text:
    UNITED STATES of America, Appellee, v. John L. MONDAINE, Jr., Appellant.
    No. 73-1112.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 12, 1973.
    Decided July 20, 1973.
    Rehearing Denied Aug. 16, 1973.

      Robert G. Duncan, Duncan & Russell, Kansas City, Mo., for appellant.
    Anthony Nugent, Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before GIBSON, LAY and ROSS, Circuit Judges.
   PER CURIAM.

John L. Mondaine, Jr., was originally indicted and tried under 21 U.S.C. § 841(a)(1) for the distribution of 14.1 grams of heroin; however, the jury returned a verdict for the lesser included offense of possession of heroin. Mondaine appeals from the judgment entered on the verdict.

Defendant’s sole ground for appeal is that the evidence was insufficient as a matter of law to convict. The only evidence verifying the defendant’s presence at the time of the illegal transaction came from one LaFoy Thomas, a government informant. In rebuttal, Mondaine offered three alibi witnesses. The defense urges that the informant’s testimony was not worthy of belief, and therefore the case should be dismissed for lack of substantial evidence. We disagree.

As long as the defendant was identified as the person present and in possession of the controlled substance, notwithstanding legitimate questions of credibility and the defendant’s alibi evidence, this court must still leave the determination as to truthfulness for the jury. As we stated in United States v. May, 419 F.2d 553, 554-555 (8 Cir. 1969):

“Appellate judges are too far removed in position to fairly perceive from a cold record the vagaries of the human personality involved in a witness’ synthesis of telling the ‘truth.’ The jury is the ultimate and only judge of the factual basis of a defendant’s guilt. The defendants claim here, as they did in their jury argument that the government’s case was based upon a ‘morass of incredibility.’ When they lost this argument to the jury, they foreclosed their only chance of success on that issue. A reviewing court may only direct a motion for acquittal on the sufficiency of the evidence when (1) it may be said as a matter of law that there exists no evidence of guilt whatsoever upon the record or (2) where there exists no substantial evidence from which reasonable men may say that the defendant is guilty beyond a reasonable doubt.”

Here, Thomas clearly identified the defendant as the person who handed him the controlled substance. Other agents, who prior to the alleged sale had searched Thomas, verified the informant’s newly acquired possession of heroin upon returning from Mondaine’s car. Although the jury did not accept the full truthfulness of the informant’s story — the defendant was convicted under the lesser included offense instruction which he personally requested — the guilty verdict demonstrates that the jury also refused to believe defendant’s alibi witnesses. There is, of course, no inconsistency of the verdict since the elements required to prove an illegal sale are greater than those required under a charge of mere possession. Furthermore, even if the jury compromised its verdict, such a finding was inherently within its power.

Judgment affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Peter J. BRENNAN, Secretary of Labor, Petitioner-Appellant, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Brent Towing Co., Inc., Respondents-Appellees. Peter J. BRENNAN, Secretary of Labor, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, and Brent Towing Company, Inc., Respondents.
    Nos. 72-3511, 73-1445.
    United States Court of Appeals, Fifth Circuit.
    July 3, 1973.
    Walter H. Fleischer, Civil Div., Appellate Section, Jean A. Staudt, Dept, of Justice, Washington, D. C., Gerald J. Gallinghouse, U. S. Atty., Robert N. Habans, Jr., Mary Williams Cazólas, Asst. U. S. Attys., New Orleans, La., for petitioner-appellant.
    Allen H. Sachsel, Sp. Counsel, Peter Giesty, Gen. Counsel, Occupational Safety & Health Review Commission, Washington, D. C., W. P. Eason, Greenville, Miss., for respondents-appellees.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   PER CURIAM:

These cases present a rather complicated and unusual dispute between petitioner, the Secretary of Labor (Secretary), and the Occupational Safety and Health Review Commission (Commission). The party most interested in the outcome of this litigation, Brent Towing Company (Brent), is not involved in this appeal. Brent long ago advised the Commission that it did not wish to participate in any further litigation. It asserted that all violations of the Occupational Safety and Health Act of 1970 with which it had been charged had been abated, offered to pay the small penalties assessed by the Secretary, and assured the Commission that it would comply with the Act’s requirements in the future. In these circumstances we decline to render what in essence would be an advisory opinion simply for the purpose of untangling the procedural dogfight in which the Secretary and the Commission have become ensnarled. We vacate the order of the Commission and reinstate the order of the Secretary making the citation, and penalties against Brent final and payable.

On May 4, 1972, the Secretary issued a citation to Brent charging it with ten nonserious violations of the safety regulations promulgated under the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq., and proposing penalties in the amount of $310.00. The regulations adopted under the Act allow a cited employer 15 days in which to notify the Secretary of its intention to contest the Secretary’s findings, the proposed penalties, or both. If no notice of contest is received by the Secretary within the prescribed period, the uncontested citation and the proposed penalty are deemed a final order of the Commission. If a notice of contest is timely received, however, the Secretary is then required to forward it to the Commission within three days to permit the Commission to review his findings and determinations.

On May 19, 1972, Brent responded to the citation it had received. In a letter to the Secretary it stated that five of the violations had been abated but continued in rather ambiguous fashion to question the assessment of penalties with respect to certain of the other alleged violations. The Secretary initially assumed that this letter was not a notice of contest and accordingly notified Brent on June 2 that since no notice of contest had been timely received the citation and proposed penalty had become final and payable. On June 5 Brent advised the Secretary that it considered its May 19 letter to be a notice of contest. The Secretary evidently conceded this point and forwarded the letter to the Commission along with the record as a contested case. But with review proceedings finally underway, Brent informed the Commission on June 21 that it did not wish to contest the matter further, and to date it has not deviated from this posture. On July 13 Brent wrote to the Commission certifying that all violations contained in the citation had been abated, tendering payment of the penalties it had been assessed, and promising to comply with the Act’s requirements in the future.

Notwithstanding Brent’s expressed willingness to withdraw from the case, the administrative law judge of the Commission proceeded to issue an order vacating all ten violations charged by the Secretary because the May 19 letter had not been forwarded to the Commission within the requisite three day period, thereby preventing a timely review. This order became final on September 22. On November 21 the Secretary filed a petition for review in this court. On December 29 the Commission sua sponte amended its earlier order so that only five of the violations contained in the citation were vacated; the remaining five violations were deemed uncontested and final. On February 23 the Secretary sought review of the amended order, and this latter petition was consolidated with the former so as to facilitate our review.

In view of the total silence of Brent, its desire not to litigate or contest the action of the Secretary, and its expressed willingness to comply fully with the Secretary’s findings and order, we deem it unnecessary to resolve the numerous complicated and contentious claims presented by the Secretary and the Commission. It may be argued that no case or controversy was ever presented to this court; or if so, that the controversy which formerly existed has now become moot. Without specifically deciding those two questions, we are firm in our conviction that this court should not undertake to resolve a contest between two federal agencies as to their respective rights, powers, duties and responsibilities in circumstances where the chief party in interest has long since, for reasons best known to itself, declined to remain the focal center for an administrative whirlwind of such minor proportions.

The order of the Commission is vacated. The order of the Secretary making .the citation and penalties against Brent final and payable is left intact, and Brent will comply with that order as it has promised to do. The costs of this proceeding will be divided equally between the Secretary and the Commission.

Vacated.


text:
    Donald WALLACE et al., on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. Michael KERN et al., etc., Defendants. The UNITED STATES of America ex rel. Michael A. McLAUGHLIN et al., Plaintiffs-Appellees, v. PEOPLE OF THE STATE OF NEW YORK et al., Defendants, and The Legal Aid Society of the City of New York, Defendant-Appellant. Michael A. McLAUGHLIN et al., Plaintiffs-Appellees, v. PEOPLE OF THE STATE OF NEW YORK et al., Defendants, and The Legal Aid Society, Criminal Defense Division of the City and State of New York, Defendant-Appellant.
    Nos. 1066-1068, Dockets 73-1826, 73-1830-31.
    United States Court of Appeals, Second Circuit.
    Argued June 27, 1973.
    Decided June 27, 1973.
    Arthur L. Liman, New York City (Patrick M. Wall, Allan L. Gropper, Paul, Weiss, Rifkind, Wharton & Garrison, New York City, on the brief), for appellant Legal Aid Society.

      Hillel Hoffman, New York City (Joel Lewittes, Asst. Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, on the brief), for appellant Judges and Court Personnel.
    Michael A. McLaughlin, pro se.
    James Reif (Daniel L. Alterman, Robert Boehm, William M. Kunstler, Center for Constitutional Rights, Stephen M. Latimer, New York City, Alvin J. Bronstein, Nancy C. Crisman, National Prison Project, Washington, D. C., on the brief), for appellees.
    Lewis B. Oliver, Jr., New York City, amicus curiae, Association of Legal Aid Attorneys of the City of New York.
    Before LUMBARD, HAYS and TIMBERS, Circuit Judges.
   PER CURIAM:

This is an appeal from an order of the United States District Court for the Eastern District of New York which preliminarily enjoined the Legal Aid Society of the City of New York from accepting or acting upon any additional assignments of felony cases in- the Supreme Court of Kings County in New York if the average caseload of its attorneys exceeded 40. The district court also ordered the Clerk of the Criminal Term of the Supreme Court, Kings County, to place on the court’s calendar all pro se motions filed by inmates of the Brooklyn House of Detention. The order directed the administrator of the indigent defense panel of Kings County to endeavor to make attorneys available to criminal defendants who are awaiting action by the grand jury and it ordered the Legal Aid Society to continue to represent such defendants until new counsel were assigned by the Supreme Court.

Although the members of this court’s panel were entirely sympathetic with the purposes which the district judge sought to accomplish by his order, we felt constrained to reverse on the law. Our opinion was delivered from the bench as follows:

“We reverse and vacate the judgment of the district court.
Very briefly stated our reasons are two-fold. In the case involving the Legal Aid Society we hold that the court has no jurisdiction under Section 1983 since the Society was not acting under color of state law, Lefcourt v. Legal Aid Society, 445 F.2d 1150 (2nd Cir. 1971). With relation to the order directed at the court personnel we hold that under the principle known as comity a federal district court has no power to intervene in the internal procedures of the state courts.
The mandate is to issue forthwith.”

Reversed.


author: DONALD RUSSELL, Circuit Judge: BOREMAN, Senior Circuit Judge

text:
    James Arthur BROWN, Appellant, v. J. D. COX, Superintendent of the Virginia State Penitentiary, Appellee.
    No. 71-1089.
    United States Court of Appeals, Fourth Circuit.
    Argued March 5, 1973.
    Decided June 28, 1973.

      Prof. Daniel J. Meador, Charlottesville, Va. (Court-appointed), for appellant.
    Robert E. Shepherd, Jr., Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Va., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, BOREMAN, Senior Circuit Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL, FIELD and WIDENER, Circuit Judges sitting en banc, on resubmission.
   DONALD RUSSELL, Circuit Judge:

This is a habeas proceeding instituted by a Virginia prisoner, after exhaustion of state remedies, in order to secure his outright release from a life sentence imposed after conviction for robbery in the Corporation Court of the City of Norfolk. The District Court denied relief. On appeal, the hearing panel filed its opinion, remanding the proceeding for a hearing such as was required in Kemplen v. State of Maryland (4th Cir. 1970), 428 F.2d 169. Rehearing en banc was sought and granted. On rehearing, affirmance of the District Court, though not on the grounds stated by it, was agreed on by the en banc court. The earlier opinion is accordingly superseded by the following opinion:

The factual background of this proceeding is not in dispute. At the time of the commission of his alleged offense of robbery, the petitioner was 17 years of age. A petition charging him with the offense was initially filed in the Juvenile and Domestic Relations Court of Norfolk (hereinafter referred to as Juvenile Court). It does not affirmatively appear from the Juvenile Court record that either of petitioner’s parents was present at ány of the proceedings which followed and it is conceded that the Court did not appoint a guardian ad litem or counsel to represent him. The Juvenile Court found the petitioner “within the purview of the Juvenile Court” and referred tne "matter “to the Probation Department for an investigation, to be made in Grand Jury form.” The matter was continued until September 3, 1963 to permit the investigation to be made. On September 3, 1963 the Juvenile Court conducted a hearing on the basis of the investigation made by the Probation Department and proceeded to transfer the charges against the petitioner to the Corporation Court of the City of Norfolk for criminal proceedings. TTieTransfer was made under the authority of Section 16.1-176, Virginia Code.

The petitioner was thereupon indicted for robbery in the Norfolk Corporation Court, pled guilty in January, 1964, and was given a life sentence. As a result of habeas proceedings begun by the petitioner in 1968, this conviction and sentence were, however, declared null and void because of the failure of the Juvenile Court to appoint a guardian ad litem or counsel for the petitioner or to notify the petitioner’s parents in connection with the transfer proceedings. The Court did not, however, order the petitioner’s release but directed that he be detained to await further orders of the Court. The petitioner at this time was 23 years of age.

Shortly thereafter, the petitioner was re-indicted for the same 1963 robbery, tried before a jury, found guilty and again sentenced to life imprisonment. He appealed, contending that his second trial was void because re-trial as an adult for an offense committed as a juvenile would be inconsistent with the constitutional requirements of due process and equal protection. The appeal was denied on the authority of Pruitt v. Guerry (1969) 210 Va. 268, 170 S.E.2d 1. Continuing to press his claims, petitioner commenced this habeas corpus proceeding in the District Court in May 1970. From a dismissal of his petition by the District Court, he appealed to this Court.

I.

Petitioner raises two claims on account of which he asserts he is entitled to immediate release. First, he urges that the jurisdiction of the Juvenile Court over him and his offense has never been validly terminated and that, in order to terminate it and transfer valid jurisdiction to the Corporation Court, a proper transfer proceeding is necessary. He contends, however, that at this late date, almost ten years after the offense, it is impossible for the Juvenile Court or any other Court to hold a meaningful nunc pro tunc transfer hearing in order to effect such a transfer and, under those circumstances, his outright release is the only proper remedy. In addition, he argues that the hearing before the Juvenile Court put him in jeopardy and any trial of him in the Corporation Court is barred under the constitutional prohibition against double jeopardy.

We find both contentions without merit.

II.

There is no dispute between the parties over the proposition that the transfer order entered by the Juvenile and Domestic Relations Court in 1963 was invalid for failure to accord the petitioner procedural due process and that the conviction thereafter, on the basis of the petitioner’s guilty plea in the Corporation Court, was invalid. The state court has so concluded in declaring that conviction a complete nullity. Had the petitioner been a juvenile in 1968 when his initial sentence was voided, jurisdiction over his offense would have been vested in the Juvenile Court, which could have held a new transfer hearing, conducted in full compliance with the petitioner’s constitutional rights. But the petitioner was no longer a juvenile; he was an adult. Thus, the Juvenile Court had no further jurisdiction over him and his offense and he could no longer be dealt with by that Court. But that did not mean that he was “home free” and must be released forthwith because, as the petitioner contends, a reconstructed waiver hearing as contemplated by Kemplen would be impractical. As one Circuit Court has observed in a similar case, “[w]hen a decision in the criminal law is made retroactive, the consequence is not to free all whose convictions are affected. Normally new hearings or new trials will be held in some or all cases.” Mordecai v. United States, supra, 421 F.2d at 1137. As a matter of fact, this demand for immediate release “is the kind of ‘drastic relief’ which the supreme court in identical circumstances in Kent deemed inappropriate.” Knott v. Langlois (1967), 102 R.I. 517, 231 A.2d 767, 773. Thus Kent, the foundation for the petitioner’s constitutional attack on his earlier sentence, did not require the petitioner’s release; rather, after providing for correction of the procedural infirmity in the transfer proceeding it authorized a re-trial. And this is the customary procedure in situations such as that posed here. Habeas is not a remedy to be exploited by the guilty in order to escape trial but a procedure intended to secure to guilty and innocent alike a trial free of constitutional defect. Only when the Commonwealth is unwilling to afford the defendant such trial is release proper.

Fundamental fairness, though, demands that the public’s right to retry the petitioner as an adult for a crime, committed while he was a juvenile and subject to the processes of the juvenile court system, be conditioned upon a judicial determination of some kind that the petitioner has not been improperly prejudiced by the loss of the opportunity, in a properly conducted hearing, to have opposed a transfer from the Juvenile Court in 1963. Beyond question, the petitioner would have been so prejudiced if at such a hearing it would have been likely a transfer would have been refused. Such a refusal would have meant that in no event could the petitioner have been subjected to any form of restraint beyond his twenty-first year. Only if it could be fairly said that such a transfer would have been made, had a hearing carried out with constitutional safeguards been had, would it be proper to try the petitioner as an adult. Faced with this same issue in Kemplen, the Court attempted to fashion a procedure whereby the problem in that case might be resolved in fairness to both the public interest and the defendant’s individual right to a just determination.

That is the background for Kemplen in which we held that, under ordinary circumstances, a determination on this issue should take place in the context of a reconstructed nunc pro tunc hearing, in which the Trial Court would decide “what the juvenile court judge would probably have done in light of all the information then available that might reasonably have been proffered by competent counsel.” But, as the opinion in Kemplen plainly declares, this remedy is not the only remedy, nor is it a remedy necessarily to be applied inflexibly and blindly in all cases. The decision was careful to point out that the remedy adopted in that case was “the proper remedy for this petitioner, on the facts of this case * * (Italics added)

In short, Kemplen stands for the principle that, while ordinarily a reconstructed transfer hearing is the appropriate remedy where a prior transfer order of the Juvenile Court has been invalidated on procedural due process grounds and the Juvenile Court has lost jurisdiction of the defendant by reason of his age, each case must be considered on its own facts, and, if some other remedy or determination will not result in fundamental unfairness to the petitioner and is more appropriate under the facts of the case and will contribute to a more expeditious resolution of the issue, that procedure should be adopted.

After a careful review of the facts of this case, we are of the firm opinion that this is not a case requiring a nunc pro tunc waiver hearing, as was required in Kemplen. We have no difficulty in finding to a moral and legal certainty that no Juvenile Court, on the record in this case, would have denied transfer. The petitioner, in a proceeding in the Juvenile Court before the filing of his 1963 robbery charge, had been treated by the Juvenile Court as an adult. Such a circumstance made transfer presumptively proper in connection with any subsequent charge against the juvenile, unless the juvenile could establish “that it would be in the public interest to dispose of the matter in the Juvenile and Domestic Relations Court.” Moreover, the gravity of the petitioner’s offense was such that it would be unreasonable to assume that any court would have denied transfer. It must be recalled, too, that, after transfer, the petitioner pled guilty. The petitioner’s offense, by his own admission, was premeditated; it involved acts of shocking brutality; it was a felony of an aggravated character, which, if committed by an adult, would have rendered him liable to a sentence in excess of twenty years. Nor was it an isolated transaction. It was one of several similar robberies committed by the petitioner.

It would be a useless imposition on the Trial Court and an inadmissible waste of valuable judicial time to remand a case as plain as this for a reconstructed nunc pro tunc hearing on the propriety of a transfer. Had the Juvenile Court not ordered transfer initially on the basis of such a record, the Commonwealth’s attorney would have had authority to apply for transfer in the Corporation Court. In the Corporation Court, it is fair to assume opposition to transfer would not have been successful. Moreover, the circumstances in this case were such that, had transfer been denied either in the Juvenile Court or the Corporation Court, a finding of abuse of discretion would have been in order. Accordingly, we have no difficulty in concluding here that a reconstructed transfer hearing was not required and that the retrial of the petitioner in 1968, after he had attained the age of twenty-three, was not violative of any Constitutional rights of the petitioner.

III.

The petitioner asserts a second claim for immediate release. He contends that his conviction in 1968 violates the double jeopardy proscription of the Fifth Amendment. Obviously, this claim is not related to the earlier conviction in the Corporation Court. That conviction has been declared a nullity. It is of no moment that the Virginia Court did so on state rather than federal grounds. The result is the same in either event. Equally clear is the rule that the voiding of the 1964 conviction on collateral attack is no bar to a new prosecution for the same offense. The petitioner’s double jeopardy claim must, therefore, find its basis in the proceedings in the Juvenile Court. Such a claim based on proceedings in that Court, raises, as one commentator has aptly observed, “two separate conceptual problems,” (1) “whether application of the protection against double jeopardy is appropriate in the juvenile context;” and (2) “at what point jeopardy attaches * * * in a juvenile proceeding”.

In a number of cases, influenced by the opinions in Kent and Gault, it was assumed that all constitutional rights as applied in the criminal trials of adults are applicable to juvenile courts. A leading case to this effect is United States v. Dickerson (D.C.1958), 168 F. Supp. 899, rev. 106 U.S.App.D.C. 221, 271 F.2d 487. It is true that in Kent the Court required procedural due process in waiver proceedings and in Gault it supplemented Kent by extending to the juvenile the right to notice of charge, the right to counsel, the right to confront witnesses, and the right against self-incrimination. Later in Winship it found that “due process and fair treatment” imposed on the Juvenile courts the requirement of proof beyond a reasonable doubt during the adjudicatory stage of juvenile proceedings. But in this latter case, the Court was careful to point out, as it had done earlier in Kent, that its conclusion did not “ ‘rest[s] entirely on the assumption that all juvenile proceedings are “criminal prosecutions,” hence subject to constitutional limitations.’ ” It emphasized that its ruling was intended to have “no effect on the procedures distinctive to juvenile proceedings that are employed prior to the adjudicatory hearing” and “ ‘will not compel the States to abandon or displace any of the substantive benefits of the juvenile process.’ ” Concurring in that case, Justice Harlan expressed the view that, “ [I] t is of great importance, in my view, that procedural strictures not be constitutionally imposed that jeopardize ‘the essential elements of the State’s purpose’ in creating juvenile courts.” Chief Justice Burger and Justice Stewart, in dissent, voiced great concern that the decision by imposing such a strict standard of proof might unduly restrict the juvenile courts.

Recently, in McKeiver v. Pennsylvania (1971) 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647, the Court, in holding that the guarantee of a jury trial as provided in the Fifth Amendment is not applicable to proceedings in juvenile courts, emphasized anew that it has never been held by it “that all rights constitutionally assured to an adult accused of crime also are to be enforced or made available to the juvenile in his delinquency proceeding (emphasis in opinion).” The Court then proceeded to enunciate the test for ascertaining to what extent constitutional requirements are to be “super-imposed” on the juvenile process. That test is a two-fold one, namely, whether the application of the right is necessary to the achievement of “fundamental fairness” and whether it will disrupt the juvenile court system. It represents what has been described as a balancing of “the need for the specific constitutional protection with the State’s interest in maintaining an independent, benevolent juvenile justice system.” Applying that test, the Court found that the requirement for a jury trial, as made obligatory under the Fifth Amendment for criminal trials of adults, “would not strengthen greatly, if at all, the fact-finding function, [of the juvenile court] and would, contrarily, provide an attrition of the juvenile court’s assumed ability to function in a unique manner.” The right to a jury trial was not accordingly imposed on proceedings in juvenile courts.

It should be emphasized that in the case under appeal there was no adjudication in the Juvenile Court imposing confinement or restraint on the petitioner. Of course, had that court taken jurisdiction of the petitioner’s offense for final disposition and made an adjudication of commitment or confinement, it might be said that, under the test established in McKeiver, jeopardy would attach and a later prosecution of the juvenile as an adult in the criminal court would violate “fundamental fairness”. A number of cases have so held. But that was not the course of proceedings in the Juvenile Court in this case. The petitioner, after a hearing, was transferred to the Corporation Court and it was that latter Court which alone made an adjudication of petitioner’s guilt and imposed punishment on him. The question thus in this case is whether, applying the test established in McKeiver, a waiver hearing, with or without testimony, resulting in the transfer of the proceedings to the criminal court, falls within the jeopardy provision of the Fifth Amendment. In resolving this issue, it is necessary to mark out the place the waiver hearing occupies in the juvenile court system.

Juvenile Courts were established to provide an informal, largely non-adversary type of proceeding, whereby offending juveniles, whose background warranted an assumption that they would respond to rehabilitation, could be rehabilitated without criminal taint. But in so doing the legislature recognized that there would be many cases where such assumption would not be justified. Accordingly, in the model juvenile act, it established “a dual system of justice for the juvenile” to deal with both types of juveniles. If the “particular acts of the child, in connection with a general pattern of behavior and environmental factors, warranted assumption of rehabilitory control by the State,” then the Juvenile Court retained jurisdiction and undertook to establish a form of commitment or treatment which would accomplish such rehabilitation. On the other hand, should the Juvenile Court conclude that rehabilitation was unlikely to be successful, it should waive jurisdiction in favor of trial of the juvenile in the criminal court. It was to make that determination that provision for waiver hearings was included in the legislation establishing the juvenile court system.

The real issues in the waiver hearing do not involve the resolution of the juvenile’s guilt or innocenee. What the Juvenile Court is concerned with at this stage is “the amenability of the child to the rehabilitative measures available to the juvenile court, the necessity of safeguarding the public from the child, and the heinousness of the alleged offense.” “A finding of juvenile delinquency upon the basis of the conduct charged is neither required nor authorized” at a juvenile waiver hearing, which should be “limited to one appropriate to the preliminary nature of the question and the criteria for decision which the juvenile court is required to observe.” Actually, it has been stated that “in cases coming under the waiver statute the juvenile proceeding is comparable to a preliminary hearing since its purpose is to determine whether the person should be tried as an adult or put within the treatment of the juvenile court.”

It is, of course, necessary for the Juvenile Court to have before it at the waiver hearing some information on the gravity and nature of the offense. It must engage in “an inquiry not only into the facts of the alleged offense but also into the question whether the par-ens patriae plan of procedure is desirable and proper in the particular case.” Indeed, without such information, the court would have difficulty in complying with the requirement of Kent that the transfer order incorporate “a statement of the reasons motivating the waiver including, of course, a statement of the relevant facts.” (Italics added) Without some facts before it, the Juvenile Court could not pass intelligently on “the seriousness of the alleged offense”, whether it “was committed in an aggressive, violent, premeditated or willfull manner * * * against persons or against property,” as well as “the sophistication and maturity” of the juvenile or his “record and previous history.” All these circumstances were to be considered in authorizing a transfer as mandated in Kent.

It is plain that the waiver hearing, with or without evidence, is a vital and integral procedural step in the processes of the juvenile court system. As such it is designed to achieve fairness both to the public and to the juvenile. To hold that it constituted jeopardy, and to apply to it the rules applicable to the criminal trial on the merits of an adult, would effectively undermine the juvenile court system and would be contrary to the spirit of McKeiver. There is no warrant in either Kent or Gault for any such conclusion. While' the Court in Kent did not explicitly hold that a waiver hearing with testimony on the factual issues it indicated were germane, (including the gravity of the offense) would not constitute jeopardy thereby preventing any trial of the juvenile on the basis of the transfer, it is inconceivable that the Court would have indicated that a hearing, conducted with proper regard for procedural due process and directed to the subjects indicated in its opinion, was proper if the result of having such a hearing would have been to make unconstitutional a trial subsequently in the criminal court on the basis of the transfer order. If such a waiver, instead of conferring jurisdiction on the Corporation Court, and instead of being a vital preliminary step in the proceedings, should be construed as creating a bar under the Fifth Amendment for subsequent trial of the juvenile in the Corporation Court, the transfer proceedings in effect would frustrate completely the very purpose and scope of the juvenile court system. It would mean either that no juvenile could ever be tried in the criminal courts as an adult, since a transfer proceeding would bar such trial on jeopardy grounds; or, that the entire juvenile court system would have to be abolished lest a few incorrigibles, guilty of serious crimes, escape punishment as adults. Such considerations prompted one Court to conclude that it is “not improper for the Juvenile Court to conduct a hearing before determining whether or not to waive jurisdiction. To hold that jeopardy attached at that point would preclude the full and informal investigation in the interests of the minor and the community which Congress thought necessary to achieve the salutary remedial purposes of a juvenile court system.”

People v. Wilson (1972), 7 Ill.App.3d 158, 287 N.E.2d 211, is directly in point. There a juvenile was appealing from a sentence imposed by the criminal court after transfer from the juvenile division. He urged that his conviction was void since, in the waiver hearing, he had been put in constitutional jeopardy. Dismissing the claim, the Court said:

“The hearing in the juvenile division was held for the purpose of effectuating a removal of the case to the criminal division pursuant to Ill.Rev. Stat.1969, ch. 37, par. 702-7(3). All testimony taken at that hearing was solely directed at that goal, thereby enabling the judge to make an intelligent decision in that regard. Thus, the hearing was not held to adjudicate defendant’s delinquency, but was to satisfy the juvenile court judge that the case should have been removed. Because the proceedings in the juvenile division were not ‘adjudicatory’ in nature, criminal proceedings were not barred.” (287 N.E.2d at 213)

This distinction between the transfer or certification proceeding and an adjudicatory or dispositional proceeding in Juvenile Court, as stated in Wilson, accords with the Virginia practice. In Cradle v. Peyton, supra, the Court dealt with this distinction between the confinement order and the transfer order in juvenile courts in Virginia. A confinement order “imposes a sentence of confinement” and will, under the authorities already cited, constitute jeopardy. On the other hand, “a certification order transfers the case to another court for original determination whether the accused child shall be confined.” In such order, the Court makes “no finding of [Cradle’s] innocence or guilt, only a finding that he [the juvenile] should stand trial on the merits in another court.”

We reach a similar conclusion in this case. After all, the waiver hearing, held, as the order of the Juvenile Judge in this very ease stated, in the nature of a “Grand Jury” hearing, was similar to a preliminary hearing in the criminal courts and no more amounts to jeopardy within the intendment of the Fifth Amendment than does a preliminary hearing in the criminal courts Nor do we find anything in Toth v. Quarles (1955) 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8, cited by the petitioner, that would cause a contrary result. As a matter of fact, Toth seems to support the result reached here. In that ease, it was held that, after one had been discharged from the military service, he could not be tried by military court martial for any criminal offense committed while in the military service. But Justice Black specifically declared that the fact the discharged soldier was not amenable to military processes did not preclude his trial in the criminal courts for his offense. This is consistent with our conclusions here. Since the petitioner was over twenty-one, the Juvenile Court had no jurisdiction to deal with him but he was plainly amenable to trial in the criminal court as an adult for an offense committed by him while a juvenile.

Affirmed.

BOREMAN, Senior Circuit Judge

(dissenting):

This appeal was originally considered by a panel consisting of Haynsworth, Chief Judge, Boreman, Senior Circuit Judge, and Russell, Circuit Judge. I was designated to write for the court and, after an extended period of consideration and study, I prepared and submitted an opinion which was accepted and adopted by the panel. Brown v. Cox, 467 F.2d 1255 (4th Cir., 1972).

Subsequently, the court decided to rehear the ease in banc and Judge Russell was designated to write for the court. My colleagues who joined in the original opinion have been persuaded to approve and accept Judge Russell’s opinion on rehearing.

After careful consideration I find myself unpersuaded and in disagreement. In dissenting I simply adhere to my views expressed in the original panel decision, 467 F.2d 1255.

      . The opinion of the District Court is reported at 819 F.Supp. 999.

      . Reported at 4th Cir., 467 F.2d 1255 (1972).

      . The able District Judge did not have the benefit of our opinion in Kemplen, filed some months after his decision.

      . “§ 16.1-176. Transfer to other courts; presentment to grand jury; children under fourteen excepted. — (a) If a child fourteen years of age or over is charged with an offense which, if committed by an adult, could be punishable by confinement in the penitentiary the court after an investigation as prescribed in paragraph (b) of this section, and hearing thereon may, in its discretion, retain jurisdiction or certify such child for proper criminal proceedings to the appropriate court of record having criminal jurisdiction of sucli offenses if committed by an adult; provided, however, that in the event the juvenile court does not so certify a child fourteen years of age or over, charged with an offense which, if committed by an adult, would be punishable by death or confinement in the penitentiary for life or a period of twenty years or more, the Commonwealth’s attorney of the city or county, if he deems it to the public interest, may present the case to the grand jury of the proper court of record, and provided further that if a child fourteen years of age or older who has previously been adjudged to come within the purview of the juvenile and domestic relations court law for committing an offense indicating a viciousness of character, or an offense which, if committed by an adult, could be punishable by confinement in the penitentiary and is subsequently charged with committing a felony, the Commonwealth’s attorney of the city or county, if he deems it to be in the public interest, may, after a preliminary hearing in the juvenile and domestic relations court, present the case to the grand jury of the proper court of record. It shall be the duty of the Commonwealth’s attorney to notify the juvenile and domestic relations court within three days after final adjudication if he deems action by the court of record necessary. Thereafter, the decision as to whether or not to present the case to the grand jury shall be in the sole discretion of the juvenile and domestic relations court. If the grand jury returns a true bill upon such indictment the jurisdiction of the juvenile court as to such case shall terminate .... The ages specified in this section refer to the age of the child or minor at the time of the alleged commission of the offense.
      “(b) In all cases under this section the court may, unless such information is otherwise available to it from a prior investigation and report to another court, require an investigation of the physical, mental and social condition and personality of the child or minor and the facts and circumstances surrounding the violation of the law which is the cause of his being before the court. Such investigation need not include an examination of the child or minor by a physician or psychiatrist unless the court, in its discretion, so directs. If the court requiring the investigation is a juvenile court, such investigation may be made by the agency providing probation service under § 16.1-205; . . . .”

      . See, Peyton v. French (1966), 207 Va. 73, 147 S.E.2d 739; Kent v. United States (1966), 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84.

      . It is interesting that this claim, when found to be of merit, has resulted in conflicting results from two Circuits. In one, it induced the Court to conclude that Kent was not to be given retroactive application. Mordecai v. United States (1969), 137 U.S.App.D.C. 198, 421 F.2d 1133, 1137. The other recognized that under some circumstances the claim would warrant release. Wilson v. Reagan (9th Cir. 1965), 354 F.2d 45, 46; cf., Powell v. Hocker (9th Cir. 1971), 453 F.2d 652, 657, n. 10; James v. Cox (D.C. Va.1971), 323 F.Supp. 15, 24; Miller v. Quatsoe (D.C.Wis.1971), 332 F.Supp. 1269, 1276-1277.

      . See, Ferguson v. Slayton (D.C.Va.1972), 340 F.Supp. 276, 277.

      . This conclusion was recently restated in Jones v. Commonwealth (1972), 213 Va. 425, 192 S.E.2d 775, 777.

      . Cf., Black v. United States (1965), 122 U.S.App.D.C. 393, 355 F.2d 104, 107; In Re Ingram, 15 Md.App. 356, 291 A.2d 78.

      . See Kent v. United States, supra, 383 U.S. at 564, 86 S.Ct. at 1059:
      “However petitioner has now passed the age of 21 and the Juvenile Court can no longer exercise jurisdiction over him.” (Italics added)
      To same effect: Hight v. Texas (Tex. 1972), 483 S.W.2d 256, 257.
      The commentator in 29 U. of Pitts.L. Rev. 756, 765 (1968) states it thus:
      “Just as it is inequitable to try a juvenile twice for essentially the same offense in order that confinement may continue after the child is of age, so it is equally unjust to have one who may have committed a heinous crime to go free merely because he has reached the age of 21 and juvenile jurisdiction has terminated.”

      . See D’Urbano v. Commonwealth (1963) 345 Mass. 466, 187 N.E.24 831, 836-837, where the Court stated the reasoning behind the rule that a guilty petitioner in habeas has no right “to escape for punishment at the price of the loss of the public right” that the guilty shall be punished.

      . Kemplen, supra, 428 F.2d at 178. See, also, Woodall v. Pettibone (4th Cir. 1972), 465 F.2d 49, 53.

      . See, 428 F.2d at 178.

      . In Watts v. Commonwealth (1972), 213 Va. 57, 58, 189 S.E.2d 346, 347, the Court stated that under the Virginia statute, the Juvenile Court, when considering the situation of a prior juvenile offender, is “under a duty to certify the case to the court of record for proper criminal proceedings, in the absence of a finding that it would be in the public interest to dispose of the matter in the Juvenile and Domestic Relations Court.”

      . The petitioner’s crime was described by the District Court thus:
      “On August 10, 1963, petitioner was 17 years of age. Accompanied by his 14 year old girl friend, they planned to rob a bus driver on the evening in question. The girl hoarded the hus and petitioner followed. Petitioner concealed a hatchet in a paper bag and, when reaching in his poclcet as if to pay his fare, proceeded to hit the bus driver with the hatchet, thus rendering permanent brain damage and making him incapable of performing any work for the balance of his life.” (467 F.2d at 1256, n. 2)

      . Under a respectable line of authority, of- which Smith v. Yeager (3d Cir. 1972), 459 F.2d 124, 126-127, is representative this guilty idea, entered after adequate legal advice, would have been deemed a waiver of any infirmity in the transfer proceedings. See, also, Wilhite v. United States (1960) 108 U.S.App.D.C. 279, 281 F.2d 642, 644 (opinion by then Circuit Judge Burger). Such a holding, had it been adopted by the Virginia Courts, would have validated the first conviction of the petitioner. Cf., also, Brooks v. Boles (1967) 151 W.Va. 576, 153 S.E.2d 526 and Broadway v. Beto (D.C.Tex. 1971) 338 F.Supp. 827, approved 459 F.2d 483. The Virginia Court, however, found the entire proceeding, including the guilty plea, a nullity.

      . It does not appear from the record that this claim was raised in the District Court. It would not be improper to dismiss the claim on account of such failure to raise it below. That, however, would merely require further litigation. For that reason, we have determined to resolve the claim in this proceeding.

      . United States v. Ball (1896), 163 U.S. 662, 671-672, 16 S.Ct. 1192, 41 L.Ed. 300.

      . United States v. Tateo (1964), 377 U. S. 463, 466, 84 S.Ct. 1587, 12 L.Ed.2d 448.

      . Note, Double Jeopardy in Juvenile Justice, 1971 Wash.U.L.Q. 702.

      . This case is commented on favorably in a Note in 5 Howard L.J. 246 (1959), but in a similar Note in 43 Minn.L.Rev. 1253 at 1257 (1959), the commentator added this warning observation:
      “A problem created by the conclusion that double jeopardy applies to juvenile proceedings is that the necessity of deciding whether to waive jurisdiction to the criminal court before the question of guilt is determined may hinder the desirable procedure of the juvenile correctional system.”
      Of course, these comments, as well as Dickerson itself preceded McKeiver, discussed later, and their conclusions have been substantially undermined by that decision. Note, Double Jeopardy in Juvenile Justice, supra, at 703, (1971 Wash. U.L.Q.)

      . In Re Gault (1967), 387 U.S. 1 at 31-57, 87 S.Ct. 1428, 18 L.Ed.2d 527.

      . In Re Winship (1970), 397 U.S. 358 at 359, 90 S.Ct. 1068, 25 L.Ed.2d 368.

      . “We do not mean by this to indicate that the hearing to be held [in juvenile court] must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.” (383 U.S. at 562, 86 S.Ct. at 1057)

      . Winship, supra, 397 U.S. at 359, n. 1, 90 S.Ct. at 1070.

      . ' See, 397 U.S. at 366-367, 90 S.Ct. at 1074.

      . See, 397 U.S. at 375, 90 S.Ct. at 1078.

      . See, 403 U.S. at 533 and 541, 91 S.Ct. at 1980 and 1984.
      Por a discussion of the unique constitutional status of juvenile courts, as reflected by the decisions in Gault, Kent, Winship and McKeiver, see, Note, Parens Patriae and Statutory Vagueness in the Juvenile Court, 82 Yale L.J. 745 at 748-54 (1973).

      . See, 403 U.S. at 547 and 550-551, 91 S.Ct. 1976.

      . Note, 24 Stan.L.Rev. 874, 892 (1972). The commentator, while recognizing that this is the rule as illustrated by MeKeiver, Winship, G-ault and Kent, is critical of the conclusion stated by the Court.

      . See, 403 U.S. at 547, 91 S.Ct. at 1987.

      . Hultin v. Beto (5th Cir. 1968) 396 F.2d 216 is illustrative of the line of cases which hold that, if there is an adjudicatory hearing, followed by actual commitment, under a proceeding in the Juvenile Court, jeopardy attaches. In that case, the juvenile was charged with delinquency in the juvenile court, testimony was taken on the charge, the juvenile confessed, the Juvenile Court adjudged him guilty and committed him to a youth institution until he was 21. One • year later, he was tried and convicted in the criminal court for the same offense.
      In a collateral attack, his conviction in the criminal court was voided, the Court stating:
      “ ‘A juvenile cannot “be adjudged a delinquent child and held in custody as such, and, without regard to how he may respond to the guidance and control afforded him under the [Texas] Juvenile Act, be indicted, tried, and convicted of the identical offense after he roaches the age of 17.” * * * ’ ”

        See, also, M. v. Superior Court of Shasta County (1971), 4 Cal.3d 370, 93 Cal.Rptr. 752, 482 P.2d 664, 668, but cf., In Re Gary Steven J. (1971), 17 Cal.App.3d 704, 95 Cal.Rptr. 185, 189; People in Interest of P.L.V. (Colo.1971), 490 P.2d 685, 687. In both of these latter cases, the Juvenile Court had dismissed the charges and such acquittal was deemed jeopardy.
      A commentator has recently summarized this issue thus:
      “It would therefore seem to follow that if the guarantee against double jeopardy is applicable to juvenile proceedings in the context now being discussed, it would bar a subsequent criminal prosecution whenever the decision to waive jurisdiction is made after the juvenile court began hearing evidence on the merits of the delinquency petition.
      “The majority of courts which have considered the issue have concluded that a subsequent criminal prosecution does not violate the protection against double jeopardy.”
      Rudstein, Double Jeopardy in Juvenile Proceedings, 14 W. & M.L.Rev. 266, 301 (1972).

      . See, Note, Waiver in the Juvenile Court, 68 Col.L.Rev. 1149 (1968).

      . See, Cradle v. Peyton (1967), 208 Va. 243, 156 S.E.2d 874, 877, cert. denied 392 U.S. 945, 88 S.Ct. 2296, 20 L.Ed.2d 1407.

      . State v. Halverson (Iowa 1972), 192 N.W.2d 765, 769. See, also, Shornhorst, The Waiver of Juvenile Court Jurisdiction : Kent Revisited, 43 Ind.L.J. 583, 605.

      . State v. Van Buren (1959), 29 N.J. 548, 554-556, 150 A.2d 649, 652-653.

      . Note, Double Jeopardy Applied to Juvenile Proceedings, 43 Minn.L.R. 1253, 1257 (1959). In fact, the Court in Muse v. Slayton (D.C.Va.1971), 333 F.Supp. 1007, 1010, stated that a waiver hearing under the Virginia statute is “comparable to a preliminary hearing which would be given to an adult.”

        Cf., Note, Double Jeopardy and the Waiver of Jurisdiction in California’s Juvenile Courts, 24 Stan.L.R. 874 (1972) and Rudstein, Double Jeopardy in Juvenile Proceedings, 14 W. & M.L.Rev. 266, 300 (1972).

      . Pee v. United States (1959), 107 U.S.App.D.C. 47, 274 F.2d 556, 559.

      . See, 383 U.S. at 561, 86 S.Ct. at 1057. See, also, United States v. Tate (1972) 151 U.S.App.D.C. 261, 466 F.2d 432, 433-434.
      In Atkins v. State (Ind.1972), 290 N.E. 2d 441, 443, it was held that transfer of a juvenile to criminal court is to be authorized “only when the juvenile court after full hearing determines that the range of dispositions available within the juvenile system are not adequate in the particular case to serve ‘the child’s welfare and the best interests of the state’ ” and waiver, under such circumstances, must be “explicitly justified in the waiver order.”

      . See, 383 U.S. at 567, 86 S.Ct. at 1060.

      . United States v. Dickerson (1959), 106 U.S.App.D.C. 221, 271 F.2d 487, 491-492, reversing 168 F.Supp. 899.

      . This decision concluded that Q-ault was not retroactive. To this extent, the decision has not been sustained in federal habeas proceedings. See, Cradle v. Cox (D.C.Va.1971), 327 F.Supp. 1169. But its construction of the Virginia law and its exposition of Virginia procedure must be considered authoritative.

      . See, 156 S.E.2d 876-877.

      . See Collins v. Loisel (1923), 262 U.S. 426, 429, 43 S.Ct. 618, 67 L.Ed. 1062.


text:
    Roy CLARK, d/b/a City Ambulance Service, and Kanawha Valley Ambulance Service, Inc., a corporation, in their own behalf, and in behalf of all ambulance operators and taxpayers similarly situated, Appellants, v. John VOLPE, Secretary, United States Department of Transportation et al., Appellees.
    No. 73-1219.
    United States Court of Appeals, Fourth Circuit.
    Submitted May 29, 1973.
    Decided June 27, 1973.
    Stephen P. Meyer, Charleston, W. Va., on brief for appellants.
    John A. Field, III, U. S. Atty., Robert B. King, Asst. U. S. Atty., Lawrence R. Schneider, Chief Counsel, Frank A. Berndt, Asst. Chief Counsel, Gary R. Allen and Enid Rubenstein, Attys., National Highway Traffic Safety Administration, Dept, of Transportation, Washington, D. C., on brief for appellee Volpe.
    Chauncey H. Browning, Jr., Atty. Gen., William R. Wooton, Asst. Atty. Gen., on brief for appellee Coplin.
    W. Warren Upton and Michael A. Albert, Sp. Municipal Counsel, Charleston, W. Va., on brief for appellee, City of Charleston, a Municipal Corp.
    Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.
   PER CURIAM:

Appellants sought to enjoin the use of federal funds by John Volpe, Secretary of Transportation, Richard W. Coplin, Director of the Governor’s Highway Safety Administration of the State of West Virginia, and the city of Charleston, West Virginia. By virtue of the Highway Safety Act, 23 U.S.C. § 401 et seq., appellees had obtained funds to povide emergency ambulance service for Charleston and surrounding areas. Appellants alleged that the funds were being used for purposes other than those intended by the Highway Safety Act and had been obtained in violation of standards established by the Secretary of Transportation. Appellees denied these allegations, submitted affidavits and exhibits, and moved for judgment on the pleadings or, in the alternative, for summary judgment.

In its memorandum order of December 13, 1972, the court dismissed the case for the reason that “under the facts and circumstances here presented they [appellants] are without remedy in law’’. It is obvious from the findings of fact in the court’s memorandum order that facts and circumstances mentioned in the affidavits and exhibits were considered by the court in reaching its conclusion, specifically stated in the closing portion of its order, that “the plaintiff has failed to state a claim upon which relief can be granted . . . .”

The Federal Rules of Civil Procedure state that if, on a motion to dismiss for failure of the pleadings to state a claim upon which relief can be granted, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. In Evans v. McDonnell Aircraft Corp., 395 F.2d 359, 361 (8th Cir. 1968), the court held that if the district judge, in ruling on the motion to dismiss,, considers matters ouside the pleadings, the motion must be treated as one for summary judgment under Rule 56.

The record before us clearly indicates that the district court was presented with and considered facts outside the pleadings. These facts were not excluded by the court and are specifically mentioned in its memorandum order dismissing the action. Accordingly, the district court should have addressed itself to the appellees’ alternative motion for summary judgment rather than their motion to dismiss under Rule 12(b)(6).

The appellate court is not bound by the label that the district court places upon its disposition of the case. Whenever outside matters are presented to and not excluded by the trial court, the motion should be considered on appeal as one for summary judgment even though the trial court characterized its action as a dismissal of the case for failure of plaintiffs to state a claim upon which relief can be granted. The record reveals that both parties were given a reasonable opportunity to present affidavits and other evidence upon which the trial court could properly determine whether summary judgment should be entered. Only the defendants availed themselves of such opportunity. When such circumstances appear from the record the appellate court, for the sake of judicial economy, should make an immediate determination of the issue rather than remand the case to the trial court for disposition. The whole case is before this court and it would be wasteful to remand it to the trial court for consideration of the motion for summary judgment.

Upon review of the record, we agree with the factual findings of the trial court. We are convinced that there was no genuine issue as to any material fact and that the moving parties were entitled to a judgment as a matter of law. Accordingly, treating the court’s action as granting the defendant’s motion for summary judgment, we dispense with oral argument and affirm the result reached by the trial court.

Affirmed.

      . Fed.R.Civ.P. 12(b).

      . For a detailed discussion of the conversion of a Rule 12(b) (6) motion into a summary judgment motion, see 5 C. Wright & Á. Miller, Federal Practice and Procedure § 1366, at 675 (1969).

      . Williams v. Pacific Maritime Ass’n, 384 F.2d 935, 936 (9th Cir. 1967) ; Central Contracting Co. v. Maryland Cas. Co., 367 F.2d 341, 343 (3d Cir. 1966).

      . This view was expressed in Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). See generally, 5 C. Wright & A. Miller, Federal Practice and Procedure § 1366, at 680 (1969).

      . S. & S. Logging Co. v. Barker, 366 F.2d 617, 623 (9th Cir. 1966).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harold Jacob MIMS, a/k/a Jacob Harold Mims, Defendant-Appellant.
    No. 933, Docket 72-2406.
    United States Court of Appeals, Second Circuit.
    Argued May 30, 1973.
    Decided June 15, 1973.
    Carl H. Dobozin, Buffalo, N. Y. (Dobozin & Pottle, Buffalo, N. Y., on the brief) for appellant.
    Roger P. Williams, Asst. U. S. Atty. (John T. Elfvin, U. S. Atty. W. D. N. Y., Philip B. Abramowitz, Asst. U. S. Atty., on the brief), for appellee.
    Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.
   PER CURIAM:

Harold Jacob Mims appeals from a judgment of conviction entered in the United States District Court for the Western District of New York, John T. Curtin, J., following a jury trial on a four-count indictment alleging, in substance, conspiracy and armed bank robbery. 18 U.S.C. §§ 371, 2 & 2113(a), (b), (d).

Appellant’s principal complaint on appeal is that Judge Curtin erred in permitting the manager of the bank, Thomas K. Schlicht, to identify appellant in court as one of the two holdup men. Both wore stocking masks during the robbery, but one — allegedly Mims — had his mask rolled up over his forehead for a time, so that Schlicht was able to see his face for between ten seconds and one minute. Although Mims and his alleged accomplice were arrested on the day of the robbery, April 20, 1972, Schlicht did not see Mims until May 4 in court prior to the scheduled start of the preliminary hearing. At that hearing, which was delayed until the next day, Schlicht identified Mims and further testified that he had recognized him the previous day, when Mims had apparently been sitting in the first row of the spectators’ section. According to Schlicht, at the time that he first recognized Mims on May 4, he did not see him wearing handcuffs or realize that he was under guard, although later in the day he did observe that Mims was in handcuffs.

Appellant asserts that the confrontation on May 4 was improperly suggestive and that the Government failed to establish at the subsequent Wade hearing before Judge Curtin that the identification at trial would be the product of Schlicht’s observation of Mims at the bank. In regard to the latter point, Schlicht had a clear view of the unmasked robber’s face, he was able to observe him for as long as one minute, and as a victim of the crime, he may have been especially likely to remember the man’s features. These considerations, together with the witness’s affirmation at the Wade hearing that his identification of Mims was based upon the events of April 20, lead us to conclude that this ease is not “the rare exception,” Clemons v. United States, 133 U.S.App.D.C. 27, 408 F.2d 1230, 1252 (1968) (en banc) (Leventhal, J., concurring), cert. denied, 394 U.S. 964, 89 S. Ct. 1318, 22 L.Ed.2d 567 (1969), in which the judgment of the trial judge on such matters of identification should be rejected. See, e. g., United States ex rel. Bisordi v. LaVallee, 461 F.2d 1020, 1024 (2d Cir. 1972); United States ex rel. Phipps v. Follette, 428 F.2d 912, 915 (2d Cir.), cert. denied, 400 U.S. 908, 91 S.Ct. 151, 27 L.Ed.2d 146 (1970). In view of this holding, we need not decide whether the confrontation at the preliminary hearing was unnecessarily suggestive. But cf. United States v. Roth, 430 F.2d 1137, 1140-1141 (2d Cir. 1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 583, 27 L.Ed.2d 633 (1971).

We have considered appellant’s other arguments, but none warrants a finding of reversible error.

Affirmed.

      . Mims was convicted on three counts, the conspiracy charge having been dismissed at the conclusion of the Government’s ease. He received concurrent eight-year sentences on each count.

      . Mims’s co-defendant, Herman Lee Howard, who had initially implicated Mims at the time of his own arrest, was severed prior to trial and testified against Mims. Howard subsequently pleaded guilty to one count of the indictment, imposition of sentence was suspended and he was placed on probation for four years.

      . Schlicht was shown three albums of photographs by the F.B.I. one hour after the robbery, but he did not find any photographs of the man he had seen without a mask at the bank.

      . Apart from Mims, there were at the time, according to Schlicht, two other black men in the courtroom.

      . Other considerations supporting the conclusion that there was no taint are Schlicht’s mention to the F.B.I. of a distinctive red glove worn by the robber (a pair of such gloves was found in Mims’s apartment when he was arrested) ; his apparent care in going through the photograph albums without making any positive identifications, see United States ex rel. Smiley v. LaVallee, 473 F.2d 682, 683 (2d Gir. 1973) (per curiam) ; and the corroborative testimony of accomplice Howard and his cousin. See United States ex rel. Phipps v. Follette, supra, 428 F.2d at 916. Of course, there were some errors in Schlicht’s initial descriptions to government agents, but these were not necessarily fatal to a finding of no taint. See, e. g., United States ex rel. Bisordi v. LaVallee, supra, 461 F.2d at 1024-1025.


text:
    UNITED STATES of America, Appellee, v. Gerald SANJURJO, Appellant.
    No. 983, Docket 73-1533.
    United States Court of Appeals, Second Circuit.
    Argued June 1, 1973.
    Decided June 18, 1973.
    Michael A. Young, New York City, Legal Aid Society (The Legal Aid Society, Robert Kasanof, New York City, on the brief), for appellant.
    George E. Wilson, Asst. U. S. Atty. (Whitney North Seymour, Jr., U. S. Atty., S. D. N. Y., John W. Nields, Jr., Asst. U. S. Atty., on the brief), for appellee.
    Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.
   PER CURIAM:

Gerald Sanjurjo appeals from a judgment of the United States District Court for the Southern District of New York, Sylvester J. Ryan, J., convicting him, after a plea of guilty, of knowingly failing to keep his local Selective Service board advised at all times of the address where mail would reach him. 50 App. U.S.C. § 462(a). The only issues on appeal concern appellant’s sentence, which he has already begun to serve. Appellant argues to us that the trial judge punished him because he was a drug addict rather than because he had violated the Selective Service Act, thereby imposing a cruel and unusual punishment, that the judge erred in failing to consider various sentencing alternatives, including commitment under the Narcotic Addict Rehabilitation Act (NARA), 18 U.S.C. § 4251 et seq., and that the judgment and commitment must be corrected to conform to the oral pronouncement of sentence.

On this record, we do not find the first argument persuasive. True, when defense counsel argued that the Selective Service violation was minor, the judge responded that he was “not punishing him for that.” But the entire sentencing colloquy, fairly read, shows that the judge was only emphasizing that the defendant’s drug problems were of utmost significance in determining an appropriate sentence. Surely this was only common sense. As for the second argument, the judge could, in his discretion, reject the various sentencing alternatives discussed in colloquy with defense counsel, which included commitment of Sanjurjo for a 90-day psychiatric study under 18 U.S.C. § 4208, treatment under various drug programs— voluntary and involuntary, state and federal — and a direction under 18 U.S.C. § 4208(a)(2) that appellant be eligible for immediate parole. It is true that the judge never mentioned NARA, undoubtedly because no one suggested it to him. That failure would ordinarily pose the question whether appellant can complain at all in this court regarding the failure to consider NARA, cf. United States v. Clark, 475 F.2d 240, 251 n. 15 (2d Cir. 1973), but we put that issue to one side because we must remand in any event, and the district judge can then be asked to consider NARA.

As indicated, we believe that there is a substantial question regarding the formal judgment and commitment, which orders Sanjurjo “committed . for imprisonment for a period of THREE (3) Years with the recommendation for treatment of defendant’s drug addiction.” While some of the judge’s statements might be construed as ordering a sentence of three years imprisonment with normal parole opportunities, the judge did say that he was sentencing defendant “for three years and you will be released after one year of service, and the balance of time you will be on parole, on which you will receive two years . . . . ” Appellant says that this shows that the judge intended to imprison him for only one year, followed by a supervised period of two years. Ordinarily we might consider resolving such ambiguities in favor of defendant and allowing the oral pronouncement to control. But, as we understand the applicable law, if the judge wanted to impose on this one-count conviction a “split sentence” of a specified period of incarceration followed by probation, the prison term could not exceed six months. 18 U.S.C. § 3651; see United States v. Wertheimer, 434 F.2d 1004, 1006 (2d Cir. 1970). Accordingly, we believe that the best course to follow is to remand the case to the district judge to clarify the sentence.

Case remanded for proceedings consistent with this opinion. The mandate shall issue forthwith.

      . For that reason, the appeal was expedited.

      . See, e. g., Gaddis v. United States, 280 F.2d 334, 330 (6th Cir. 1960) (per curiam) ; Aderhold v. McCarthy, 65 F.2d 452, 453 (5th Cir. 1933).

      . See, e. g., Chunn v. United States, 462 F.2d 1100, 1102 n. 4 (5th Cir. 3972) (per curiam) ; United States v. Hicks, 455 F.2d 329, 330 (9th Cir. 1972) (per curiam).


text:
    Frank PATTERSON, etc., et al., Plaintiffs-Appellants, v. Thomas HOPKINS, etc., et al., Defendants-Appellees. Janie Lee FOX, etc., et al., Plaintiffs-Appellants, v. Thomas HOPKINS, etc., et al., Defendants-Appellees.
    No. 73-1330.
    United States Court of Appeals, Fifth Circuit.
    June 14, 1973.
    Robert F. Wood, Douglas L. Tynes, Clarksdale, Miss., Joe A. Cannon, Colorado Springs, Colo., Craig E. Miller, National Juvenile Law Center, St. Louis, Mo., for plaintiffs-appellants.
    Shed Hill Roberson, Elzy J. Smith, Clarksdale, Miss., for defendants- appellees.
    Before JOHN R. BROWN, Chief Judge, and COLEMAN and DYER, Circuit Judges.
   PER CURIAM:

This is a § 1983 suit, 42 U.S.C.A. § 1983, on behalf of two juveniles seeking damages and declaratory relief complaining of the facilities of the Coahoma County jail and practices of the authorities in the handling of juveniles. The Trial Judge by a definitive decree (Appendix A) prescribed in detail both the practices and procedures to be followed and the nature and condition of the physical facilities for detention of a juvenile. That decree, the Judge concluded, afforded all the relief reasonably needed. Consequently, he denied any money damages as formally prayed for. And he saw no reason for more extensive constitutional declarations.

Until such time as the facts reveal in the future that the authorities are not carrying out the spirit and letter of the Court’s Order (Appendix A), we think this was an acceptable disposition. The District Court is open, of course, to handle questions of full compliance with the Court’s Order.

Affirmed.

APPENDIX A

1. That the Defendants, their agents, employees, and successors in office shall not separate or segregate by race any person held within the Coahoma County Jail and shall not provide separate services or facilities except as is required for Jail security, discipline and good order.

2. Any officer of law has discretion to release a juvenile charged with a felony or misdemeanor (except those charged with any crime, which upon convietion, is punishable by life imprisonment or death) to his parent or parents, guardian, or custodian of said child or any other responsible adult who promises the youth will be available for hearing on petition or informal hearing.

3. That no juvenile shall be detained in the Coahoma County Jail unless in the opinion of the Coahoma County Youth Court, such juvenile shall be a child whose habits or conduct are deemed such as to constitute a menace to other persons or it is necessary to insure the attendance of such child at Court. In the event the Judge of the Youth Court is not available for the determination of such temporary detention, then the determination that the youth shall be temporarily detained in the County Jail shall be made only by the Sheriff, the Chief Deputy Sheriff, the Chief of Police, the Assistant Chief of Police, or the Juvenile Officer of the Police Department. Should none of the above be available, then the youth cannot be detained. If detained, there must be a due process hearing within 24 hours of such detention before the Youth Court Judge, excluding weekends, on the sole question of the necessity of detention. Before such hearing, notice must be given to the youth’s parents or parent, guardian or custodian and the attorney for the youth.

4. Children detained in the jail shall be provided with a room or ward separate from and not openly visible to adult prisoners; fresh mattresses; bed linens; tooth brush; tooth paste; soap; medical examination within 24 hours of entrance, excluding weekends; a system of immediate contact with jail authorities; and nutritious meals. A matron shall be available to attend to the needs of female children so held. Provision shall be made for the cleaning and/or issuance of clean clothing for children held. Such facility shall be maintained in a clean and sanitary condition.

5. All hearings concerning juveniles (including detention hearings, hearings to determine whether to certify the youth to a criminal court, or hearings to determine whether probation or parole should or should not be revoked) shall be held after proper notice to the youth, his parents or parent, guardian or custodian and to his attorney of record.

6. No youth shall be declared a delinquent unless the proof of the acts charged in the petition shall be proved beyond a reasonable doubt.

7. That the Defendant, Coahoma County Board of Supervisors, if required by the Court, will establish juvenile male and female detention wards on the lower floor of the new wing of the Coahoma County Jail by converting and modifying the last two cells or wards in substantially the following manner:

a) Remove metal bunks and replace same with three single beds.

b) Panel the inside of these two wards to the ceiling on the two sides where bars are located.

c) Cover the bars of these two wards on the outside next to the hallway with plywood or other suitable covering to the ceiling.

d) Install floor covering of linoleum or similar material of Defendant’s choice.

e) Remove one of the metal bench and table sets now located in each of the two wards in order to provide recreation room.

f) Provide such additional lighting in each of the two wards as may be necessary.

g) Provide 1-way mirror for the purpose of observing juveniles in the ward.

h) Install room air conditioner in each ward.

i) That Defendant shall have reasonable time to provide the above modifications and changes, taking into consideration the necessity of advertising and accepting bids for materials and labor.


author: ELY, Circuit Judge:

text:
    Gail Waugh DOWNEN, Appellant, v. John W. WARNER, Secretary of the Navy, and Robert E. Cushman, Jr., Commandant, United States Marine Corps., Appellees.
    No. 71-2683.
    United States Court of Appeals, Ninth Circuit.
    July 2, 1973.
    Daniel B. Hunter, of Hunter, Dougherty & Ryan, San Diego, Cal., for appellant.
    Harry D. Steward, U. S. Atty., Robert H. Filsinger, Keith E. McWilliams, Asst. U. S. Attys., San Diego, Cal., for appellees.
    Before BROWNING, DUNIWAY. and ELY, Circuit Judges
   OPINION

ELY, Circuit Judge:

Gail Waugh Downen served as a regular officer in the United States Marine Corps until her marriage to Robert Downen. Since Mr. Downen was then the father of two children, ages thirteen and fifteen, Mrs. Downen was on January 31, 1969, discharged from the service pursuant to a Corps regulation that terminates the commission of any female officer who becomes “the step-parent of a child under the age of 18 years who is within the household of the woman for a period of more than thirty days a year. . . .” 32 C.F.R. § 714.1(d) (3) (i)(c); 32 C.F.R. § 730.61(c) (2) (iii). E.

In December of 1970, Mrs. Downen complained in District Court that the regulation compelling her separation from the Corps unconstitutionally discriminated against her solely by reason of her sex in violation of the due process clause of the Fifth Amendment. She sought a judgment (1) declaring that her discharge was unconstitutional, and (2) ordering reinstatement along with back pay and allowance.

The District Court declared that Mrs. Downen should first have sought administrative relief through the Board for Correction of Naval Records. Her failure, in the court’s view, to exhaust this administrative remedy deprived the court of jurisdiction and the action was dismissed.

The judicially-created exhaustion requirement is intended to facilitate the development of a full factual record, to encourage the exercise of administrative expertise and discretion, and to promote judicial and administrative efficiency. See McKart v. United States, 395 U.S. 185, 194-195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969); United States v. Nelson, 476 F.2d 254 (9th Cir. 1973); United States v. Hayden, 445 F.2d 1365, 1375 n.16 (9th Cir. 1971); Wills v. United States, 384 F.2d 943, 945 (9th Cir. 1967). The doctrine is not an absolute bar to judical consideration and where justification for invoking the doctrine is absent, application is unwarranted. See id. Resolving a claim founded solely upon a constitutional right is singularly suited to a judicial forum and clearly inappropriate to an administrative board. Mrs. Downen’s complaint rests solely upon the resolution of her constitutional claim. Accordingly, Mrs. Downen was not barred from District Court through her failure to exhaust administrative remedies.

Upon remand, the District Court will consider the constitutional issues, especially in light of Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L. Ed.2d 583 (1973). There, the Court overturned a statute that conditioned fringe benefits for servicewomen’s spouses upon a showing of actual dependency. The statute, which imposed no similar burden on servicemen, was justified solely on grounds of administrative convenience. Though divided in approach, the Court agreed, with one dissent, that this difference in treatment was discrimination violative of Fifth Amendment due process. See note 1, supra.

The four Justice plurality, speaking through Mr. Justice Brennan, reasoned that classifications based upon sex are inherently suspect and must therefore be subjected to the strictest judicial scrutiny:

“[S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate ‘the basic concept of our system that legal burdens should bear some relationship to individual responsibility. . . .’ Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).”

411 U.S. at 686, 93 S.Ct. at 1770.

Mr. Justice Powell, joined by the Chief Justice and Mr. Justice Blackmun, thought it unnecessary to decide the case on the expansive “suspect classification” rationale and chose instead to rely solely on Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). Moreover, Mr. Justice Powell noted the pendency of the Equal Rights Amendment as prompting judicial restraint:

“[DJemoeratic institutions are weakened, and confidence in the restraint of the Court is impaired, when we appear unnecessarily to decide sensitive issues of broad social and political importance at the very time they are under consideration within the prescribed constitutional process.”

411 U.S. at 692, 93 S.Ct. at 1773.

Reversed and remanded.

      . “[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is ‘so unjustifiable as to be violative of due process.’ ” Frontiero v. Richardson,-U.S.-, 93 S.Ct. 1764 n. 5, 36 L.Ed.2d 583 n. 5 (1973); Shapiro v. Thompson, 394 U.S. 618, 642, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969).


text:
    UNITED STATES of America, Appellee, v. Edwin H. FRITZ, Appellant.
    No. 72-1937.
    United States Court of Appeals, Ninth Circuit.
    July 3, 1973.
    Ward S. Johnson (argued), Sheldon Green, of Green & Green, Phoenix, Ariz., for appellant.
    Morton Sitver, Asst. U. S. Atty. (argued) ; William C. Smitherman, U. S. Atty., Phoenix, Ariz., for appellee.
    Before BARNES and DUNIWAY, Circuit Judges, and JAMESON, District Judge.

       Honorable W. J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.

   PER CURIAM:

Appellant, Edwin H. Fritz, a certified public accountant, was convicted on two counts of violation of 26 U.S.C. § 7206 (1) in willfully subscribing to false income tax returns for 1964 and 1965. He contends that the district court erred in (1) failing to instruct the jury on a lesser-included-offense under § 7207 and (2) rejecting testimony concerning possible adjustments in his 1965 tax return.

In contending that the court on its own motion should have given a lesser-included-offense instruction directed to § 7207 (furnishing false or fraudulent information), a misdemeanor statute, appellant relied on United States v. Bishop, 455 F.2d 612 (9 Cir. 1972), holding that the trial court erred in refusing an offered instruction on lesser-included-offense with respect to the same statutes.

This case was argued on October 6, 1972. On October 10 certiorari was granted in United States v. Bishop. Thereupon an order was entered deferring submission of this case until the Supreme Court acted on Bishop. On May 29, 1973 the Supreme Court reversed Bishop, holding that the district court had properly refused the lesser-included-offense instruction.

The offered exhibits and supporting expert testimony relating to adjustments which would have affected appellant’s tax liability for 1965 were properly rejected by the trial court as speculation, “reconstructed for purposes of litigation, without * * * any receipts, records or anything to back them up.” There was no testimony that the appellant considered making the proposed adjustments when he filed his tax return for 1965. The offered proof under these circumstances was not relevant to the issue of willfullness in subscribing to a false return. See Schepps v. United States, 395 F.2d 749 (5 Cir. 1968), cert. denied, 393 U.S. 925, 89 S.Ct. 256, 21 L.Ed.2d 261.

Affirmed.

      . Section 7206(1) provides in pertinent part:
      “Any person who — (1) Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter; * * * shall be guilty of a felony * * *.”

      . This disposes of appellant’s first claim of error, and it is unnecessary to consider the effect of appellant’s failure to offer the lesser-included-offense instruction.

      . The cases cited by appellant, United States v. Moody, 339 F.2d 161 (6 Cir. 1964), and Koontz v. United States, 277 F.2d 53 (5 Cir. 1960), involved charges of income tax evasion, where evidence relating to the amount of the tax liability was clearly relevant.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Earnest JOHNSON, Defendant-Appellant.
    No. 73-1546
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 19, 1973.

      John T. Chason, court-appointed, Atlanta, Ga., for defendant-appellant.
    John W. Stokes, Jr., U. S. Atty., William P. Gaffney, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   PER CURIAM:

Earnest Johnson appeals from his conviction for the distribution of heroin, 21 U.S.C. § 841(a) (1). We find no merit in Johnson’s appellate contentions that he was entrapped and was a mere conduit rather than a distributor. We affirm.

These are the facts. As two undercover police officers and two informants were riding in an automobile in Atlanta, Georgia, one of the informants, a female, recognized Johnson who was standing near a street intersection and directed the officer driving to stop. All four of the occupants in the vehicle remained seated while Johnson approached the driver’s side where the window had been lowered. A short conversation ensued between the female informant and Johnson, during which she asked whether Johnson “had anything.” Johnson stated he didn’t “have anything” at the time, but added, “Come back later and meet me.” Approximately an hour later the officers and informants drove to the shopping plaza specified by Johnson where they found Johnson waiting. Again he approached the automobile and addressed the female informant. A short discussion resulted in the establishment of the price for the purchase of the narcotics — 65 dollars, per half load (15 bags of heroin). Johnson asked the undercover officer to advance him the money to buy the heroin; when the officer refused to part with his money before receiving the goods, Johnson indicated he was only going a short distance. The officer then agreed to advance the money, handed Johnson 70 dollars, and received 5 dollars change from him. Johnson walked a short distance and then was approached by three or four unidentified males; an exchange of an undetermined amount of money took place. Following this brief encounter Johnson walked to the passenger side of a blue Dodge parked about forty feet in front of the officer’s automobile. An exchange of items took place. Johnson came directly back to the undercover vehicle and gave the undercover officer a package of small glassine envelopes, which were later determined to contain heroin.

Johnson’s first contention is that he was entitled as a matter of law to a judgment of acquittal based on his defense of entrapment. The facts here evidence a ready, willing predisposition on Johnson’s part to distribute heroin. Viewing Johnson’s case as sympathetically as possible, the most can be said is that perhaps the evidence presented a question requiring jury resolution. The jury having resolved the factual dispute against him, there it ends.

Johnson’s second contention is that he was nothing more than a procuring agent, a mere conduit through whom the drugs passed. Relying on cases such as Adams v. United States, 220 F.2d 297 (5th Cir. 1955), and United States v. Sawyer, 210 F.2d 169 (3rd Cir. 1954), he argues that the jury should have been instructed that a procuring agent could not be guilty of the crime charged. This argument has no merit. The rule announced in the cases cited and the other case he relies upon dealt with the prosecutions for the “sale” of narcotics. See Coronado v. United States, 266 F.2d 719 (5th Cir.), cert. denied, 361 U.S. 851, 80 S.Ct. 112; 4 L.Ed.2d 90 (1959). Johnson was not charged with sale. Rather, he was charged under the provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970, which make it unlawful to knowingly and intentionally distribute heroin. According to the statutory definition “distribute” means “to deliver ... a controlled substance”, 21 U.S.C. § 802(11). Moreover, the statute defines “deliver” as the “transfer of a controlled substance, whether or not there exists an agency relationship”, 21 U.S.C. § 802 (8). Johnson’s actions, whether or not they could support a conviction for sale of heroin, are clearly within the scope of the statutory definition of distribution. Thus the argument advanced by Johnson, based as it is upon the requirement of the prior law that the government prove the defendant to be a seller, has no application to the prosecution for distribution of heroin sub judice. See United States v. Workopich, 479 F.2d 1142 (5th Cir. 1973).

Affirmed.


text:
    UNITED STATES of America, Appellant, v. John PROTCH and Frances Protch, Appellees.
    No. 73-1065.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) June 14, 1973.
    Decided June 29, 1973.
    Richard L. Thornburgh, U. S. Atty., Thomas A. Daley, and Kathleen Kelly Curtin, Asst. U. S. Attys., Pittsburgh, Pa., for appellant.
    Frank D. DiCenzo, Pittsburgh, Pa., for appellees.
    Before GIBBONS, ROSENN and WEIS, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

In the course of an investigation into the tax affairs of one Samuel Ferraro, a special agent of the Internal Revenue Service, interviewed the defendants in this case, John Protch, and his wife, Frances, on October 29, 1970. Written statements in the form of affidavits were prepared by the agent and were sworn to by the Protches, saying in substance that no number slips were found on their premises in the course of a gambling raid by local authorities on September 6, 1967.

On May 24, 1972 an indictment was returned against the defendants charging that the statements given to the agent were false and in violation of 18 U.S.C. § 1001. The District Court later dismissed the indictments on the premise that the Protches’ response to the agent’s questions were not “statements” within the meaning of § 1001 and, hence, without its proscription.

18 U.S.C. § 1001 reads in pertinent part:

“Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, ... or makes any false, fictitious or fraudulent statements, ... or makes . . . any false writing knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

The legislative history of § 1001 and its predecessor statute is discussed in United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941) and United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1951).

This statute is easily subject to abuse and overreaching by government agents and we share the concern expressed in such opinions as United States v. Bedore, 455 F.2d 1109 (9th Cir. 1972) and Paternostro v. United States, 311 F.2d 298 (5th Cir. 1962). Cf. United States v. Ratner, 464 F.2d 101 (9th Cir. 1972). However, we feel bound to reverse because of the opinions in United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L. Ed.2d 275 (1969) and Bryson v. United States, 396 U.S. 64, 90 S.Ct. 355, 24 L.Ed.2d 264 (1969).

In Bryson, swpra, the Court said:
“A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.”

We hold no more here than that an affidavit may be a “statement” within the meaning of § 1001. We do not pass on whether the information was false and material or upon the voluntariness issue.

The order of the District Court will be reversed and remanded for further proceedings not inconsistent with this opinion.

      . § 1343 of S.1400, Criminal Code Reform Act of 1973, Ninety-third Congress, 1973, presently being considered in committee, would narrow the literal scope of § 1001 and reduce the term of imprisonment which might be applicable. See also, Vol. 1, Working Papers of the National Commission on Reform of Federal Criminal Laws 671 (1970). Of. § 2-6D2 of S. 1, Criminal Justice Codification, Revision and Reform Act of 1973.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Manuel GONZALEZ-HERNANDEZ, Defendant-Appellant.
    No. 72-1661.
    United States Court of Appeals, Fifth Circuit.
    July 9, 1973.

      Samuel S. Forman, Miami, Fla. (Court-appointed), for defendant-appellant.
    Robert W. Rust, U. S. Atty., Michael P. Sullivan, Harold F. Keefe, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.
    Before GOLDBERG, AINSWORTH and INGRAHAM, Circuit Judges.
   PER CURIAM:

This is a direct appeal from a one-count conviction for conspiracy to import and possess marijuana with the intent to distribute it. Appellant, Manuel Gonzalez-Hernandez, originally pled not guilty to a three-count indictment, but he later changed his plea to guilty to the conspiracy count and the government thereupon dismissed the other two counts. Appellant now argues that he must be allowed to withdraw his guilty plea for two reasons: (1) The trial judge allegedly failed to comply with Rule 11, F.R.Crim.P., at the time the guilty plea was entered; and (2) The guilty plea was allegedly induced by a plea bargain that was later broken by the government. We have studied the record adduced in this case, and although we are convinced that the specific requirements of Rule 11 were indeed satisfied, we conclude that the record is inadequate to permit us to decide the plea-bargaining point and that an evidentiary hearing must therefore be held.

When the trial court announced that appellant would be sentenced to the maximum term of imprisonment, five years, and would receive the maximum fine, $15,000, appellant protested that a bargain had been struck with the government whereby appellant would plead guilty to the conspiracy count and would cooperate with the government in disclosing information, in return for which the government would drop the other two counts of the indictment and would recommend that appellant receive probation. The government admits that a plea bargain was struck, but it insists that its terms were severable, i. e., that in exchange for a guilty plea to one count the government would drop the other two counts, and that if appellant thereafter cooperated, the government would then recommend probation. The dispute is essentially a disagreement as to the facts, for it is clear that if appellant’s guilty plea itself was induced by a prosecutorial promise that was later breached, relief will be necessary. See Fontaine v. United States, 1973, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169; Santobello v. New York, 1971, 404 U.S. 257, 92 S.Ct. 495, 30 L. Ed.2d 427; Machibroda v. United States, 1962, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473; Bryan v. United States, 5 Cir. 1973, 481 F.2d 272; United States v. Ewing, 5 Cir. 1973, 480 F.2d 1141; Johnson v. Beto, 5 Cir. 1972, 466 F.2d 478; and James v. Smith, 5 Cir. 1972, 455 F.2d 502. Because the record does not conclusively define and delimit the terms of the agreement, an evidentiary hearing must be held in which the precise terms of the bargain can be ascertained, and if appellant’s allegations are found to be correct, relief must be granted under Santobello v. New York and the other cases cited herein.

Affirmed in part, and reversed and remanded in part.

      . In Raines v. United States, 4 Cir. 1970, 423 F.2d 526, the court affirmatively required district judges to go beyond the general inquiry required by Rule 11 at the time a plea of guilty is entered and to make a detailed and specific inquiry into the terms of any plea bargain that may exist:
      “Rule 11 is intended to produce a complete record of the factors relevant to the voluntariness of the guilty plea and, thereby, to forestall subsequent controversy as to voluntariness. The purpose and spirit of the rule is diametrically opposed to the unfortunate tradition of invisible plea bargaining. It is this tradition that causes trouble here. We are not unaware that plea bargaining often occurs without the knowledge of the court. The result is an absurdity: the trial judge knows everything about the plea except what truly motivates it.
      We have previously recognized plea bargaining as an ineradicable fact. Failure to recognize it tends not to destroy it but to drive it underground. We reiterate what we have said before: that when jilea bargaining occurs it ought to be spread on the record and publicly disclosed. United States v. Williams, 407 F.2d 940 (4th Cir. 1969). If that had been the general practice at the time of arraignment in these cases, it is improbable that these contentions would now be made. In the future we think that the district judges should not only make the general inquiry under Rule 11 as to whether the plea of guilty has been coerced or induced by promises, but should specifically inquire of counsel whether idea bargaining has occurred. Logically the general inquiry should elicit information about plea bargaining, but it seldom has in the past.”
      423 F.2d at 530 (emphasis added). Although not required, that practice is certainly to be recommended, for it has the salutary effect of placing the bargain on the record, which allows more meaningful review of cases in which the defendant later asserts that the bargain was broken.