author: GOLDBERG, Circuit Judge:

text:
    Hugh Leroy DUNBAR, Jr., a/k/a H. L. Dunbar, et al., Plaintiffs-Appellants, v. UNITED STATES of America et al., Defendants-Third Party Plaintiffs-Appellees, J. Arthur HAWKESWORTH, Jr., et al., Third Party Defendants-Appellees.
    No. 73-3804.
    United States Court of Appeals, Fifth Circuit.
    Oct. 7, 1974.

      Robert M. Bader, Miami, Fla., for plaintiff s-appellants.
    Robert W. Rust, U. S. Atty., Mervyn L. Ames and Robert C. Byrne, Asst. U. S. Attys., Miami, Fla., for defendants-third party plaintiffs-appellees.
    Before BELL, GOLDBERG and CLARK, Circuit Judges.
   GOLDBERG, Circuit Judge:

This case comes to us primarily as a result of an unusual abuse of power by the federal officers involved. On May 17, 1973, Plaintiff-Appellant Hugh Leroy Dunbar, Jr., called a friend in Miami, Florida, one Ann Arzbecker, and informed her that he planned to send her a package within the next few days that he wished her to keep for him. On or about May 21, 1973, plaintiff placed a shoe box wrapped in a brown paper bag into the United States mails at Boston, Massachusetts, as first-class mail. Inside the package was $21,500 in cash; on the outside was the mailing address of Arzbecker’s employers, a Miami law firm, and a return address: “H. Dunbar, Somerville, Massachusetts.” Unfortunately, plaintiff neglected to include Arzbecker’s name in the mailing address.

The package was delivered to the offices of Arzbeeker’s employers on May 22 and was opened in the presence of the senior member of the firm. A great commotion ensued, in the midst of which Arzbecker entered and informed her employer that she was the intended addressee. After some indecision, the lawyer met with a representative of the United States Attorney’s office and informed that gentleman that it was his fondest wish to be rid of the $21,500 as soon as possible, as he had no claim to the money, and that if “H. Dunbar” appeared and satisfied the lawyer that he was the sender of the package, the money would be turned over to him. The United States Attorney, however, had a better idea — for the lawyer to turn the cash over to the Federal Bureau of Investigation [FBI]. The lawyer adopted this plan on May 23, receiving in return a “hold harmless” agreement.

The FBI immediately began an extensive investigation of the currency and of plaintiff, but found no evidence of criminal activity connected with either specie or sender, save the vague recollection of an unidentified Internal Revenue Service agent that someone named Hugh Dunbar had once been arrested in Vermont on a narcotics charge.

At this point, the ever-vigilant Internal Revenue Service [IRS] learned of the problem and gave notice of a jeopardy assessment of income tax against plaintiff, pursuant to 26 U.S.C. § 6851 in the amount of $5460.17. When a notice of levy was served upon the FBI agent in charge of the funds, the agent made no objection to the IRS action and delivered said $5460.17 to a representative of the service on May 25, 1973.

When plaintiff’s attorney asked the FBI to return the money to plaintiff, however, the Bureau made a very different response. It claimed that it was not at air certain that plaintiff was the “H. Dunbar” in question, or that plaintiff owned the cash. In order to ascertain the truth of the matter, therefore, the FBI demanded that plaintiff provide information as to the source and ownership of the cash.

This plaintiff declined to do. Instead, he filed a complaint against the Government in federal district court on June 12, seeking a writ of mandamus to compel the FBI and the IRS to return the money to him on the basis of certain postal regulations*

In the course of civil discovery, the Government propounded interrogatories to plaintiff pursuant to Rule 33, Federal Rules of Civil Procedure, all of which plaintiff answered, except for the following :

“9. State the purpose and reasons for sending the package containing $21,500 in United States currency in the United States mails, as alleged in your complaint, from Boston, Massachusetts to Miami, Florida.
11. Describe in detail exactly how all of the United States currency, which is the subject of this action, was acquired by you. In further response to this interrogatory:
a. State the dates of acquisition
b. State the places of acquisition
c. State names and addresses of persons or parties from whom any of the above monies were acquired and respective amounts therefrom received.” To these questions plaintiff raised his

Fifth Amendment privilege against self-incrimination, whereupon the United States filed a motion under Rule 37(a), Federal Rules of Civil Procedure, to compel answers to the questions. This motion was granted, in the form of an order requiring plaintiff to answer or suffer his complaint to be dismissed.

On September 14, 1973, pursuant to 28 U.S.C. § 2361 and Rules 14 and 22 of the • Federal Rules of Civil Procedure, the United States filed a third-party complaint for interpleader against plaintiff, the law firm to which the package had been addressed, and “all absent, unknown persons having or claiming any right, title or interest in and to the subject matter funds.” The Government disclaimed any right or interest in the money, but disputed plaintiff’s claim and asked the court to determine which party had rightful possession and ownership of the fund. The law firm immediately denied any interest in the money ; the “absent, unknown persons” made no reply.

When plaintiff persisted in his refusal to answer the disputed interrogatories, the United States filed a motion to dismiss the complaint for plaintiff's failure to comply with the previous court order compelling answers. The district court dismissed the complaint on October 5, 1973, pursuant to Rule 37(b) of the Federal Rules of Civil Procedure. Plaintiff appeals, arguing that the dismissal was improper because the disputed interrogatories were irrelevant to the issue raised by the complaint; plaintiff urges also that the Government has violated his Fourth and Fifth Amendment rights.

I.

Rule 37 of the Federal Rules of Civil Procedure provides various sanctions against parties who fail to make discovery. When a party has failed to comply with a court order compelling an answer to a particular interrogatory, Rule 37(b)(2)(C) empowers a court to dismiss an action brought by the disobedient party. Although such a sanction is obviously necessary to effectuate the discovery provisions of the Federal Rules, Rule 37(b) also provides that courts are to impose only such sanctions “as are just.” See Bon Air Hotel, Inc. v. Time, Inc., 5th Cir., 1967, 376 F.2d 118. This admonition, and the drastic nature of an order dismissing the complaint without reaching the merits, have led the courts to employ the sanctions of Rule 37(b) only on the clearest showing that such an action is required. Anderson v. Nosser, 5 Cir., 1971, 438 F.2d 183, modified on other grounds, 1972, 456 F.2d 835, (en banc); Campbell v. Eastland, 5 Cir., 1962, 307 F.2d 478, cert. denied, 1963, 371 U.S. 955, 83 S.Ct. 502, 9 L.Ed.2d 502. Finally, although the application of Rule 37 is fully within the discretion of the trial court, Diaz v. Southern Drilling Corp., 5 Cir., 1970, 427 F.2d 1118, cert. denied, Trefina A. G. v. United States, 1971, 400 U.S. 878, 91 S.Ct. 118, 28 L.Ed.2d 115, a court must be mindful of the demands of the Due Process Clause in its proceedings under the Rule. Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Brownell, 1958, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255.

In order to determine the propriety of a particular application of a Rule 37 sanction, we must examine the nature of the dispute that led to the Rule 37 disposition. If the disputed information was not properly discoverable, it follows that the district court should not have imposed a Rule 37 sanction upon plaintiff for refusal to reveal such information.

The Government instigated this Rule 37 controversy by propounding interrogatories to plaintiff under the rubric of Rule 33 of the Federal Rules of Civil Procedure. That Rule provides that interrogatories “may relate to any matters which can be inquired into under Rule 26(b).” Rule 26(b), in turn, enables parties to “obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . ”

The question in this case, then, is whether the Government’s interrogatories relating to the source and ownership of the cash were “relevant to the subject matter” of this lawsuit. We think that the questions were not relevant, and that the district court improperly dismissed plaintiff’s complaint.

Plaintiff’s action was brought under the auspices of 28 U.S.C. § 1361. The relief requested was a writ of mandamus to compel the FBI to perform a non-discretionary duty owed to plaintiff —to return the cash in question. Plaintiff alleges that this duty arises under the postal regulations, which provide that first-class mail must be returned to the sender when the “addressee has refused to accept mail” or when “it cannot be determined which of the disputing parties has better right to the mail.” 39 C.F.R. § 159.2. Plaintiff contends that he was the sender, and that the addressee law firm refused the package, so that the right of plaintiff and the duty of the United States are clear under the regulation.

Plaintiff has not alleged ownership of the money in his complaint, and he need not do so in order to substantiate his cause of action; it is enough to show that he was the sender of the package. A determination of ownership, therefore, is not relevant to the scope of the Government’s duty under the regulation. Once that is said, it is not necessarily true that all questions regarding ownership would be irrelevant in all cases involving the regulation. The United States Supreme Court has recognized that the discovery rules “are to be accorded a broad and liberal treatment,” Hickman v. Taylor, 1947, 329 U.S. 495, 507-508, 67 S.Ct. 385, 392, 91 L.Ed. 451, 458, and discovery should be allowed if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Harrison v. Prather, 5th Cir., 1968, 404 F.2d 267; 8 C. Wright & A. Miller, Federal Practice and Procedure § 2008.

When we apply that standard to this case, however, it is apparent that the information requested by the United States was not sufficiently relevant to the subject matter of the action to come within the parameters of Rule 26(b). Not only is the question of ownership not necessary to a resolution of the plaintiff’s complaint, but the Government has itself acted upon the assumption that plaintiff is the owner of the funds, in the matter of the IRS’ termination assessment against plaintiff and subsequent levy against the disputed funds. It is not as if the money were contraband or evidence of a crime; the FBI’s investigation has apparently exhausted those possibilities.

In another interrogatory to plaintiff, the Government asked for the names of any persons other than plaintiff “who have or may claim some right, title or interest” in the money. Plaintiff answered that there were no such persons. The disputed interrogatories, then, do not even bear directly on the question of ownership, as the Government insists, but on the source of plaintiff’s money and the reason why he shipped it to Miami in a shoe box. While these questions might have interesting answers, they are not so germane to the conduct of the instant lawsuit that the plaintiff must answer them or face the sanctions of Rule 37.

II.

The foregoing discussion ought to be sufficient to clarify any confusion regarding the order of the district court from which this appeal was taken, and ordinarily we would end our sermon at this point. But the Government’s resort in the district court to interpleader by anonymity requires some comment.

The third-party complaint of the United States sought to interplead three claimants or groups of claimants: 1) the plaintiff; 2) the addressee law firm; and 3) “all absent, unknown persons” having any right to the funds. The United States portrayed itself as a stakeholder whose only interests are seeing the funds safely conveyed to their owner or owners and avoiding multiple liability for a single sum of money. At the time of the interpleader action, the plaintiff’s claim to the fund was well-known to the United States. The United States also knew that the law firm had made and would make no claim to the money; after all, it was the firm’s disavowal of any claim that led to the United States’ position as stakeholder. Any lingering doubts on this account must have been laid to rest when the firm answered the interpleader complaint with a positive denial of any right, title or interest in the fund.

Assuming then, that the joinder by the United States of the law firm was nothing more than a charade, we are left with an interpleader action in which the United States is the stakeholder, and plaintiff and untold numbers of “absent, unknown persons” are the conflicting claimants. To support this action, we are presented with a record in which the plaintiff has made a claim to the disputed fund that has been controverted only by doubts of the United States as to the authenticity of plaintiff’s claim, doubts apparently innocent of any factual basis.

In an interpleader action, the burden is on the party seeking inter-pleader to demonstrate that he is entitled to it. Although interpleader is available to a stakeholder even though no action has been brought against him nor any formal demand made upon him by some or all of the potential claimants, State Farm Fire & Casualty Co. v. Tashire, 1967, 386 U.S. 523, 87 S.Ct. 1199, 18 L.Ed.2d 270; Travelers Indemnity Co. v. Greyhound Lines, Inc., 5 Cir., 1967, 377 F.2d 325, cert. denied, 389 U.S. 832, 88 S.Ct. 101, 19 L.Ed.2d 91, a prerequisite for the action is that the party requesting interpleader demonstrate that he has been or may be subjected to adverse claims. General Electric Credit Corp. v. Grubbs, 5 Cir., 1971, 447 F.2d 286, rev’d on other grounds, 1972, 405 U.S. 699, 92 S.Ct. 1344, 31 L.Ed.2d 612; Fulton v. Kaiser Steel Corp., 5 Cir., 1968, 397 F.2d 580.

The record in this case makes it painfully obvious that the United States has failed to demonstrate the existence of any colorable claim adverse to that of plaintiff. Quite apart from the possibility that the actions of the IRS and the FBI in the matter of the tax assessment and levy upon the fund might estop the United States from disputing plaintiff’s claim thereto, Bierman v. Marcus, 3 Cir. 1957, 246 F.2d 200, cert. denied, 1958, 356 U.S. 933, 78 S.Ct. 774, 2 L.Ed.2d 762, the Government’s contention that there may be some unnamed and unknown party or parties with a claim to the money is based upon little more than factual arrogance on the part of the United States. Not only has no party come forward with such a claim, but the FBI has failed to ferret out any potential claimants and sans such ferreting we are at a loss to adopt its position. A tender solicitude tha+ the currency be given to its rightful owner merits our respect, but cannot in itself furnish any justification for assuming that plaintiff is an interloper whose entitlement must be proved against the world.

This is not a mass tort suit in which the party requesting interpleader may not know the names of all potential claimants against the fund at the time of the complaint. In such an action, the interpleader plaintiff can at least limit the class of claimants to persons present in a given location at a given time, and from that delimitation determine more precisely the identities of the potential claimants. In such a case, the implead-ing of “absent, unknown persons,” accompanied by public notice of the action, is perfectly reasonable and is the only way in which the interpleader remedy can be fully effectuated. This case, however, is an interpleading of all the world, or rather, because of jurisdictional problems, of all Americans. For all the United States has shown, each of us may have a claim to the disputed fund. The logical consequence of the United States’ theory of action is that whenever the United States or any agency thereof comes into possession of property to which it makes no claim of ownership, it may retain that property regardless of the merit of any person’s claims until a judgment in an action against all the world has rendered the United States immune to any possibility of multiple liability on property to which there has never been more than one claimant. To state that novel proposition is to render further condemnation of it unnecessary.

We sometimes admire the zealotry of the FBI, but such zealotry carries no warrant for ignoring postal regulations and employing cosmic interpleader.

Because of our disposition of this case, we pretermit discussion of plaintiff’s Fourth and Fifth Amendment claims.

The order of the district court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

      . The action against the Internal Revenue Service was later drolled, so that the amount actually in controversy is $16,039.83.

      . It is perhaps worthy of note that even though a given piece of information may be “relevant” for the purposes of Rule 26(b), the less relevant that information becomes, the less appropriate a Rule 37 sanction is, where there is a failure or refusal to produce the information.

      . Although our disposition of this appeal does not require us to inquire into the merits of plaintiff’s complaint, the particular form and circumstances of the action, while unusual, are not unprecedented. Cf. United States v. Ferguson, 2 Cir., 1897, 78 F. 103; United States v. Reefer, W.D.Pa., 1965, 243 F.Supp. 110; Van Buskirk v. United States, E.D.Tenn., 1962, 206 F.Supp. 553, aff’d, 6 Cir., 304 F.2d 871; Jones v. Federal Bureau of Investigation, D.Md., 1956, 139 F.Supp. 38; Hildebrandt v. Harris, S.D.N.Y., 1955, 130 F.Supp. 1.

      . The United States’ complaint cited both the Interpleader Act of 1936, 28 U.S.C. §§ 1335, 1397 and 2361, and Rule 22 of the Federal Rules of Civil Procedure as authority for granting the motion for interpleader. Although statutory interpleader and Rule 22 interpleader differ with respect to some questions of jurisdiction and venue, see 7 Wright & Miller, supra § 1703, those differences are of no moment for the purposes of this case.

      . In connection with its interpleader action, the United States published a public notice to “all absent, unknown persons having or claiming any right, title or interest in and to” the disputed fund, to the effect that such parties must appear in the action or have a default judgment entered against them. In the event that this notice produces a claimant adverse to plaintiff, then the interpleader action may go forward.


source: Caselaw Access Project

author: GE WIN, Circuit Judge:

license: Public Domain

text:
    Donald K. SMITH, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees.
    No. 73-2453.
    United States Court of Appeals, Fifth Circuit.
    Oct. 7, 1974.

      G. William Baab, Dallas, Tex., for plaintiff-appellant.
    Charles D. Cabaniss, Asst. U. S. Atty., Dallas, Tex., Frank D. McCown, U. S. Atty., Ft. Worth, Tex., Robert E. Kopp, Michael Kimmel, Neil H. Koslowe, Dept, of Justice, Washington, D. C., for defendants-appellees.
    Before GEWIN, GOLDBERG and CLARK, Circuit Judges.
   GE WIN, Circuit Judge:

This federal employee discharge case was heard by the district court on cross-motions for summary judgment, and this appeal is from a decision adverse to the employee. The record before the court was the administrative record compiled in the proceedings before the Hearing Officer from the Veterans’ Administration (VA) and before the Civil Service Commission. Both parties assert that the facts were fully developed and that the administrative record is sufficient to present all pertinent issues for our consideration. Appellant claims that his discharge is vio-lative of his First Amendment right of freedom of speech. We do not find any constitutional violation, and affirm the district court.

I

We commence our analysis of the issue presented with a deep consciousness of the constitutional guaranty of free speech. As stated in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964):

[W]e consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.

376 U.S. at 270, 84 S.Ct. at 721.

The controversy involved did not arise on the hustings, in a classroom, at a political gathering, on a public street or in a public park. It arose in a Veterans Hospital and relates specifically to the asserted right to engage in “symbolic speech” in the psychotherapeutic ward of the hospital where patients are housed who have been diagnosed as emotionally disturbed and in need of medical supervision and treatment. The appellant is not a physician. In our consideration of the issue we must look to the place, time and circumstances disclosed by the record as well as the type of conduct involved in striking the delicate balance necessary between the legitimate interests of the government and the constitutional rights of the appellant. Attention must also be given to the welfare and rights of the patients who are confined for treatment.

Appellant was a clinical psychologist at the Veterans’ Administration Hospital in Dallas, Texas. He provided therapeutic treatment for veteran patients in need of emotional rehabilitation. On March 2, 1970, he began wearing on his lapel a “peace pin” — a pin, about the size of a nickel, fashioned with the outline of a dove superimposed upon a replica of the American flag. Three days later appellant, Dr. Smith, was informed by his supervisor, Dr. A. J. Jernigan, that hospital policy prohibited employees who were required to wear uniforms from wearing peace pins while on duty and that, in other cases, employees desiring to wear emblems should consult with their supervisors to determine the effect which the wearing of such items might have on patients and the work environment. Dr. Jernigan told Dr. Smith that he felt the prohibition against wearing peace pins on uniforms also applied to staff psychologists who wear suits or sports jackets while performing their duties at the hospital. Appellant continued to wear the pin and, on March 18, he was instructed by Dr. Jernigan not to wear it while on duty. Dr. Jernigan reasoned that the pin might be offensive to some of the patients and that it was inappropriate to introduce any such stimulus into the patient-psychologist relationship.

Appellant refused to remove the pin and, on March 25, 1970, Dr. Jernigan sent him a “letter of admonishment.” This was followed by a notice of intent to reprimand on March 31, and a reprimand on April 7. On April 14, Dr. Jer-nigan sent appellant a notice of proposed removal based upon the following charge: “I have instructed you not to wear a lapel pin while on duty which, in my judgment, could be offensive to patients and thus impair your effectiveness as a psychologist involved in direct patient care. You have continued to wear this lapel pin in defiance of my instructions.”

Appellant requested that a hearing officer from the Veterans’ Administration be appointed to conduct a hearing at the hospital on the proposed removal. A hearing was held on May 6 and 7 and Dr. Smith was represented by counsel. On May 25, Dr. J. B. Chandler, director of the hospital, informed appellant that the charge against him was sustained and that his removal would be effective May 27.

Dr. Smith did not claim a lack of understanding of hospital policy or the instructions given by his superiors. He fully understood but completely disagreed with such policy and instructions. The several conferences between Dr. Jernigan and Dr. Smith and the exchange of letters brought the issue into sharp focus. In a final attempt to gain compliance with his instructions Dr. Jer-nigan submitted two questions to Dr. Smith. The questions and answers are as follows:

Dr. Smith, will you assure me (Dr. Jernigan) that you will not wear a peace pin while on duty? No, not in a thousand years! Is it your intention to continue to wear a peace pin while on duty? Yes, without fail!

Dr. Smith adamantly maintained his position and never yielded in the slightest to the requests and instructions of Dr. Jernigan. He claimed that he had worn the pin in the psychotherapeutic ward for approximately thirty days and had observed no adverse patient reaction. He did mention some comments of disapproval by co-workers. He presented no witnesses at the hearing but did present an article which demonstrated that there existed a difference of opinion by specialists in the area of inquiry. Finally he asserted that other personnel were permitted to wear replicas of the American flag in certain areas of the hospital. The record does not disclose that any other personnel wore emblems of any kind in the psychotherapeutic ward. The evidence tended to show that Dr. Smith was the only member of the staff who did so. We believe it is fair to conclude that the record reveals a direct conflict between the medical opinion of the hospital staff physicians and the opinion of Dr. Smith with respect to the conduct of a psychotherapist in the treatment of patients. As indicated earlier, Dr. Smith is not a physician.

On appeal to the Administrator of the Veterans’ Affairs 'the decision to remove Dr. Smith was affirmed. The decision was also affirmed by the Dallas Region of the Civil Service Commission. Dr. Smith appealed this decision to the Board of Appeals and Review of the Civil Service Commission which affirmed the decision of the Dallas Region. The Board found that Dr. Chandler acted within his authority in placing on appellant the restriction against wearing the peace pin. The Board did not consider appellant’s First Amendment contentions but noted that the “Board is not the proper forum for a decision of this issued [sic]. The Board does not pass on the question of the appellant’s right to wear the pin but only on the question of whether the appellant was justified in wearing it in [sic] the facts of this case in defiance of an instruction not to do so and in arriving at its decision the Board decides whether the removal action was for such cause as to promote the efficiency of the service.”

II

We shall consider appellant’s assertion that his First Amendment right of free speech was infringed because his discharge from employment at the VA Hospital was based on his refusal to stop wearing a peace pin while on duty. Wearing such an emblem for the purpose of expressing certain views is the type of symbolic act that is within the free speech protection of the First Amendment. Tinker v. Des Moines Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). It is clear that the Government may not prohibit or control the conduct of a person for reasons that infringe upon constitutionally guaranteed freedoms. The approval of such restrictive action would permit the government to “produce a result which [it] could not command directly.” Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460, 1473 (1958). Public employment is a benefit which cannot be conditioned upon the denial of constitutional rights. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Wieman v. Updegraff, 344 U.S. 183, 73 S.Ct. 215, 97 L.Ed. 216 (1952).

The Supreme Court recognized in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811, 817 (1968), that the government “has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Moreover, this court has observed that “government' should be able to regulate activities which directly interfere with the proper performance of its employees’ duties.” Hobbs v. Thompson, 448 F.2d 456, 470 (5th Cir. 1971). However, government regulations and restrictions on the exercise of First Amendment freedoms “should not lightly be imposed.” Hobbs v. Thompson, supra.

In a case involving the First Amendment rights of school children, Burnside v. Byars, 363 F.2d 744 (5th Cir. 1966), this court held that the students’ right to free and unrestricted expression could not be infringed upon, absent a showing that the exercise of such rights “materially and substantially” interfered with appropriate discipline in the school environment. The material and substantial interference standard was adopted by the Supreme Court in Tinker, supra, in which the Court held that a public school regulation which prohibited students from wearing black armbands violated the students’ rights of free speech under the First Amendment, where there was no evidence that the armbands would cause substantial interference with school work.

When a government employee asserts that his rights have been unconstitutionally infringed, it is necessary to strike a balance between the interests of the employee as a citizen and the interests of the government in promoting the efficiency of the services it performs through its employees. In striking that balance in the context of the First Amendment guaranty of freedom of speech, we feel that the standard of material and substantial interference is the standard to apply. In order for the government to constitutionally remove an employee from government service for exercising the right of free speech, it is incumbent upon it to clearly demonstrate that the employee’s conduct substantially and materially interferes with the discharge of duties and responsibilities inherent in such employment. Battle v. Mulholland, 439 F.2d 321 (5th Cir. 1971).

“First Amendment rights must be applied in light of the special characteristics of the environment in the particular case.” Clark v. Holmes, 474 F.2d 928, 931 (7th Cir. 1972), cert. denied, 411 U.S. 972, 93 S.Ct. 2148, 36 L.Ed.2d 695. In the instant case, we feel that the evidence clearly establishes that the wearing of the peace pin by Dr. Smith while on duty resulted in a material and substantial interference with the performance of his duties as a staff psychologist charged with the duty of administering psychotherapeutic treatment to emotionally disturbed veteran patients.

At the administrative hearing before appellant’s removal, Dr. T. A. McDowell, VA Hospital Chief of Staff, testified:

I think the wearing of a peace pin is certainly — has the connotation of being controversial, as far as antiwar, and I think that many of the veterans who have spent many months in the war areas, specifically VietNam, identifying in particular orthopedic patients who perhaps have had one or both legs amputated, and these individuals are counseled by a member of the Psychiatric or Psychology Service to attempt to rehabilitate them mentally, I certainly feel with such a pin being obviously demonstrated on an individual wearing such a pin, that this could possibly be detrimental to their overall care and rehabilitation during the time they are in the hospital as this might develop into a controversial situation in their mind.

Dr. McDowell further stated:

In our opinion this pin did connotate controversy and by the wearing of the pin, it was felt yes, true, that this would be harmful and odious to some patients in psychology review.

Dr. McDowell also noted that appellant “should be aware as a Ph.D. psychologist that this type of exhibit being worn on an individual was detrimental to the welfare, or had the potential of being detrimental to the welfare of patient care.”

Responding to a question as to the possibility of the pin having harmful effects on the patients, Dr. McDowell said:

If, during the period of time they are here they don’t get every consideration and anything is interjected into this treatment, it is going to create all types of complex psychological reactions, because these boys have been under tremendous stress and when some issue is brought in that will be detrimental to their overall long term rehabilitation before they can go out and be useful citizens, this would, as I say, be deleterious to the overall rehabilitation of the patients and may prolong this rehabilitation and may stimulate them to a true psychiatric problem. Something of this nature might possibly be enough to tip the scale. I think there is a possibility that some of these patients might, under a great deal of tension, discussing such a controversial issue in this way, they might develop a psychiatric situation that would be extremely difficult to cope with on a long range basis. It might cause them to become aggressive, hostile. As you know, Mr. Collins, there is a thin line between sanity and insanity. When these issues are brought up, this may be enough to tip the scales against the overall treatment.

Dr. Isham Kimbell, Chief of Psychiatry Service at the VA hospital, explained at the hearing why a therapist should not inject controversial issues into the patient-therapist relationship:

. Over the years, in the field of psychiatry and psychology and in the area of psychotherapy and psy-chotherapeutic treatment, we- have learned some rather basic facts — that the therapist who is involved in dealing with patients who have emotional problems almost has to keep himself as neutral as possible in this situation. It’s distracting, for instance to discuss in any great detail political issues, to interject this into therapy itself. I think wearing of such pin in a therapy situation is just as wrong as it would be if someone would have worn a Nixon button, Humphrey button, Wallace button during the 1968 campaign or any other, Masonic pin, Knights of Columbus. I think all of these things are just as well left out. This is substantially agreed upon by most people who participate in psychotherapy.

Dr. Kimbell characterized the injection of the pin into the patient-psychologist relationship as having a “distracting effect [on] the therapeutic process.” Dr. Kimbell noted that “. . . perhaps the most damaging effect [would be] that it could cause a great deal of time being spent in dealing with something that may not really be appropriate to the patient’s individual problem.” He concluded, “I think it’s always difficult for the patient to actually see what is really upsetting him when other things are introduced into the therapy situation. That’s why I think that a great majority of experienced, skillful therapists avoid this sort of thing. If the pa-, tient brings it up himself, this is another point of view. This is another situation. I think that the therapist in the therapeutic situation should avoid any set of bias, implicitly or explicitly.”

The above-quoted testimony, taken at the administrative hearing and considered by the district court on the cross-motions for summary judgment, supports the rational conclusion that the injection of the peace pin into the therapeutic environment here under consideration presented a material and substantial interference with the performance of appellant’s duties as a staff psychologist. This is more than the “undifferentiated fear or apprehension of disturbance” that the Supreme Court warned against in Tinker, supra. 393 U.S. at 508, 89 S.Ct. at 737, 21 L.Ed.2d at 739. We feel that the Veterans’ Administration was justified in removing appellant from employment when he refused to conform to hospital policy.

The constitutional balancing in this case involves a consideration not only of the separate interests of the appellant employee as a citizen and the Veterans’ Administration with its concern for efficient, orderly, and effective medical treatment, but also the interests of the patients themselves. As the district court properly noted, “[t]he patients have a right not to be subjected to a stimulus which could impair their already precarious emotional state.” The Supreme Court stated in Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284, 291 (1971), that the government is able “to shut off discourse solely to protect others from hearing it upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” We feel that the action of the Veterans’ Administration in insulating the patients from what the hospital administration considered to be a potentially harmful stimulus was well-directed and free from Constitutional imperfections. The appellant would have been free to wear his pin when not on duty in the psychotherapeutic ward, but he could not use that area of the hospital where patients are confined for treatment as a platform for the exercise of prohibited and unrestrained free speech whether “symbolic” or “pure” in the face of the medical opinions of his superiors that such conduct might result in harm to the very patients he is employed to assist in treating.

The able district judge quite clearly based his decision on his belief that the government had only to show a reasonable and rational connection between the conduct for which appellant was discharged and his fitness or capacity to serve. This court has on many occasions held that the “clearly erroneous” test of Rule 52(a) of Fed.R.Civ. Pro. does not apply to findings of fact based on or induced by an incorrect legal standard. E. g., Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 1364, 1372 n. 20 (5th Cir. 1974); Rowe v. General Motors Corp., 457 F.2d 348, 356 n. 15 (5th Cir. 1972); see 9 C. Wright & A. Miller, Federal Practice and Procedure § 2585 n. 7. In the case sub judice, however, we do not believe that the trial court’s erroneous determination regarding the legal standard by which the government’s action must be measured infected or tainted his findings of fact, and therefore find it unnecessary to remand the case for reconsideration under the “material and substantial disruption” standard. See Davis v. Parkhill-Goodloe Co., 302 F.2d 489, 491 (5th Cir. 1962). Since the trial court’s application of an incorrect legal standard did not infect or taint the findings of fact, this court is bound by the “clearly erroneous” test even though the case was tried without a jury and submitted to the district court entirely upon documentary evidence. The appellant’s burden of showing that the trial court’s findings of fact are clearly erroneous “is not as heavy . . . as it would be if the case had turned on the credibility of witnesses appearing before the trial judge.” Sicula Oceanica, S.A. v. Wilmar Marine Eng. & Sales Corp., 413 F.2d 1332, 1333 (5th Cir. 1969). However, we should overturn the trial court's findings of fact only when “left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746, 766 (1948). See Volkswagen of America, Inc. v. Jahre, 472 F.2d 557, 559 (5th Cir. 1973). The findings of the district court are clearly supported by the overwhelming weight of substantial evidence, and the appellant has failed to demonstrate that such findings are clearly erroneous.

Ill

The government claims that the district court did not have jurisdiction since the appellant sought neither reinstatement nor back pay. However, the government concedes that the district court would have had jurisdiction had appellant sought reinstatement under 28 U.S.C. § 1361 and back pay under 5 U. S.C. § 5596.

Appellant based federal jurisdiction of his action upon the Tucker Act and alleged that the action was “founded upon the United States Constitution and an Act of Congress, 5 U.S.C. §§ 701 to 706.” In his complaint, appellant sought damages in the amount of $10,000 and “such other relief at law and in equity to which’he may justly be entitled.”

In the pleadings before the district court, the appellant specifically prayed for reinstatement with back pay in his motion in opposition to defendant’s motion for judgment on the pleadings and cross-motion for summary judgment. We feel that this, coupled with appellant’s complaint, was sufficient to establish federal jurisdiction. In Paynes v. Lee, 377 F.2d 61 (5th Cir. 1967), we held that federal jurisdiction may be sustained if authorized by a federal statute even though such statute is not pleaded or relied upon in the district court. In this case, the government was informed by appellant’s cross-motion for summary judgment that he was seeking reinstatement with back pay. We feel that appellant’s failure to cite 28 U.S.C. § 1361 and 5 U.S.C. § 5596 and to pray specifically for reinstatement and back pay was merely a technical flaw and not a basis for denying jurisdiction in the district court.

The judgment of the district court is affirmed.

      . The parties stipulated at the hearing before the YA Hearing Officer that the pin in question may properly be identified as a peace pin.

      . The hospital policy was stated in the January 6, 1970, issue of “News-o-rama”, a weekly news bulletin of the Dallas VA hospital :
      Employees who are required to wear uniforms may not wear peace buttons, armbands, etc., while they are on duty. In other cases, the wearing of such items will be considered on the basis of the extent to which it may or may not disturb the work environment, and employees should consult with their supervisors in individual cases.

      . Appellant testified that the pin symbolized, to him, that the concept of peace and the concept of patriotism were not incompatible.

      . See also Goldwasser v. Brown, 135 U.S.App.D.C. 222, 417 F.2d 1169 (1969). In Goldwasser, a civilian language instructor at Lackland Air Force Base was dismissed because of certain statements concerning the VietNam war and anti-Semitism made by him to a class of foreign military officers taking an accelerated English course at Lackland. The Circuit Court upheld the dismissal, affirming the Civil Service Commission’s determination that the Air Force’s instructional goals would be jeopardized by Goldwasser’s unrelated and controversial remarks. The court held that Goldwasser’s First Amendment right to free speech was not violated by the limited restriction which required him to keep his opinions to himself in the context of his “highly specialized teaching assignment.” 417 F.2d 1169, 1177 (1969).

      . 28 U.S.C. § 1346(a)(2) in relevant part provides:
      The district courts shall have original jurisdiction, concurrent with the Court of Claims, of any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress

      . See also Bivens v. Six Unknown Named Agents of Federal Bureau of Investigation, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946).

      . See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).


author: AINSWORTH, Circuit Judge: ■

text:
    In the Matter of T. C. MORROW, Bankrupt. PLANTERS’ TRUST AND SAVINGS BANK OF OPELOUSAS, LOUISIANA, Appellant-Cross Appellee, v. T. C. MORROW, Appellee-Cross Appellant.
    No. 74-2267
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 11, 1974.
    Rehearing Denied Oct. 30, 1974.

      Ray Carlton Muirhead, Houston, Tex., for appellant-cross appellee.
    Jarrel D. McDaniel, Ben H. Sheppard, Jr., Houston, Tex., for appellee-cross appellant.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   AINSWORTH, Circuit Judge: ■

This case requires us to interpret and apply several of the Federal Rules of Civil Procedure pertaining to notice of orders of judgment and time within which to take an appeal. We conclude from reading these provisions — Rules 77(d), 60(b), 6(b), and Appellate Rule 4(a) — that the present appeal was not timely filed and therefore must be dismissed.

Planters’ Trust and Savings Bank (Planters’), a creditor of T. C. Morrow, the bankrupt, appeals from that portion of a judgment dated September 27, 1973 pertaining to an award of attorneys’ fees. The district court, invoking its broad powers under the bankruptcy laws, reduced the award of attorneys’ fees from a contractually stipulated amount to an amount it considered reasonable.

No notice of appeal or request for an extension was filed by Planters’ within the 30-day limit set by Fed.R.App.P. 4(a). On January 4, 1974, ninety-nine days after the entry of the judgment, Planters’ orally requested additional time to file a notice of appeal, which request was granted by the district court for the expressed reasons that the failure to file a notice of appeal was caused by “circumstances over which the attorney for the debtor had no control and further because excusable neglect was involved in the attorney’s being notified of the ruling of this Court in which the Referee in Bankruptcy’s decision was affirmed.” Later, however, on January 8, 1974, the district court rescinded its order and directed counsel for Planters’ to file a written motion to extend time to file notice of appeal. This motion was filed on January 11, 1974.

On February 19, 1974, Planters’ filed an application for relief from the judgment, based on its allegation of lack of notice of entry of the judgment. Apparently the notice by the clerk had been misdirected in the mails. On March 22, 1974, the district court denied Planters’ motion for an extension but vacated its original judgment entered on September 27, 1973 and entered a new, identical judgment, so as to start again the running of the time for appeal.

Fed.R.Civ.P. 77(d) provides: “Lack of notice of the entry [of judgment] by the clerk does not affect the time to appeal or relieve or authorize the court to relieve a party.for failure to appeal within the time allowed, except as permitted in Rule 4(a) of the Federal Rules of Appellate Procedure.” That appellate rule requires the filing of an appeal within thirty days of the entry of judgment, except that “[u]pon a showing of excusable neglect, the district court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of time otherwise prescribed by this subdivision.” Because the first indication of Planters’ intention to appeal came long after this delay, Appellate Rule 4(a) is inapplicable.

Rule 77(d) was amended in 1948 in response to Hill v. Hawes, 320 U.S. 520, 64 S.Ct. 334, 88 L.Ed. 283 (1944). In Hill the clerk failed to send notice of entry of a judgment to an attorney. The district court vacated its judgment and entered a new one in order to permit the party to appeal, citing the clerk’s error as its reason. The Supreme Court affirmed. The Advisory Committee made it clear that the 1948 amendment to Rule 77(d) was designed to nullify Hill:

The effect of the decision in Hill v. Hawes is to give the district court power, in its discretion and without time limit, and long after the term may have expired, to vacate a judgment and reenter it for the purpose of reviving the right of appeal. This seriously affects the finality of judgments. .
Rule 77(d) as amended makes it clear that notification by the clerk of the entry of a judgment has nothing to do with the starting of the time for appeal; that time starts to run from the date of entry of judgment and not from the date of notice of the entry. Notification by the clerk is merely for the convenience of the litigants.

Other Circuits have ruled in conformity with the Advisory Committee’s Comment on Rule 77(d), consistent with the accepted view of the requirement of timeliness of appeals generally. Lathrop v. Oklahoma City Housing Authority, 10 Cir., 1971, 438 F.2d 914; Lord v. Helmandollar, 1965, 121 U.S.App.D.C. 168, 348 F.2d 780. See generally Leishman v. Associated Wholesale Electric Co., 318 U.S. 203, 205, 206, 63 S.Ct. 543, 544, 87 L.Ed. 714 (1943); Pfister v. Northern Ill. Finance Corp., 317 U.S. 144, 149-151, 63 S.Ct. 133, 137-138, 87 L.Ed. 146 (1942); Wayne United Gas Co. v. Owens — Illinois Glass Co., 300 U.S. 131, 137, 57 S.Ct. 382, 385, 81 L.Ed. 557 (1937) (appeal dismissed where rehearing was granted solely to extend appeal time); Zimmern v. United States, 298 U.S. 167, 56 S.Ct. 706, 80 L.Ed. 1118 (1936) (motion to amend form of judgment rather than substance does not toll appeal time); Credit Co. v. Arkansas Cent. Ry. Co., 128 U.S. 258, 9 S.Ct. 107, 32 L.Ed. 448 (1888) (trial court cannot extend appeal time by entering nunc pro tunc order); Bowman v. Estelle, 5 Cir., 1974, 498 F.2d 1090; Long v. Emery, 10 Cir., 1967, 383 F.2d 392, 394; Nichols-Morris Corp. v. Morris, 2 Cir., 1960, 279 F.2d 81, 83 (motion for extension of appeal time, based on failure to notify of entry of judgment, denied).

Fed.R.Civ.P. 6(b) deals with enlargement of the time within which various actions must be taken under the Federal Rules:

When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified, time, the court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under rules 50(b), 52(b), 59(b), (d) and (e), 60(b), and 73(a) and (g), except to the extent and under the conditions stated in them.

Fed.R.Civ.P. 60(b) permits the district court to “relieve a party or his legal representative from a final judgment, order or proceeding for . . . any other reason justifying relief from the operation of the judgment.”

In Smith v. Jackson Tool & Die, Inc., 5 Cir., 1970, 426 F.2d 5, we upheld the vacating and re-entry of judgment under Rule 60(b) where the clerk failed to notify the parties. In that case, however, the error went further. The trial court rendered its written opinion which was sent to counsel for the parties. Plaintiff’s counsel immediately asked the judge to delay entry of the judgment but received no reply. Opposing counsel then communicated his willingness to agree to a delay and submitted a proposed judgment to the trial judge. The court entered the proposed judgment without waiting as requested, but the clerk failed to notify the parties. Subsequent correspondence from the plaintiff’s attorney to the trial judge clearly indicated a belief that opposing counsel’s proposed judgment had not yet been acted on by the court. The trial court, however, made no effort to correct counsel’s misapprehension and, as we have indicated, entered the judgment notwithstanding the request for delay.

Here, in contrast, there was only a simple failure to notify Planters’ by the clerk. Nothing happened to put the District Court on notice that Planters’ was relying on a mistaken belief that judgment had not been entered. To permit an appeal where there is failure to notify, without more, would be opposed to the clear wording and intent of Rule 77(d).

The appeal is dismissed for want of jurisdiction.


author:
JOHN R. BROWN,.Chief Judge:
      RONEY, Circuit Judge

text:
    David A. DAVIS, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 73-3721.
    United States Court of Appeals, Fifth Circuit.
    Oct. 14, 1974.
    Rehearing Denied Dec. 3, 1974.
    Roney, Circuit Judge, dissented and filed opinion.
    David L, Loving, III, Dallas, Tex. (Court-appointed), for petitioner-appellant.
    Robert C. Flowers, Asst. Atty. Gen., Max P. Flusche, Jr., Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
    Before BROWN, Chief Judge, and GODBOLD and RONEY, Circuit Judges.
   JOHN R. BROWN,.Chief Judge:

Appellant, sentenced by a Texas jury in 1966 to life imprisonment enhanced by two prior felony convictions — one state and one federal, attacks this sentence by habeas corpus on the grounds that both of these underlying prior convictions were constitutionally defective. Because we find the record regarding the 1949 state conviction inadequate to enable us to consider his case properly, we reverse the District Court and order a further evidentiary hearing.

Appellant in 1966 was tried and convicted of theft and fraudulently concealing stolen property in Dallas County, Texas, Two prior felony convictions, one state (1949) and one federal (1963), were proved for enhancement. Based on these convictions, appellant was manda-torily sentenced to life imprisonment.

Since that enhanced sentence, appellant has attempted to upset it by a concerted attack on the individual convictions. Because one of the convictions used for enhancement was federal and appellant pursued some of the same issues in the prior collateral attack on that conviction, this Court has had the opportunity to consider these challenges previously. Thus, in the first two appeals we have heretofore rejected appellant’s arguments that the conviction was invalid because of an illegal arrest on the grounds that no evidence resulting from his arrest was shown to have been offered against him at trial and, similarly, we have rejected his argument that he was denied a right of appeal from his 1963 conviction on the grounds that no claim of indigency or the right to appeal was ever presented to the trial court.

In this attack which is doubly collateral since it attacks the validity of a Texas enhanced sentence because of a defect in an underlying Federal sentence, we have no difficulty in rejecting at this late date the asserted failure to give him notice of the right to appeal. In the circumstances here, this is not on a constitutional plane. See Brewen v. United States, 5 Cir., 1968, 396 F.2d 350.

The only point worthy of mention is appellant’s argument against the use by the state court of his federal sentence for purposes of enhancement because it was probated. He would be on sound ground here if the prior conviction were one from Texas. For the Texas rule is that a suspended or probated sentence is not a final judgment or conviction on which a Court may predicate enhancement. In contrast, the federal rule is that a suspended or probated sentence is regarded as having the same effect as any other as the statute plainly permits.

Appellant attacks his 1949 state conviction on the ground that he was without counsel at the time of sentencing. The state generally does not contest the importance of counsel at the time of sentencing and counsel for Texas on oral argument recognized that if there is any real probability that counsel would have aided appellant, his Sixth Amendment rights might have been violated at the time of that conviction. Instead, the state points us to our case of Gutierrez v. Estelle, 5 Cir., 1973, 474 F.2d 899 in which this Court held that a prior Texas felony sentence in which counsel was present during the trial but not at the time of sentencing could nevertheless be used for the purposes of enhancement because it was the fact of the underlying conviction that triggered the enhancement not the sentence, no matter how constitutionally infirm.

But now Gutierrez comes here with a new twist. Appellant would escape from Gutierrez on the basis that presented here, but not raised there, is the contention that the sentence — -which Gutierrez found woefully bad- — might have been probated had his counsel been present and had the sentence been probated that would have triggered the Texas rule (see note 3 swpra). In that event the 1949 conviction would not have been used for enhancement.

If that theory is factually supported, Gutierrez might well not stand in the way despite its language which is quite positive.

But the trouble is that the state record is scanty. On June 6, 1949, appellant appeared before the District Judge in McLennan County to plead guilty to the felony of theft. The Court recorded the presence of his counsel, Levi Pressley, on the docket sheet early in the day; Pressley submitted an application to the court for probation; and the Court ordered appellant back at 2:00 p.m. for the Court’s determination of sentence. Appellant returned to the Court that afternoon. When the Court passed sentence without probation, the docket sheet is silent on the presence of Pressley at that specific time. Appellant now asserts that Pressley was not present at sentencing.

On the state court habeas 11.07 hearing the state judge resolved the issue against appellant on the grounds of his lack of credibility. And the Federal court found adequate basis for this conclusion. But no effort was made, either in the state proceedings or in the Federal habeas case, to ascertain whether any of the principals — judge, prosecutor, or defense counsel — were available to testify on whether counsel was present.

In conjunction with counsel and by our own resources it seems now to be established that all of the actors in that Waco hearing are now dead except that the prosecutor is still living in Canyon, Texas. He may be able even at this late date to throw some light on this matter.

As this ease presents a new problem, not expressly determined by Gutierrez we should have before us the best available information before we determine what should be done and whether Gutierrez is controlling. Because the prosecutor is still living, we remand this case to the District Court for a further hearing and determination on an expedited basis of appellant’s contention that counsel was not present at sentencing.

As we do not know the outcome of such further determination, we do not in any way undertake to say what the decision will be on this issue or what result is or should be compelled by Gutierrez under any of the several hypotheses offered. We simply want to speak to issues that have inescapably constitutional overtones on a real, not an academic basis.

Affirmed in part, reversed in part and remanded.

RONEY, Circuit Judge

(dissenting):

I respectfully dissent. There is no evidence in the record and no existing evidence suggested by the briefs or the majority opinion which would establish even a prima facie base for a decision that this petitioner could have obtained a probated sentence for his 1949 Texas conviction. On this record, I think we are required by Gutierrez v. Estelle, 474 F.2d 899 (5th Cir. 1973), to affirm the District Court, even if we do what we are not supposed to do, i. e., disregard the credibility decision of the trial court and assume counsel was not present at the 1949 sentencing. Instead of relying on the record and the clear authority of Gutierrez, however, we make our own investigation of the facts outside the record and send the case back for an evi-dentiary hearing about a 25 year old state case concerning a fact point which should not make a shred of difference in the outcome of this ease, if we are to follow Gutierrez. This appears to me to be a waste of judicial resources. I would affirm.

      . Davis v. United States, 5 Cir., 1970, 424 F.2d 1061, cert. den., 400 U.S. 836, 91 S.Ct. 72, 27 L.Ed.2d 68.

      . Davis v. United States, 5 Cir., 1971, 448 F.2d 781, cert. den., 405 U.S. 976, 92 S.Ct. 1200, 31 L.Ed.2d 250.

      . See Texas Penal (’ode § 12.42(d) V.T.C.A. (1974); White v. Texas, 171 Tcx.Cr.R. 683, 353 S.W.2d 229 (1962).

      . See, e. g. 18 U.S.C.A. § 3651. § 3651. Nuspension of sentence and probation

      Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.
      Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, if the maximum punishment provided for such offense is more than six months, any court having jurisdiction to try offenses against the United States, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may impose a sentence in excess of six months and provide that the defendant be confined in a jail-type institution or a treatment institution for a period not exceeding six months and that the execution of the remainder of the sentence he suspended and the defendant placed on probation for such period and upon such terms and conditions as the court deems best.
      Probation may be granted whether the offense is punishable by fine or imprisonment or both. If an offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment. Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentence and judgment.
      The court may revoke or modify any condition of probation, or may change the period of probation.

        The period of probation, together with any extension thereof, shall not exceed five years.

      . Mempa v. Rhay, 1967, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336.


author: WEIS, Circuit Judge. HUNTER, Circuit Judge, with whom SEITZ, Chief Judge and VAN DUSEN, Circuit Judge, join ADAMS, Circuit Judge

text:
    UNITED STATES of America v. Louis GOLDSTEIN, Appellant, and Selma Goldstein.
    No. 73-1923.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 25, 1974.
    Submitted on Rehearing en banc June 12, 1974.
    Decided Aug. 6, 1974.
    Hunter, Circuit Judge, dissented and filed opinion in which Seitz, Chief Judge and Van Dusen, Circuit Judge, joined.
    Adams, Circuit Judge, dissented and filed opinion.

      Ralph F. Keil, U. S. Atty., Bruce L. Thall, First Asst. U. S. Atty., Wilmington, Del., for appellee.
    Edmund N. Carpenter, II, David S. Swayze, Richards, Layton & Finger, Wilmington, Del., for appellant.
    Argued Feb. 25, 1974
    Before HUNTER and WEIS, Circuit Judges, and MILLER, District Judge.
    Submitted in banc June 12, 1974
    Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges. ,
   OPINION OF THE COURT

WEIS, Circuit Judge.

Whether an indictment for a misdemeanor may be amended to correct a material variation between allegata and probata is a question of first impression in this circuit. In a thoughtful opinion the district court held that an amendment was permissible, but after careful consideration, we feel obliged to come to a contrary conclusion, and we therefore reverse.

The defendant, Louis Goldstein, was indicted by a grand jury on three counts. Counts I and III charged that defendant filed false returns for the years 1964 and 1966 in violation of 26 U.S.C. § 7206(1). The petit jury found Goldstein not guilty on these counts.

Count II charged in part that defendant “ . . . by reason of such income . was required by law following the close of the calendar year 1965 and on or before April 15, 1966 to make an income tax return to the District Director of the Internal Revenue . . he did willfully and knowingly fail to timely make said income tax return »

At the trial it was established that Goldstein had no legal duty to file his 1965 tax return until May 7, 1966, and the trial judge so submitted the case to the jury, in effect allowing an amendment to the indictment. The jury was instructed that the state of mind of the defendant as it might bear on the element of willfulness was material during the period of time leading up to May 7, 1966. After the verdict of guilty on this count, the defendant filed post-trial motions for acquittal and arrest of judgment, asserting a fatal variance between the date set out in the indictment and that established by the government’s proof.

The evidence in the district court disclosed that on April 15, 1966, the date on which the indictment alleged that defendant had a duty to file his income %ax return, he did in fact submit a Form 2688 requesting an extension of time. This form was returned to Goldstein by the District Director of the Internal Revenue Service on April 27, 1966 bearing a notation that the request was rejected because the defendant’s social security number had not been included, but allowing resubmission within ten days if he wished to pursue the matter. Since the defendant did not follow up, the district court found that under the regulations then applicable, the return became due on May 7,1966.

While the rule is generally stated that an indictment cannot be “amended,” it may be more precise to say that a change in the indictment which is substantial or material, and not merely one of form, is not permissible. 8 Moore’s Federal Practice — Cipes, Criminal Rules ff 7.05 [1]. Hence, the first question to be decided here is whether the alteration in dates from April 15 to May 7, 1966 was material.

Ordinarily, a mere change in dates is not considered a substantial variation in an indictment, but an exception exists when a particular day may be made material by the statute creating the offense. As stated in 4 Anderson, Wharton’s Criminal Law and Procedure § 1775, “When time is of the essence of the offense, it must be correctly alleged and must be proved as laid. . . . ” (footnote omitted). “As has been previously stated, when time is an essential ingredient of the offense charged, it must be laid with exactitude in an indictment, and in such cases must be proved as laid.” 5 id. § 2062. (footnote omitted).

The statute involved here illustrates this exception to the general rule. There was no duty imposed on the defendant to file a return before April 15, and an indictment alleging an offense in failing to submit a return on April 10, for example, would not state a crime. An omission to perform an act by April 15 is designated a criminal offense, but only on that date does the crime occur. Conduct and time are thus inextricably intertwined. See United States v. Figu-rell, 462 F.2d 1080 (3d Cir. 1972). By way of contrast, a bank robbery is a criminal offense at all times, regardless of the date on which it takes place. In that instance a variance of a few days between the dates established by the indictment and proof would be a matter of form and not of substance. The difference between these two situations is apparent.

In requiring an accurate allegation of time, we do not rely on a merely mechanical application of what may seem to be an unduly restrictive common law rule. An indictment is the product of the deliberations of a grand jury, and a brief review of its purposes may serve to explain the policy behind strict adher-enee to the language used in presenting an accusation of that body.

Two of the functions of an indictment are to apprise the defendant of the charge of which he is accused and to provide protection against reprosecution should an acquittal result. The defendant here does not and cannot claim prejudice on either of these elements. But there is a third and very important aspect of the indictment process, and that is the duty of the grand jury to shield a citizen from unfounded charges and to require him to appear in court in defense, only if probable cause has been found by that independent body. Until that prerequisite has been met, the accused is not properly before the court. Thus, a conviction of a defendant cannot be upheld on the basis of facts not found by and perhaps not even presented to the grand jury which indicted him. Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962).

This screening process of the grand jury is a substantial benefit to an accused person and in the case of serious crimes is constitutionally guaranteed. Its importance has been emphasized by such cases as Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887); Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); and Russell v. United States, supra.

The application of the principle was explained in United States v. De-Cavalcante, 440 F.2d 1264 (3d Cir. 1971), where this court stated that we must test to see whether there is reasonable assurance from the face of the indictment that the grand jury found probable cause on each of the essential elements which underlie the verdict of the petit jury.

One of the crucial factors which must be present to convert late filing into a criminal offense is willfulness. While this term has been generally interpreted to mean a voluntary, intentional violation of a known legal duty, the Supreme Court has emphasized that bad faith or evil motive must exist in tax cases. As Justice Blackmun said in United States v. Bishop, 412 U.S. 346, 361, 93 S.Ct. 2008, 2017, 36 L.Ed.2d 941 (1973), “[t]he Court’s consistent interpretation of the word ‘willfully’ to require an element of mens rea implements the pervasive intent of Congress to construct penalties that separate the purposeful tax violator from the well-meaning, but easily confused, mass of taxpayers.”

However, it is obvious from the face of the indictment here that the grand jury was not aware of the very material fact that the defendant had applied for an extension of time and that as of April 15 he was not required to file his return. And so it was that in focusing on the critical elements of knowledge and bad faith, the grand jurors weighed state of mind on the wrong day and in the wrong circumstances. We can only speculate as to what would have happened had they been told of the request for an extension and the reason for its denial.

Whether willfulness and knowledge would have been found to exist on May 7, 1966 is far from clear because then, the grand jurors would have been required to consider if the failure to resubmit the Form 2688 or file the tax return was caused by inadvertence, lack of knowledge of the new due date, or something other than bad intent. While the due date of April 15 is well-known to the general public, the same cannot be said of the time for filing the return after rejection of a request for extension. The form itself advised that there could be a resubmission within ten days but did not state when the return would be due if the extension request was not refiled. Indeed, it was only after a careful review of the statute and regulations in effect in 1966 that the district court concluded that the due date for the return was May 7, 1966. Obviously, the government would have had a heavier burden to establish willfulness and knowledge as of May 7 than it would have had for April 15, 1966 in the absence of an extension.

We agree with the district court’s conclusion that the conflict in dates is not a mere formality or an innocuous difference of unimportant data but is, rather, a matter of substance. The circumstances which existed on April 15 on which the grand jury concentrated were quite different from those on May 7 to which the petit jury devoted its attention. The indictment indeed had been amended — a procedure clearly not permitted when a grand jury action is constitutionally required. United States v. Williams, 412 F.2d 625 (3d Cir. 1969); United States v. Critchley, 353 F.2d 358 (3d Cir. 1965).

Ex parte Bain, supra, and Stirone v. United States, supra, considered the inviolability of an indictment against the backdrop of the Fifth Amendment guarantee that:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury. . . . ”

The reasoning in those cases was that since the only way that the accused could be brought into court was by indictment of a grand jury, only that body could amend its charges.

Russell v. United States, supra, decided a case of a misdemeanor which by statute required the indictment of a grand jury. No constitutional guarantee was there involved, but the court, nevertheless, applied the same standards set out in Ex parte Bain, supra, and Sti-rone, supra, holding that Congress had decided that only a grand jury in that instance could determine whether a person should be held to answer in a criminal trial.

The constitutional guarantee does not apply in the case sub judice since the offense of failing to timely file an income tax return is not considered a capital or infamous crime. It could have been brought by information.

Fed.R.Crim.P. 7 expressly grants the court authority to permit amendment of an information before verdict. The government argues that had this offense been prosecuted by information, it could have been amended and therefore similar liberality should apply to the indictment. It claims support also in Fed.R. Crim.P. 52, which states that defects or variances which do not affect substantial rights should be disregarded. We do not find these arguments persuasive, and it is on this point that we differ with the district court.

Fed.R.Crim.P. 7 states specifically that an information may be amended but, in what is a significant omission, makes no such provision for an indictment — any indictment. This is not a mere oversight, and as a reading of the rule will show, the committee that drafted it was conscious of the distinction between those offenses where indictment was required and those in which it was optional. Subdivision (e) which provides for amendments is limited to in-formations, and we follow the rule as it reads.

Rights of an accused in a criminal proceeding which are valuable to him should not be limited or taken away by construction. Where there is doubt, it should be resolved in favor of the defendant.

Furthermore, it is pertinent to note that there are certain adyantages which the government obtains by use of the indictment process. The prosecution is afforded the benefit of discovery through use of process for compelled appearances of witnesses before the grand jury. And in the trial court there is that subtle, though undeniable, stigma attached to a defendant who has been indicted by an impartial grand jury. An information, which is merely an accusation by the prosecuting attorney, an obvious partisan in the trial proceeding, would have less effect on the petit jury. Having chosen to utilize the indictment process, fair dealing would require that the government assume the burdens as well as the benefits.

In accord with our holding is United States v. Fischetti, 450 F.2d 34, 39 (5th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478, where the Court of Appeals succinctly stated, “While it is true that the crimes alleged in counts 2, 3 and 4 are misdemeanors, the Government chose to present the case to the grand jury and secure an indictment. Having so elected, it is bound by the principles governing indictments.”

The district court erred in refusing the motion for arrest of judgment, and accordingly its judgment will be reversed.

HUNTER, Circuit Judge, with whom SEITZ, Chief Judge and VAN DUSEN, Circuit Judge, join

(dissenting):

The majority cites to three functions of an indictment and concludes that the defendant “does not and cannot claim prejudice” on the basis of two of these functions, i. e., to insure that a defendant is “informed of the nature and cause of the accusation” and to protect against double jeopardy should an acquittal result. Indeed, the district court found:

“In this case, as Mr. Goldstein concedes, nothing which has occurred infringes his right to fair notice or his right to be protected against twice being put in jeopardy for the same offense.”

Even had Goldstein not conceded this, the record would amply support this conclusion.

The third function of the indictment process, referred to by the majority, is the “duty of the grand jury to shield a citizen from unfounded charges and to require him to appear in court in defense, only if probable cause has been found by that independent body.” But as the majority implicitly concedes, this function has no relevance to an indictment which is not constitutionally required.

The fifth amendment provides that “ [n] o person shall be held to answer for a capital, or otherwise infamous crime,' unless on a presentment or indictment of a Grand Jury.” Goldstein was not charged with an “infamous” crime and hence cannot rely on the constitutional right to be convicted only as charged by a grand jury. Thus, we are presented with the question whether the principles governing indictments which are constitutionally required apply with equal force to indictments which are not constitutionally required. To my knowledge, neither the Supreme Court nor this Court has ever confronted this question.

In Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), cited by the majority, the Supreme Court sought to clarify the meaning of Fed.R.Crim.Proc. 7(c) which provides: “The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” It reasoned that the sufficiency of the indictment must be judged against the fifth amendment prohibition that a person shall not be subject to double jeopardy and the sixth amendment requirement that an accused “be informed of the nature and cause of the accusation.” As to the latter, which might be characterized as the apprisal function of the indictment, it was argued in Russell that if the indictment was defective in this respect, it could be cured by a bill of particulars, provided (presumably) that no prejudice would result. The Supreme Court rejected this argument, but for a reason which is particularly revealing and instructive:

“To allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection which the guaranty of the intervention of a grand jury was designed to secure. For a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury which indicted him. See Orfield, Criminal Procedure from Arrest to Appeal, 243. * * * * -X- -X-
“ ‘If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner’s trial for a crime, and without which the Constitution says “no person shall be held to answer,” may be frittered away until its value is almost destroyed. . . . Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or the order of the court in the body of indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the Constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists.’ Ex parte Bain, supra, 121 U.S. at 10, 13 [7 S.Ct. 781 at 786]. We reaffirmed this rule only recently, pointing out that ‘The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.’ Stirone v. United States supra, 361 U.S. at 218 [80 S.Ct. 270 at 273].” 369 U.S. at 770-771, 82 S.Ct. at 1050 (emphasis added).

The import is clear. Modification of an indictment, whether by the prosecutor or by the court, is impermissible when it would violate the defendant’s right to be convicted only as charged by the grand jury. Equally clear is that Ex Parte Bain, 121 U.S., 12-13, 7 S.Ct. 781 (1887), only held that an indictment brought by a grand jury is a jurisdictional prerequisite when the constitution requires a grand jury. Where the defendant, however, as here, possesses no constitutional right to be charged by a grand jury, I do not believe his conviction should be reversed unless the constructive amendment to the indictment substantially affected his right to a fair trial.

The majority disagrees, relying chiefly on Fed.R.Crim.Proc. 7(e) which provides :

“The court may permit an information to be amended at any time before verdict or finding if no additional or different offense is charged . and if substantial rights of the defendant are not prejudiced.”

The majority reads into Rule 7(e) a negative inference that Congress intended no amendments to indictments except by the grand jury. Several factors, in my view, weigh against such a construction.

First, as the district court recognized, nothing in the Comments to Rule 7(e) suggests that the drafters addressed themselves to the problem now before us. Therefore, the absence of a rule on amendments to indictments may as readily be interpreted as a Congressional deference to case law development as an unspoken Congressional prohibition against all such amendments. Moreover, as the district court noted, the drafters of the federal rules, “in line with the modern view on the consequence of technical errors in criminal proceedings, have elsewhere indicated that rule construction based on factors other than simplicity, fairness and expedition is to be avoided.” Rule 2 provides :

“These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.”

I therefore see no barrier to permitting amendments to an indictment which is not constitutionally required so long as the defendant is not prejudiced.

My major disagreement with the majority, though, involves the role of Rule 52(a) which provides as follows:

“Harmless error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”

Even assuming, arguendo, the majority is correct in its view that Rule 7(e) confers by implication, not the right to a grand jury indictment, but the right to be free from amendments to the charge once the prosecutor elects to proceed by indictment, it does not necessarily follow that Goldstein’s conviction should be vacated. Violations of some constitutional rights are never disregarded, but are presumed to be prejudicial. Violations of other constitutional rights may be disregarded where such violation is “harmless beyond a reasonable doubt.”

The present situation, however, involved at most — even accepting arguendo the majority’s position — a violation of a procedural right conferred by the federal rules. Thus, absent constitutional error, Rule 52, in my view, ought to apply, and Goldstein’s conviction should be vacated only if the alleged procedural error “substantially” affected Goldstein’s right to a fair trial.

The majority completely brushes aside Rule 52(a) and adopts a per se rule of prejudice whenever an indictment which is not constitutionally required is amended by other than the grand jury. The majority identifies two forms of prejudice that presumably, in their view, rise to sufficient stature to warrant a prejudice per se rule: 1) “[t]he prosecution is afforded the benefit of discovery through use of process for compelled appearances of witnesses before the grand jury; ” and 2) “in the trial court there is that subtle, though undeniable, stigma attached to a defendant who has been indicted by an impartial grand jury.” While I do not seek to minimize the possibility of prejudice arising from these factors, I am wholly unpersuaded that this justifies our foregoing the task of balancing any such prejudice against the weight of the evidence of guilt. Goldstein has not been denied any “rights so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967).

Consequently, absent any constitutional error, which the majority has not identified, I agree with the district court that Rule 52(a) applies to this ease. Furthermore, I agree with the district court that Goldstein has not shown any prejudice that has “substantially affected” his rights to a fair trial. In my view, the judgment- of the district court, therefore, should be affirmed.

ADAMS, Circuit Judge

(dissenting):

I dissent for the reasons set forth by Judge Hunter in his discussion of the harmless error provisions of Rule 52(a).

      . In Rex v. Wilkes, 4 Burr, 2527, 2569 (1770), a misdemeanor case, Lord Mansfield remarked, “There is a great Difference between amending Indictments, and amending Informations. Indictments are found upon the Oaths of a Jury; and ought only to be amended by themselves:' But Informa-tions are as Declaratione in the King’s Suit. An Officer of the Crown has .the Right of framing them originally: and may, with Leave, amend, and in like Manner as the-Plaintiff may do.”

      . In its opinion, the district court said:
      “If the District Director considered Mr. Goldstein to be in default on April 27, 1966, when he signed and returned Form 2688, the permission for resubmission would be meaningless. Accordingly, I conclude that the District Director’s intent must have been to extend the period for the filing of a return or a renewed application for extension until May 7, 1966.”
      Accordingly, the due date for filing the return could not have been earlier than May 7, 1966.

      . Cf. United States v. Doelker, 327 F.2d 343 (6th Cir. 1964). There, the question of amendment was not raised in the trial court, and the holding that the variance was not substantial must be considered dictum. Furthermore, in that case, an extension had been granted to a specified date, and there could be no question of the knowledge of the defendant as to the correct time for filing.

      . Infamous crimes have been defined as crimes for which incarceration in a penitentiary may be imposed. Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909 (1886). 18 U.S.C. § 4083 limits confinements to a penitentiáry for any term in excess of one year. Fed.R.Crim.P. 7(a) provides that an offense which may be punished by imprisonment for more than one year shall be prosecuted by indictment. Any other may be prosecuted by indictment or information.

      . 26 tT.S.C. § 7203 provides that for a violation, there may be imposed a fine of not more than $10,000.00 and/or imprisonment for not more than one year.

      . The original Committee Note to Subdivision (e) of Rule 7 observes, “ [t] his rule continues the existing law that, unlike an indictment, an information may be amended . . . ” (Citation omitted). 8 Moore’s Federal Practice — Cipes, Criminal Rules f 7.01 [2], Cf. Ledbetter v. United States, 170 U.S. 606, 609-610, 18 S.Ct. 774, 775, 42 L.Ed. 1162 (1898) where the Court said, “We have no disposition to qualify what has already been frequently decided by this court, that where the crime is a statutory one it must be charged with precision and certainty, and every ingredient of which it is composed must be clearly and accurately set forth, and that even in the cases of misdemeanors the indictment must be free from all ambiguity, and leave no doubt in the minds of the accused and the court of the exact offense intended to be charged.” (Citations omitted).

      . U.S.Const, amend. VI.

      . See Majority Opinion at n. 4.

      . Fed.Rules Crim.Proc. 7(a) provides that any offense other than a felony “may be prosecuted by indictment or information.” 8 Moore’s Federal Practice If 7.02 (1973) notes that frequently the prosecutor presents a misdemeanor to the grand jury “where a felony is also charged against the same defendant and the prosecutor wishes to join both classes of offenses in one indictment.” This appears to be precisely the situation which occurred in this case.

      . Although the indictment in Russell was required only by statute, the Supreme Court held that Congress intended to incorporate the protection of the fifth amendment grand jury requirement. 369 U.S. at 761, 82 S.Ct. 1038.

      . Had the prosecutor proceeded by information and had he sought an amendment, the record leaves no doubt that an amendment would have been permissible under Rule 7(e).

      . In footnote 6 of its opinion, the majority cites to the original Committee Note to Subdivision (e) of Rule 7 which states that, “ [t] liis rule continues the existing law that, unlike an indictment, an information may be amended . ” The Committee Note cites as authority for this observation Muncy v. United States, 289 F. 780 (4th Cir. 1923). Muncy, however, involved the question whether an information could be amended. In answering that question in the affirmative, the Fourth Circuit cited to the general rule that informations may be amended but indictments may not be amended except by the grand jury. As I have noted previously, however, the general rules governing indictments, as articulated by the Supreme Court and this Court, have been formulated in situations where an indictment was constitutionally required. Thus, it is quite reasonable to conclude, in my view, that by enacting Rule 7(e), Congress merely incorporated existing law (which had not yet confronted the issue now before us). I therefore believe we should be free to shape the law as justice requires and not feel constrained by any negative inference under Rule 7(e).

      . Since Rule 7 (e) is silent on amendments to indictments, logically, if the majority feels compelled to draw an adverse inference, it would seem they should conclude that any amendment to an indictment other than by the grand jury is impermissible. Yet the majority recognizes that courts have uniformly held that insubstantial or immaterial amendments by a court are permissible. Thus, the majority implicitly recognizes that the rules governing indictments have been shaped by considerations other than the fact that Rule 7 is silent on the subject of amendments to indictments. Cf. Russell v. United States, 369 U.S. 749, 761-762, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962).

      . See Chapman v. California, 386 U.S. 18, 23 n. 8, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

      . See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

      . That Rule 52(a) applies to indictments is beyond question. Russell v. United States, 369 U.S. at 762, 82 S.Ct. 1038.

      . The majority correctly notes that the Fifth Circuit is in accord with tins holding. United States v. Fischetti, 450 F.2d 34, 39 (5th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478. Fischetti, however, advances no reason for its conclusion ; lienee, I would reject it as unpersuasive.

      . The majority implicitly concedes that failure to afford Goldstein the protective “shield” of the grand jury is not a basis for a claim of prejudice, since he did not have a right to a grand jury.