author: WATERMAN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Nicholas LaSORSA and Salvatore Caio, Defendants-Appellants.
    No. 795, Docket 73-1210.
    United States Court of Appeals, Second Circuit.
    Argued April 17, 1973.
    Decided June 11, 1973.

      Arthur J. Viviani, Franklin Velie, Richard J. Davis, John W. Nields, Jr., Asst. U. S. Attys., Whitney North Seymour, Jr., U. S. Atty., for appellee.
    Jay Goldberg, New York City, for defendant-appellant LaSorsa.
    H. Elliot Wales, New York City, for defendant-appellant Caio.

      Before CLARK, Associate Justice, and WATERMAN and FEINBERG, Circuit Judges.

       Associate Justice of the United States Supreme Court, Retired, sitting by designation.

   WATERMAN, Circuit Judge:

After a five day jury trial in the United States District Court for the Southern District of New York, the defendants-appellants, Nicholas LaSorsa and Salvatore Caio, charged in a one-count indictment, were convicted of conspiracy to sell heroin without the buyer’s written order form in violation of Title 26, United States Code, Sections 4705(a) and 7237(b), and were sentenced to mandatory prison terms of five years each. At the trial, the Government, in seeking to establish the defendants’ guilt, rested its case primarily on the testimony of its star witness, James Brown, a convicted felon then out on parole from a seven year prison term imposed on him by a New York state court for robbery and conspiracy to kidnap. Brown was named in the indictment as a co-conspirator of the defendants although he was not charged as a codefendant. Upon taking the stand as the Government’s key witness, Brown testified that from May 1968, to April 1969, he was employed on a commission basis by the defendants to sell heroin on the defendants’ account at prices ranging from $26,000 to $30,000 per kilo. He stated that during this period he was able to arrange a number of transactions in New York City and that for each kilo he sold he received from the defendants a $1,000 sales commission. He also testified that at his initial introductory meeting with the defendants he was instructed by them that whenever he had a buyer who wanted heroin he was to contact the defendants by calling LaSorsa at LaSorsa’s place of business, Dale Oldsmobile, and asking for a Mr. Clark. At this first introductory meeting, after LaSorsa had instructed him to call Dale whenever he had a purchaser, LaSorsa also handed him a business card with LaSorsa’s private telephone number at Dale handwritten on the card, and this card was introduced into evidence as a government exhibit. He further stated that during the course of his subsequent business relationship with the defendants he had called LaSorsa at Dale many times to inform him that he had set up buys and that he had even visited Dale on about thirty occasions to meet with LaSorsa personally. Brown concluded his testimony by detailing the ways in which he had brokered large quantities of heroin for the defendants during his 11 months of association with them. During this part of his testimony he spoke at length, and apparently convincingly, about the details of his many transactions, and especially about his sales to two retailers of heroin, “Gold-finger,” his Harlem connection, and Luther Hazel, the Government’s next witness.

Hazel had been named in one of the overt acts listed in the indictment as futhering the alleged conspiracy, as having received heroin from Brown, and, in the bill of particulars the Government furnished the defense, was characterized as one who “might be considered” a co-conspirator. Hazel’s testimony related to an incident which occurred after he had made his first, and only, purchase from Brown. As Hazel’s workers had been unable to resell the drugs on the street quickly enough to raise sufficient cash to pay the purchase price of $30,-000 he did not make his payment to the defendants on the day it was due. Shortly thereafter he met with Brown and the defendants in an automobile, and while Caio held him at gunpoint in the car LaSorsa demanded payment and, to drive the point home, hit him in the face several times. Eventually Hazel paid $23,500 on account, leaving unpaid a balance of $6,500, plus $2,000 or so borrowed to pay Hazel’s packaging helpers. LaSorsa told Brown to forget this balance.

The remainder of the Government’s direct case was devoted to introducing evidence tending to support the testimony that had been given by Brown. In order to establish the fact that Caio had been involved with narcotics on other occasions, the Government introduced the testimony of Neil McMillan, a three time felon then serving a Virginia state sentence for his third conviction. McMillan stated that three times during 1968 and 1969 Caio, as part of a separate retailing business, had employed him at a salary of $5,000 a week to dilute and package heroin. Also, in order to verify a Brown statement that he and Tony LaSorsa, brother of Nicholas LaSorsa, had counted in the apartment of Audrey Flynn, Tony’s girlfriend, money they had received from “Goldfinger,” the government produced Flynn, who stated that she had indeed seen Brown and Tony counting money in her apartment.

Neither of the defendants testified in his own behalf, but the defense attempted to prove by other witnesses that the testimony of Brown and Hazel was not to be believed. The owner of Dale Oldsmobile and a current and a former employee of Dale (both of whom had worked at the telephone switchboard) established the fact that no one named Mr. Clark had ever worked at Dale and that, to their knowledge no one had ever called in and asked for a Mr. Clark. Although this testimony was meant to show that Brown was lying when he said he had called Dale many times and had asked for Mr. Clark, the prosecution established on cross-examination that LaSorsa had a private line at Dale and that calls from Brown to him probably would go through the private line noted on the card he gave Brown rather than through the main switchboard. The defense also attempted to prove that Brown’s testimony was not to be believed because it differed from the story he had given to an FBI agent while Brown was an inmate at Sing Sing Prison. Although the defense was able to establish that Brown, when he first spoke to the agent at Sing Sing on July 9, 1970, made some statements that differed from portions of his trial testimony, the Government, on cross-examination of the agent, showed that in most respects the July 9 story was substantially the same as the testimony given at trial, and that, in any event, the story Brown gave at five subsequent meetings in Sing Sing with the same FBI agent was exactly the same story he gave at trial. In any event, the jury believed Brown’s trial testimony, and, after one day of deliberation, reached a guilty verdict as to both defendants.

In urging a reversal of their convictions the defendants contend: (1) that the prosecutor’s summation was prejudicial and denied the defendants a fair trial, for it unfairly placed the prestige of the United States Attorney and the United States Bureau of Narcotics behind the testimony of Brown; (2) that the lower court committed “plain error” in failing to charge the jury that accomplice testimony should be “scrutinized with care and caution”; (3) that the lower court erred when it restricted the efforts the defense was making in the cross-examination of Brown and Hazel to establish the bias of these co-conspirators against the defendants; and also erred when it permitted Brown to assert his privilege against self-incrimination at one point during his cross-examination ; and (4) that the defendants’ sixth amendment right to a jury trial was abrogated by the substitution without the defendants’ prior consent of Judge Bauman for Judge Gagliardi as presiding judge on the final day of the trial.

Having carefully reviewed the trial record we find no merit in these contentions, and we affirm the convictions.

I

The defendants first claim that they were denied a fair trial because the prosecutor stated in his summation that the jury should acquit if it believed the Government “framed” the defendants. They claim that the argument was uncalled for by any defense argument and that it unfairly prejudiced the defense in that it bolstered the credibility of the Government’s witnesses by placing the Government’s prestige behind them. We agree with the defendants that a prosecutor should not bolster the Government’s case by placing the prestige of the United States Government behind the witnesses for the prosecution. See United States v. Puco, 436 F.2d 761, 762 (2 Cir. 1971). Here, by structuring its argument in such a way as to suggest to the jury that if it should vote for acquittal it would be implicitly agreeing with the defendants’ insinuations that the prosecution had “framed” the defendants, it is arguable that the prosecution did place its own prestige behind its witnesses. If the strategy behind this approach was to introduce prejudicial new matter into the ease by suggesting that the defense had made insinuations of prosecutorial misconduct that the defense had not really made, it might be that the prosecutor’s conduct was prejudicially improper. However, here, it is manifest from even a casual reading of the jury arguments of defense counsel that the prosecution was only meeting the defense on a level of the defense’s own choosing. The defense had, indeed, insinuated precisely the type of prosecutorial misconduct which the prosecutor was attempting to refute in his argument to the jury, so quite justifiably, he argued responsively that the Government had not “framed” the defendants and that, if the jury thought the Government had done so, it should acquit them. The defense arguments to the jury are replete with characterizations of the Government’s witnesses as “stars of a little play,” “creeps,” “the gem of gems” (reference to Brown), and “what a beauty” (reference to Hazel) — all open insinuations that the Government had without justification, staged a framed prosecution. Moreover, the decision to prosecute the defendants is labeled a “desperate act” and it is argued that the Government used Brown to set up a deal to get Caio and LaSorsa because it needed to obtain convictions to respond to the public’s outcry against narcotics pushers. Also it is suggested that the Government had given favors to the witnesses in return for their assistance although no evidence was introduced during the trial that the witnesses had actually received any. In view of these attacks against the very integrity of the prosecution the prosecutor was certainly entitled to reply with rebutting language suitable to the occasion. See United States v. Benter, 457 F.2d 1174 (2 Cir.), cert. denied, 409 U.S. 842, 93 S.Ct. 41, 34 L.Ed.2d 82 (1972); United States v. Kravitz, 281 F.2d 581, 586 (3 Cir. 1960), cert. denied, 364 U.S. 941, 81 S.Ct. 459, 5 L.Ed.2d 372 (1961). The defense allegation that the prosecutor’s summation was unfairly prejudicial is without merit.

II

The defendants’ next claim is that the trial judge committed reversible error in failing to instruct the jury that in reviewing the evidence it should “scrutinize with care and caution” the uncorroborated testimony of the accomplice witnesses Brown and Hazel. The trial record does not disclose that the defendants’ lawyers brought to Judge Gagliardi’s direct attention that they wanted him to include such an accomplice witness charge in his instructions to the jury. Moreover, it is conceded by the defendants that they did not except to the charge after Judge Gagliardi had delivered it or that they then suggested such a charge. Despite this, however, they now argue that this court should find that Judge Gagliardi’s failure to deliver an accomplice witness charge sua sponte was “plain error” and that, therefore, we should reverse the convictions. We do not agree. Although we have said that in circumstances where the testimony of accomplice witnesses is an important part of the Government’s case the trial judge should, as the recommended practice, instruct the jury to the effect that the testimony of the accomplice witnesses should be “scrutinized with care and caution,” we have never required this precise charge to be given unless, by failing to give it, the defendants suffered substantial prejudice. See United States v. Abrams, 427 F.2d 86 (2 Cir. 1970), cert, denied, 400 U.S. 832, 91 S.Ct. 64, 27 L.Ed.2d 63 (1970); United States v. Cianchetti, 315 F.2d 584, 592 (2 Cir. 1963). We have carefully reviewed the charge Judge Gagliardi delivered to the jury and the statements made to the jury by the defendants’ attorneys during their final arguments, and we are persuaded that the defendants were not prejudiced by Judge Gagliardi’s failure to caution the jury specifically that accomplice testimony must be “scrutinized with care and caution.” Although these particular words were not used, the certain import of the charge taken as a whole was that the jury should be particularly careful in evaluating the testimony of Brown, Hazel and McMillan. Thus, Judge Gagliardi first reminded the jury that it must ask itself as to each witness whether the witness appeared to be “truthful, candid, frank and forthright,” or “evasive, shifty, or otherwise suspect.” Then Judge Gagliardi reminded the jury that it must consider as to each witness whether his testimony was buttressed or impaired by corroborative or contradictory testimony of some other witnesses, or whether it had been impeached by a showing that it was inconsistent with prior statements, thus indirectly alluding to the fact that the defense had tried to attack Brown by having an FBI agent testify that Brown’s trial testimony contradicted certain things he had told the agent on July 9 in a Sing Sing Prison interview. Then Judge Gagliardi alerted the jury to the fact that a witness could be impeached by a showing that the witness had been convicted of prior felonies, or by a showing that he had a motive to lie. In this part of the charge Judge Gagliardi stated specifically that Hazel, Brown, and McMillan had been convicted of prior felonies, naming all three of these government witnesses by name. Then Judge Gagliardi took the significant additional step of warning the jury that much of the testimony it had heard from the Government had come from witnesses who “were themselves involved in the alleged conspiracy or in the achievement of its objects.” And, to drive this point home, he also noted that: “One of those witnesses, James Brown, is specially named in the indictment as a co-conspirator, although not as a defendant.”

From these extensive instructions on the issue of the credibility of the Government’s witnesses, we think it is clear that the jury was fully and fairly apprised of the fact that it was to use great caution in weighing the testimony of Brown, Hazel, and McMillan. Moreover, when it is recalled that these instructions were given after defense counsels’ pleas, made during their final arguments to the jury, not to believe Brown, Hazel and McMillan because of their past records and their motives to lie, the conclusion becomes even more inescapable that the jury was fully alerted to the necessity of carefully and cautiously scrutinizing the accomplice testimony. See U. S. v. Cianchetti, swpra, at 592 of 315 F.2d. Accordingly, we find that the defendants were not substantially prejudiced by the trial judge’s charge, and that no showing of “plain error” has been made.

Ill

In its extensive efforts to discredit the testimony of Brown and Hazel the defense emphasized the fact that both of these witnesses had substantial reasons to cooperate with the Government, even to the extent of perjuring themselves. The defense brought this to the jury’s attention by introducing, during cross-examination, evidence that the witness may have been granted favors by the Government in return for their testimony (this evidence was refuted) and also by showing that Hazel and Brown may have harbored particular grudges against the defendants because the defendants had allegedly threatened to kill them if they did not keep away from Tony LaSorsa, the defendant LaSorsa’s brother; and, further, as to Hazel, that LaSorsa had hit him because he had failed to pay for his heroin on time. At one point during the cross-examination of Brown, LaSorsa’s attorney with a view to establishing motive, asked Brown the following question: “He [defendant LaSorsa] did not tell you to stay away from his brother or he would kill you?” After the question was asked the Government objected and Judge Gagliardi sustained the objection. The defendants argue that it was error to disallow this question because, by disallowing it, the trial judge unfairly limited the defense in its cross-examination of the Government’s key witness, Brown. However, this argument is patently frivolous, for when the question is read in connection with the string of questions, noted in the margin, of which it was one, it is obvious that the objectionable question was clearly repetitious.

The defense pursued the same line of questioning in an effort to establish Hazel’s motive. The defense argues that Judge Gagliardi committed reversible error by limiting its cross-examination of Hazel when he sustained the Government’s objection to the following question: “Did Nicholas LaSorsa, when he slapped you, [Hazel] tell you that if you and Jimmy Brown did not stay away from his brother Tony he was going to kill the two of you?” We agree with the Government that this ruling was correct as the question assumed an unsubstantiated fact — that Hazel had previously been with LaSorsa’s brother Tony. Moreover, even if the ruling were incorrect, the defense was not unfairly prejudiced by its inability to pursue this particular question inasmuch as throughout the trial it had had more than an ample opportunity, of which it took full advantage, to prove that Hazel had substantial reasons to lie. See United States v. Blackwood, 456 F.2d 526 (2 Cir. 1972), cert. denied, 409 U.S. 863, 93 S.Ct. 154, 34 L.Ed.2d 110 (1972).

Finally, the defendants object to a ruling permitting Brown to refuse to answer, on the ground that the answer might incriminate him, a question put to him by the defense during cross-examination. The defense wanted to bring out that Brown may have committed criminal acts for which he may not have been prosecuted so that it could establish that the reason he testified for the Government was so that the Government would not prosecute him for these past criminal acts of which it had knowledge. Following a conference out of the presence of the jury, the judge and the defense attorneys reached an understanding that for the purpose of establishing Brown’s motives in testifying against the defendants the defense could ask Brown about any prior criminal acts he may have committed for which he had not been prosecuted but which were known to the Government. At the same time the judge made clear that he would warn Brown of his constitutional right against self-incrimination if the defense opened the subject. When the jury returned and the cross-examination of Brown commenced, the defense asked the following question: “Mr. Brown, other than the convictions which you have related to the jury, which you have been convicted of, are there any other criminal acts that you have committed?” At this point the Government objected to the form of the question on the ground that it was not phrased in such a way as to alert the jury that the testimony was of limited admissibility and that it was being permitted into evidence only to throw light on the issue of Brown’s motives. Judge Gagliardi overruled the government objection, and instructed Brown that he did not have to answer the question if he thought his answer would be incriminating. Thereafter Brown refused to answer the question. The defendants took exception to Brown’s refusal to answer — -and to Judge Gagliardi’s upholding of his refusal — on the ground that during the first trial, which had ended in a hung jury, Brown had admitted committing a robbery with Tony LaSorsa, and that the admission precluded him at this second trial from interposing his fifth amendment privilege as to this particular criminal act. They maintain that as he had already admitted the act at the former inconclusive trial he had thereby waived his right fo exercise his fifth amendment privilege at this second trial. However, even assuming arguendo that the disclosure during the prior trial of this particular robbery precluded Brown during this second trial from refusing to answer whether he did commit that robbery, an issue we need not discuss, the question he was asked went far beyond an inquiry of whether he had committed a robbery with Tony LaSorsa. Brown was not required to answer the broad question he was asked, and the trial judge, in view of this fact, quite properly warned him of his constitutional right. See Wigmore, Evidence § 2270(1) (1961 edition).

IV

The defendants claim that they were deprived of their sixth amendment right to a jury trial because on the final day of the trial Judge Bauman sat in for Judge Gagliardi because Judge Gagliardi had become ill. This claim is briefly disposed of. Judge Gagliardi presided at the trial from its inception, October 31, 1972, until the end of the first day of the jury’s deliberations, Friday, November 3. Over the weekend he became ill and on Sunday evening he telephoned Judge Bauman at his home and asked Judge Bauman to preside over the remainder of the trial. Judge Bauman indicated he would do so if he could comply with the requirement of Rule 25, Fed.R.Crim.P. that he certify he was familiar with the trial record. Monday morning Judge Bauman held a conference with counsel in the robing room and he certified that he was familiar with the record. He also asked counsel whether there were any objections to his presiding over the remainder of the trial. There were no objections. Judge Bauman then informed counsel that the jury had requested to have some trial testimony read back to it and counsel agreed on the portion to be read back. They entered the courtroom, the jury was brought in, and Judge Bauman explained to the jurors why he was sitting for Judge Gagliardi. At this time neither of the defendants voiced any objection to the substitution of the judges, although both of them were seated in the courtroom. Thereafter the requested testimony was read back and the jury retired. Later the foreman sent a second note to Judge Bauman requesting the reading of some additional testimony. The jury was then brought back a second time, it heard the testimony, returned to the jury room, and shortly thereafter returned a guilty verdict as to each defendant. After the announcement of the verdict Judge Bauman stated that, as Judge Gagliardi was more familiar with the facts of the case than he, he would leave the sentencing to Judge Gagliardi unless the defendants objected. There was no objection and Judge Gagliardi imposed sentence on January 15, 1973.

From this account it is evident that Judge Bauman’s service as a substitute judge was an extremely limited one.

After certifying in accordance with the Rules that he was familiar with the trial record Judge Bauman received two notes from the foreman of the jury, had portions of the trial testimony read back to the jury (which portions were agreed upon by counsel) and received the jury’s verdict. He referred the sentencing and the disposition of any post-trial motions to Judge Gagliardi. He made no rulings and committed no acts which could have adversely affected the defendants’ rights in any way. Indeed, the defendants do not argue that they were prejudiced by the substitution, but only argue that the substitution was unconstitutional per se. However, even assuming that the defendants themselves, despite their inaction and despite the consent of their attorneys, did not themselves consent to the substitution, the claim is without merit under the circumstances obtaining here. See Connelly v. United States, 249 F.2d 576 (8 Cir. 1957), cert. denied, 356 U.S. 921, 78 S.Ct. 700, 2 L.Ed.2d 716 (1958). The only authority cited by the defendants for the proposition that, irrespective of whether the defense was prejudiced, an unconsented-to substitution of one judge for another violates the sixth amendment, is our court’s opinion in Freeman v. United States, 227 F. 732 (2 Cir. 1915). We are not bound by the holding there for, that case, decided over fifty-five years ago, rested on a principle subsequently repudiated by the United States Supreme Court in Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930) — the principle that a defendant may not waive his right to a jury trial. See Cahill V. Mayflower Bus Lines, Inc., 77 F.2d 838, 840 (2 Cir.), cert. denied, 296 U.S. 629, 56 S.Ct. 156, 80 L.Ed. 447 (1935). Inasmuch as the defendants do not claim, and have not shown, that they suffered substantial prejudice from the substitution of judges this claim is without merit.

The convictions are affirmed.

      . This was the defendants’ second trial upon this indictment. The first ended in a mistrial when the jury was unable to reach a verdict. The first trial began on April 27, 1972 and ended on May 5, 1972, and the trial from which this appeal was taken commenced on October 31, 1972 and concluded on November 6, 1972.

      . For example, during his summation the prosecutor made the following statement:
      Is that what you believe happened? Do you believe Governmental agencies went around and told these people to frame up innocent men? That is an outrageous charge, and if you believe it, acquit, acquit with the Government’s blessing, because that is an outrageous thing to do, and nobody in this court, in the House of America, should be convicted on a frame-up of evidence put together in that way. (R. 562).

      . For example, LaSorsa’s lawyer during his argument to the jury, said:
      Narcotics is the biggest thing there is in this country right now. And all of us share the same concern for it. All of us share that concern. AVhat does that force the Government to do? It forces the Government to barter and exchange and deal with people like McMillan and Hazel and Brown, and if you do not believe a deal was made in this case with James Brown, then we failed here as attorneys. (R. 541).

      . As discussed in text infra we find no “plain error” affecting the substantial rights of either defendant from the failure of the trial judge to instruct the jury in the exact language we have recommended in United States v. Abrams, text infra; but, in any event, counsel, in disregard of the mandate of Rule 30, Fed.R.Crim.P., did not give the judge the benefit of their approach to the subject so that he could comply with it if he wished to do so. See, e. g., Pagliochini v. United States, 105 U.S.App.D.C. 110, 264 F.2d 583 (1959).

      . Although relatively unimportant in view of our holding here, we also note that as to Gaio the testimony of Hazel and Brown imx>licating him was corroborated by McMillan.

      . The defense strongly suggested that the Government had arranged for Brown to obtain an expedited parole from the seven year sentence he was serving for a 1969 Mew York State conviction; that Hazel was permitted to plead to an income tax charge in settlement of an outstanding federal indictment for a narcotics offense; and that McMillan was to receive government help in securing for him an early Xiarole from the serving of his Virginia sentence. These men denied that the prosecutor had made any promises of favors and there was no evidence introduced at trial to show that the prosecutor had, indeed, made any promises; but of course Brown and Hazel were not indicted with Caio and LaSorsa for their respective roles in the charged conspiracy.

      . Q. You [Brown] were in the car when Midiólas LaSorsa hit Luther Hazel, weren’t you?
      A. Yes, I was.
      Q. And Midiólas LaSorsa told you at that time if you did not stay away from his brother Tony, you and Hazel, he’d kill you, didn’t he?
      A. I’m not afraid of Nicholas La Sorsa.
      Q. Did he tell you that?
      A. He did not tell me that, no.
      Q. He did not tell you that?
      A. 1-Ie did not.
      Q. He did not tell you to keep away from liis brother Tony?
      Prosecutor: Objection.
      The Court: Sustained. Next question.

        Q. Did you refuse to answer yesterday when Mr. Goldberger asked you where you lived in Washington, D. C.? Yes or no.
      A. Let me explain it to you.
      Q. Just yes or no. Did you refuse to answer?
      A. Yes, I did.
      Q. Did you tell this court yesterday that you were afraid that Mr. LaSorsa or his family might learn where you lived? Just yes or no. Did you say that yesterday?
      A. Yes, I did.
      Q. But now you are saying you are not afraid?
      A. That’s right.
      Q. He did not tell you to stay away from his brother or he would kill you?
      Prosecutor: Objection.
      The Court: Sustained.

      . Clearly, the defendants have standing to bring this issue before this court. See 8 Wigmore, Evidence § 2270(2) (3961 edition).

      . See our holding in United States v. Seewald, 450 F.2d 13.59, 1164 (2 Cir. 1971) (Oakes, J., dissenting), cert. denied, 405 U.S. 978, 92 S.Ct. 1206, 31 L.Ed.2d 253 (1972). There, the holding in United States v. Miranti, 253 F.2d 135 (2 Cir. 1958) that a witness who testifies before a grand jury about a criminal act in which he was involved may assert his fifth amendment privilege against self-incrimination when asked to acknowledge this testimony at a later grand jury proceeding, is held to be limited to similar fact situations. See also Ellis v. United States, 135 U.S.App.D.C. 35, 416 F.2d 791, 800-805 (1969), where the court held, Wright, J., dissenting, that a witness who voluntarily testified before a grand jury without invoking his privilege against self-incrimination, of which he has been advised, waives the privilege and may not thereafter claim it when he is later called to testify as a witness at the trial on the indictment returned by' the grand jury.

      . The Government suggests that under the circumstanees of this case the defendants, as a practical matter, have waived their sixth amendment right because their attorneys consented to the substitution and when, in open court, Judge Bauman explained that he was being substituted for Judge Gagliardi, they did not object, although they could easily have done so.


source: Caselaw Access Project

license: Public Domain

text:
    Kazi S. AHMED, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 722, Docket 72-2003.
    United States Court of Appeals, Second Circuit.
    Argued April 17, 1973.
    Decided June 11, 1973.

      David A. Englander, Englander & Englander, New York City, for plaintiff-appellant.
    Joseph P. Marro, Stanley H. Wallenstein, Asst. U. S. Attys., Whitney North Seymour, Jr., U. S. Atty., for defendantappellee.
    Before CLARK, Associate Justice, and WATERMAN and FEINBERG, Circuit Judges.

       Associate Justice of the United States Supreme Court (Retired), sitting by designation.

   WATERMAN, Circuit Judge:

Plaintiff-appellant commenced the ■within action pursuant to 28 U.S.C. § 1346(a)(2) demanding that the Government return to him United States Treasury Bonds in the sum of $2,000 or pay him the equivalent in cash. The facts are undisputed and, upon cross-motions for summary judgment, the court below denied plaintiff’s motion and granted that of the Government. From the order filed thereon plaintiff appeals. We affirm.

In October, 1969 plaintiff’s nephew Islam first applied to the American Consulate in Dacca, Pakistan, for permission to travel to the United States as a student. At that time he was advised of the appropriate procedures and he was informed that, pursuant to regulations established by the Attorney General under Section 214 of the Immigration and Nationality Act (Act) (8 U.S.C. § 1184 (a)) he would be required to post a $2,000 Maintenance of Status and Departure Bond to insure that he would comply with the conditions of his entry to the United States. One of the conditions stated in the Bond, a condition designed, of course, to preserve American jobs for bona fide members of the American labor force, was that, being admitted as a foreign student, during Islam’s stay in the United States as a student, Islam would not accept “unauthorized employment,” that is, employment that had not received prior approval from the Service.

On November 6, 1969 the plaintiff, Islam’s uncle, appeared at the New York City office of the Service and executed the required bond on Islam's behalf. Thereafter, on January 13, 1970, Islam was admitted to the United States as a non-immigrant student within the meaning of Section 101(a) (15) (F) (i) of the Act (8 U.S.C. § 1101(a)(15)(F)(i)); and he was authorized to remain here as a student for a one year period, or until January 12, 1971. On May 12, 1970, approximately four months after his arrival, Islam married Ranette Scott, an American citizen. On June 1 she filed on Islam’s behalf a petition to have him elassified as an immediate relative of a United States citizen within the meaning of Section 201(b) of the Act (8 U.S.C. § 1151(b)). Thereafter, on October 26, 1970, after being notified on October 7, 1970 that th'is petition for immediate relative classification was approved, Islam applied, under Section 245 of the Act (8 U.S.C. § 1255), for an adjustment of his non-immigrant student status to that of a permanent resident. This application was granted by the Service on December 29, 1970.

In July 1970, after Islam’s wife had filed the petition for his classification as an immediate relative of a United States citizen, but before this petition was granted by the Service, Islam began to work at plaintiff’s restaurant. Islam had never requested and had never received any prior authorization from the Service permitting him to work. Plaintiff concedes that when he employed Islam during the pendency of Ranette’s petition a material condition of the Maintenance of Status and Departure Bond was violated; but inasmuch as Islam could have worked after his own application for permanent residency was filed on October 26, 1970 without Service authorization being first obtained plaintiff maintains that the fact that Islam began work in July is a “technical” rather than a “substantial” violation of the condition prohibiting employment of the “student.” Therefore he claims this breach cannot be relied on as a justification for declaring that the bond be forfeited and the collateral put up to secure it retained.

We agree with the plaintiff that under the regulations promulgated by the Attorney General pursuant to his authority under Sections 103(a) and 214 of the Act (8 U.S.C. §'§ 1103(a) and 1184(a)) a Maintenance of Status and Departure Bond may be declared forfeited by the Service only after the finding has been made that a material condition of the Bond has been violated in a substantial particular. See 8 C.F.R. §§ 103.6(c)(3) and 103.6(e). Such a finding was made by the Service and plaintiff exhausted his administrative remedies prior to commencing his action in the district court. The court below agreed with the Service and we agree with the lower court that the Maintenance of Status and Departure Bond was violated in a substantial way when Islam accepted employment in the obligor-plaintiff’s restaurant without first having obtained Service approval. All the cases establish this principle. See Earle v. United States, 254 F.2d 384 (2 Cir.), cert. denied, 358 U.S. 822, 79 S. Ct. 35, 3 L.Ed.2d 63 (1958); Watzek v. United States, 134 F.Supp. 605 (S.D.N.Y. 1955); Kavounas v. United States, 89 F. Supp. 689, 116 Ct.Cl. 406 (1950). In each of these cases the Bond was forfeited because the alien’accepted unauthorized-employment.

Irrelevantly, plaintiff seeks to avoid his own liability by pointing out that, when Islam married, Islam became responsible for the support of his wife, and that this responsibility necessarily entailed the finding of employment and excused Islam’s act of working and plaintiff’s act of hiring him.

Plaintiff overlooks his direct obligation to the Government as obligor on a bond containing the specific condition that Islam would not accept unauthorized employment. Though the Service would not deport the “student,” now married to a United States citizen and now here as an alien permanent resident, who, without authorization, unilaterally entered the labor market, whereby the bond was breached, this fact does not excuse the obligor on the bond.

Judgment affirmed.

      . 8 U.S.C. § 1184(a) reads:
      (a) The admission to the United States of any alien as a non-immigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe, including, when lie deems necessary the giving of a bond with sufficient surety in such sum and containing such conditions as the Attorney General shall prescribe, to insure that at the expiration of such time or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 1258 of this title, such alien will depart from the United States.

      . 8 C.F.R. § 214.2(f) (3) states :
      (3) Employment. An application by a student for permission to accept or continue employment shall be filed on Form 1-538. If a student requests permission to accept part-time employment because of economic necessity, he must establish that the necessity is due to unforeseen circumstances arising subsequent to entry, or subsequent to change to student classification, and an authorized school official must certify that part-time employment will not interfere with the student’s ability to carry successfully a full course of study.

      . Immediate relatives of United States citizens may be admitted to the United States for permanent residency irrespective of the numerical quota limitations contained in the Act. Section 201 (a) of the Act (8 U.S.C. § 1151(a)). To become a permanent resident the alien who has been classified as an immediate relative must file an application to adjust his status to that of a permanent resident under Section 245 of the Act (8 U.S.C. § 1255). Thus the process for becoming a permanent resident is two-staged: First, the non-immigrant must petition for classification as an immediate relative; then, after this petition is granted, he may file an application for permanent residency under Section 245. Under current Service regulations, only after he has filed for permanent residency under Section 245 may the alien commence employment without Service authorization.

      . Thus, 8 C.F.R. § 103.6(c) (2) provides:
      (2) Maintenance of status and departure bonds . . .
      If an application for adjustment of status is made by a nonimmigrant while he is in lawful temporary status, the bond shall be canceled if his status is adjusted to that of a lawful permanent resident or if he voluntarily departs within any period granted to him. As used in this subparagraph, the term “lawful temporary status” means that there must not have been a violation of any of the conditions of the alien’s non-immigrant classification by acceptance of unauthorized employment or otherwise during the time he has been accorded such classification, and that from the date of admission to the date of departure or adjustment of status he must have had uninterrupted Service approval of his presence in the United States in the form of regular extensions of stay or dates set by which departure is to occur, or a combination of both. An alien admitted as a mon-immigrant shall not he regarded as having violated his non-immigrant status hy engaging in employment subsequent to his proper filing of an application for adjustment of status under section 245 of the Act and Part 245 of this chapter. A maintenance of status and departure bond posted at the request of an American consular officer abroad in behalf of an alien who did not travel to the United States shall be canceled upon receipt of notice from an American consular officer that the alien is outside the United States and the non-immigrant visa issued pursuant to the posting of the bond has been canceled or has expired. (Emphasis added).

      . 8 C.F.R. § 103.6(c) (3) provides that an obligor shall be released from liability where there has been substantial per- . formance of all conditions imposed by the terms of the Bond. 8 C.F.R. § 103.6(e) provides that a “bond is breached when there has been a substantial violation of the stipulated conditions.”

      . On March 17, 1971 the Deputy District Director of the Immigration and Naturalization Service (Service), found that plaintiff’s nephew had breached a material condition of the Bond by accepting employment at the plaintiff’s restaurant without having first received the prior authorization of the Service, and declared the bonds forfeited. Plaintiff appealed to the Regional Commissioner of the Service, but, in a written opinion dated November 3, 1971, the Regional Commissioner upheld the Deputy Director’s declaration of forfeiture.


author: J. JOSEPH SMITH, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Mitchell ROTHBERG, Appellant.
    No. 851, Docket 73-1310.
    United States Court of Appeals, Second Circuit.
    Argued May 9, 1973.
    Decided June 8, 1973.

      Michael H. Metzger, San Francisco, Cal., for appellant.
    Guy L. Heinemann, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, Asst. U. S. Atty., of counsel), for appellee.
    Before SMITH, MULLIGAN and TIMBERS, Circuit Judges.
   J. JOSEPH SMITH, Circuit Judge:

Appellant Rothberg, indicted for transporting, concealing and facilitating the transportation and concealment of illegally imported “hashish, a derivative of marihuana,” in violation of 21 U.S.C. § 176a, in the United States District Court for the Eastern District of New York, John R. Bartels, Judge, offered to prove that the substance imported from Afghanistan was not Cannabis Sativa L., the definition of marihuana set forth in the Internal Revenue Code, 26 U.S.C. § 4761 and incorporated in 21 U.S.C. § 176a but Cannabis Indica Lam., a separate species. The offer of proof was rejected, 351 F.Supp. 1115, and the government consenting, with the approval of Judge Bartels, on the preservation for consideration on appeal to this court of the question whether the offer of proof was properly rejected, a plea of guilty to count two of the indictment was entered. We find no error and affirm the conviction.

In construing a statute to determine the intent of Congress, we must do so in light of the conditions under which the Congress did act. See, e. g., Moor et al. v. County of Alameda et al., 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). “Although criminal statutes must be so precise and unambiguous that the ordinary person can know how to avoid unlawful conduct . . . even in determining whether such statutes meet that test, they should be given their fair meaning in accord with the evident intent of Congress.” United States v. Sullivan, 332 U.S. 689, 693-694, 68 S.Ct. 331, 334, 92 L.Ed. 297 (1948). See also Postma v. International Brotherhood of Teamsters, 337 F.2d 609, 610 (2d Cir. 1964); Precise Imports Corp. v. Kelly, 378 F.2d 1014, 1017 (2d Cir.), cert. denied, 389 U.S. 973, 88 S.Ct. 472, 19 L.Ed.2d 465 (1967). To determine whether a criminal statute fairly apprises potential violators of the nature of acts prohibited, it may be that we should consider whether the meaning of terms has in general usage so changed since the enactment as not at the time of the offense to give such fair notice. No such change in general usage at the time of the offense was shown by the proffered proof, however.

The most that the proffered proof could have established was that at the time of trial there was some and perhaps growing botanical opinion that Cannabis is polytypal and that a distinction can be made between Cannabis Sativa L. and' Cannabis Indica Lam. This opinion was, however, formed by appellant’s experts only after the offense here in question. At. the time of the enactment and amendment of the statutes in 1937 and 1956 and up to the time of the offense, there is no question but that the lawmakers, the general public and overwhelming scientific opinion considered that there was only one species of marihuana so that this Afghan hemp was included within the statutory definition. See Leary v. United States, 395 U.S. 6, 50, 89 S.Ct. 1532, 23 L.Ed.2d 57 and n. 106 (1969). Whether this is scientifically exact or not, the statute provided at the time of the offense a sufficient description of what was intended to be prohibited to give notice to all of the illegality of appellant’s actions.

To be sure, the use of a term in a criminal statute by a legislature under a misapprehension as to the object described by it could not be corrected by a criminal court’s amendment of the statute, but that is not the case here. There was no misapprehension by the Congress as to the generally accepted meaning of the term when used, and no showing under the offer of proof of any change in the generally accepted meaning up to the time of the offense. The statute as written must be read to cover the offense charged.

For the future, it would appear that the question is academic, since the statute has been replaced by the present drug abuse prevention and control acts, with much broader descriptions of controlled drugs in addition to the description in question here, the broader descriptions concededly covering this substance whether described as one designation of Cannabis or another.

Judgment affirmed.

      . See United States v. Mann, 451 E.2d 346 (2d Cir. 1971); United States v. Doyle, 348 F.2d 715, 719 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 89 (1965); and United States v. Selby, 476 F.2d 965 (2d Cir., 1973).

      . Repealed since the offense in question.

      . See 21 U.S.C. § 801 et seq.


author: PICKETT, Circuit Judge.

text:
    Patricia J. HANLEY and Judy Hanley, Plaintiffs-Appellants, v. FOUR CORNERS VACATION PROPERTIES, INC., et al., Defendants-Appellees.
    No. 72-1652.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted March 27, 1973.
    Decided June 7, 1973.
    Rehearing Denied June 27, 1973.

      Harry M. Williams, Berge, Martin & Clark, Denver, Colo., for plaintiffs-appellants.
    E. B. Hamilton, Jr., Hamilton, Sherman, Hamilton & Shand, P. C., Durango, Colo., for defendants-appellees.
    Before PICKETT, HILL and BARRETT, Circuit Judges.
   PICKETT, Circuit Judge.

The Hanleys seek relief from a state court judgment foreclosing their rights to real property, which judgment they claim is void under the due process clause of the Fourteenth Amendment to the federal Constitution. The basis for the claim is that the Hanleys were not served in a mechanic’s lien foreclosure action through which the appellee’s predecessor in interest obtained title. One of the defenses to the complaint filed herein was that the due process issue was fully litigated in a subsequent suit to quiet title culminating in a judgment disallowing the Hanley claim and quieting title in Four Corners. On stipulated facts the trial court, 349 F.Supp. 229, sustained the defense of res judicata.

In 1967 the Hanleys were owners of real property in Archuleta County, Colorado, subject to a purchase money trust deed in favor of Luther Lee. Later, the Federal Lumber Company filed a mechanic’s lien on the land for materials supplied for improvement of the property. In due course a proceeding was instituted to foreclose the lien and following a default judgment the lands were sold to the lienholder and a sheriff’s deed duly issued.- Thereafter, foreclosure of the Lee trust deed was instituted. In the meantime, Four Corners had acquired title to the land and before the expiration of the statutory redemption period redeemed in the trust deed foreclosure proceedings by paying the amount due and was issued a public trustee’s certificate of redemption. After the redemption, Four Corners brought an action to quiet title against defendants claiming an interest in the property, including the Hanleys. In this quiet title action Four Corners alleged that it had acquired the property from Federal Lumber Company; that it had paid the amount due on the trust deed; and demanded that the Hanleys be required to tender into court the amount necessary to redeem the lands before they could defend. The Hanleys were personally served and by answer alleged that the defendant Judy Hanley had not been served with process in the mechanic’s lien foreclosure, and that the same was void. They also alleged that they should not be required to deposit the redemption money before they were permitted to defend. Following a pretrial conference, the trial court in the quiet title action entered an order requiring the Hanleys to deposit with the clerk of that court, on or before a specified date, the amount necessary to redeem the property. The amount required to be deposited was not paid as ordered and the court entered a default judgment against the Hanleys quieting title to the lands in Four Corners. No appeal was taken from that judgment. Thereafter, in an original proceeding in the Supreme Court of Colorado, the Hanleys sought a writ of prohibition to prevent the enforcement of the default judgment and to require that the case be set for trial on its merits. The Supreme Court held that the writ was not available because the issues presented should have been raised on a direct appeal. This action was then brought in federal court raising the same issues that arose in the quiet title action.

The essence of the Hanley claim is that the mechanic’s lien foreclosure was void and subject to collateral attack because of the lack of service of process on one of the Hanleys, and that they were prevented from presenting the due process question in the quiet title action because of the requirement that the amount of the redemption moneys be deposited before they were permitted to proceed. It is fundamental that due process requires notice in any proceeding with an opportunity to appear and be heard before a valid final judgment may be entered. A judgment entered without adequate notice to the parties is void and subject to collateral attack. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1964) ; Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). It is equally well settled that where the issue of due process has been litigated and a final judgment entered, the determination of that issue, right or wrong, is res judicata. American Surety Company v. Baldwin, 287 U.S. 156, 53 S.Ct. 98, 77 L.Ed. 231 (1932); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923) ; Lavasek v. White, 339 F.2d 861 (10th Cir. 1965).

In the quiet title action the Hanleys appeared and answered. The issues in that case and the one at bar are identical. The state court had jurisdiction of the parties and the subject matter. An adequate remedy was available through the state appellate process. The pleadings raise the constitutional issues of the validity of the mechanic’s lien judgment for lack of notice, together with the right of the trial court to require a deposit of the redemption moneys before the defense was permitted to proceed. An adjudication of these constitutional issues was subject to review by the Supreme Court of Colorado, and the Supreme Court of the United States if necessary. The Hanleys have had their day in court on these issues and a final judgment entered thereon. They cannot relitigate them in federal court.

Affirmed.

      . There is no contention here that Four Corners does not have a lien on the property for the amount necessary to satisfy the liens.

      . In Hooker, the Court said:
      “If the constitutional questions stated in the bill actually arose in the cause, it was the province and duty of the state courts to decide them; and their decision, whether right or wrong, was an exercise of jurisdiction. If the decision was wrong, that did not make the judgment void, but merely left it open to reversal or modification in an appropriate and timely appellate proceeding. Unless and until so reversed or modified, it would be an effective and conclusive adjudication.” 263 U.S. at 415, 44 S.Ct. at 150.


author: PER CURIAM:

text:
    Ned S. SKINNER, Captain, etc., Appellant, v. Raymond F. SPELLMAN, Appellee.
    No. 72-2041.
    United States Court of Appeals, Fourth Circuit.
    Argued April 3, 1973.
    Decided May 31, 1973.
    Andrew P. Miller, Atty. Gen. of Va., and Vann H. Lefcoe, Asst. Atty. Gen., for appellant.
    George W. Gillmor, Durham, N. C., (E. David White, III and Raymond L. Yasser, third-year students at Duke University School of Law) for appellee.
    Before BOREMAN and WINTER, Circuit Judges, and BLAIR, District Judge.
   PER CURIAM:

This is an appeal from the verdict of the district court in a suit under the Civil Rights Act, 42 U.S.C. § 1983, entering judgment in the amount of $100.00 against defendant-appellant for violating plaintiff-appellee’s right to due process of law in a prison disciplinary proceeding. Appellant contends that the district court erred by 1) applying Land-man v. Royster, 333 F.Supp. 621 (E.D. Va.1971), retroactively to the facts of the case and 2) in holding that good faith reliance on standard operating procedure was not available as a defense.

The district court found the disciplinary proceeding in question lacked due process in that there was no prior written notice of the charges, the prisoner was not given a reasonable time to prepare a defense, and one of the members of the adjustment committee hearing the ease had prior knowledge of the incident. These findings are not clearly erroneous. In reaching them, the district judge cited his opinion in Landman v. Royster, supra, wherein he had reviewed in detail the due process requirements which must attend a prison disciplinary proceeding. We do not see this as a retroactive application of Landman. The district court’s citing of Landman was merely a reference by the court to a current decision on point and in this we find no error.

Appellant also contends his good faith reliance on standard operating procedure gives him a qualified immunity defense to liability for damages in a suit founded on 42 U.S.C. § 1983. The district court stated that, while the absence of malice would prevent an award of punitive damages, good faith was not a defense appellant could assert in avoidance of plaintiff’s claim. In Hill v. Rowland, 474 F.2d 1374, 1377 (4th Cir., 1973), this court, on the authority of Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), held that police officers who arrested a woman bystander in a lottery raid would have a defense to a § 1983 suit for damages by proving their “reasonable good faith belief ... in the legality of the arrest.” A subsequent decision very much on point with the present case, Eslinger v. Thomas, 476 F.2d 225 (4th Cir., 1973), similarly affirms the concept of “reasonable good faith” as a § 1983 defense. That decision held that a clerk of the South Carolina Legislature who denied the plaintiff a job as a legislative page solely because she was a woman, in accordance with the longstanding official custom of reserving such positions for men, could not be held liable for damages under § 1983. As was noted,

Although the clerk may have acted with little sensitivity to a swelling tide of legal and social precedent rapidly eroding the bastion of male chauvinism, he acted in the light of a longstanding, albeit vaguely defined, “custom” of the South Carolina Senate barring female pages. He did no more, or less, than what had always been done. “While high state officials may be expected to be reasonable men, they neither can nor should be expected to be seers in the crystal ball of constitutional doctrine.” Westberry v. Fisher, 309 F.Supp. 12, 17 (D.Me. 1970). The clerk should not be “charged with predicting the future course of constitutional law.” Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d 288 (1967).

In consequence, if appellant was acting in a reasonable good faith reliance on what was standard operating procedure in the Virginia prisons, he should not have to respond personally for damages. Although the district judge found a lack of malice in refusing punitive damages, he clearly did not accept good faith reliance on standard operating procedures as a defense to the claim for compensatory damages. Accordingly, the district court’s decision is reversed and remanded for a factual determination of whether appellant was acting in reasonable good faith reliance on standard operating procedure. If this was the case, judgment should be entered for appellant; otherwise, the prior verdict should be reinstated in the amount found by the district court.

Reversed and remanded.

      . Appellee argues that appellant failed to affirmatively plead good faith in the district court and that for this reason the issue is not properly before us. It is, of course, true that good faith as a defense should be affirmatively pleaded, but we do not feel appellee is prejudiced by its assertion now. The fact that the district court specifically denied such a defense existed leads to the conclusion that the issue was implicitly, if not explicitly, before the distrct court. See, Eslinger v. Thomas, supra.


author: PER CURIAM.

text:
    Frank BUZZELLI, Plaintiff-Appellant, v. MINNESOTA MINING & MANUFACTURING CO., DefendantAppellee.
    No. 72-2181.
    United States Court of Appeals, Sixth Circuit.
    Argued April 16, 1973.
    Decided June 15, 1973.
    Charles W. Chandler, Livonia, Mich., for plaintiff-appellant.
    Donald M. Sell, St. Paul, Minn., for defendant-appellee; Richard E. Brink, Alexander, Sell, Steldt & DeLaHunt, St. Paul, Minn., Leslie W. Fleming, Butzel, Long, Gust, Klein & Van Zile, Detroit, Mich., on brief.
    Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and LAMBROS, District Judge.

       Honorable Thomas L. Lambros, Judge, United States District Court for the Northern District of Ohio, sitting by designation.

   PER CURIAM.

In this patent infringement suit the District Court granted summary judgment for the defendant-appellee, Minnesota Mining & Manufacturing Co. (Minnesota). Patent No. 3,464,424, owned by Frank Buzzelli, was held invalid because of obviousness and the complaint was dismissed with prejudice. Buzzelli appeals. We reverse and remand.

Prior to 1964 hair stylists used several adhesive and non-adhesive products to retain hair in a desired position while drying. Adhesive products were not favored because their nonporous backing trapped moisture, causing uneven drying, a weakening of the adhesive, and painful removal. In 1964 Frank Buzzelli, a professional hairstylist, determined that the disadvantages of adhesive products could be lessened by perforating the tape. Affidavits submitted in opposition to the summary judgment motion indicate that this theory had never been employed previously to set hair, although Minnesota long had marketed a perforated tape for medical use. Buzzelli’s development led to the issuance of the patent in issue on September 2, 1969.

When Minnesota later modified its medical tape for sale in the hairsetting market, Buzzelli brought this suit for infringement.

Summary judgment can be granted only if “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56, Fed.R.Civ.P.

The standard to be applied in passing on motions for summary judgment was stated by this court, speaking through Judge Weick, in Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425, 427 (6th Cir. 1962), as follows:

“In ruling on a motion for summary judgment, the court must construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant. Further, the papers supporting the movant are closely scrutinized, whereas the opponent’s are indulgently treated. 6 Moore’s Federal Practice Par. 56.15 (3), pp. 2123-2126.
“It has been stated that: ‘The purpose of the hearing on the motion for such a judgment is not to resolve factual issues. It is to determine whether there is any genuine issue of material fact in dispute * * *.’ 6 Moore’s Federal Practice Par. 56.-11(1), p. 2057. See also: Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962).”

Several factual inquiries must first be made under 35 U.S.C. § 103. The court must ascertain the status of the particular art at the time of invention, the difference between the state of the art at that time and the claims at issue, and the level of ordinary skill in the art during the questioned period. Graham v. John Deere Co., 383 U.S. 1, 17-18, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966); Tapco Products Co. v. Van Mark Products Corp., 446 F.2d 420, 426 (6th Cir.), cert, denied, 404 U.S. 986, 92 S.Ct. 451, 30 L.Ed.2d 370 (1971); Monroe Auto Equipment Co. v. Heckethorn Manufacturing & Supply Co., 332 F.2d 406, 411-412 (6th Cir.), cert. denied, 379 U. S. 888, 85 S.Ct. 160, 13 L.Ed.2d 93 (1964).

Upon the basis of conflicting affidavits, the District Court resolved factual issues relating to obviousness. The determination of this issue calls for a factual inquiry regarding the experience of those skilled in the art. The affidavits are in conflict on this crucial factual question, creating a genuine issue of material fact.

We therefore hold that the District Court erred in granting summary judgment.

We find an additional ground for reversal in the standard applied by the District Court in determining the issue of obviousness. The Court held, “It is obvious to the Court, and . what is obvious to an ordinary person must be obvious to a ‘person having ordinary skill in the art’ as provided in Section 103.”

Under § 103 a patent may not issue where the subject matter would have been obvious at the time the invention was made to one having ordinary skill in the art. While this test is far from precise, we hold that the District Court erred in finding invalidity on the theory that if a development is obvious to the court, it must be obvious to a person having ordinary skill in the art. As Judge Learned Hand stated:

“To judge on our own that this or that new assemblage of old factors was, or was not, ‘obvious’ is to substitute our ignorance for the acquaintance with the subject of those who were familiar with it.” Reiner v. I. Leon Co., Inc., 285 F.2d 501, 504 (2d Cir. 1960), cert. denied, 366 U.S. 929, 81 S.Ct. 1649, 6 L.Ed.2d 388 (1961).

Reversed and remanded.

      . 35 U.S.C. § 103 provides:
      “A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102 of this title, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains. Patentability shall not be negatived by the manner in which the invention was made.”


text:
    Jose RIOS and Carlos Pinon, Individually, etc., Plaintiffs-Appellants, v. Col. Robbin E. L. WASHINGTON, Chairman of the El Paso Municipal Civil Service Commission, et al., etc., Defendants-Appellees, Ferndnado Pena et al., Intervenor.
    No. 73-1475
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 7, 1973.
    Bart Cox, El Paso, Tex., for plaintiffs-appellants.
    Travis White, City Atty., John C. Ross, Jr., Wade Adkins, Paul A. Echols, Asst. City Attys., El Paso, Tex., for defendants-appellees.
    D. Clark Hughes, El Paso, Tex., for intervenor.
    Before THORNBERRY, GOLDBERG and RONEY, 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:

Appellants filed suit in the court below on behalf of themselves and all others similarly situated, challenging portions of the El Paso, Texas, Municipal Charter that provide for the award of five points of extra credit to “veterans’ ” scores on municipal civil service examinations. Appellants alleged that they were members of a class composed of “municipal employees of the City of El Paso, Texas, who are not defined as ‘veterans’ ” under the challenged provision. In response to appellees’ motion to dismiss for failure to allege facts showing that appellants were personally affected by the challenged provision, appellants sought and obtained leave to amend their complaint. Their amended complaint, however, alleged only that the representatives of the class had “actually suffered from the Defendants’ alleged discriminatory actions.” Subsequent to the filing of this amended complaint, the trial court heard argument on and granted appellees’ motion to dismiss.

The judgment of dismissal is affirmed on the ground that appellants failed to allege facts showing that they were personally affected by the challenged provisions. We intimate no view as to the merits of appellants’ claims.


text:
    Lee LANE, PMB #60120, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellee.
    No. 73-1417
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 6, 1973.
    Lee Lane, PMB, pro se.
    William J. Guste, Jr., Atty., S. J. Dileo, Jr., Sp. Counsel, Baton Rouge, La., for respondent-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

Lee Lane, a prisoner of the State of Louisiana, has appealed from the district court’s denial of his petition for habeas corpus relief. We reverse the ruling below, and remand the cause for further proceedings.

The. appellant received a life sentence on his plea of guilty on May 17, 1963, in the 20th Judicial District Court of Louisiana. Lane was not represented by counsel at plea; the minutes of the court recite that he then was indigent but waived the assistance of counsel. No direct appeal was taken from the judgment. The record shows that Lane has, however, exhaused his available state remedies on the grounds presented in these proceedings. See State ex rel. Lane v. Henderson, La.1972, 263 La. 100, 267 So.2d 209.

The appellant contends that he did not knowingly and understandingly waive the assistance of counsel in his defense. The district court denied habeas relief on the basis of the record without conducting an evidentiary hearing. Included in that record is the transcript of the state court evidentiary hearing and a certified copy of the minutes of the judge who accepted the plea, but who no longer is serving on the court. It appears that the plea proceedings were not stenographically recorded by the court reporter and thus no transcript thereof is available.

After careful consideration we have concluded that the state court hearing was not enough to resolve the issue as to waiver of counsel prior to the plea. Lane was unrepresented by counsel at his state habeas evidentiary hearing. See 28 U.S.C. § 2254(d)(5). His testimony at that hearing was ambiguous at best and the questions of the court and state’s attorney did not serve to clarify it in several important particulars. No other witness testified at the state habeas hearing. The only evidence introduced on the state’s behalf was a copy of the minutes at plea. No certificate or affidavit from the original trial judge was presented.

We hold that the state court’s evidentiary hearing was not so “full and fair” that the district court could safely accept its findings and conclusions as being correct. See 28 U.S.C. § 2254(d); Townsend v. Sain, 1963, 372 U.S. 293, 83 S.-Ct. 745, 9 L.Ed.2d 770; Hunter v. Swenson, 8 Cir. 1971, 442 F.2d 625, cert, den. 404 U.S. 863, 92 S:Ct. 76, 30 L.Ed. 2d 107; O’Neal v. Smith, 5 Cir. 1969, 413 F.2d 269; Fortner v. Balkcom, 5 Cir. 1967, 380 F.2d 816. Accordingly, we reverse the judgment below and remand the cause for further proceedings, including an evidentiary hearing at which Lane should have counsel appointed to represent him, if he so desires.

Reversed and remanded, with directions.


text:
    Andrew ROWLAND, a minor by his guardian Lewis Rowland, et al., Appellants, v. Curtis TARR, National Director of Selective Service, et al.
    No. 72-1367.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) April 24, 1973.
    Decided May 11, 1973.

      Harold E. Kohn, Stuart H. Savett, Donald L. Weinberg, Allen D. Black, Philadelphia, Pa., for appellants.
    Carl J. Melone, U. S. Atty., Warren D. Mulloy, Asst. U. S. Atty., Philadelphia, Pa., for appellees.
    Before VAN DUSEN, ALDISERT and ROSENN, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

The question in this appeal from the dismissal of a complaint requesting convocation of a three-judge statutory court to test the constitutionality of the Military Selective Service Act, 50 U.S.C. App. § 451, et seq., is whether the district court erred in finding lack of jurisdiction.

The trial court 341 F.Supp. 339, found that some of the constitutional issues presented by appellants had already been authoritatively adjudicated adversely to the appellants’ contentions thereby obviating the necessity of additional litigation. In other respects, the court found the claims to be political questions and, therefore, non-justiciable.

A district court is required to request the convocation of a three-judge court under 28 U.S.C. § 2282 where there is a challenge to the constitutionality of a federal statute, unless the constitutional attack is “ ‘essentially fictitious,’ Bailey v. Patterson, 369 U.S. 31, 33 [82 S.Ct. 549, 551, 7 L.Ed.2d 512] (1962), ‘wholly insubstantial,’ ibid., ‘obviously frivolous,’ Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 [30 S.Ct. 326, 327, 54 L.Ed. 482] (1910), ‘obviously without merit,’ Ex parte Poresky, 290 U.S. 30, 32 [54 S.Ct. 3, 4-5, 78 L.Ed. 152] (1933),” Goosby v. Osser, 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36 (January 17, 1973); or unless “its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy,” Ex parte Poresky, supra,, 290 U.S. at 32, 54 S.Ct. at 4.

We have concluded that several of the counts presented by the appellants have already been conclusively adjudicated by the Supreme Court adversely to appellants and, therefore, were properly dismissed "by the district court. Count I, claiming a taking of appellants’ property without due process of law is foreclosed by Lichter v. United States, 334 U.S. 742, 755-758, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948); Count II, claiming involuntary servitude, by Arver v. United States, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (1918) ; Count IV, claiming an unconstitutional deprivation of various First and Fifth Amendment rights, by United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1969); Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971).

Count V is non-justiciable because of mootness. Appellants claimed that the Vietnam conflict was an illegal and unconstitutional war contrary to the principles of military, national, and international law. We take judicial notice that as of this date no one subject to the Military Selective Service Act will be called to serve in Vietnam and that American participation in that conflict has been terminated.

What remains is Count III, a claim that the Act offends the equal protection clause because it discriminates unconstitutionally between males and females. This contention has not been adjudicated by the Supreme Court, although there is a thoughtful opinion by Chief Judge Marsh of the Western District of Pennsylvania concluding that such “classifications as age and sex are not arbitrary or unreasonable, and the classifications are justified by the compelling government interest. . . .” United States v. Dorris, 319 F.Supp. 1306, 1308 (W.D.Pa.1970). Guided by the stringent language of Ex parte Poresky, supra, which suggests that the “unsoundness” of the claim must result “from previous decisions of this [Supreme] court,” we are constrained to hold that this count presents an issue which is not yet foreclosed. From the district court's opinion we are unable to determine on what basis it rejected this particular count. Therefore, we will vacate the judgment of the district court and remand these proceedings solely for the purpose of considering Count III. If the district court is satisfied that plaintiffs have standing and that the constitutional attack is not insubstantial as defined in Goosby v. Osser, supra, it should request the convocation of a statutory court.

The judgment of the district court will be vacated with respect to Count III; in all other respects the judgment will be affirmed.


text:
    NATIONAL ASSOCIATION FOR the ADVANCEMENT OF COLORED PEOPLE OF LOUISIANA and Emmitt J. Douglas, Plaintiffs-Appellants, v. Louis J. MICHOT, etc., et al., Defendants-Appellees.
    No. 73-1312.
    United States Court of Appeals, Fifth Circuit.
    June 11, 1973.

      Johnnie A. Jones, Walter C. Dumas, Baton Rouge, La., for plaintiffs-appellants.
    William J. Guste, Jr., Atty. Gen. of La., Reginald Coco, Asst. Atty. Gen., Thomas Rayer, Sp. Counsel, Victor A. Sachse, Baton Rouge, La., Thomas A. Rayer, New Orleans, La., for defendants-appellees.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   PER CURIAM.

After a complete review of the record, it is our considered opinion that this court does not have jurisdiction to hear the instant appeal 'and thus we are compelled to dismiss. We reach this conclusion on two alternative grounds. First, this is an appeal from the lower court’s order denying appellant’s motion to consolidate its case with a suit previously filed in that court. A trial court has broad discretion in determining whether to consolidate a ease pending before it. An order denying consolidation is not a final appealable order. See, 9 Wright & Miller, Federal Practice and Procedure, § 2386 (1971); United States v. Chelsea Towers, Inc., 404 F.2d 329 (3d Cir. 1968).

Furthermore, appellant did not timely perfect an appeal. Rule 4 of the Federal Rules of Appellate Procedure requires that a notice of appeal be filed in the district court within thirty days. The order denying consolidation was entered on November 28, 1972, but appellant did not file its notice of appeal until December 29, 1972. Thus thirty-one days elapsed before the notice of appeal was filed and therefore this court is without jurisdiction to hear this appeal, in the absence of further proceedings in the district court under Rule 4(a), F.R. A.P., to determine the existence of excusable neglect in the late filing of the notice of appeal.

Appeal dismissed.


text:
    IBERIA SUGAR COOPERATIVE, INC., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-3719
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 29, 1973.

      Jack J. Cousin, Jacob S. Landry, New Iberia, La., for plaintiff-appellant.
    Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div., U. S. Dept. of Justice, Washington, D. C., Fleming T. de Graffenried, Dept. of Justice, Dallas, Tex., Donald E. Walter, U. S. Atty., Shreveport, La., for defendant-appellee.
    Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.

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

   PER CURIAM:

Appellant Iberia Sugar Cooperative, Inc., sued unsuccessfully in the court below for a refund of federal income taxes paid by it for its fiscal years ending March 31, 1963, and March 31, 1964. The facts are set out in detail in the district court’s Memorandum Opinion, 360 F.Supp. 967, and may be summarized as follows. Appellant is a corporation which during the years in issue was engaged in the cooperative processing and marketing of sugar cane. The marketing agreements between appellant and its members, each of whom was engaged in the production of sugar cane as either landlord or tenant, required each member, for a period of ten years, to furnish appellant all the sugar cane produced or acquired by the member. At the end of each fiscal year appellant’s profits were distributed to its members in the form of patronage dividends, in accordance with the quantity of sugar cane deemed to have been furnished by each member. In the case of member landlords, this quantity included sugar cane harvested and delivered to appellant by nonmember tenants under crop-sharing arrangements with the member landlords.

Section 1382(b)(1) of the Internal Revenue Code of 1954, 26 U.S.C. § 1382 (b)(1), permits a cooperative association to exclude from its taxable income amounts paid to its members as patronage dividends. In computing the amount of patronage dividends to be excluded from its taxable income for each of the years in question, appellant included not only the amounts paid to member landlords with respect to the landlords’ share of their non-member tenants’ crops, but also amounts paid to member landlords with respect to their non-member tenants’ shares of the crops. The Internal Revenue Service disallowed exclusion of that portion of the payments attributable to the non-member tenants’ shares of the crops, and this suit followed.

Codified in 1962, Section 1388(a) follows earlier case law, see Pomeroy Cooperative Grain Co. v. Commissioner of Internal Revenue, 8th Cir. 1961, 288 F.2d 326, insofar as it prohibits the exclusion from taxable income of “any amount paid to a patron to the extent that . . . (B) such amount is out of earnings from business done with or for other patrons to whom no amounts are paid. . . . ” Appellant contends that it was “doing business” only with the member landlords when it acquired non-member tenants’ crop shares, pointing to the fact that its contractual dealings were conducted exclusively with the member landlords and not with the crop-sharing non-member tenants. This court, however, applying the earlier judge-made standard, has held that patronage dividends arising from substantially identical transactions between a cotton gin and non-member tenants were not excludable from the cotton gin’s taxable income, Smith & Wiggins Gin, Inc. v. Commissioner of Internal Revenue, 5th Cir. 1965, 341 F.2d 341, 350, and that case is controlling here. Accordingly, the judgment below is

Affirmed.

      . The Internal Revenue Code defines “patronage dividend” as follows:
      Patronage dividend. For purposes of this subchapter, the term “patronage dividend” means an amount paid to a patron by an organization to which part I of this subchapter applies—
      (1) on the basis of quantity or value of business done with or for such patron,
      (2) under an obligation of such organization to pay such amount, which obligation existed before the organization received the amount so paid, and
      (3) which is determined by reference to the net earnings of the organization from business done with or for its patrons.
      Such term does not include any amount paid to a patron to the extent that . . . (B) such amount is out of earnings from business done with or for other patrons to whom no amounts are paid, or to whom smaller amounts are paid, with respect to substantially identical transactions.
      26 U.S.C. § 1388(a).

      . Despite the somewhat ambiguous statement in the district court’s opinion that “the cane crop of member landlords and non-member tenants . . . was in some instances grown, harvested, and delivered by the member landlord,” it is clear that the instant case concerns only crops that were grown, harvested, and delivered to appellant’s mill by non-member tenants. Appellant’s complaint put in issue only that portion of the cane “produced by non-member tenants on lands owned or controlled by member-stockholders of Petitioner . . . [and] delivered to petitioner’s mill by the non-member tenants.

      . Although the first of appellant’s fiscal years in question here, that one beginning on April 1, 1962, was not covered by Section 1388, which is effective only as to taxable years beginning after December 31, 1962, the disputed patronage dividends for that year were not properly excludable from appellant’s taxable income. See Smith & Wiggins Gin, supra.


text:
    Aubrey Leon HAYNES, Petitioner-Appellant, v. C. Murray HENDERSON, Warden, Respondent-Appellee.
    No. 73-1463
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 4, 1973.
    Rehearing and Rehearing En Banc Denied July 13, 1973.

      Aubrey Leon Haynes, pro se.
    James Yelldell, Asst. Dist. Atty., 4th Judicial Dist. Ct., Bastrop, La., William J. Guste, Jr., Atty. Gen., Baton Rouge, La., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

This is an appeal from the district court’s denial of habeas corpus relief to Aubrey Leon Haynes, a prisoner of the State of Louisiana. We affirm the ruling below.

Haynes is attacking the validity of his conviction and sentence for burglary in the Fourth Judicial District Court of Louisiana. Represented by court-appointed counsel, Haynes was convicted on his plea of guilty. On October 27, 1971, he was sentenced to serve nine years’ imprisonment, to run consecutively to any and all other sentences. There was no direct appeal; but the appellant has exhausted his available state remedies in compliance with the requirements of 28 U.S.C. § 2254(b). See Haynes v. Henderson, 1972, 263 La. 97, 267 So.2d 208.

Appellant contends, first, that his plea was not intelligently and understandingly made, due to the trial court’s failure to advise him that the sentence could be provided to run consecutively to any other sentences. He alleges that he was serving another 10-year sentence (for an apparently unrelated offense) at the time of sentencing in the instant ease. There is no merit to this contention.

The record shows that the state court fully complied with the requirements of Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274, in advising the defendant of his rights. The court further advised Haynes that he could be sentenced to serve up to nine years in the penitentiary, in the sole discretion of the court. That statement in itself sufficed to advise Haynes that the sentence could be made to run independently of any other sentence which he may have to serve, in the discretion of the trial court.

Haynes alleges for the first time in his brief filed in this Court, that his counsel misled him by stating, in pertinent part, “your sentence will [begin] on the day you were arrested.” This contention was not presented below, nor in the state courts, and accordingly it will not be considered by us on this appeal. Chunn v. Clark, 5th Cir. 1971, 451 F.2d 1005, and cases cited therein.

Secondly, Haynes asserts that the trial court incorrectly advised him that he could be sentenced to the Louisiana State Penitentiary. Appellant relies on a 1968 Louisiana statute which provides, in part, as follows:

“Notwithstanding any provision of law to the contrary, any individual subject to confinement in a state adult penal or correctional institution shall be committed to the Louisiana Department of Corrections and not to any particular institution within the jurisdiction of the department.”

The advice given by the court to Haynes, if perhaps not entirely correct, can not have prejudiced any of his substantial rights. He well knew that he was subject to incarceration in the state penitentiary, .since he concededly was serving another sentence there. It is clear that there was no violation of any Federally-protected rights in this particular.

Finally, appellant has claimed that the state trial court acted illegally in specifying that his sentence was to be served at the state penitentiary, in light of the statute cited supra. The provision of the statute quoted herein-above refutes this contention, however; it specifically provides that an adult prisoner shall not be committed to any particular institution. This leaves complete discretion in the Louisiana Department of Corrections to decide in what institution a convicted adult offender shall serve his sentence of confinement. The trial judge’s statement in the sentence concerning the place of confinement is seen to be mere surplusage, in light of this statute.

We find no error in the district court’s denial of habeas relief to Appellant Haynes; and accordingly its ruling is affirmed.

Affirmed.

      . For exhaustion of state remedies.

      . La.Rev.Stats., Title 15, § 824.


text:
    Marvin MELTZER, Individually, and as father and next friend, of David Meltzer, et al., Plaintiffs-Appellants, v. BOARD OF PUBLIC INSTRUCTION OF ORANGE COUNTY, FLORIDA, etc., et al., Defendants-Appellees.
    No. 72-2614.
    United States Court of Appeals, Fifth Circuit.
    June 5, 1973.

      Jerome J. Bornstein, Orlando, Fla., for plaintiffs-appellants.
    William M. Rowland, Jr., Orlando, Fla., for defendants-appellees.
    Before AINSWORTH, GODBOLD and CLARK, Circuit Judges.
   PER CURIAM:

This action was brought by 39 parents of children attending the public schools of Orange County, Florida, complaining of certain activities of the school system which the plaintiffs believe violate the religious freedom guarantees of the First Amendment. The parents complain that the daily opening exercises conducted in Orange County Public School System constitute a religious observance. In addition, plaintiffs contend that the school system improperly participated in the distribution of Gideon Bibles to students on the school campus. The plaintiffs’ last attack is on the constitutionality of Section 231.09(2) of the Florida Statutes, F.S.A., which in literal terms requires the teaching of “Christian virtue.” We remand to the district court with directions to bring the record up to date and make additional findings of fact and conclusions of law.

The several orders of the district court, while concluding that the school’s activities are not inconsistent with constitutional standards, make no findings of fact as to the nature of these day-opening devotional or inspirational exercises. Thus, on the record before us, we cannot determine whether or not the practices are prohibited by the Constitution. See Hawkins v. Coleman, 475 F.2d 1278 (5th Cir. 1973). Nor has the court furnished us any guide as to the nature or extent of the school system’s participation in the distribution of Gideon Bibles to school children on campus.

In addition, the plaintiffs sought the appointment of a three-judge distriet court to review the constitutionality of Fla.Stat. § 231.09(2), F.S.A. After first indicating that a request would be submitted to the Chief Judge of the circuit for designation of a three-judge court, the district court reversed its position and found that there was no case or controversy requiring submission to a three-judge court. In so ruling it concluded that “plaintiffs’ only complaint is with the way in which the statute is written and not with its present application.” Counsel for plaintiffs has been unable to direct this court’s attention to any facts tending to show that the statute has been or will be applied. In short, the plaintiffs have made no showing whatsoever of any foreseeable irreparable injury which would merit injunctive relief. Construing the three-judge court statutes strictly and technically as we must, Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800 (1941), we therefore affirm the decision of the district court that the complaint does not raise a substantial constitutional question requiring the convening of a three-judge court. See Hunt v. Rodriguez, 462 F.2d 659, on rehearing, 468 F.2d 615 (5th Cir. 1972); Tyler v. Russel, 410 F.2d 490 (10th Cir. 1969).

Insofar as the complaint seeks a judgment declaring the statute unconstitutional, as opposed to injunctive relief, the cause must be remanded to the district court. Having properly determined that the face of the complaint would not support injunctive relief and thus that there was no necessity for three-judge action, the single district judge had jurisdiction to consider the plaintiffs’ non-statutory claims and the prayer for a declaratory judgment as to the invalidity of the statute. Lyons v. Davoren, 402 F.2d 890 (1st Cir. 1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 861, 21 L.Ed.2d 774 (1969). The court’s order of May 24, 1972, though couched partly in terms of the appropriateness of declaratory relief, resolved only the question that “there is no present case or controversy requiring submission to a three-judge court.” (Emphasis added.) On remand the court shall bring the record up to date so that it can determine whether there is an actual case or controversy now existing such as would invest the cause with a minimum constitutional jurisdiction base to permit adjudication of the prayer for declaratory relief. We express no opinion whatsoever as to whether the necessary substantial' controversy between adverse litigants exists here.

Finally, if single judge injunctive relief appears appropriate, the district court must clarify the requirements of the May 24, 1972, order providing for “continued compliance by defendants with the rulings set forth in this court’s order of December 4, 1970.” As it now stands, this provision fails to meet the requirements of F.R.Civ.P. 65(d), which requires inter alia that injunctive orders “describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained.”

Affirmed in part, vacated in part, and remanded.

      . The statute reads as follows :
      231.09 Duties of instructional personnel
      Members of the instructional staff of the public schools, subject to the rules and regulations of the state board and of the school board, shall perform the following functions:
      (2) Example for pupils. — Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and patriotism and the practice of every Christian virtue.


text:
    UNITED STATES of America, Appellee, v. LORSON ELECTRIC COMPANY, INC., Appellant.
    No. 720, Docket 72-1584.
    United States Court of Appeals, Second Circuit.
    Submitted April 16, 1973.
    Decided April 30, 1973.

      William J. Block, New York City, for appellant.
    Whitney North Seymour, Jr., U. S. Atty. S. D. N. Y., Stanley H. Wallenstein and Joseph P. Marro, Sp. Asst. U. S. Attys., Milton Sherman, Asst. U. S. Atty., for appellee.
    Before CLARK, Associate Justice, and WATERMAN and FEINBERG, Circuit Judges.

       Retired Associate Justice of the United States Supreme Court, sitting by designation.

   PER CURIAM:

Lorson Electric Company, Inc. appeals from a decision of the United States District Court for the Southern District of New York, Charles M. Metzner, J., granting the Government’s motion for summary judgment. During 1962, the Internal Revenue Service made two assessments against Industrial Builders, Inc. (the taxpayer) for unpaid federal unemployment taxes. The tax liabilities were recorded on March 9, 1962 and July 20, 1962, in the office of the District Director for Puerto Rico on Form 899, “Certificate of Assessments and Payments.” The Service filed a “Notice of Federal Tax Lien” for the respective assessments in the United States District Court for the District of Puerto Rico on May 11, 1962 and October 8, 1962. On October 29, 1962, Lorson obtained a default judgment in the same district court' against the taxpayer in the sum of $207,589, and subsequently successfully levied on its property. The Government brought this action to foreclose its two tax liens on property of the taxpayer in possession of Lorson. We affirm.

Lorson’s sole argument is that no valid prior federal tax lien has been established because the Government failed to prove a demand for payment of the tax, which 26 U.S.C. § 6303(a) requires. We disagree. Each filed Notice of Federal Tax Lien stated that there had been a “demand for payment” of the tax due. Moreover, Form 899 recites a “1st Notice” on a specified date with respect to each assessment. Representations in a Form 899 Certificate of Assessment have been held in another context to be “presumptively correct.” United States v. Strebler, 313 F.2d 402, 403 (8th Cir. 1963). Lorson responds that although these recitations might constitute proof that the notice required by section 6303(a) was sent to the taxpayer, they are insufficient to evidence the equally critical making of a demand. This exalts form over substance. The language of section 6303(a) shows that notice and demand are inextricably coupled. If Form 899 is competent to show that notice was sent, it seems entirely proper to infer, as did Judge Metzner, that such notice included a demand for payment as a matter of course. In fact, not long after the date of “1st Notice” of the first assessment (as indicated by Form 899) the taxpayer did make two payments, which reduced the amount due. On this record, the Government met its burden of proof.

Affirmed.

      . That section provides in part:
      [T] he Secretary or Ms delegate shall give notice to each person liable for the unpaid tax, stating the amount and demanding payment thereof.

      . On this view of the case, we need not consider the Government’s contention — alternatively relied on by Judge Metzner — that even if demand had not been established, this failure can be raised in defense only by the taxpayer, not by a third party like Lorson.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. George Byron HAMLET, Defendant-Appellant.
    No. 73-1267
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    June 7, 1973.
    Rehearing Denied July 5, 1973.

      George Byron Hamlet, pro se.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before BELL, GODBOLD and IN-GRAHAM, Circuit Judges.

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

   PER CURIAM:

George Byron Hamlet appeals from an order of the district court denying, on remand, his motion for appointment of a psychiatrist pursuant to 18 U.S.C. § 3006A(e). We affirm.

At his arraignment the appellant, charged with multiple counts of bank robbery, elected to proceed pro se and entered pleas of not guilty and not guilty by reason of insanity. Upon the government’s motion, a psychiatrist was appointed to determine the appellant’s competency to stand trial. A competency hearing was held on July 26, 1971, where it was disclosed that appellant had refused to cooperate with the psychiatrist. The appellant moved for appointment óf a psychiatrist under 18 U. S.C. § 3006A(e) to examine him and to assist in presenting the insanity defense. The court found appellant competent to stand trial and denied the motion to appoint a psychiatrist. At the trial no evidence was introduced which touched upon the issue of insanity. Appellant was convicted by the jury of six counts of bank robbery, violations of 18 U.S.C. § 2113. He was sentenced on August 27, 1971 to a total of 36 years imprisonment.

On direct appeal, appellant argued that the district court erred in denying his motion for a defense psychiatrist. This Court agreed, holding that the court below erred in failing to make the inquiry required by § 3006A(e) into the need for such psychiatric services. The ease was remanded with instructions to the district court to “conduct an inquiry into Hamlet’s request for psychiatric services to establish a defense of insanity and determine whether that request was meritorious and made in good faith.” United States v. Hamlet, 5th Cir. 1972, 456 F.2d 1284.

On remand, the district court appointed a psychiatrist to report on the need for psychiatric assistance during the trial. The psychiatrist was to act impartially. A hearing was held at which it was learned the appellant, after being interviewed by the psychiatrist for 35 minutes, refused to cooperate further. The doctor’s written report concluded that there was no psychiatric evidence “of a mental condition, disease, or deficiency which would absolve him of his responsibility for his alleged offense.” Based upon the appellant’s behavior, the record, and two earlier psychiatric reports, the district court concluded that there is no serious possibility that appellant was legally insane at any time pertinent to the crimes committed. The court held that the request for psychiatric services was dilatory, lacking in merit, and not made in good faith.

Now appealing from those findings and conclusions, appellant contends that the district court failed to comply with this Court’s instructions on remand. He argues that the court below should have appointed a defense psychiatrist pursuant to § 3006A(e) to testify at the ex parte hearing to determine the need for his assistance in presenting the insanity defense at the trial. Appellant misinterprets § 3006A(e) and the directions of this Court. Properly read, § 3006A(e) and this Court’s opinion call for the district court to make an appropriate inquiry to determine the need for psychiatric assistance before appointing such assistance. The district court properly appointed an impartial psychiatrist to determine if the need existed. Relying upon his medical report, prior medical reports of other psychiatrists, the record and appellant’s conduct, the district court was not in error in concluding that appellant’s request was not in good faith. There is no evidence to suggest that appellant was insane other than his own statements that he had an uncontrollable urge to rob banks. The medical experts conclude otherwise. The judgment below is affirmed.

Affirmed.