameda, 1973, 411 U.S. 693, 710, et seq., 93 S.Ct. 1785, 36 L.Ed.2d 596. Cf. Lazier v. Weitzenfeld, 1975, 505 F.2d 896 [1975]; Perry v. Jones, 1975, 506 F.2d 778 [1975].


text:
    Robert G. TOMLINSON, etc., et al., Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    Nos. 73-1109 to 73-1116.
    United States Court of Appeals, Ninth Circuit.
    Dec. 12, 1974.

      Stephen B. Hill, Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland, Or. (argued), for appellants.
    Grant W. Wiprod (argued), Tax Div., U. S. Dept, of Justice, Washington, D. C., for respondent-appellee.
   OPINION

Before BARNES and KOELSCH, Circuit Judges, and CRARY, District Judge.

PER CURIAM:

Having carefully and thoughtfully reviewed the decision of the Tax Court (58 T.C. 570 (1972)) sustaining the Commissioner’s determination of deficiencies in Taxpayers’ income taxes, we conclude that the factual findings made by the Tax Court are supported by substantial evidence and that the principles of law it applied to those facts were pertinent and correct, and that its decision should be affirmed.

Our comments will be brief. The facts, detailed in the Tax Court opinion, will not be repeated. Suffice to say that the dispute centers upon Taxpayers’ tax treatment of certain property comprising part of two separate insurance brokerage firms that they purchased — the one a partnership known as Schmeer Insurance Agency, and the other a corporation known as Schmeer Insurance Agency, Inc.

I. The Schmeer Partnership Asset

Although Taxpayers do not renew their contention, unsuccessfully urged in the Tax Court, that they are entitled to a depreciation deduction under 26 U.S.C. § 167 for “insurance expirations” belonging to the partnership, we nevertheless note that the basis for the ruling was the Tax Court’s supported finding that the expirations were indivisible from and constituted part of the partnership goodwill.

Taxpayers’ alternative contention (again urged on this review) that they are entitled to a loss deduction for said expirations under 26 U.S.C. § 165 upon the failure of policyholders to renew coverage is no doubt wholly foreclosed by that finding: if a single asset is comprised of components indivisible from the mass’ goodwill, then, of course, none of the components can be subject of separate consideration. Boe v. Commissioner, 307 F.2d 339, 343 (9th Cir. 1962). However, even assuming that the non-renewal of a particular policy account may be individually treated, we agree with the Tax Court that Taxpayers failed to establish a cost basis for calculating the loss attending the non-renewal. Granting that the industry-wide formula for placing a commercial value upon expirations in connection with a sale en masse — by multiplying the average annual commission for all policies for the past three years by one and one-half — may reflect a reasonably accurate value of the whole, we entertain grave doubt that it is valid to fix the value of a given policy expiration. Expirations vary too widely from each other, we think, both in quality and certainty of renewal, to permit the formula’s indiscriminate application to a particular expiration.

II. The Schmeer Corporate Asset

We have stated earlier that the Tax Court’s findings, in our opinion, are wholly supported by the evidence. That observation extends to the factual determination that the “loss experience records” of the Schmeer corporation, when considered in proper milieu, did not constitute depreciable, intangible assets under § 167, but, instead, comprised part, if not all, of that corporation’s goodwill (and hence were non-depreciable). In our view, the conclusion is manifest that the motivating factor underlying Taxpayers’ purchase of the Schmeer corporation was not the acquisition of the loss experience records as such, but the assurance of the bank’s continuing consumer loan insurance business." Without the records, Taxpayers could not secure that business; with these records, the bank’s business, and its continuation, was and is assured.

Moreover, the records were not depreciable, even if they did not constitute goodwill; their life is not “for only a limited period, the length of which can be estimated from experience with reasonable certainty.” They are not a “wasting” asset. So long as the business relationship continues between Taxpayers and the bank — and there is no hint of its termination — the data on losses experienced on new policies written will constantly replace out-of-date loss information derived from old policies, thereby keeping the records continually current and the value of the asset undiminished.

Affirmed.

      The Honorable E. Avery Crary, United States District Judge for the Central District of California, sitting by designation.

      . “Insurance expirations” are the files of an insurance agency indicating a policyholder’s insurance coverage, types of policies, and the beginning and termination dates of the present policies in force.

      . Goodwill of a going concern constitutes an intangible capital asset that does not support a claim for a § 167 depreciation deduction. Treas.Reg. § 1.167(a)-3. See Commissioner of Internal Revenue v. Seaboard Finance Co., 367 F.2d 646 (9th Cir. 1966).

      . The “loss experience records” are comprised of the data, tabulated on a yearly basis, indicating the amounts of losses paid off on the policies written by the agency.

      . See n. 2 supra.

      . Quoted from Treas.Reg. 45, Art. 163, issued under the Revenue Act of 1918. The Regulation provided in full:
      “Art. 163. Depreciation of intangible property. — Intangibles, the use of which in the trade or business is definitely limited in duration, may be the subject of a depreciation allowance. Examples are patents and copyrights, licenses and franchises. Intangibles, the use of which in the business or trade is not so limited, will not usually be a proper subject of such an allowance. If, however, an intangible asset acquired through capital outlay is known from experience to be of value in the business for only a limited period, the length of which can be estimated from experience with reasonable certainty, such intangible may be the subject of a depreciation allowance
      The Regulation has remained substantially unchanged through successive enactments of the Internal Revenue Code, and the applicable Regulation under the 1954 Code substantially tracks its language. See Treas.Reg. § 1.167(a)-3.


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    Billy E. BURNETT et al., Plaintiffs-Ap-pellees, Cross-Appellants, v. The COLEMAN COMPANY, Defendant-Appellant, Cross-Appellee.
    Nos. 74-1594 and 74-1595.
    United States Court of Appeals, Sixth Circuit.
    Dec. 10, 1974.
    J. H. Doughty, Hodges, Doughty & Carson, David E. Smith, Knoxville, Tenn., for defendant-appellant, cross-ap-pellee.
    Dexter A. Christenberry, Joseph B. Yancey, Knoxville, Tenn., for plaintiffs-appellees, cross-appellants.
    Before PHILLIPS, Chief Judge, EDWARDS, Circuit Judge, and McALLIS-TER, Senior Circuit Judge.
   PER CURIAM.

This is an appeal from a judgment in a products liability action. The only substantial question raised herein concerns the District Court’s use of remittitur to reduce the size of the judgment, an issue which is presented by cross-appeal. We affirm the action of the District Court in ordering remittitur and remand with instructions to offer the plaintiffs the option of acceding to the remittitur or electing to retry their claim in a new trial. We also affirm on all the issues raised by the appellants.

This case arose when a portable oven unit, manufactured by Coleman for use with its stoves, exploded and injured Burnett, Allred and Gray. At trial both plaintiffs and defendant presented expert witnesses who testified as to the design of the oven. After the jury was instructed on strict liability for manufacturing defects within the meaning of § 402A of the Restatement (Second) of Torts (1965), the jury found Coleman liable. See Olney v. Beaman Bottling Co., 220 Tenn. 459, 463, 418 S.W.2d 430 (1967); Ford Motor Co. v. Lonon, 217 Tenn. 400, 414-419, 398 S.W.2d 240 (1966).

The District Court refused to grant Coleman’s motion for a new trial or a judgment notwithstanding the verdict, but noted that “the verdict appears to be extremely high in view of injuries sustained when considered in relation to other verdicts in similar cases.” After the parties were given an opportunity to study our decision in Manning v. Altec, Inc., 488 F.2d 127 (6th Cir. 1973), a hearing was held solely on the issue of damages, and the court ordered Burnett to remit $5,000 and Allred to remit $900. Gray’s award was undisturbed.

In Manning we set the standard of appellate review for a remittitur, stating that the action of a trial judge “is subject to review only for abuse of discretion.” Id. at 131. Further if we are “to determine whether there is an abuse of discretion it is necessary to examine the evidence on damages and the considerations which led the trial judge to order remission of a portion of the verdict.” Id.

We have examined the evidence on damages and, without lengthening this opinion by a recitation of details, we hold the order of remittitur was not an abuse of discretion.

When we áre called upon to balance the seventh amendment’s command that “no fact tried by jury, shall be otherwise reexamined . . . than according to the rules of the common law” with the “judge’s unique opportunity to consider the evidence in the living courtroom context,” Taylor v. Washington Terminal Co., 133 U.S.App.D.C. 110, 409 F.2d 145, 148, cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969), we are inclined to grant a greater degree of deference to the decision of the trial judge where the remitted portion is not the subject of direct evidence but rather results from inferences drawn from the facts in evidence. Manning v. Altec, Inc., supra, 488 F.2d at 133. We also note that the decision to grant remittitur was not reached sumrqarily, and that the judge assigned this specific issue for further argument.

Even though we uphold the grant of remittitur, this does not dispose of this case. It was recently stated in this Circuit:

“[T]he District Court must offer the party awarded damages the choice of a new trial or the amount of the Court’s remittitur. Dimick v. Schiedt, 293 U.S. 474, 476 [55 S.Ct. 296, 79 L.Ed. 603] (1935); Kennon v. Gilmer, 131 U.S. 22, 29, [95 S.Ct. 696, 33 L.Ed. 110] (1889); Manning v. Altec, Inc., 488 F.2d 127, 130 (6th Cir. 1973). The District Court cannot, without the consent of the parties, substitute its judgment for that of the jury on the issue of just compensation. United States v. 93.970 Acres of Land, 258 F.2d 17, 31 (7th Cir. 1958), reversed on other grounds, 360 U.S. 328, [79 S.Ct. 1193, 3 L.Ed.2d 1275] (1959). To permit the Court to do so would erode the parties’ Seventh Amendment guarantee of a jury trial.” Brewer v. Uniroyal, Inc., 498 F.2d 973 (6th Cir. 1974).

In the present case remittitur was accepted under protest. We have stated in Manning that “[i]n diversity cases from the district courts in Tennessee this court has approved the Tennessee practice of permitting a plaintiff to accept remittitur under protest and then appeal the trial court’s ruling.” 488 F.2d at 130. The plaintiffs have retained the option of either accepting the remittitur or requiring a new trial.

On direct appeal, appellant contends that: (1) The District Court erred in denying its motions to dismiss and for judgment n.o.v. or in the alternative for a new trial; (2) that reversible error occurred in admitting the testimony of an expert witness for plaintiffs; and (3) that the District Court committed reversible error in the charge to the jury and in denying appellant’s special request for a charge as to speculative testimony. We find these contentions to be without merit.

The judgment of the District Court is affirmed in all respects except that the case is remanded with instructions to afford the plaintiffs the option of a new trial or acceptance of the remittitur.

No costs are taxed. Each party will bear his own costs on this appeal.


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    Grace AMBURGEY, Plaintiff-Appellant, v. Clifford R. CASSADY, Superintendent of Rowan County Board of Education, et al., Defendants-Appellees.
    No. 74-1433.
    United States Court of Appeals, Sixth Circuit.
    Nov. 26, 1974.

      Arthur L. Brooks, Brooks, Sullivan & Molloy, Lexington, Ky., for plaintiff-appellant.
    Thomas R. Burns, Morehead, Ky., for defendants-appellees.
    Before EDWARDS, CELEBREZZE, and McCREE, Circuit Judges.
   PER CURIAM.

Grace Amburgey was a non-tenured teacher and librarian in the Rowan County High School in Kentucky from 1969 to 1972. On May 4, 1972, she was notified by the superintendent that he had recommended and that the school board had determined not to employ her for the 1972-73 school year. The reasons given for his recommendation to the board were, inter alia, that Mrs. Amburgey had entered the classroom of another teacher and had insulted her in the presence of students and that Mrs. Amburgey had threatened physical harm to administrative officials.

Subsequently, Grace Amburgey brought this suit under 42 U.S.C. § 1983 against the superintendent in his individual and official capacities and against the school board and four of its five members. The complaint alleged that the decision not to reemploy her constituted a sanction imposed for the exercise of her First Amendment rights and was, therefore, constitutionally impermissible.

The district court, which tried the case without a jury, found that plaintiff began her political activities and opposition to the administration of the superintendent shortly after being employed in 1969, and that despite these activities she was twice recommended by him for reemployment, and was twice reemployed by the board. He found that plaintiff had not engaged in these political activities during her last year at the school. The district court also found that Mrs. Amburgey had caused embarrassment to a colleague in the presence of the latter’s students, an incident which adversely affected her relationship with them; that she shoved the superintendent after a school board meeting ; that she stated she would “ ‘lay a' .38 between his eyes’,” and that she suggested several times that the superintendent and the principal ought to be shot. On the basis of this evidence, the district court concluded that although a teacher has a right to criticize internal school operations, the conduct of Mrs. Amburgey, particularly her disruption of a colleague’s classroom, her shoving of the superintendent, and her suggestion that he ought to be shot, provided ample justification for the recommendation of the superintendent and for the decision of the school board. Accordingly, the district court entered a judgment for defendants.

On appeal, three assignments of error are made: (1) that the district court erred in denying plaintiff a jury trial; (2) that the district court erred in refusing to admit evidence; and (3) that the district court erred in its determination that Mrs. Amburgey was refused reemployment for constitutionally permissible reasons. We hold that these assignments of error are without merit- and, accordingly, affirm.

RIGHT TO A JURY TRIAL

A complainant alleging a violation of 42 U.S.C. § 1983 and seeking both equitable and legal relief is entitled to have a jury determine the merits of the legal issues in the case. Cf. Curtis v. Loether, 415 U.S. 189, 194, 94 S.Ct. 1005, 39 L.Ed.2d 214 (1974). In that case, the Supreme Court considered an action brought under Title VIII of the Civil Rights Act of 1968 in which both legal and equitable relief was sought, and held that “[t]he Seventh Amendment does apply to actions enforcing statutory rights, and requires a jury trial upon demand, if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.” Section 1983 meets these prerequisites, and plaintiff was entitled to a jury trial upon her demand. In this case, however, the right was waived. In the hearing conducted in connection with a motion to dismiss the complaint, when the district court suggested that a trial of the cause by jury would result in delay, counsel for plaintiff responded, “I’m not jumping up and down to try it before a jury, but I made the demand to protect myself, if it please the court, and I would like to get my case tried and I know it’s a lot quicker to try before the court.” This statement, coupled with counsel’s commencement of the trial without objection before the court, constituted a waiver of the earlier demand for a trial by jury.

REFUSAL TO ADMIT EVIDENCE

The district court refused to admit evidence adduced in a state court proceeding initiated by other teachers in the school system which employed plaintiff against the superintendent and the school board in which it was determined that complainants had been transferred to less desirable jobs in the system for constitutionally impermissible reasons. Appellant contends that this evidence would have established a pattern and practice of official retribution for the exercise of First Amendment rights. Although this evidence might have limited probative value, we conclude that the district court did not abuse his discretion in refusing to admit it. The determination of the constitutionality of the board’s decision not to reemploy Mrs. Amburgey depended primarily upon the facts of her experience and not on the facts of the experiences of other employees; and the district court found that the school board had not based its decision on impermissible factors.

THE REASON FOR THE SCHOOL BOARD’S DECISION

A person does not lose his First Amendment rights, including the right to engage in vigorous and spirited criticism of the government, because he becomes an employee of government. Furthermore, a nontenured teacher in a public school system may be awarded damages and may be accorded equitable relief, under 42 U.S.C. § 1983, if he is discharged or refused tenure or reemployment in retaliation for the exercise of rights guaranteed by the First Amendment. See, e. g., Manchester v. Lewis, 507 F.2d 289 (6 Cir. 1974) and cases cited therein. In this case, plaintiff alleged that the decision of the school board not to renew her contract was made for such impermissible reasons. She introduced no evidence, however, of the motivations of the school board members for their decision; and the district court, after trial in which he was able to judge the credibility of the witnesses and in which he resolved disputed issues of fact, concluded that plaintiff had failed to sustain her burden of proof against the superintendent as well. Upon review of the entire record, we conclude that the determination of the district court is not clearly erroneous but, on the contrary, is supported by substantial evidence. Accordingly, we have no authority to disturb it.

Affirmed.


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    UNITED STATES of America, Plaintiff-Appellee, v. Robert E. CLEVELAND, Defendant-Appellant.
    No. 73-1679.
    United States Court of Appeals, Seventh Circuit.
    Argued Dec. 7, 1973.
    Decided Oct. 24, 1974.
    Rehearing Denied Dec. 11, 1974.

      Joseph A. Lamendella, Chicago, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., Gary L. Starkman and Ann P. Sheldon, Asst. U. S. Attys., Chicago, Ill., for plaintiffappellee.
    Before SWYGERT, Chief Judge, SPRECHER, Circuit Judge, and CAMPBELL, Senior District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   WILLIAM J. CAMPBELL, Senior District Judge.

Defendant Robert E. Cleveland was convicted on each count of a three count indictment charging tax evasion in violation of 26 U.S.C. § 7201. On appeal (Cleveland I), this court held that the district judge, in understandable reliance upon the language of United States v. Keig, 334 F.2d 823, 825 (7th Cir. 1964), had erroneously concluded that the Special Agent’s Report (SAR) was not a “statement” producible under the provisions of the Jencks Act, 18 U.S.C. § 3500. Stating that “[w]e ... expressly disapprove of the language of that [Keig] opinion insofar as it may be read to imply that a Special Agent’s Report is not a statement within subsection (e) [of § 3500],” 477 F.2d at 316, this court vacated the judgment of conviction and remanded the case with directions that the trial judge conduct an in camera inspection of the SAR to determine whether the content of that statement “relates to the subject matter as to which the witness has testified.” 18 U.S.C. § 3500(b). The district court was directed to enter a fresh judgment of conviction if it determined that “no part of 'the report need be produced.” 477 F.2d at 316. On the other hand, if any portion of the report was found to relate to the subject matter of the witness’ testimony, the defendant was to be granted a new trial, unless “it is perfectly clear that the defense was not prejudiced” by the government’s failure to tender “3500 material” upon request. 477 F.2d at 316, n. 9.

On remand, a hearing was held at which Special Agent Carey testified regarding the nature and composition of the multi-volume report, and the district judge conducted a general in camera inspection of the documents contained therein. Subsequently, the court entered a fresh judgment of conviction, holding that certain portions of the report did not relate to the witness’ direct testimony or were outside the scope of the defendant’s § 3500 request, and that the remaining documents were either reviewed by the defendant prior to trial or were summaries and partial duplications of such documents. With respect to the latter, the court held that it was perfectly clear that the defendant had not been prejudiced by the fact that they were not produced in response to his motion. We reverse.

I.

The district court’s order discloses that, for the purposes of the remand proceedings, the SAR was subdivided into four exhibits, designated Government’s Exhibits One, Two, Three and Four (hereafter, GX-1, 2, 3 and 4). GX-1 comprises Volume One of the SAR. GX-2 contains those documents taken from Volumes Two through Ten of the SAR which had been used as exhibits during the trial. GX-3 consists of those exhibits and memoranda of interview taken from Volumes Two through Ten of the SAR which were not introduced into evidence during the trial. Finally, GX-4 is a group of index cards listing defendant’s clients, their addresses and other data.

The district court found that all documents introduced into evidence in the course of the trial (GX-2) were reviewed by the defendant prior to trial. Apparently, the index cards (GX-4) were also made available to the defense before trial. Although the district court did not specifically determine whether these documents related to the agent’s direct testimony, the district judge did conclude that it was perfectly clear that defendant had suffered no prejudice, since he had an opportunity to review, and in fact did review, these materials on an earlier occasion.

For the reasons and in the respects stated in Part II of this opinion, we hold that such materials do relate to the direct testimony of a witness such as Agent Carey. The district court’s failure to specifically so find, however, is without consequence, since we agree that defendant’s review of these materials prior to trial establishes clearly that he was not prejudiced by the fact that they were not tendered in response to his motion.

GX-3, constituting those portions of Volumes Two through Ten which were not introduced into evidence, was found by the district court upon “general inspection” to consist of “memoranda of interview of the defendant, his personal representative and his former wife, summary schedules of certain exhibits, the originals of which were introduced into evidence, certain affidavits, the contents of which were stipulated to during the trial, [and] documents in support of the computations of the defendant’s additional civil tax liability.”

With respect to these materials, the district court held as follows:

“The only items in Government’s Exhibit Three which were not made available to the defendant prior to trial were the memoranda of interview of defendant’s former wife and his personal representative and the documents in support of the summary computations pertaining to defendant’s civil tax liability. Defense counsel specifically excluded interviews with third parties from the scope of his 3500 request. Furthermore, the court finds that the memoranda of interview and civil tax liability documents did not relate to the subject matter about which the witness testified.”

Again, regarding materials contained in GX-3 which the defendant reviewed prior to trial, the district court did not specifically determine whether these documents related to the agent's direct testimony. However, as in the case of GX-2, we agree with the district court’s implicit determination that the defendant was certainly not prejudiced by their nondisclosure at trial, since they were reviewed by the defense prior to trial.

We must disagree, however, with the finding that “[d]efense counsel specifically excluded interviews with third parties from the scope of his 3500 request.” Although the trial transcript does contain some support for this position, defendant’s original request for the production of the SAR did not exclude memoranda of interviews with all third parties. In the course of presenting the § 3500 motion, defense counsel stated:

“I would call for the production of the Special Agent’s report as a 3500 Statement. I do not want that portion of the report that contains exhibits and interviews with third party witnesses, I only want that which is related to the testimony of the Special Agent in this case.” (Tr. Transcript, p. 3 emphasis added).

In response to the government’s objection, the court stated “I will not require you [the government] to do it.” Thus, the request which resulted in the district court’s adverse ruling was a request for the documents contained in the SAR, other than interviews with third party witnesses. Memoranda pertaining to interviews with other third parties were included among the documents requested.

With respect to Volume One of the SAR (GX-1), the district court held that:

“the administrative review portions of that volume, together with the summary schedules pertaining to the defendant’s civil tax liability, do not relate to the subject matter as to which the witness has testified. The remaining portion of this volume is merely a summary or partial duplication of the items contained in Volumes Two through Ten . ... ”

After reviewing Volume One and those portions of GX-3 which the defense did not review prior to trial, we hold that the district judge’s findings regarding Volume One, as well as his determination that portions of GX-3 do not relate to the witness’ direct testimony, were clearly erroneous.

Special Agent Carey testified that, in the course of his official duties, he conducted an investigation concerning Robert E. Cleveland, the purpose of which was to “determine the accuracy of the income tax returns filed for the years 1964, 1965 and 1966; that he computed defendant’s income tax for those years, as well as for 1961, 1962, and 1963, using the net worth and expenditure method; and that his investigation started in 1966 and continued “to the beginning of these proceedings.” He was permitted to testify regarding determinations made by him in the course of his investigation, and identified Government’s Exhibit 100 as a net worth schedule which “reflects generally the results of the investigation I conducted.”

Among other things, Agent Carey testified regarding (1) the employment status of defendant’s former wife before and during their marriage; (2) defendant’s business income; (3) ownership by defendant of specifically identified securities; (4) accounts maintained by defendant in various brokerage firms; (5) defendant’s membership on the Chicago Board of Trade; (6) defendant’s indebtedness resulting from commodities trading and a judgment entered against defendant as a result thereof; (7) assets which allegedly remained in the possession of defendant’s former wife prior to divorce proceedings; (8) defendant’s real estate holdings; (9) his saving accounts; (10) automobiles owned at various times by defendant; (11) accounts held in the names of others, in which defendant allegedly had an interest; (12) nontaxable income and sources thereof; (13) debts paid to Cleveland by various clients; (14) identification of exhibits relating to assets, liabilities and expenditures attributed to defendant; (15) various loan applications prepared by the taxpayer.

A comparison of the Carey testimony with those documents which were not reviewed by defense counsel prior to trial refutes the district court’s conclusion that they are not sufficiently related to one another to warrant production under the Jencks Act. For example among the documents included in GX-3 which defense counsel was not allowed to review prior to trial are transcripts and memo-randa pertaining to interviews with defendant’s former wife. Presumably relied upon by Agent Carey to assist in his determination of defendant’s assets, liabilities and expenditures for the purpose of ascertaining defendant’s net worth, the information contained in these documents includes references to assets allegedly owned by Mrs. Cleveland prior to the marriage, the sources of certain funds held during the marriage in her name, expenditures of funds for rent, food, entertainment and alimony (paid to defendant’s first wife), the purchase price of their home and an apartment building, and other asset and liability information highly pertinent to a determination of defendant’s net worth. The memorandum of interview prepared by Agent Carey also contains information relevant to the credibility of defendant’s former wife, and would no doubt have been of assistance to defense counsel in challenging the validity of the information relied upon by the agent in reaching his conclusions as to defendant’s net worth.

We similarly disagree with the district court’s conclusion that those portions of the SAR which pertain to civil tax liability are unrelated to the subject matter of the agent’s testimony. The testimony of Agent Carey was central to the government’s case, since it was the long arduous investigation of this witness which formed the basis for the government’s contention that defendant had understated his income in 1964, 1965 and 1966, and had thereby evaded the payment of income taxes. As the Second Circuit stated in United States v. O’Connor, 273 F.2d 358 (1959) :

“In this setting, it is quite plain that the agents’ reports relating to O’Connor’s asset, income and expenditure position during the entire tax period in question, whether prepared for criminal or civil tax purposes, were necessary to defendant’s preparation and conduct of his defense in two respects, to determine whether any statements of fact therein were inconsistent with or contradictory to testimony on the stand of the makers of the reports, and to test their expertness in preparation of the charts and computations used by them respectively on the stand” (emphasis added). 273 F.2d at 360.

Since the information which formed the basis for civil tax liability schedules was obtained by the agent in the course of his investigation, and since the nature and result of that investigation constituted the substance of this witness’ direct testimony, we conclude that these documents were sufficiently related to the witness’ testimony to warrant production under the Jencks Act.

Turning to Volume One of the SAR (GX-1) the district court held that the “remaining portion of this volume” is merely a summary or partial duplication of information contained in Volumes Two through Ten. Included among this “remaining portion” are reports prepared by Agent Carey dated April 8, 1969, April 16, 1970 and July 24, 1970, none of which was examined by defense counsel prior to the remand proceedings. The April 8th report is a forty-five page statement with additional appendices and exhibits. Subsequent to the agent’s transmittal of this “final” report, he prepared the similar but somewhat less cumbersome “supplemental” reports of April 16,1970 and July 24,1970.

Our review of these documents does not support the view that they are mere summaries of material contained in other volumes of the SAR. They include, for example, conclusory statements by the agent as to the identity and value of the defendant’s assets and liabilities, and detailed explanations regarding the factors which were considered in arriving at these conclusions. Rather than constituting a summarization of other documents, these reports disclose the manner in which the contents of those documents were employed by the agent to arrive at his conclusions regarding defendant’s assets, liabilities and expenditures during each of the taxable years. The materials thus relate to the agent’s direct testimony not only in their specific content, but also in what they disclose about the deductive process which led to the agent’s conclusions. Indeed, where the agent’s investigation comprises the very foundation of the government’s case, as it invariably does in “net worth” prosecutions, such reports can be as important to the defense for what they do not say as for what they do; cross examination might well be structured to challenge not only the factual determinations made by the agent, but the very sufficiency of his investigation.

It is not for this court to speculate as to the manner in which these statements might have assisted defense counsel in the course of cross examination. Clancy v. United States, 365 U.S. 312, 316, 81 S.Ct. 645, 5 L.Ed.2d 574 (1961); Alderman v. United States, 394 U.S. 165, 182, 89 S.Ct. 961, 22 L.Ed.2d 176 (1968). We confine our attention, as we should, to a determination of whether the statements relate to the witness’ direct testimony and, if so, whether it is perfectly clear that defendant was not prejudiced by their nondisclosure. We find that the SAR is replete with materials prepared by Agent Carey which relate to his direct testimony, and we do not think it is at all clear that cross examination of this witness was not hampered by denial of defendant’s 3500 request. In accordance with the mandate of this court in Cleveland I, the conviction must therefore be vacated and defendant must be granted a new trial.

II.

Having determined that the mandate of Cleveland I requires that appellant’s conviction be vacated, we turn to a more troublesome question: given the particular method which the government employs in “net worth” cases to prove that the taxpayer has understated his taxable income, and given the scope, content and nature of the typical Special Agent’s Report, should the district court be required to carefully examine each of the thousands of pages contained in such multi-volume investigative re-ports in order to determine which documents contained therein relate to the direct testimony of the agent who has prepared the report. For the reasons and in the respects stated herein, we hold that such an inspection is not required, and that in the future, upon motion timely made by the defendant pursuant to 18 U.S.C. § 3500, the government shall tender the SAR directly to the defendant.

Our holding in this regard is dictated by the interrelationship of several factors unique to prosecutions for tax evasion based upon the net worth method of proof. These factors include:

1. The circumstantial nature of the evidence presented by the government in net worth cases, and the inferences and conclusions which must be drawn therefrom in order to conclude that the defendant has willfully evaded the payment of taxes.
2. The purpose, nature and importance of the Special Agent’s testimony ; the nature and scope of Special Agent’s investigation; and the unique relationship of the SAR to both the investigation and the purpose and nature of the agent’s testimony.
3. The impairment of judicial economy implicit in a procedure which requires the district judge to carefully examine thousands of documents in the midst of a trial.
4. The strong possibility of error implicit in the most careful of screening processes, the consequences of which may well be the reversal of numerous convictions on the ground that the defendant’s constitutional right of confrontation has been impaired.

(1) The Circumstantial Nature Of The Government’s Proof.

Above all, it must be borne in mind that net worth tax cases are entities unto themselves, a fact made abundantly clear by the Supreme Court in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954). Mr. Justice Clark, speaking for an unanimous Court, noted that certiorari was granted in that case specifically for the purpose of reviewing the propriety of the net worth method of proof, stating that:

“In recent years . . . tax-evasion convictions obtained under the net worth theory have come here with increasing frequency and left impressions beyond those of the previous unrelated petitions. We concluded [in granting certiorari] that the method involved something more than the ordinary use of circumstantial evidence in the usual criminal case. Its bearing, therefore, on the safeguards traditionally provided in the administration of criminal justice called for a consideration of the entire theory”, 348 U.S. at 124, 125, 75 S.Ct. at 130.

In Holland, the net worth method of prosecution was upheld, but only after the court had carefully outlined “the general problems implicit in this type of litigation”, and had noted that “it is so fraught with danger for the innocent that the courts must closely scrutinize its use”. 348 U.S. at 125, 75 S.Ct. 127. The court cautioned that although the pitfalls inherent in the net worth method of prosecution do not foreclose its use, the

“complexity of the problem is such that it cannot be met merely by the application of general rules Trial courts should approach these cases in the full realization that the taxpayer may be ensnared in a system which, though difficult for the prosecution to utilize, is equally hard for the defendant to refute .... Appellate courts should review the cases, bearing constantly in mind the difficulties that arise when circumstantial evidence as to guilt is the chief weapon of a method that is itself only an approximation”. 348 U.S. at 129, 130, 75 S.Ct. at 132.

It was “with this admonition in mind” that this court decided Cleveland I, and it is this admonition that prompts us to prescribe the rule announced today.

The Holland Court noted that the basic assumption in net worth prosecutions is that “most assets derive from a taxable source”, and that “[t]he application of such an assumption raises serious legal problems in the administration of the criminal law”. 348 U.S. at 126, 75 S.Ct. at 130. Observing that the net worth method (formerly employed primarily where necessary to establish “taxable income from undisclosed sources when all other efforts failed”) had been extended to include “run-of-the-mine cases, regardless of the tax deficiency involved”, the Court identified several “dangers that must be consciously kept in mind in order to insure adequate appraisal of the specific facts in individual cases.” 348 U.S. at 126-127, 75 S.Ct. at 130-131.

The dangers identified by the Holland Court may be summarized as follows:

1. The difficulty which the taxpayer encounters in proving that the apparent increase in his net worth, over that of a base year, is not an increase at all, but rather is attributable to assets owned and accumulated by the taxpayer in previous years which were hidden and not identified at that time. In this connection, it is important to determine whether the government has pursued leads which the taxpayer has supplied to investigators in support of his contention as to the acquisition of such assets.
2. The possibility that the jury will consider all unexplained increases in net worth as unreported taxable income and will disregard evidence that certain income was not taxable. “There is a great danger that the jury may assume that once the Government has established the figures in its net worth computations, the crime of tax evasion automatically follows”. 348 U.S. at 127-128, 75 S.Ct. at 131.
3. The taxpayer may be “entirely honest and yet unable to recount his financial history”. The net worth method has a tendency to shift the burden of proof to the defendant, requiring that he dispute the assumptions and conclusions reached by. the government on the basis of its investigation.
4. The possibility that the jury might infer the willful evasion of taxes from net worth increases alone.
5. The possibility that the prosecution will select and use only those portions of its investigation (in particular, those relating to statements made by a taxpayer “more concerned with a quick settlement than an honest search for the truth”) which support the government’s case.
6. Since each count of the indictment relates to a separate tax year, unless the apparent increase in defendant’s net worth “can be reasonably allocated to the appropriate tax year the taxpayer may be convicted on counts of which he is innocent”.

Since the government’s case in a net worth prosecution is based upon circumstantial evidence, it succeeds only where the jury infers, from the apparent increase in defendant’s net worth, the existence of unreported taxable income and the willful evasion of income tax. And since these inferences are based upon the circumstantial evidence accumulated in the course of the government’s investigation and presented to the jury through the testimony of the Special Agent who conducted the investigation, the SAR is a critical defense tool for challenging, through cross examination of the agent, the underlying assumptions upon which these inferences are based.

To require the government to surrender only those portions of the report which touch upon a particular item covered in the witness’ direct testimony would necessitate adoption of an unreasonably narrow definition of the term “subject matter” as used in § 3500(b), and would substantially undermine the defendant’s ability in net worth cases to test the correctness of the government’s conclusions against information obtained in the course of the investigation but scrupulously avoided in the course of direct examination.I Given the circumstantial nature of the evidence and the fact that the government’s case is constructed on the basis of inferences and conclusions drawn from data obtained in the course of the investigation, the “subject matter” of the witness’ direct testimony is the investigation itself, and the report thereof must be considered to relate to that testimony.

2. Relationship Of The SAR To Both The Special Agent’s Investigation And The Purpose And Nature Of The Agent's Testimony.

As previously noted, the Special Agent’s investigation is the very foundation of the net worth case, and the SAR is nothing less than a detailed memorial-ization of that inquiry. The strength of the government’s case is dependent upon the outcome of this investigation as presented to the jury through the testimony of the Special Agent who prepared it. Equally important, the strength of the defendant’s case often derives from the ability to attack the thoroughness and accuracy of the investigation through vigorous cross-examination. In this context, the SAR becomes the essential nexus between the testimony of the witness and the investigation which forms the basis for the Government’s contention that defendant has understated his taxable income and willfully evaded the payment of taxes. The thrust of defendant’s cross-examination of the Special Agent, coupled with the clear relationship between the agent’s testimony and his investigation, renders the entire SAR sufficiently related to the agent’s testimony to warrant disclosure to the defendant under the Jencks Act.

S. Impairment of Judicial Economy.

The SAR consists of multi-page reports concerning the Agent’s investigation, numerous memoranda of interviews, various tax schedules and exhibits and numerous other documents. It is not at all unusual for the SAR in a net worth case to consist of ten or more volumes containing thousands of pages of documents. Since § 3500(a) provides that the government is not required to tender these materials until after direct examination and, more importantly, since the district judge cannot compare the contents of the report with the Agent’s testimony until that testimony has been given, the in camera inspection must occur between direct and cross-examination. We fail to see any way in which the court can properly review documents without carefully reading them, and we cannot conceive that such an examination could be properly conducted without a substantial delay in trial.

This interruption in the midst of the trial must then be followed by still another delay in order to allow “such time as . [the court] may determine to be reasonably required for examination of such statement by said defendant and his preparation for its use in the trial”. 18 U.S.C. § 3500(c). By requiring the government to tender the entire SAR to the' defense upon completion of the agent’s direct examination, the delay occasioned by in camera inspection of the report will be avoided. Since § 3500(a) provides that the statement need not be tendered to the defense until after direct examination, the delay attributable to the defendant’s examination of the SAR can only be avoided through the reasonable cooperation between prosecution and defense counsel prior to trial. The instant case represents a commendable example of such cooperation, since much of the material contained in the SAR was reviewed by defense counsel prior to trial in order to prepare stipulations.

4. Substantial Possibility Of Error. In Krilich v. United States, 502 F.2d 680 (7th Cir. 1974); we note that:

“[T]he principal purpose of requiring the government to disclose prior written statements of a witness which relate to the witness’ direct testimony is to facilitate cross-examination. It is principally through cross-examination that a defendant exercises his right to confront witnesses called to testify against him. Conversely, the failure to provide material to which the defense is entitled under the Jencks Act may adversely affect a defendant’s ability to cross-examine government witnesses and thereby infringe upon his constitutional right of confrontation. Non-compliance with a statute which has as one of its purposes the effectuation of a constitutional right presents an issue of sufficient constitutional dimension to warrant consideration under 28 U.S.C. § 2255 [footnotes omitted],

Where trial error results in the denial of a defendant’s constitutional right, the conviction must be vacated and a new trial must be ordered unless the court is able to declare that the error was harmless “beyond a reasonable doubt”. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) In the context of the Jeneks Act, the failure, upon proper motion, to tender to the defense material which relates to the witness’ direct testimony is harmless beyond a reasonable doubt only if it can be said that it is perfectly clear that defendant has not been prejudiced by the error. United States v. Cleveland, 477 F.2d 310, 316, n. 9 (7th Cir. 1973).

Even if the district judge scrupulously and carefully examines the entire SAR, the sheer volume of material increases the possibility of error enormously. On appeal, the defendant will invariably attempt to demonstrate that certain of the documents excluded through the in camera inspection related to the witness’ testimony. Given the massive volume of documents involved, the opportunity for the commission of reversible error is obvious, and where such error is found, it will usually be necessary to remand the case for a new trial. Avoidance of such duplicative litigation is itself a worthwhile objective, and one which will be furthered by requiring the government to tender the SAR directly to the defense in accordance with § 3500(b).

5. In Camera Inspection Of Materials Which Do Not Pertain To The Agent’s Investigation.

Our conclusion that the SAR is sufficiently related to the agent’s testimony to warrant its direct submission to the defense pursuant to subsection (b) is premised upon the view that, in a net worth tax case, the agent’s testimony concerns the findings and conclusions derived from his investigation, and his investigation, therefore, constitutes the subject matter of his testimony. It follows that written materials prepared by or under the direction of the agent, which concern the conduct substance or results of that investigation, related to the subject matter of the agent’s testimony and must be tendered directly to the defense under § 3500(b).

We are-not unmindful, however, of the possibility that the SAR may also include a limited number of documents which do not pertain to the conduct, substance or results of the investigation, the production of which (unless otherwise related to the agent’s testimony) would not be required under the Jeneks Act. Such materials might include, for example, interoffice memoranda of a purely administrative nature, memoranda to government attorneys in the nature of recommendations for prosecution, and the like. While, under the facts of a particular case, documents of this nature might be related to the agent’s testimony, the government should be afforded the opportunity to contend otherwise, in which event the in camera procedure set forth in subsection (c) should be utilized. Where the government contends that written material unrelated to the conduct, substance or nature of the investigation is included in the SAR, the specific documents in question should be segregated and tendered to the district judge for his review, accompanied by a brief statement outlining the basis for the government’s contention that the material is unrelated to the agent’s direct testimony.

CONCLUSION

We have taken this occasion to prescribe a rule which, in our view, will conserve judicial economy and preserve “the safeguards traditionally provided in the administration of criminal justice.” Holland v. United States, 348 U.S. at 125, 75 S.Ct. at 130. The Holland Court observed that the “net worth method . has evolved from the final volley to the first shot in the Government’s battle for revenue, and its use in the ordinary income-bracket cases greatly increases the chances for error” 348 U.S. at 126-127, 75 S.Ct. at 131. The Court recognized that this method of prosecution “is so fraught with danger for the innocent that the courts must closely scrutinize its use.” 348 U.S. at 125, 75 S.Ct. at 130.

Since the government’s case is built upon the results of the Special Agent’s investigation, as presented to the jury through the agent’s testimony, cross-examination of this witness is often the most critical stage of the defendant’s case. We believe that the “chances for error” will be substantially decreased and the “dangers” inherent in net worth prosecutions will be lessened where the defendant has full access to the SAR. Where cross-examination of a particular witness is of such critical importance, the Supreme Court’s remarks in Aider-man v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) are of particular significance :

“An apparently innocent phrase, a chance remark, a reference to what appears to be a neutral person or event, the identity of a caller or the individual on the other end of a telephone, or even the manner of speaking or using words may have special significance to one who knows the more intimate facts of an accused’s life. And yet that information may be wholly colorless and devoid of meaning to one less well acquainted with all relevant circumstances. Unavoidably, this is a matter of judgment, but in our view the task is too complex, and the margin for error too great, to rely wholly on the in camera judgment of the trial court to identify those records which might have contributed to the Government’s case.” 394 U.S. at 182, 89 S.Ct. at 971.

Nor do we view Palermo v. United States, 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959) as precluding a rule which requires the government to tender the SAR directly to the defendant. In Palermo, the court stated that:

“[t]he [Jencks] Act’s major concern is with limiting and regulating defense access to government papers, and it is designed to deny such access to those statements which do not satisfy the requirements of (e), or do not relate to the subject matter of the witness’ testimony”. 360 U.S. at 354, 79 S.Ct. at 1226.

Accordingly, the Court held that “when it is doubtful whether the production of a particular statement is compelled by the statute” (emphasis added), an in camera examination of the document is in order.

This court held in Cleveland I that the SAR is a “statement” for the purposes of § 3500(e). Given the nature of the case, the method of proof employed by the government, and the nature of the Special Agent’s testimony, the SAR “relates to the subject matter as to which the witness has testified”. Accordingly, it is not “doubtful” whether the production of the SAR is required by the statute and, pursuant to § 3500(b), this “statement” must therefore be “delivered directly to the defendant for his examination and use”.

Reversed and remanded.

      . Agent Carey prepared the SAR in the course of his investigation and testified at the trial on behalf of the government.

      . We do not suggest, nor should Cleveland 1 be viewed as intimating, that the government has the option to purposely withhold relevant materials which are properly requested under 18 U.S.C. § 3500 on the ground that the defendant will not be prejudiced by their nondisclosure.

      . After Agent Carey had taken the stand, defense counsel reminded the court that the SAR had previously been requested as a 3500 statement. The following colloquy then occurred:
      “THE COURT: I don’t understand how the full report ....
      MR. LAMENDELLA: I am only saying that part of the report, your Honor, which relates to the subject matter of his testimony, not his recommendation for prosecution, not his exhibits, not his interviews with third parties.” Tr. Transcript. p. 134.

      . Tr. transcript, pp. 41, 42

      . Tr. transcript, j>p. 42, 43

      . Tr. transcript, p. 46

      . Tr. transcript, p. 63

      . Tr. transcript, p. 61

      . The Internal Revenue Manual is an official compilation of procedures and instructions pertaining to the operations of the Internal Revenue Service. Part IX, Chapter 5, Section 1 of the Manual prescribes the format and content of “Pinal Reports in Prosecution Cases”, and provides that “[r]eports of each type of case should be uniform, consistent -with a logical presentation of the facts. It is desirable that reports be prepared uniformly . . . and that findings be presented in the same sequence . . . ”. In addition, the Manual prescribes a specific format that is to be followed in order to insure uniformity. The SAR in the instant case is typical of reports following this prescribed format.
      Por the sake of clarification, the term Special Agent’s Report, as used herein, is not limited to the “final” and “supplemental” reports submitted by the agent to his superiors relative to the investigation, such as Agent Carey’s reports of April 8, 1969, April 16, 1970 and July 24, 1970. We refer to the SAR as that compilation of memoranda, tax schedules, reports, and sucli other documents as the Special Agent prepares in the course of his investigation. In the instant case, the district court correctly considered all of the documents contained in Volumes One through Ten as comprising the SAR. Of course, should the agent prepare other similar materials which, for some reason, are not included within the multi-volume SAR, the views which we express herein are equally applicable to such documents.

       In Holland v. United States, 348 U.S. 121, 125, 75 S.Ct. 127, 130, 99 L.Ed. 150 (1954), the Supreme Court described this method of proof as follows:
      “In a typical net worth prosecution, the Government, having concluded that the taxpayer’s records are inadequate as a basis for determining income tax liability, attempts to establish an ‘opening net worth’ or total net value of the taxpayer’s assets at the beginning of a given year. It then proves increases in the taxpayer’s net worth for each succeeding year during the period under examination and calculates the difference between the adjusted net values of the taxpayer’s assets at the beginning and end of each of the years involved. The taxpayer’s nondeductible expenditures, including living expenses, are added to these increases, and if the resulting figure for any year is substantially greater than the taxable income reported by the taxpayer for that year, the Government claims the excess represents unreported taxable income. In addition, it asks the jury to infer willfullness from this understatement, when taken in connection with direct evidence of ‘conduct, the likely effect of which would be to mislead or to conceal.’ Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 87 L.Ed. 418”.

      . ‘‘AVhen the Government rests its ease solely on the approximations and circumstantial inferences of a net worth computation, the cogency of its proof depends upon its effective negation of reasonable explanations by the taxpayer inconsistent with guilt. Such refutation might fail when the Government does not track down relevant leads furnished by the taxpayer — leads reasonably susceptible of being checked, which, if true, would establish the taxpayer’s innocence”. Holland v. United States, 348 U.S. at 135, 136, 75 S.Ct. at 135. Unless the defendant has access to the SAR, he is ill-equipped to demonstrate through cross-examination that leads, whether supplied by the taxpayer or others in the course of the investigation, have not been pursued, or that the investigation is otherwise incomplete or inadequate. As we noted earlier, the SAR may be as important to the defense for what it does not disclose as for what it does, since the defendant’s most effective approach to cross-examination may be to attack the very sufficiency of the investigation.

      . As this court stated in United States v. O’Brien, 7 Cir., 444 F.2d 1082, 1086, (1971) : “However, the word ‘relate’ is not always limited to factual narratives. United States v. Borelli, 2 Cir., 336 F.2d 376, 393 (1964). In determining whether the statements in question ‘related to’ the direct testimony of the witness, it must relate generally to the. events and activities testified to. United States v. Cardillo, 2 Cir., 316 F.2d 606, 615 (1963).”

      . The magnitude of tlie effort which an in camera review would require is reflected in the record of the proceedings on remand in the instant case. The district judge acknowledged that “I have not gone through this box of files item by item”, and that “I have not looked at each page and each document that is before me”, characterizing such an effort as “a comjiletely fruitless task, so far as I am concerned, and an impossible task and a meaningless task.” Accordingly, Judge Decker expressed doubt that it was this court’s intention “that it would be necessary for the Court to make an in camera inspection of the complete files of an investigation. I may be wrong.” (Transcript of proceedings, pp. 10, 11 and 27, June 27, 1973). We agree that such a task would be an extremely difficult one and, given the content of the report and the nature of the Special Agent’s investigation, a task which the district judge should not be expected to undertake.

      . Rule 2.04 of the Criminal Rules of the District Court for tlie Northern District of Illinois provides a structured format which serves to encourage such cooperation. Where pretrial discovery in addition to that authorized by Rule 2.04(a), is sought by the defense, Rule 2.04(c) requires that defense counsel and the appropriate Assistant United States Attorney confer with respect thereto shortly after arraignment. Only upon the parties’ failure to reach some form of agreement does Rule 2.04(d) authorize them to pursue the issue as a contested matter before the district judge. The pretrial cooperation of counsel in tlie instant case, so appropriately characterized by Judge Decker as “excellent”, was attributed primarily to their “2.04 conference” (transcript of remand proceedings, p. 8). Experience demonstrates that the parties, once compelled to confer with respect to such matters as pretrial disclosure of written material, often find it in their own best interests to cooperate.

      . The views which we express in this regard should not be misconstrued as intimating that a district court, in other than a net worth tax evasion case, may forego the in camera inspection of voluminous documents solely because such a task will consume a substantial amount, of time and may offer the increased opportunity for the commission of error. § 3500(b) requires that statements relate to the witness’ testimony and § 3500(c) requires an in camera inspection where the government contends that the requested materials do not relate to the witness’ testimony. Thus, impairment of judicial economy and substantial possibility of error, though rendering direct submission of such documents to the defense desirable, do not necessarily compel such a procedure. In net worth tax evasion prosecutions, however, these factors are coupled with a compelling recognition that the SAIÍ. is, for the reasons we have discussed, related to the testimony of the Special Agent who prepared the statement. Where such a relationship is established, § 3500(b) requires that the statement be “delivered directly to the defendant for his examination and use.”

      . In Alderman the court rejected the Government’s contention that electronic surveillance records should be subjected to in camera inspection by the trial judge and surrendered to the defense only if the trial judge determines the records to be arguably relevant to petitioner’s prosecution.

      . See also Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). The Denruis Court required that grand jury testimony be tendered to the defense, stating that:
      “Trial judges ought not to be burdened with the task or the responsibility of examining sometimes voluminous grand jury testimony in order to [determine] inconsistencies with trial testimony. . . . Nor is it realistic to assume that the trial court’s judgment as to the utility of material for impeachment or other legitimate purposes, however, conscientiously made, would exhaust the possibilities. In our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate.”