author: BELL, Circuit Judge:

text:
    NATCO, INC., Plaintiff-Appellee-Cross Appellant, v. WILLIAMS BROTHERS ENGINEERING COMPANY, et al., Defendants-Third Party Plaintiffs-Appellants-Cross Appellees, v. SANTA FE PIPE LINE COMPANY, Third Party Defendant-Appellee.
    No. 73-1604.
    United States Court of Appeals, Fifth Circuit.
    Feb. 13, 1974.
    Rehearing Denied March 28,1974.
    Roy C. Snodgrass, Jr., Amarillo, Tex., John S. Estill, Jr., Tulsa, Okl., for Williams Bros. Engineering Co. and others.
    Robert L. Templeton, R. C. Hamilton, Amarillo, Tex., for Natco.
    Albert S. Tabor, James W. McCartney, Houston, Tex., J. L. McMicken, Amarillo, Tex., for Santa Fe.
    Before BELL, COLEMAN and RO-NEY, Circuit Judges.
   BELL, Circuit Judge:

This appeal and cross-appeal are from a judgment for plaintiff Natco, Inc. and against Williams Brothers Engineering Company in a suit based on diversity jurisdiction. Only one issue of substance is presented: Was the proof of loss of profits on the Odessa job sufficient to warrant submission of the claim to the jury? The other assignments of error will be stated and affirmed without extended discussion.

The suit presented a claim for an intentional tort. Plaintiff’s cause of action, amply supported by proof, was that defendant Williams Brothers Engineering Company willfully and maliciously interfered with plaintiff’s performance of a contract with Santa Fe Pipe Line Company.

The suit, as originally instituted, included a count against Santa Fe on a claim arising under the contract and another count against The Williams Companies and its assignee, Williams Brothers Engineering Company (Williams Brothers), for damages arising out of the alleged intentional tort. The claim against Santa Fe was settled and the complaint was amended to eliminate Sante Fe as a defendant.

Santa Fe was engaged in constructing a liquified petroleum gas pipeline system called “The Chapparal System” running from Hobbs, New Mexico to Houston, Texas. Santa Fe contracted with The Williams Companies to furnish engineering services on the job and to supervise the construction of the system. Williams assigned all its interest in the contract to Williams Brothers Engineering Company. Meanwhile, Santa Fe had contracted with plaintiff to construct two portions of the pipeline, one portion known as the “Conroe Job” being approximately 66 miles of pipeline, and the other being known as “Odessa Job” consisting of approximately 36 miles.

The trial was to a jury on special issues with a verdict being returned for plaintiff in the sum of $94,000 for losses sustained on the Odessa job, $100,000 for loss of profits on the Odessa job, $40,000 for damages sustained on the Conroe job, and exemplary damages in the amount of $150,000. The district court required a remittitur of the damages on the Conroe job and reduced the exemplary damages on a proportionate basis to $125,000.

The verdict and judgment was against Williams Brothers Engineering Company but not against The Williams Companies. Judgment was entered for Santa Fe on the claim of Williams Brothers Engineering Company against it as a third party defendant, the jury having found in the negative on the issue whether the arbitrary or unreasonable conduct of the employees of Williams Brothers was with the authorization or acquiescence of Santa Fe.

Preliminarily, we find no merit in the contention of Williams Brothers that this finding by the jury as to Santa Fe was not based on sufficient evidence. We also find without merit the cross-appeal of plaintiff based on the contention that the trial court erred in requiring a remittitur as to the damages on the Con-roe job and reducing the exemplary damages. There was no basis for the finding of damages on the Conroe job. The district court was well within its discretion in reducing the exemplary damages on a basis proportionate to the actual damages found. Plaintiff also contends on cross-appeal that the trial court erred in failing to pierce the corporate veil of The Williams Companies so as to hold it in judgment along with Williams Brothers Engineering Company. There was no evidentiary basis for piercing the corporate veil.

This leaves for consideration the $94,000 awarded for losses on the Odessa job and the award for lost profits on that job in the amount of $100,000. We find the proof entirely sufficient to sustain the verdict for actual losses on the Odessa job. The evidentiary basis for the loss of profits in the amount of $100,000 is a much closer matter.

We begin with the rule that proof of loss of profits must rise above the level of mere surmise and conjecture and the contemplated profit must be proved to be reasonably certain. Autrey v. Williams and Dunlap, 5 Cir., 1965, 343 F.2d 730, 742. But in Mechanical Wholesale, Inc. v. Universal-Rundle Corporation, 5 Cir., 1970, 432 F.2d 228, we said that the fact that such damages are difficult to measure and by their nature are uncertain in amount does not render such damages unrecoverable. 432 F.2d at 231.

The sole testimony in this case in support of the loss of profits in the amount of $100,000 came from the president of plaintiff. He testified as to other pipeline jobs where he had made a profit and his method of estimating profits, and that he expected profits to be twenty per cent on the Odessa job. Another witness testified as to the range of profits usually made on such contracts in the industry. The president of plaintiff gave as his opinion that $100,000 would have been a reasonable profit on the Odessa job. Defendant contends that this estimate was conjectural in that pipeline construction is a high risk business with frequent losses. The Conroe job is pointed to as proof that losses often occur due to adverse weather conditions among other things.

The question is whether the testimony of plaintiff’s president and such other evidence of record as would show lost profits was sufficient to take the case to the jury. The rule of Boeing Company v. Shipman, 5 Cir., 1971, 411 F.2d 365, 368, is that a case is for the jury if there is a conflict in substantial evidence.

We conclude that the detailed evidence having to do with the many instances of interference with plaintiff’s contract by employees of Williams Brothers and the resulting damages therefrom is evidence sufficient to bolster the testimony of plaintiff’s president that a profit would have been made absent the interference. Given this base and the testimony of the additional witness as to the range of profits in the industry, the question was for the jury. The defendant could have offset the proof just as was done on the Conroe job by showing that other conditions would have made it impossible to realize a profit.

This conclusion is not unlike that reached by this court in Texsun Feed Yards, Inc. v. Ralston Purina Company, 5 Cir., 1971, 447 F.2d 660, a Texas diversity case wherein we reinstated a verdict for lost profits which had been set aside by the trial court on the view that the award rested on conjecture. The damage there was to a cattle feed lot business which had made a profit before its problems stemming from a defective feed supplement arose. Here the many acts of interference with the contract were proven to the satisfaction of the jury. In that case, the disruption of plaintiff’s feed lot business by the defective supplement was detailed. Here the past range of profits on similar pipeline jobs was shown. There the profits for one previous year were shown as compared to subsequent annual losses. We held then that the evidence of lost profits was sufficient to make a jury question under Boeing v. Shipman, supra. We are of the same view here.

This leaves the question of the amount awarded for lost profits. It substantially exceeds the twenty per cent which plaintiff’s president testified he expected to make on the Odessa job. It exceeds the range stated by the other witness as being the range of profits in the industry. The recovery for lost profits must be reduced to the outer limit of the proof. The district court is directed to require a remittitur to this extent, and to reduce the exemplary damages proportionately, or, at the option of the plaintiff,, to grant a new trial on the question of all damages sustained by plaintiff on the Odessa job. 28 U.S.C.A. § 2106; Glazer v. Glazer, 5 Cir., 1967, 374 F.2d 390, 413; Aircraft & Engine Maintenance, Etc. v. I. E. Schilling Co., 5 Cir., 1965, 340 F.2d 286, 289.

In sum, we find no merit in the errors assigned on the appeal or cross-appeal except as to the amount of the recovery for lost profits.

Affirmed in part; reversed in part with direction.

      . His testimony was that lie ordinarily “put twenty per cent expected field profit on any job that I bid”, A-268, and on the Odessa job he included an expected profit of “nineteen point something [per cent].” A-286. The amount of the Odessa contract was $366,941 but there is an indication that there were additions to the contract. We do not have the amounts, if any, of the additions.


source: Caselaw Access Project

author: ROSS, Circuit Judge.

license: Public Domain

text:
    Walter Olie NOORLANDER, Appellant, v. Dr. P. J. CICCONE, Director, Appellee.
    No. 73-1532.
    United States Court of Appeals, Eighth Circuit.
    Submitted Dec. 14, 1973.
    Decided Dec. 27, 1973.

      Walter Olie Noorlander, pro se.
    Bert C. Hurn, U. S. Atty., and Frederick O. Griffin, Jr., and Anthony P. Nu-gent, Jr., Asst. U. S. Attys., Kansas City, Mo., for appellee,
    Before VOGEL, Senior Circuit Judge, and HEANEY and ROSS, Circuit Judges.
   ROSS, Circuit Judge.

A question of importance to the effective administration of justice is raised on this appeal — whether a district court rule, which permits a judge to delegate to a magistrate the power to hold preliminary evidentiary hearings in federal and state habeas corpus cases is valid. We give a qualified affirmative answer to that question.

The question arises out of a prisoner petition filed with the United States District Court for the Western District of Missouri. The prisoner, an inmate at the United States Medical Center at Springfield, alleged that he had been denied equal access to the courts due to the inadequacy of the Medical Center’s law library and limitations placed on his possession of legal materials essential to pro se representation. The district court referred the petition to a magistrate pursuant to its local Rule 26. The petitioner objected to this referral and requested that the matter be re-referred to the district court. Following pretrial consideration of the pleadings, the magistrate prepared a report and recommended to the United States District 'Judge that the petition be denied. The recommendation was adopted by the judge. For the reasons we set forth later in this opinion, we find that it is' necessary that an evidentiary hearing be conducted to resolve the question of equal access to the court. We are convinced that the district court will again refer this matter to a magistrate for a preliminary evidentiary hearing pursuant to its present local rule unless we hold that it cannot do so. We, therefore, determine the propriety of such a referral.

Noorlander challenges the constitutionality of local Rule 26, Section B.l.b. (5) and its applicability to all habeas corpus cases emanating from the Springfield Medical Center. This rule provides as follows:

B. Additional Duties and Powers of Full-Time Magistrates.

,1. Pursuant to Section 636(b), Title 28, United States Code, each full-time magistrate is assigned and shall perform the following additional duties anywhere in this district and for those purposes is hereby granted plenary powers necessary or desirable to perform those duties:

-x- * * * * *

b. Civil Proceedings.

•x- -x- * * * *

(5) Assisting district judges by preliminary review, pretrial, and prehearing processing of habeas corpus and civil rights petitions, motions, and complaints, and in other petitions and complaints, including, but not limited to, those seeking relief from custody or from conditions of confinement, filed by a convicted or un-convicted person in federal or state custody, under Sections 2241 and 2254, Title 28, United States Code, or other legal procedures, as authorized or directed by other general or special orders of the Court en banc. The magistrate’s duties and powers shall include, but are not limited to, the following: (a) permitting the filing of ■ such petitions, motions, and complaints in forma pauperis; (b) appointing counsel when authorized by law; (c) making such pretrial and prehearing orders that may be necessary or desirable to obtain relevant information useful in determining the merits of the motion, petition, or complaint and in determining whether a hearing is required; (d) making an order authorizing the transfer of a movant, petitioner, or complainant from the district; and (e) conducting evidentiary hearings. The magistrate shall submit a written report and recommendations, consisting of findings of fact, conclusions of law, and a proposed judgment or order to be entered by a district judge; provided, however, that there shall be a review de novo of any order or finding of a magistrate to which a written exception is filed by a party within five (5) days after notice of the order or finding of a magistrate before a party is required to comply with the order; and provided, further, that there shall be a review de novo of any finding of fact made by the magistrate to which a written exception is filed by a party within ten (10) days after notice of submission of a written report' unless the district judge directs otherwise. The review de novo provided for herein shall include an evidentiary hearing when appropriate or required by law.

During the past several years an ever increasing number of prisoner petitions have been filed in federal court by and for inmates of the Springfield Medical Center. One result of this flood of litigation has been a substantial drain of the judicial manpower of the Western District of Missouri. Another result has been a substantial delay in processing these cases. In order to provide for prompt disposition of these cases, this rule was adopted by the district court en banc and positive efforts have been made by the court, the magistrate, the Public Defenders and the Assistant United States Attorney to reduce this backlog.

This Court has heretofore commented upon the general desirability of adopting procedures calculated to give inmates a prompt hearing upon their complaints. See generally Bridwell v. Ciccone, 310 F.2d 490 (8th Cir. 1973). We have not, however, heretofore analyzed Rule 26 nor expressed an opinion as to its validity. We note that other circuits have considered this problem under various fact situations with differing results. We also note that a preliminary draft of the Proposed Rules Governing Habeas Corpus Proceedings and Proposed Rules Governing § 2255 Proceedings permits district courts to authorize magistrates to conduct evidentiary hearings in ha-beas matters, subject only to the limitation that the magistrate cannot issue an order disposing of a petition.

We look first to the statute, 28 U.S.C. § 636(b), which provides as follows:

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

This section of the statute gives magistrates the power to “preliminar [ily] review” applications for posttrial relief and to submit a “report and recommendations to facilitate the decision of the district judge . . as to whether there should be a hearing.” It does not provide for, nor prohibit, the holding of an evidentiary hearing by the magistrate.

It is evident from an examination of the legislative history of § 636(b) that Congress initially had in mind a broader specific delegation of duties to the magistrates; but upon reconsideration, narrowed considerably the scope of such specific delegation, and instead made a general statement that duties could be delegated insofar as such delegation was consistent with the Constitution and laws of the United States. The preliminary draft of § 636(b) reads as follows:

(b) Any district court of the United States may assign to any United States magistrate appointed by that court the discharge within the territorial jurisdiction prescribed by his appointment of such additional powers or duties as are not inconsistent with the Constitution and laws of the United States. Such additional powers and duties may include, but are not restricted to—
(1) service as a special master in an appropriate civil action;
(2) supervision of the conduct of ■ any pretrial discovery proceeding in a civil or criminal action; and
(3) preliminary consideration of applications for post-trial relief made by individuals convicted of criminal offenses. (Emphasis supplied.)

Many criticisms and suggestions were received from legislators and judges. These led to the present language. Judge Walter E. Hoffman, Chief Judge of the United States District Court for the Eastern District of Virginia, favored giving magistrates the power to conduct hearings. He stated:

Along the same lines as indicated above, I see no valid reason why an experienced Magistrate should not be given authority to conduct plenary hearings in habeas corpus proceedings. Of course, we realize that the district judge cannot delegate his judicial duties, but as the Federal Magistrates Act is a counterpart to the system employed by the Bankruptcy Act, it appears to me that a Magistrate could serve as a hearing officer or master for the purpose of taking evidence, making findings, stating conclusions, etc., with the district judge thereafter approving, modifying, reversing or remanding as the •need may be. Such a suggestion, if adopted, may require some change in the language used in § 636(b)(3) as the words “preliminary consideration” may not be sufficient. The final order would, of necessity, be entered by the district judge.

Hearings on S. 3475 Before the Sub-eomm. on Improvements in Judicial Machinery of the Senate Comm, on the Judiciary, 89th Cong., 2d Sess. 96 (1966).

The final indication of legislative intent is:

Proposed 28 U.S.C. 636(b) mentions three categories of functions assignable to magistrates under its provisions. The mention of these three categories is intended to illustrate the general character of duties assignable to magistrates under the act, rather than to constitute an exclusive specification of duties so assignable. The enumerated examples of duties which, under rule of the appropriate district court, may be assigned magistrates are as follows:

(1) A magistrate may be assigned to serve as a special master in an appropriate civil action, under the conditions imposed by pertinent provisions of Federal Rules of Civil Procedure.

(2) Magistrates may be assigned to assist a judge of the district court in the conduct of pretrial or discovery proceedings in civil or criminal actions.

(3) Magistrates may also be assigned the function of reviewing and reporting to district judges upon applications for postconviction relief. (Emphasis supplied.)

H.R.Rep. No. 1629, 90th Cong., 2d Sess. (1968), as quoted in U.S.Code Cong. & Ad.News at p. 4262 (1968).

In summary, it is apparent that the holding of hearings, at least in postconviction cases, was at first considered by Congress to be one of the duties properly assignable to magistrates. In the face of opposition, Congress left out any specific delegation of the power to hold hearings to the magistrates, and in effect skirted the issue by saying only that the magistrate could perform any function consistent with the Constitution and laws of the United States. We have found no statement by either Senate or House Committee indicating it was their intention to forbid the district courts to assign the holding of hearings to the magistrates, and we do not subscribe to the ejusdem generis reasoning of the Sixth Circuit in Wedding v. Wingo, 483 F.2d 1131 (6th Cir. 1973).

Several courts have been confronted with the scope of authority of the magistrates under § 636(b), and predictably have seriously split over the issue. In the following cases, in which magistrates have held evidentiary hearings, courts have not specifically considered the question of the power of the district courts to delegate to the magistrate the authority to hold hearings,- but have dealt with the issues raised and have not questioned the magistrate’s authority: Dewrell v. Weinberger, 478 F.2d 699 (5th Cir. 1973) (social security case); Gonzalez v. Zelker, 477 F.2d 797 (2d Cir. 1973) (postconviction case); Parnell v. Wainwright, 464 F.2d 735 (5th Cir. 1972) (postconviction case); Remington Arms Co. v. United States, 461 F.2d 1268 (2d Cir. 1972) (summary judgment); Givens v. W. T. Grant Co., 457 F.2d 612 (2d Cir. 1972) (motion to dismiss; magistrate recommended a decision to the district court, and the Second Circuit in its opinion stated that this was a commendable use of the magistrate by the district court); Johnson v. Wainwright, 456 F.2d 1200 (5th Cir. 1972).

The most thoughtful judicial consideration of the problem of magistrates’ authority is that of the Seventh Circuit in TPO, Inc. v. McMillen, 460 F.2d 348 (7th Cir. 1972). In that case, the Court was dealing with the question of whether the magistrate, pursuant to a local rule, had the power to decide motions to dismiss and motions for summary judgments. It held, correctly in our view, that the magistrates did not have such authority even though the rule provided for an appeal to the district court judge. The Court stated:

We need not speculate in regard to what civil functions the magistrate can constitutionally perform, however, since Congress carefully intended that in regard to civil cases the magistrate was not empowered to exercise ultimate adjudicating or decision making.

Id. at 359.

Other thoughtful opinions have been written by the Sixth Circuit in Dye v. Cowan, 472 F.2d 1206 (6th Cir. 1972), in Ingram v. Richardson, 471 F.2d 1268 (6th Cir. 1972), and in Wedding v. Wingo, supra.

In Ingram, the Court held that a district court was not authorized to refer social security disability cases to a magistrate for review and recommendations.

In Dye, the Court invalidated an order of the magistrate granting a certificate of probable cause, holding that his action constituted judicial decision making which could only be performed by a judge, except in relation to minor offenses.

And in Wedding, the Court held that habeas matters could not be referred to a magistrate for an evidentiary hearing.

The First Circuit stated, in dictum, that:

[T]he thought that the magistrate, rather than recommending a hearing after a preliminary review, could be empowered to conduct the evidentiary hearing himself and make findings of fact, to be approved by a pro forma laying on of hands by the district court without notice, does not appeal to us in the least.

Rainha v. Cassidy, 454 F.2d 207, 208 (1st Cir. 1972).

The Third Circuit has reserved the question of whether a magistrate can conduct evidentiary hearings. Henderson v. Brierley, 468 F.2d 1193 (3rd Cir. 1972).

We have no disagreement with the results in Ingram and Dye, and feel that the results in Rainha are consistent with those we reach here. We do question Wedding insofar as it states in dicta that magistrates are prohibited from holding any evidentiary hearings in habeas corpus matters. To summarize, we do not believe the statute prohibits magistrates from holding heai’ings in habeas corpus matters if a full opportunity is given for a de novo hearing before an Article III judge in the event that a dispute as to a material issue of fact develops during the course of a hearing and if the final decision-making power is retained in the court.

We are convinced that no constitutional provisions are violated by permitting magistrates ■ to conduct preliminary evidentiary hearings in habeas corpus matters provided, of course, that the judge retains and exercises the decision-making power with respect to the law and the facts. Rule 26 reserves these powers to the court, with the exceptions hereinafter noted. The rule provides the court with a convenient, quick and efficient method of sorting out the legal and factual issues. It goes further than some rules in giving the magistrate the right to conduct evidentiary hearings, but the hearings are essentially preliminary in nature and designed to assist the trial court in reaching an early and proper result. The rule does not confer the judicial power of the United States to decide cases on someone other than an Article III judge.

Nor does the rule, with the exceptions hereinafter noted, violate the due process right of a litigant to have his case heard by an Article III judge. A petitioner is always entitled to take exceptions to material issues of fact and conclusions of law. If he takes exception to the former, an Article III judge will personally take the testimony of the witnesses, determine their credibility and decide for himself what the facts are. If the exceptions are only as to conclusions to be drawn from undisputed material facts, the judge will again decide for himself what the proper procedure is. As we see the rule, it takes one short but important step beyond those already taken by most courts. It permits a magistrate to go beyond the pleadings and records, and to conduct an evidentiary hearing to determine whether there are in fact disputed material issues of fact. If there are some, he can point them out and make preliminary findings. If there are none, he can so find. It seems to us that this procedure, if carefully followed, can help the petitioners achieve a prompt and a fair determination of their rights by an Article IIT judge.

Finally, we do not read Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941), as holding, that the Constitution prohibits magistrates from conducting evidentiary hearings in all habeas corpus matters. We rather read that case as indicating that the statute being construed by the Court at that time did not permit commissioners to conduct evidentiary hearings in habeas corpus matters. We deal with a different statute here.

In the light of our extensive discussion of the power of magistrates, we feel that it is important to point out that local Rule 26 is generally in accord with the standards we have discussed but fails to meet them in the following particulars:

(1) It permits a magistrate to enter an order authorizing the transfer of a petitioner from the district.

(2) It permits a magistrate to deny a petitioner the right to proceed in forma pauperis and to deny the appointment of counsel.

(3) The five-day exception provision to any order or finding, and the ten-day exception provision to a proposed finding of fact are unconstitutionally vague. This vagueness could be corrected by providing that each petitioner have a ten-day period for filing written exceptions to any proposed order, recommendation, proposed factual findings, or proposed conclusions of law made by the magistrate.

(4) It provides for a de novo review whenever a timely exception to a material fact is made “unless the district judge directs otherwise” and for an eviden-tiary hearing “when appropriate or required by law.” These limitations impose impermissible conditions on the right to a de novo review, and to an evi-dentiary. hearing before the district court to resolve disputed material factual questions.

(5) It fails to provide a method of notifying a petitioner of his rights to a de novo review. Mailing a copy of the local rule to pro se petitioners immediately upon referring a pro se complaint to a magistrate would satisfy the notice requirement.

We turn now to the substantive questions raised on this appeal. Noorlander is presently serving a sentence of five and one-half years pursuant to a plea of guilty to the charge of interstate transportation of forged securities. While incarcerated in the United States Medical Center for Federal Prisoners in Springfield, Missouri, he petitioned the United States District Court for the Western District of Missouri for a writ of habeas corpus wherein he challenged the conditions of his confinement. His argument is essentially that he is denied equal access to the courts due to the limited size of the Medical Center’s law library and due to the limitations on the possession of legal materials essential to his pro se representation.

Noorlander originally filed a petition for a writ of habeas corpus alleging constitutional infirmities in his parole proceedings. A Federal Public Defender was appointed to represent him on that petition. Noorlander thereafter filed another petition for a writ of habeas corpus alleging that the Medical Center administration interfered with his right to equal access to the courts by limiting the legal material that he could keep in his possession. The two petitions were ' consolidated and referred to a magistrate for pretrial review pursuant to local Rule 26.

The Federal Public Defender, who had also been appointed in this ease, moved for an extension of time which was granted by the magistrate. During the course of that extension of time, Noorlander filed a pro se motion to amend his petition to include allegations relating to his pro se representation and need for legal materials. Noorlander subsequently represented himself in both habeas actions, although he petitioned the court for appointment of counsel other than the Public Defender’s office. That motion was denied on the basis of the magistrate’s recommendation which relied on Lee v. Alabama, 406 F.2d 466, 469 (5th Cir. 1968), cert. denied, 395 U.S. 927, 89 S.Ct. 1787, 23 L.Ed.2d 246 (1969):

[A habeas corpus petitioner has] a right to represent himself or to be represented by counsel, but he ha[s] no right to a hybrid representation partly by himself and partly by coun- • sel.

See also United States v. Conder, 423 F.2d 904, 908 (6th Cir. 4970); Brasier v. Jeary, 256 F.2d 474, 478 (8th Cir. 1958).

The two habeas actions were later separated for pretrial hearings, apparently because one tested the fact of confinement while the other tested the conditions of confinement. During the course of the proceedings, Noorlander moved that the case be returned from the magistrate to the court for. the evi-dentiary hearing, challenging the validity of local Rule 26. This motion was overruled by the court upon the recommendation of the magistrate and has been previously discussed in this opinion.

The petition now before us concerns those allegations relating to the conditions of Noorlander’s confinement, specifically, his right to an adequate law library and the restrictive nature of regulations prescribing standards for retention of legal materials. The petition concerning the infirmities of his parole proceedings has been appealed as a separate action. Following pretrial consideration of the pleadings, but without holding an evidentiary hearing, the magistrate reported his recommendations to the United States District Judge and this petition for a writ of habeas corpus was denied.

Noorlander relies on Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 2 L.Ed. 718 (1969) in claiming a right to an adequate law library. ,That case held that it is incumbent upon a state to provide some reasonable means of assistance in a prisoner’s preparation of petitions for habeas corpus relief. This principle is equally applicable to the federal government with respect to prisoners incarcerated in federal correction institutions. See, e. g., Williams v. United States Dept. of Justice, Bureau of Prison, 433 F.2d 958 (5th Cir. 1970); Ayers v. Ciccone, 303 F.Supp. 637 (W.D.Mo.1969).

Noorlander advances two independent legal bases in support of his argument that he is denied equal access to the courts. First, he argues that a prisoner has the right to represent himself even though there may be an adequate public defender system.,. An adequate library is therefore necessary to implement that right. Secondly, he argues that the public defender system at the Medical Center is ineffective and does not meet the burden of providing the reasonable access to the courts set forth in Johnson v. Avery, supra.

We turn first to Noorlander’s initial ground that his right to self-representation mandates the provision of a law library by the Medical Center. We find this argument without merit. Under Johnson v. Avery, supra, the Government need not furnish every means of access to the courts. It need only provide some opportunity for a prisoner to gain equal access to the courts. Thus, if the public defender program at the Medical Center is effectual, the Government has met its burden under Johnson v. Avery regardless of any concomitant right to represent oneself in habeas proceedings. See Adams v. United States, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942). But see Johnson v. Zerbst, 304 U.S. 458, 468-469, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Only failing the efficacy of the defender program and failing other suitable alternatives is Noorlander entitled to an adequate law library to aid him in his pro se attempts to secure access to the courts and obtain postconviction relief. See Gilmore v. Lynch, 319 F.Supp. 105 (N.D.Cal.1970) (three-judge court), aff’d per curiam sub nom., Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971).

Thus it is necessary to consider the effectiveness of the federal public defender program at the Medical Center. The Federal District Court for the Western District of Missouri has held that the Medical Center public defender system complied with Johnson v. Avery. After rejecting a minimal lay assistance program, a law student assistance program, and the practice of appointing counsel in meritorious cases, the Court found that a consultant program where a licensed attorney was available for twelve hours per week did comply with Johnson v. Avery. Ayers v. Ciccone, 303 F.Supp. 637, 640 (W.D.Mo.1969). However, that determination alone does not obviate further consideration in subsequent cases.

This Court has recently held that an alternative program under Johnson v. Avery must be evaluated on its own to determine whether it is a reasonable alternative to provide access to the courts. McDonnell v. Wolff, 483 F.2d 1059 (8th Cir. 1973). In evaluating the alternative, the Court held that upon remand the Nebraska corrections department has the burden of showing adequacy by evaluating two variables. First, it must be shown what the need for legal assistance is, taking into account the need for assistance in civil rights actions as well as habeas corpus suits. Secondly, it must be shown that the correction facility is meeting that need.

Here the magistrate noted in his recommendations that

[t]he program presently consists of two qualified counsel who devote full working time to the legal problems of the prisoners in the United States Medical Center. At the inception of this program, at a time when it consisted of but one outside legal consultant devoting 12 hours per week to the legal problems of inmates in the Medical Center it was held . . . that the program complied with Johnson v. Avery.

Arguably, that statement in the magistrate’s report is a contemporaneous evaluation of the defender program and therefore adequate under the standards set forth in McDonnell v. Wolff, supra. The problem is that no evidence was taken by the magistrate and any such “finding” is dehors the record. Since this is a recurring question (for example, Kirby v. Ciccone, No. 73-1817, now pending in this Court), a full eviden-tiary hearing should be held to evaluate the adequacy of the library, and in the alternative, the adequacy of the public defender system at the Springfield Medical Center.

Quite apart from his allegations of the inadequacy of the library at the Medical Center, Noorlander attacks the restrictions on the use of the prison library and on the opportunity to retain legal materials essential to his pro se litigation.

In Johnson v. Avery, supra, 393 U.S. at 490, 89 S.Ct. at 751, the Court said:

[T]he State may impose reasonable restrictions and restraints upon the acknowledged propensity of prisoners to abuse both the giving and the seeking of assistance in the preparation of applications for relief: for example, by limitations on the time and loea-tions of such activities and the imposition of punishment for the giving or receipt of consideration in connection with such activities. Cf. Hatfield v. Bailleaux, 290 F.2d 632 (C.A.9th Cir. 1961) (sustaining as reasonable regulations on the time and location of prisoner work on their own petitions).

The regulation here challenged by Noorlander is:

The Institution can assume no responsibility for safekeeing of legal materials belonging to inmates, and should excess material be accumulated over that ordinarily allowed in space available to the inmate in his living quarters, such excess will be screened and sent home or destroyed as preferred by the inmate.

We find that such a regulation is reasonable as one which regulates the type and number of personal possessions of convicts in the Medical Center. See Howard v. Swenson, 314 F.Supp. 883 (W.D.Mo.1973), aff’d, 426 F.2d 277 (8th Cir. 1970). See also Williams v. United States Dept. of Justice, Bureau of Prison, 433 F.2d 958, 959 (5th Cir. 1970).

This case is remanded to the district court for an evidentiary hearing as to whether or not the Springfield Medical Center is providing an adequate library for the use of its inmates, and whether or not the present use of the public defender system in representation of inmates is an adequate alternative under Johnson v. Avery, supra. The eviden-tiary hearing may be conducted in the first instance by a magistrate if Rule 26B.l.b.(5) is amended prior thereto to conform with the views expressed in this opinion. Otherwise the hearing shall be conducted by the district court. Since the public defender system itself is to be examined, counsel should be appointed for Noorlander independent of the Public Defender’s office.

Reversed and remanded with directions.

      . See Bridwell v. Ciccone, supra, n. 4 at page 314.

      . Language in S.Rep. 371, 90th Cong., 1st Sess. 25-27 (1967), the report accompanying the bill, indicates:
      (3) Magistrates may also be assigned the function of reviewing and reporting to district judges upon applications for postcon-viction relief. It is hoped that assignment of this function to magistrates will afford some degree of relief to district judges and their law clerks, who are presently burdened with burgeoning numbers of ha-beas corpus petitions and applications under 28 U.S.C. § 2255. A qualified, experienced magistrate will, it is hoped, acquire an expertise in examining these applications and summarizing their important contents for the district judge, thereby facilitating his decisions. Law clerks are presently charged with this responsibility by many judges, but judges have noted that the normal 1-year clerkship does not afford law clerks the time or experience necessary to attain real efficiency in handling such applications.
      It seems unwise to your committee to require that the district courts give magistrates duties other than those traditionally performed by commissioners. It is hoped, however, that in their discretion the district courts will find it useful to lighten their own burden in this way.
      If district judges are willing to experiment with the assignment to magistrates of other functions in aid of the business of the courts, your committee believes that there will be increased time available to judges for the careful and unhurried performance of their vital and traditional adjudicatory duties, and a consequent benefit to both efficiency and the quality of justice in the Federal courts. Your committee wishes to emphasize that this provision of the act permitting assignments to magistrates cannot be read in derogation of the fundamental responsibility of judges to decide the cases before them; instead it contemplates assignments to magistrates under circumstances where the ultimate decision of the case is reserved to the judge, except in those instances where action can properly be taken by a nonarticle III judge.


author: DYER, Circuit Judge: TUTTLE, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lawrence D. HARTFORD, aka "Larry,” Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Dale BOWDOIN, Defendant-Appellant, UNITED STATES of America, Plaintiff-Appellee, v. Mike NEWTON, Defendant-Appellant.
    Nos. 73-1704, 73-1738, 73-1955.
    United States Court of Appeals, Fifth Circuit.
    Feb. 15, 1974.
    Rehearing Denied in No. 73-1704 March 19, 1974.
    Tuttle, Circuit Judge, filed opinion concurring in part and dissenting in part.

      George F. Tubb (court-appointed), Larry G. Turner, Gainesville, Fla., for defendants-appellants in 73-1704 and 73-1955.
    William H. Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Jr., Asst. U. S. Atty., Pensacola, Fla., for plaintiff-ap-pellee in all cases.
    Lynn M. LoPucki, Gainesville, Fla. (court-appointed), for defendant-appellant in 73-1738.
    Before TUTTLE, DYER and MORGAN, Circuit Judges.
   DYER, Circuit Judge:

In these consolidated appeals from convictions, pursuant to guilty pleas, of violations of federal narcotics statutes, the common issue presented for resolution is the validity of the respective sentences imposed by the district court upon the three appellants. After a careful review of the record in each case, we vacate the sentences imposed on appellants Hartford and Bowdoin and affirm the judgment as to appellant Newton.

These three appeals arise from a similar factual setting. Each appellant was indicted by a grand jury on several charges of violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. § 801 et seq. Subsequently each defendant entered a guilty plea as to one count in the respective multi-count indictments. Hartford, who pleaded guilty to possession of a controlled substance in violation of 21 U.S.C.A. § 844, was sentenced under the Federal Youth Corrections Act, 18 U.S. C.A. § 5010, with a maximum four-year term of confinement, instead of receiving the penalty imposed by the substantive narcotics statute, which provides a maximum punishment of one year imprisonment, a $5,000 fine, or both. He is now in the unusual posture of contending that he should have received no more than the maximum sentence provided by the substantive statute, section 844, rather than the potentially longer, indeterminate sentence under the FYCA. Appellant Bowdoin entered a guilty plea to the charge of unlawful distribution of LSD in violation of 21 U.S.C.A. § 841 and received a five-year sentence, followed by a special parole term of two years, as provided by section 841. Newton, in turn, admitted having unlawfully distributed hashish in violation of section 841, and was likewise sentenced to the maximum incarceration term of five years, with the subsequent two year parole term.

Since we have determined that different dispositions are warranted in these cases, each appellant’s particular circumstances will be addressed individually. Nonetheless, certain well-established legal principles, pertinent to each of the instant cases, merit discussion at the outset. It is axiomatic that the broad discretion vested in trial judges in sentencing narrowly circumscribes . the role of appellate courts in scrutinizing trial courts’ final determinations. This historic deference, premised in great measure on the proximity of the trial judge to the criminal defendant, thus affording the court the opportunity of first hand observations and impressions which together with many other considerations must be weighed in passing sentence, continues unabated and remains uncompromised in any way by the result we reach today. For what we examine is not the severity or duration per se of the sentences meted out by the district court, since it is undisputed that the sanction imposed in each case sub judice was within the statutorily-prescribed maximum. Appellate modification of a statutorily-authorized sentence, however, is an entirely different matter than the careful scrutiny of the judicial process by which the ¡particular punishment was determined. Rather than an unjustified incursion into the province of the sentencing judge, this latter responsibility is, on the contrary, a necessary incident of what has always been appropriate appellate review of criminal cases. See, e. g., Townsend v. Burke, 1948, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690; Williams v. New. York, 1949, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337. Accordingly, we need not address the substantial body of precedent prohibiting the substitution of an appellate court’s predilections for the broad discretion rightfully reposed in the trial judge, inasmuch as we fully reaffirm that principle. We address instead the common issue raised by these appeals, namely whether the district judge abused his discretion by mechanically imposing the maximum allowable sentence rather than abiding by the judicially approved policy of “individualizing sentences.” Williams v. New York, supra, at 248.

United States v. Hartford No. 73-17Ok

In the course of imposing sentence on Hartford, the trial judge stated that the one-year maximum sentence prescribed by section 844 of Title 21 for possession of a controlled substance was simply insufficient punishment in this case. “You could be sentenced to one year since this is a misdemeanor. I do not feel that time is sufficient.” Consequently, the judge sentenced Hartford under the Federal Youth Corrections Act (FYCA), under which a defendant receives an indeterminate sentence not to exceed four years. 18 U.S.C.A. § 5017(c). By so doing, the judge employed the FYCA in a manner repugnant to the ameliorative congressional purpose underlying the statute, namely to allow correctional rehabilitation for youthful offenders, not to mete out retributive punishment. See Frye v. Moran, W.D.Tex.1969, 302 F.Supp. 1291. Moreover, by opining that the legislatively-prescribed maximum penalty for this misdemeanor was insufficient punishment for Hartford, the court acted inconsistently with the authoritative determination by Congress with respect to the appropriateness of particular penalties. As a result, by his dissatisfaction with the congressional regulatory scheme embodied in the Drug Abuse Act, the court fell into grave error by utilizing a salutary sentencing procedure, the FYCA, for punitive purposes clearly at odds with Congress’ purpose. See Cunningham v. United States, 5 Cir. 1958, 256 F.2d 467, 471-472.

We therefore conclude that under the circumstances here existing Hartford's sentencing under the FYCA was erroneous. Accordingly, we vacate with instructions to resentence Hartford pursuant to the express provisions of 21 U.S. C.A. § 844.

Vacated with Directions.

United States v. Bowdoin No. 72-1738

Unlike Hartford, Bowdoin, a nineteen year old first offender, was not afforded the benefit of sentencing pursuant to the FYCA. Instead, the district judge accepted Bowdoin’s plea to having violated 21 U.S.C.A. § 841 for unlawful distribution of narcotics and thereupon imposed the maximum sentence, of five years, with a two-year special parole term. Assuming without deciding that a trial judge is vested with discretion to ignore the FYCA, assuming its applicability, and to mete out the maximum sentence prescribed by Congress, nonetheless, the process by which the judge determines the appropriate sentence must constitute the exercise of judicial discretion demanded in each particular case.

A careful examination of the record in the instant case reveals an abuse of judicial discretion by a clear showing that the'judge pursued a rigid policy of imposing the maximum sentence for a particular category of offenses, namely narcotics violations. During the colloquy between the court and Bowdoin’s counsel at sentencing, the judge stated: “This is one man that is lucky that he only has a maximum of a five year sentence because if there was any more I would give it to him.” Thereafter, when counsel expressed concern over possible inaccuracies in the pre-sentence report potentially enhancing the sentence imposed on Bowdoin, the court responded: “I am telling you right now it wouldn’t make any difference if there were fifty other charges. If this man pleaded guilty to distributing LSD he would get the maximum penalty which he got.” These remarks, as well as others in the record, reflect a rigid sentencing policy based solely on the crime with which the defendant is charged. Such a policy is under no reasonable conception an exercise of judicial discretion. As the Sixth Circuit has stated, “[a] trial court which fashions an inflexible practice in sentencing contradicts the judicially approved policy in favor of ‘individualizing sentences.’ ” United States v. Daniels, 6 Cir. 1971, 446 F.2d 967, 971, quoting Williams v. New York, 1949, 337 U.S. 241, 248, 69 S.Ct. 1079, 93 L.Ed. 1337. See also United States v. Baker, 2 Cir. 1973, 487 F.2d 360, where the court said: “We reaffirm our disapproval of statements by a trial judge reflecting a fixed sentencing policy based on the category of crime rather than on the individualized record of the defendant”; and Woosley v. United States, 8 Cir. 1973, 478 F.2d 139 where it is stated: “A mechanical approach to sentencing ... ignores the Supreme Court’s decree that sentencing be tailored to fit the offender.” Not only is a mechanical sentencing formula an abdication of judicial responsibility, United States v. McCoy, 1970, 139 U.S.App.D.C. 60, 429 F.2d 739, but it also runs counter to the considered judgment of Congress in prescribing a non-mandatory maximum sentence. Section 841, under which Bowdoin was sentenced, simply provides a maximum term of confinement for “not more than five years,” and thus “is an express legislative sanction ... of meting out sentences substantially less than five years in prison . . . where there are appropriate mitigating circumstances.” United States v. Daniels, supra, 446 F.2d at 971-972. From this express legislative authorization there is clearly evidenced an “implied legislative will to impose a lesser sentence where appropriate.” Id. at 972. In Bowdoin’s sentencing proceedings, the court overtly revealed its misunderstanding of this implied legislative will when the judge remarked: “The Congress of the United States provides for a five year sentence. That is what he got, and if I could give him anymore I would give it to him.” The statute, of course, actually provides for a maximum sentence of five years which is non-mandatory in nature. Thus, by routinely entering the maximum sentence, without considering relevant factors, the court failed to exercise that “high order of discretion to fit the sentence to the crime and to the defendant”, Stevens v. Warden, 4 Cir. 1967, 382 F.2d 429, 433, and thereby failed to abide by the implied congressional mandate to frame the punishment to address the particular circumstances of the individual defendant. United States v. Daniels, supra.

We therefore vacate and remand for resentencing.

United States v. Newton No. 73-1955

Like Bowdoin, Newton was sentenced to five years imprisonment with a special parole term upon his plea of guilty to unlawfully distributing hashish, a controlled substance, in violation of 21 U.S.C.A. § 841. Unlike Bowdoin, however, the judge in sentencing Newton evidenced no fixed predisposition concerning the appropriate sentence and, indeed, permitted testimony at the sentencing proceedings by both Newton’s father and minister, despite the existence of an apparently comprehensive pre-sentence report which the judge, by his remarks, had already considered.

The oply alleged irregularities cited by Newton are the judge’s remark that there may be no such thing as “rehabilitation . . . for people who push drugs” and the court’s consideration of Newton’s prior use of cocaine in fixing the maximum sentence allowable by law. Although we hardly approve of the judge’s statement concerning rehabilitative prospects for drug offenders, we cannot reasonably infer from this solitary remark that the judge failed to exercise appropriate discretion in framing the particular punishment. The record on appeal indicates that the judge had examined the pre-sentence report in addition to correspondence from the appellant’s minister, and before sentencing, the judge allowed considerable testimony concerning Newton’s particular circumstances. This course of conduct is completely inconsistent with the theory that the court mechanically entered a predetermined sentence.

Moreover, the objection to the judge’s consideration of Newton’s involvement with cocaine is simply without merit. No complaint is made, nor could there be, that this information relied upon by the sentencing judge was false or otherwise improper. See Townsend v. Burke, 1948, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690. On the contrary, such relevant and accurate information contained in a pre-sentence report is an integral part of those factors which the sentencing judge should consider in framing the appropriate sanction. Williams v. New York, supra, at 249-251. In addition, the judge did not, as Newton suggests, improperly prevent him from exercising his allocution rights protected by Rule 32(a)(1), F.R. Crim.P. The record clearly reflects that both Newton and his counsel were afforded more than ample opportunity to relate their viewpoints fully. In fact, the judge in finally cutting off Newton’s counsel was concerned only with the attorney’s suggestion that, since the court was considering Newton’s admission to the probation officer of prior contact with cocaine, defense counsel might possibly be unwise in advising a client convicted of crime to reveal all relevant information to an officer preparing a pre-sentence report. Under these circumstances, there simply was no improper curtailment of allocution.

We are therefore constrained, despite its severity, to affirm the judgment imposed in this case. As we have indicated, whatever sanction an appellate tribunal would fashion were it the sentencing authority is completely irrelevant, so long as the trial judge, as in this case, properly carried out the process of exercising its lawful discretion.

Affirmed.

TUTTLE, Circuit Judge

(concurring in part and dissenting in part):

I agree that the sentences in the Hartford and Bowdoin eases must be reversed as determined by the majority. With deference, however, I do not agree that the sentence in the Newton case can be affirmed. I would also vacate that sentence.

These three cases of violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. § 801 et seq. came on for sentencing before the same trial judge on the same day. The majority placed its holding reversing Hartford and Bowdoin on the grounds that the trial court abused its discretion by pursuing a rigid policy of imposing the maximum sentence for narcotic violations. The court made this determination by relying on the trial court’s comments during the sentencing. 1 think that by the very nature of things, if we find that the trial court in cases number one and two demonstrated that it was following a uniform policy of meting out maximum sentences for drug violators, it must necessarily follow that this policy embraced as well case number three, a drug violator’s case in which the convicted person was sentenced on the same day.

Moreover, I cannot believe that the only time an abuse of sentencing discretion may be shown is when the judge’s statements indicate that he had a predetermined sentencing policy. There is room for proof of circumstances demonstrating abuse of discretion between revealing admissions by the judge and the line where the sentencing discretion of the court will not be reviewed by an appellate court.

I think this general proposition is bolstered by the following circumstances that existed in the Newton case: (1) Newton is a first offender in a drug conviction not involving an addicting narcotic; (2) the type of controlled substance, hashish, and the amount involved, 1.7 grams, are recognized by Congress as not falling within the same class as hard narcotics such as heroin; (3) Newton’s situation invites consideration of rehabilitation through the Youth Correction Act, 18 U.S.C.A. § 4209 and § 5010; (4) there was a substantial showing that Newton is substantially rehabilitated as evidenced by activities within his church, and as related by his minister; (5) the trial court imposed the maximum punishment. When these factors are compared to the matching circumstances of Hartford and Bowdoin and the trial court’s improper sentencing disposition in those two eases, it seems clear to me that this defendant was likewise treated in a manner that cannot be condoned.

In Hartford and Bowdoin, to be sure, the trial judge’s own comments announced his refusal to consider individual circumstances but an intention to apply a mechanical policy of giving a maximum sentence for drug offenders. By judicially noticing the comments made in those two cases, the trial judge’s statement in this case indicating that he believed there was nq such thing as “rehabilitation . . for people who push drugs” is no longer isolated verbiage, but, instead, highlights the trial court’s predisposition in all drug cases.

On this point, the en banc decision by the Court of Appeals of the Eighth Circuit in Woosley v. United States, 478 F.2d 139 (8 Cir. 1973), is particularly persuasive. The defendant in that ease had refused induction into the military. The court vacated his sentence on the finding that the sentencing judge had a predisposition, established by his sentences in previous cases, to impose the same harsh sentence in selective service cases.

. Restricting consideration to sentences in the Eastern Division of Missouri, we understand the statements of the government attorney indicate that the sentencing judge sentenced eight violators who refused induction to maximum prison terms, although one sentence permitted possible early parole under Section 4208(a). Clearly, the judge’s policy in the St. Louis (Eastern) Division called for five-year sentences for all young men convicted of refusing induction into the military.

The situation here is similar. The cases of Hartford and Bowdoin substantiate a predetermined policy by the judge to impose the maximum sentence possible in violations of the Controlled Substance Act.

The majority, here, relies on the court’s stated consideration of the pre-sentence report and the testimony by Newton’s father and minister to rebut this charge of predisposition on the part of the trial court, but the district judge in Woosley had also indicated that he examined the probation report and the letters submitted by the defendant. I do not think the sentencing judge’s stated consideration of materials relevant to his sentencing here negates the showing of such a mechanical approach to sentencing, which the majority found present in the other two cases disposed of at the same time.

The Supreme Court pointed out in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949):

Retribution is no longer the dominant objective of the criminal law. Reformation and rehabilitation of offenders have become important goals of criminal jurisprudence. Id. at 248.

The court, in these cases, by focusing on the crime, ignored this rehabilitative process.

Furthermore, with deference to the views of the majority, I am of the opinion that the trial court sharply and prejudicially curtailed Newton’s right of allocution. Rule 32(a)(1) of the Federal Rules of Criminal Procedure now codifies the holding in Green v. United States, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961), and Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), providing, under the former Rule 32, that the defendant should personally be allowed to speak in his own behalf before sentencing, In this case, Newton’s allocution opportunity was severely limited by the district court. The judge allowed Newton’s father and minister to make statements, but then the court proceeded to restrict Newton himself:

MR. TURNER:

Would you tell The Court at this time very briefly in your own words how you got involved in hashish, marijuana.

THE COURT:

If he has already told this to the probation officer I do not see any need to go into it again. Hasn’t this information already been furnished?

MR. TURNER:

May I then sum up very quickly what I would like for him to say to The Court?

THE COURT:

Yes, if Mr. Newton wishes to add anything that has not been given to the probation officer, I would be glad to hear it.

Newton then continued to explain about his rehabilitation through the Church and the counseling of young people. He never, however, ventured into an explanation of how he became involved in drugs in the first place.

The court cannot instruct a defendant not to refer to matters covered by the pre-sentence report in his right to allo-cution. The language of the Supreme Court in Green, supra, is instructive:

The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself. Green v. United States, 365 U.S. 301, 304.

Further, it is clear that the use of the word “cocaine” in the pre-sentence report impaled Newton beyond help in the mind of the sentencing judge.

The manner in which Newton’s right of allocution was restricted when the trial court told him he would not listen to anything that appeared in the probation officer’s report clearly impinged upon his ability to explain not only his relationship to the disposition by him of 1.7 grams of hashish (which the trial court mistakenly spoke of as “marijuana”) but also possibly impinged upon his ability to explain to the trial court, assuming the court had not otherwise a predetermined view as to the- sentence to be meted out, his relationship to what appears to have been an “involve [ment] to some extent with cocaine.”

This curtailment of Newton’s right of allocution is made even more serious because of the fact that it appears that any possibility of the trial court’s making an exception to its standard procedure of giving a maximum sentence to a drug offender was gone completely when the court said, “He has admitted it, I will hear nothing further.”

It appears that Newton's counsel was attempting to preserve a Fifth Amendment right for his client in the sense that he was protesting against the court’s using an admission given under such circumstances from being considered in fixing sentence when he said, “I understand the court is not considering his having admitted to having used cocaine in imposing sentence.” The court clearly overruled such proposition by saying, “I am considering it, it reflects on his character, it reflects on his ability to cope with society and it should reflect on his sentence.”

This use of an admission made to a probation officer without the benefit of warning as to his Fifth Amendment rights and after counsel had objected to its being utilized as an ingredient for the court to consider in fixing the sentence, seems to be in direct conflict with the principle announced by this court in Bertrand v. United States, 467 F.2d 901 (5 Cir. 1972). In that case the court said:

“The transcript shows that the trial judge pressed petitioner to answer questions regarding a completely unrelated offense with which he was not charged. The petitioner declined to answer, partly because it ‘would require a bit of explanation on the matter and I had rather refrain from doing it, if I may’. It is apparent from the transcript of the sentencing hearing that the petitioner’s lack of ‘cooperation’ irked the trial judge and induced him to impose the maximum sentence for the crime, five years.”

Bertrand makes it plain that it is a violation of a defendant’s Fifth Amendment rights for him to be compelled to answer questions from the bench as to other unrelated crimes. It is to be borne in mind here that no charge was ever made against Newton for whatever connection' he had with cocaine.

Furthermore, the court’s asking defendant if it was not true that he had admitted his involvement with the cocaine and later utilizing this admission to aid him in affixing the sentence seems to run contrary to this Court’s decision in Thomas v. United States, 368 F.2d 941 (5th Cir. 1966).

Although each of the grounds above, independently, undermine the judge’s sentencing procedure, they stand with a further factor so to infect the sentencing process with irregularities that I am convinced that Newton’s sentence should be vacated. Under 18 U.S.C.A. § 4209 the district court had the discretion to sentence Newton under the Federal Youth Correction Act but declined that sentencing alternative. That refusal of itself is, of course, not an abuse of discretion. However, the Court of Appeals for the Fourth Circuit in United States v. Wilson, 450 F.2d 495 (4th Cir. 1971), noted that under some sets of circumstances the district court should reconsider its failure to sentence under section 4209.

. In the absence of aggravating circumstances or any explanation by the Judge at sentencing, we are constrained to express our sense of perplexity and concern over the seeming severity of the three-year prison sentence for an offense involving less than $100.00. This is especially so in light of the good reputation the youthful appellant bears among his neighbors, co-workers, and employer, the absence of any previous criminal experience, and the probation officer’s recommendation that he be granted probation. The disparity between the crime and the punishment is baffling. Certainly it appears that section 4209 could have been appropriately applied or a lighter sentence given. Id. at 498.

Although such decisions have to be determined on an individual basis, the situation here seems substantially like that referred above (if we assume that the trial court cannot focus solely on the nature of the offense but on the individual defendant). Newton is a first offender with no prior criminal experience. Although his conviction is for selling, the record reveals that he was not “dealing” but selling a small quantity to a friend. The substance involved is hashish, not a hard, addicting narcotic. The defendant has been working by himself and through his church in counseling young persons in his home community against the use of drugs. His minister confirmed the strong commitment Newton had made to his church and religion. The minister spoke for the congregation in supporting a sincere belief in Newton’s rehabilitation.

I do not, of course, intend to suggest that this Court should direct that the trial court give a lighter sentence. I mention these circumstances only as an added consideration which has convinced me that the present sentence should be set aside and upon resentencing the trial court should give consideration to a more promising rehabilitative sentencing alternative, which Congress had in mind in enacting the Youth Correction Act.

I would vacate the sentence on Mike Newton as well as those of the other two defendants and remand to the district court.

      . Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A. §§ 841, 844.

      . That the judge was disinterested in relevant individual factors in Bowdoin’s case is unmistakably evident from his remark that “ [i] t doesn’t make any difference what goes in the pre-sentence report. I don’t even need a pre-sentence report in this case.”

      . In view of his remarks, the judge had apparently already reviewed a letter previously received from Newton’s minister, as well as the report of the probation officer, wherein Newton’s prior involvement with cocaine, in addition to the present offense of distributing hashish, was indicated.

      . The majority words the reversal in Hartford to condemn the use of the Federal Youth Correction Act for retributive sentencing. But it is clear that the court was reversing the improper manner in which the trial court imposed, by choosing whatever mode — the Y.C.A. or the adult statutory penalty — would allow it its policy of maximum sentences for drug violators.

      . See United States v. Charles, 460 F.2d 1093, 1094 — 1095 (6th Cir. 1972) (imposing maximum sentences in selective service cases); United States v. Daniels, 446 F.2d 967 (6th Cir. 1971) (imposing maximum sentences in selective service cases); United States v. McCoy, 139 U.S.App.D.C. 60, 429 F.2d 739, 742-743 (1970) (policy of sentencing life -imprisonment for armed robbery).

      . The text of the Rule reads:
      Before imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant, and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf, and to present any information in mitigation of punishment.

      . Moore suggests that this right flows from the inherent powers of the sentencing court and is not dependent upon the allocution provision of Rule 32(a) (1). 8 Moore’s Federal Practice ¶ 32.05.

      . The dialogue at the sentencing hearing-states :
      THE COUET:
      There are over five hundred fifty thousand addicts walking the streets, most of them young people. This man not only has been involved with marijuana, he lias been involved with cocaine.
      ME. TUENEE:
      Your Honor, there is no charge involving this young man with cocaine.
      THE COUET:
      This man has told the probation officer that he was involved to some extent with cocáine. Isn’t that not correct?
      THE DEFENDANT:
      That was the first time that I was but I had just become involved under the encouragement of friends.
      THE COUET:
      Under the encouragement of friends you became involved in cocaine which is one of the most dangerous substances the world has ever known.
      It is the judgment of The Court, Mike Newton, that you be committed to the custody of the Attorney General or his authorized representative to be imprisoned for a period of five years or until you are otherwise discharged by due course of law, together witli a special parole term of two years upon your release from confinement.
      Custody is remanded to the United States Marshal.
      i*{ # Sfi
      ME. TUENEE:
      I understand The Court is not considering his having admitted to having used cocaine in imposing sentence.
      THE COUET:
      I am considering it. it reflects on his character. It reflects on his ability to cope with society and it should reflect on his sentence. He has admitted it. I will hear nothing further. Custody is remanded to the United States Marshal.

      . Cf., United States v. Malcolm, 432 F.2d 809, 818 (2d Cir. 1970) (“. . . tlie error here, unlike Hill, was not simply an admission of formal requirements of Rule 32(a), nor does it stand alone. Rather, it occurred in the context of other aggravating circumstances which so infect the sentencing process^with material irregularities, confusion, false assumptions and misinformation that the sentence must be vacated as the product of a denial of due process.”).

      . If the defendant were under 22 years of age and therefore falling directly under 18 U.S.C.A. § 5010, some courts including this court have held that the court would have had specifically to express reasons for not sentencing under subdivision (b) or (c). United States v. Schenker, 5th Cir., 486 F.2d 318 [1973]; United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152 (1973) (en banc); Williams v. United States, 476 F.2d 970 (3rd Cir. 1973). The Supreme Court has granted certiorari in a Seventh Circuit case which held to the contrary. United States v. Dorszynski, 484 F.2d 849 (1973), cert. granted, 414 U.S. 1091, 94 S.Ct. 721, 38 L.Ed.2d 548 (1973).


author: MARIS,' Circuit Judge.

text:
    Earl A. BARROWS v. Ruth A. BARROWS, Appellant.
    No. 73-1175.
    United States Court of Appeals, Third Circuit.
    Submitted Dec. 6, 1973.
    Decided Jan. 2, 1974.

      Raymond C. Connell, Connell & Con-nell, Montclair, N. J., for appellant.
    John B. Nichols, Nichols & Silver-light, St. Croix, V. I., U. S. A., Norman Schulaner, Christiansted, V. I., for ap-pellee.
    Before SEITZ, Chief Judge, and MARIS and WEIS, Circuit Judges.
   OPINION OF THE COURT '

MARIS,' Circuit Judge.

In this case the plaintiff husband brought suit in the District Court of the Virgin Islands against his wife, the defendant, for absolute divorce on the ground of incompatibility of temperament. The defendant wife was personally served in the Virgin Islands and filed an answer admitting the incompatibility and later a counterclaim for absolute divorce on the same ground and for an award of alimony in the sum of $550.00 per month. The district court after a hearing at which the defendant was present and represented by counsel granted a decree of absolute divorce and awarded the defendant alimony in the sum of $300.00 per month only. From the award of alimony the defendant has appealed on two grounds. The first is that the award fails to treat as res adju-dicata and give full faith and credit to a prior judgment of the Superior Court of New Jersey in a suit brought by her against her husband for her separate support and maintenance which judgment awarded her $550.00 per month on that account. And the second is that the award of the district court is in any event grossly inadequate for her needs.

We consider first the question of whether full faith and credit and the effect of res adjudicata should have been given by the district court to the New Jersey award in determining the amount of alimony to be awarded to the defendant in the present case. The New Jersey action was for separate maintenance and support of the defendant, during her marriage to the plaintiff, to which she alleged she was entitled by reason of his abandonment of her in New Jersey. The plaintiff was personally served in New Jersey in that action and filed an answer therein. The award of $550.00 per month for his wife’s support accordingly was binding upon the plaintiff personally. But under New Jersey law such an award merely determined the obligation of the husband for the support of his abandoned wife and accordingly continued in force only so long as the relationship of husband and wife existed. Isserman v. Isserman, 1952, 11 N.J. 106, 93 A.2d 571. Upon the entry of a decree of absolute divorce which is binding upon the defendant, as was the present decree, a prior award for separate maintenance ceases to have any further validity, at least to the extent that it is in conflict with an award of alimony made by or in connection with the divorce decree.

As the Supreme Court of New-Jersey said in the Isserman case [11 N. J. p. 115, 93 A.2d p. 575]:

“There is a distinction between support and maintenance or alimony pen-dente lite, and alimony allowed in a final judgment for divorce a vinculo'. The former is the duty of support owed by the husband to the wife during such time as they were legally separated during the existence of the marital relationship. Alimony in its technical sense in this State is purely statutory and is an expression of the continuing duty of support which a husband owes his wife, and of which he is not permitted to absolve himself by his own misconduct, although that misconduct brings about the dissolution of the marriage. Lynde v. Lynde, 64 N.J.Eq. 736, at 751, 52 A. 694 (E. & A. 1902).
“Thus the appellant in this case had the right to choose between relying on her maintenance decree in this State and her cause of action for divorce for desertion with, its incidental right of alimony, or contesting her husband’s action for divorce in all particulars before the Nevada court. Having done so and the decision having gone against her on the merits both as to the right of her husband to a divorce and her right to alimony, she placed herself in a position where her existing decree of maintenance ceases to have any res adjudicata effect with respect to her husband’s duty for support. Her position is no better under the full faith and credit clause, under all the circumstances, than her position would have been in this State if her husband had prevailed in a counter-action against her for divorce.”

Alimony upon divorce in the Virgin Islands is also purely statutory. Under 16 V.I.C. § 109(3) the district court, upon dissolving a marriage, may provide for the recovery “from the party in fault such an amount of money, in gross or in installments, as may be just and proper for such party to contribute to the maintenance of the other”. It is true that we have held that in the Virgin Islands in a suit for divorce on the ground of incompatibility of temperament, fault is ordinarily not an issue since neither incompatible party can be said to be at fault in the usual sense. Burch v. Burch, 3d Cir. 1952, 195 F.2d 799, 807-808, 810, 2 V.I. 559, 573-574, 578-579. But we have also held that in the sense used in the alimony statute, 16 V.I.C. § 109(3), both parties to such an action are at fault to the extent that the incompatibility of each has deprived the other of a normal marital relationship and that, accordingly, under the statute, the district court has authority to require a party who is at fault in this sense to contribute to the maintenance of .the other party, if it is just, equitable and in the public interest for him or her to do so, even though the other party is also at fault in the same sense. “Whether an award of alimony shall be made, as well as the amount to be awarded, is within the discretion of the court, having regard to the conduct of both parties, the amount of property of each and all the other circumstances of the case.” Burch v. Burch, 3d Cir. 1952, 195 F.2d 799, 812, 2 V.I. 559, 582.

We are satisfied that the district court did not err in declining to treat the maintenance order of the Superior Court of New Jersey as res adjudicata or in failing to give it full faith and credit in the present case. We have examined the cases upon which the defendant relies, but find them distinguishable on their facts. No useful purpose would be served by discussing them here.

The defendant also contends that the amount of the award of alimony made by the district court is grossly inadequate for her needs. In determining the amount of alimony to be awarded in connection with a divorce decree 16 V.I. C. § 109(3) confers a wide discretion upon the district court. The factors to be taken into account in determining the amount which a divorced husband ought fairly to contribute toward the maintenance of a former wife are not necessarily the same as the factors which should be taken into account in determining the amount which a husband should pay to fulfill his obligation to support his present wife. Our examination of the record satisfies us that the amount of the district court’s award of alimony was not so inadequate as to constitute an abuse of discretion.

The decree of the district court will be affirmed.