source: Caselaw Access Project

author: ADAMS, Circuit Judge.

license: Public Domain

text:
    ST. JOE MINERALS CORPORATION, Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
    No. 72-1543.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 10, 1974.
    Decided Jan. 29, 1975.
    David McNeil Olds, John McN. Cram-er, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for petitioner.
    Wallace H. Johnson, Asst. Atty Gen., Edmund B. Clark, Martin Green, John E. Varnum, Attys., Dept, of Justice, Washington, D. C., for respondent.

      Before ALDISERT, ADAMS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

ADAMS, Circuit Judge.

The pivotal issue in this appeal is whether the Administrator of the Environmental Protection Agency is vested with the authority to disapprove a state implementation plan, or one of its provisions, drafted pursuant to the Clean Air Act Amendments of 1970, when the Administrator has found such plan to be “technologically infeasible.”

I.

Under the Clean Air Act Amendments of 1970, the Administrator of the Environmental Protection Agency is directed to promulgate national primary and secondary ambient air quality standards for each air pollutant designated by the Administrator as having an adverse effect upon the public health or welfare.

The states are each required to develop an air pollution control scheme by which the national ambient air quality standards may be achieved within each state. The implementation plan of each state must then be submitted for the approval of the Administrator.

Upon approval by the Administrator, the implementation plan developed by each state may be enforced by the Administrator, as well as the state. Under federal law, fines and sentences of imprisonment may be imposed on those who refuse to comply with the plan. In addition, violators are subject to enforcement suits by private individuals.

St. Joe Minerals Corporation operates a zinc-smelting plant at Monaca, Pennsylvania. These facilities emit sulfur oxides, which are the subject of ambient air quality standards established by the Administrator.

During December, 1971, the Commonwealth of Pennsylvania held four days of hearings focused on controlling sulfur oxide pollutants. The Commonwealth then submitted its implementation plan to the Administrator in January, 1972. The regulations published by the Administrator to assist the states in formulating their implementation plans included “Examples of Emission-Limitations Attainable with Reasonably Available Technology.” One of the examples was a standard for zinc smelters, such as that operated by St. Joe. The Pennsylvania implementation plan, however, which contained only one standard governing all existing sources of sulfur oxide emissions within the state, concededly was substantially more stringent, when applied to a smelter, than the Administrator’s example. Without conducting further hearings the Administrator in May, 1972, approved Pennsylvania’s plan in part and disapproved it in part.

St. Joe filed with this Court a petition challenging the Administrator’s approval of that portion of the Pennsylvania implementation plan relating to sulfur oxide emissions. St. Joe alleged that the Administrator had not fulfilled certain procedural requirements, and asked that the case be remanded to the EPA. On January 22, 1973, this Court granted the motion for a remand without specifying the type of procedure to be followed by the EPA on the remand. The EPA moved for clarification of the order or for a rehearing. On the motion for clarification, after consideration of the record of the state proceedings, this Court stated that it was not convinced that St. Joe had been afforded “a truly meaningful hearing” regarding the technological and economic feasibility of the Pennsylvania implementation plan. Moreover, the Court indicated that events since the state proceedings may have rendered the plan outdated. The EPA, therefore, was ordered either to grant St. Joe a limited hearing on the technological and economic feasibility of the plan or to suspend enforcement of the plan against St. Joe while the company pursued “with due diligence” state administrative and judicial remedies for its infeasibility claims.

Pursuant to this Court’s ruling, the EPA elected to conduct an administrative hearing on the feasibility of the plan. After considering written and oral presentations by St. Joe, the Commonwealth and the EPA staff, the Administrator, in a decision announced March 18, 1974, concluded that the Pennsylvania provisions relating to sulfur oxide emissions “as applied to St. Joe Minerals Corporation’s smelter . . . [are] technologically infeasible.” He therefore did not reach the question of economic feasibility. The Administrator, however, interpreted the Clean Air Act Amendments “as precluding any disapproval of the plan on that basis.” He proposed instead to notify the Commonwealth of his finding of technological infeasibility and to request a revision. Furthermore, he proposed to stay federal enforcement of the plan pending state administrative and judicial review of the plan.

St. Joe petitioned this Court to review the Administrator’s refusal to disapprove the plan, alleging that the Administrator’s refusal was based on an erroneous construction of the law.

II.

St. Joe contends that where the state has not provided an adequate hearing on the issues of the technological and economic feasibility of an emission limitation in a state implementation plan and the limitation has not been demonstrated to be essential to the achievement of a primary or secondary ambient air quality standard, the Administrator must disapprove the limitation when he has found it to be technologically or economically infeasible. The Administrator, on the other hand, argues that if the criteria set forth in section 110(a)(2) are satisfied, sections 110(a)(2) and 116 require him to approve a provision of an implementation plan even though he has found the provision to be technologically or economically infeasible and more restrictive than is necessary to attain national ambient air quality standards. According to the Administrator, to obtain a revision of the implementation plan so as to conform to that which is technologically and economically possible, St. Joe must resort to state administrative and judicial review. Furthermore, confining St. Joe to state review, the agency suggests, is not inappropriate since the Administrator has stayed federal enforcement of the provision in question.

III.

Although judicial review of the actions of administrative agencies is limited in scope, the Administrator’s approval of the sulfur oxide provision of the Pennsylvania implementation plan cannot escape review by the Court of Appeals if the agency’s decision is founded upon an incorrect conclusion of law. Therefore, we must determine whether, under the circumstances here, sections 110 and 116 compel the Administrator to approve the provision of the Pennsylvania plan that he has found technologically infeasible.

There appears to be no opinion which squarely addresses the precise issue raised on this appeal. However, an interpretation of the Clean Air Act Amendments empowering the Administrator to disapprove the Pennsylvania plan if he finds it technologically un-' workable is implicit in our decision in Duquesne Light. If the Administrator has no authority to disapprove such plan or provision, there would have been no cause to remand the case to the EPA so as to conduct a hearing on precisely this subject. Indeed, the agency argued in Duquesne Light, in urging a denial of the remand, that the statute had not intended the Administrator to consider economic and technological factors. Yet we ordered the remand.

The Court’s earlier decision in Getty Oil Co. v. Ruckelshaus is premised upon a similar reading of the duty of the Administrator under sections 110 and 116. In Getty Oil, Getty operated an oil refinery in Delaware and supplied fluid petroleum coke, a by-product, to Delmarva Power and Light Co., which operated a nearby power station. Delmarva, in turn, supplied electricity and steam to the refinery. As part of its implementation plan, Delaware imposed a limit on the sulfur content of fuels burned in the area in which the Delmarva station was located. This portion of the implementation plan was approved by the EPA, and neither Getty nor Delmarva sought judicial review. However, Getty subsequently asked the state to grant the power station a variance so as to delay the effective date of the sulfur restriction. The relevant state administrative agencies denied the variance, but when Getty sought review in the Delaware courts, it obtained an order restraining the state from enforcing the sulfur limitation.

While the state was so restrained, however, the EPA ordered Delmarva to comply with the implementation plan EPA had already approved. Getty asked this Court to review the compliance order. That order, Getty alleged, deprived Getty of due process because national primary air quality standards had already been met in the area without compliance, and because compliance, prior to the development of alternative technology, would therefore impose an unreasonable economic burden on Getty and Delmarva. Significantly, this Court held that Getty at that time was barred from obtaining judicial consideration of its claims of technological and economic infeasibility since Getty could have obtained such review at the time EPA approved the implementation plan. Section 307(b), the Court reasoned, bars subsequent scrutiny of any claim that could have been reviewed by a court of appeals at the time of the Administrator’s approval of the plan.

An essential underpinning of this Court’s decision in Getty Oil was the conclusion that the Court could have considered technological and economic objections to the state implementation plan when the EPA approved it. If a court of appeals is empowered to review, and presumably reverse, the Administrator’s approval on technological and economic grounds, then surely the Administrator has the authority to review the plan on those same grounds and disapprove the plan, or a portion of it, if he finds it unreasonable.

The Court of Appeals for the Fourth Circuit has reached a similar conclusion with respect to the function of the EPA when it considers implementation plans. In Appalachian Power Co. v. E. P. A. the Administrator argued that his task in reviewing implementation plans was largely ministerial and that he does not consider either the technological or the economic feasibility of the state plan before approving it. The court concluded, “We take no such narrow view . of the Administrator’s role in evaluating the state plan in connection with his exercise of the power to approve or disapprove.”

The Sixth Circuit, like this one, has compelled the EPA to allow interested parties an opportunity to present to the EPA their claims that a proposed implementation plan is technologically or economically impracticable. The Sixth Circuit, therefore, has also implied that the EPA has the power to reject a proffered plan on those bases.

Admittedly, the Act does not expressly empower the agency to disapprove a plan where restrictions are too narrow to be practicable. Certainly, however, Congress would have made its purpose more explicit if it had intended by section 110(a)(2) to limit the Administrator’s authority so as to require him to effectuate an implementation plan even though compliance with such plan is technologically infeasible and the constraints in the plan have not been shown to be essential to the accomplishment of the national standards.

A review by the EPA of the feasibility of an implementation plan is not inconsistent with the statutory language. The Administrator is directed to determine whether an implementation plan provides for the attainment of primary ambient air quality standards “as expeditiously as practicable” and secondary standards within “a reasonable time.” These temporal qualifications suggest that in considering an implementation plan the Administrator should evaluate the workability of the proposed limitations. Í

Disapproval of an implementation plan for technological reasons is not, as the Administrator argues, barred by section 116. Section 116 states:

Except as otherwise provided nothing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution; except that if an emission standard or limitation is in effect under an applicable implementation plan . . . such State or political subdivision may not adopt or enforce any emission standard or limitation which is less stringent than the standard or limitation under such plan or section.

The purport of section 116 is merely to permit the state, under state law, to enforce stricter pollution controls than those that are included in the EPA-approved implementation plan, while prohibiting the states from adopting any measures less restrictive than the applicable federal implementation plan. Section 116 does not prevent the Administrator from adopting in an implementation plan a restriction which is less severe than that which the state chooses to enforce under state law.

Also, the procedures for evaluating an implementation plan prior to the Administrator’s acceptance of it reflect the importance of technological and economic factors not specifically mentioned in section 110. The Administrator is given four months to review the plan proposed by the state. During that period the plan is evaluated by a committee composed of representatives of other federal agencies such as the Federal Power Commission, the Department of Transportation, Labor, Commerce and the Interior, as well as the Office of Management and the Budget. According to the Administrator, this committee “review[s] the aggregate impact of all these implementation plans” and provides assistance “in determining the availability of fuels, transportation programs, and public and private sector investment.” As the Fourth Circuit has observed, “It is inconceivable that these agencies, acting with the Administrator, in determining ‘the aggregate impact’ of the plans and ‘in determining the availability of fuels, transportation programs and public and private sector investment,’ do not consider and evaluate the technological and economic aspects of the plans under review.”

IV.

The effect of the Administrator’s approval is not, as the agency has claimed, nullified by the Administrator’s statement that he will stay enforcement of the plan by the EPA pending reconsideration by the Commonwealth. The decision to stay is not binding on a successor to the present Administrator. Indeed such a stay would not be enforceable by St. Joe even against the present Administrator. Moreover, St. Joe is left vulnerable to private civil actions, authorized by the Act, that might be brought to enforce compliance by St. Joe with the approved implementation plan.. Thus, the approval of the plan by the EPA has concrete adverse consequences for St. Joe despite the Administrator’s undertaking to stay enforcement until the Commonwealth has reconsidered its plan.

For the foregoing reasons, the approval by the Administrator will be vacated and the matter remanded to the Administrator for action consistent with this opinion.

      . Primary ambient air quality standards are those necessary, in the Administrator’s judgment, to protect national health. 42 U.S.C. § 1857c — 4 (Supp.1974).

      . Secondary ambient air quality standards are those necessary, in the Administrator’s judgment, to preserve the general welfare. 42 U.S.C. § 1857c — 4 (Supp.1974).

      . 42 U.S.C. §§ 1857C-3, 1857c-4 (Supp.1974). The Administrator is to include in the list of pollutants afl substances for which air quality criteria had previously been established and any others which, in the Administrator’s opinion, (1) detracted from the public health or welfare; (2) originated from numerous sources; and (3) merited controls.

      . 42 U.S.C. § 1857C-4 (Supp.1974). For a more complete description of the procedure, see Duquesne Light Co. v. E.P.A., 481 F.2d 1 (3d Cir. 1973); Buckeye Power, Inc. v. EPA, 481 F.2d 162 (6th Cir. 1973).

      . 42 U.S.C. § 1857C-8 (Supp.1974).

      . 42 U.S.C. § 1857h-2 (Supp.1974).

      . 40 C.F.P. part 51.

      . According to St. Joe, the Administrator’s standard would have required St. Joe to recapture approximately 94% of the potential sulfur oxide emissions. The Pennsylvania plan requires recapture of approximately 97%.

      . 37 Fed.Reg. 10842, 10889-91.

      . Similar petitions were filed by Duquesne Light Co., Pennsylvania Power Co. and Ohio Edison Co.

      . Duquesne Light Co. v. Environmental Protection Agency, 481 F.2d 1 (3d Cir. 1973). The implementation plan remained in effect as to all potential polluters except St. Joe, Duquesne Light, Pennsylvania Power and Ohio Edison.

      . 42 U.S.C. § 1857C-5 (Supp.1974) requires that the Administrator either “approve” or “disapprove” the plan within four months of submission.

      . 42 U.S.C. § 1857c-5(a)(2) (Supp.1974):
      (2) The Administrator shall, within four months after the date required for submission of a plan under paragraph (1), approve or disapprove such plan or each portion thereof. The Administrator shall approve such plan, or any portion thereof, if he determines that it was adopted after reasonable notice and hearing and that—
      (A)(i) in the case of a plan implementing a national primary ambient air quality standard, it provides for the attainment of such primary standard as expeditiously 'hs practicable but (subject to subsection (e) of this section) in no case later than three years from the date of approval of such plan (or any revision thereof to take account of a revised primary standard); and (ii) in the case of a plan implementing a national secondary ambient air quality standard, it specifies a reasonable time at which such secondary standard will be attained;
      (B) it includes emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of such primary or secondary standard, including, but not limited to, land-use and transportation controls;
      (C) it includes provision for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality and, (ii) upon request, make such data available to the Administrator;
      (D) it includes a procedure, meeting the requirements of paragraph (4), for review (prior to construction or modification) of the location of new sources to which a standard of performance will apply;
      (E) it contains adequate provisions for intergovernmental cooperation, including measures necessary to insure that emissions of air pollutants from sources located in any air quality control region will not interfere with the attainment or maintenance of such primary or secondary standard in any portion of such region outside of such State or in any other air quality control region;
      (F) it provides (i) necessary assurances that the State will have adequate personnel, funding, and authority to carry out such implementation plan, (ii) requirements for installation of equipment by owners or operators of stationary sources to monitor emissions from such sources, (iii) for periodic reports on the nature and amounts of such emissions; (iv) that such reports shall be correlated by the State agency with any emission limitations or standards established pursuant to this chapter, which reports shall be available at reasonable times for public inspection; and (v) for authority comparable to that in section 1857h — 1 of this title, and adequate contingency plans to implement such authority;
      (G) it provides, to the extent necessary and practicable, for periodic inspection and testing of motor vehicles to enforce compliance with applicable emission standards; and
      (H) it provides for revision, after public hearings, of such plan (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of achieving such primary or secondary standard; or (ii) whenever the Administrator finds on the basis of information available to him that the plan is substantially inadequate to achieve the national ambient air quality primary or secondary standard which it implements.

      . 42 U.S.C. § 1857d-l (Supp.1974).

      . 5 U.S.C. §§ 701(a), 706 (1965); Delaware Citizens for Clean Air v. Admin., 480 F.2d 972, 975-976 (3d Cir. 1973); Pennsylvania v. E.P.A., 500 F.2d 246 (3d Cir. 1974). See United States v. Allan Drug Co., 357 F.2d 713 (10th Cir. 1966), cert. den. 385 U.S. 899, 87 S.Ct. 203, 17 L.Ed.2d 131 (1966); Kovac v. I.N.S., 407 F.2d 102 (9th Cir. 1969); Wheatley v. Adler, 132 U.S.App.D.C. 177, 407 F.2d 307 (1968).

      . 467 F.2d 349 (3d Cir. 1972), cert. den. 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973).

      . 42 U.S.C. § 1857h-5(b):
      (b)(1) ... A petition for review of the Administrator’s action in approving or promulgating any implementation plan under section 1857c-5 of this title or section 1857c-6(d) of this title . . . may be filed only in the United States Court of Appeals for the appropriate circuit. Any such petition shall be filed within 30 days from the date of such promulgation, approval, or action, or after such date if such petition is based solely on grounds arising after such 30th day.
      (2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement.

      . 477 F.2d 495 (4th Cir. 1973).

      . 477 F.2d at 505. Since the Fourth Circuit had not received the full record which had been before the Administrator it dismissed the motions to remand the matter to the agency, without prejudice to the parties’ renewing them after the record had been certified to the Court. 477 F.2d at 507-508.

      . In Buckeye Power, Inc. v. E. P. A., 481 F.2d 162, 173 (1973), the Sixth Circuit held that the agency was required to conduct a rule-making proceeding in conformity with 5 U.S.C. § 553 to consider, inter alia, the petitioners’ feasibility claims. However, unlike this Court in Getty, the Sixth Circuit concluded that the petitioners would be entitled to litigate those same claims again in an enforcement proceeding.

      . 42 U.S.C. § 1857c-5(a)(2)(A) (Supp.1974) (emphasis added)

      . 42 U.S.C. § 1857d-l (Supp.1974).

      . The conference committee report on the 1970 Amendments to the Act states only that:
      Except with respect to standards for moving sources [of pollutants], the states’ authority to adopt and enforce standards is applicable to air quality and emissions is retained in the conference substitute [bill]. Reprinted at 3 U.S.Code Cong. & Admin. News 5374 (91st Cong.2d Sess.1970).
      Moreover, section 116 is derived from section 109 of the Air Quality Act of 1967, P.L. 90-148, which provided:
      Nothing in this title shall prevent a state from adopting standards and plans to implement an air quality program which will achieve a higher level of ambient air quality than approved by the Secretary.

      . 42 U.S.C. § 1857c-5(a)(2) (Supp.1974).

      . See Hearings, Senate Subcomm. on Air and Water Pollution, Comm, on Public Works, 92d Cong., 2d Sess. (1972), at 230, 236, 256.

      . Appalachian Power Co. v. EPA, 477 F.2d 495, 506 (4th Cir. 1973).

      . 42 U.S.C. § 1857h-2 (Supp.1974).


author: CAMPBELL, Senior District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Fred E. JORDAN, Defendant-Appellant.
    No. 73-1638.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 21, 1974.
    Decided Jan. 6, 1975.
    Rehearing and Rehearing En Banc Denied March 26, 1975.

      Fred E. Jordan, pro se.
    James R. Thompson, U. S. Atty., Gary L. Starkman and James I. Marcus, Asst. U. S. Attys., Chicago, 111., for plaintiff-appellee.
    Before PELL, Circuit Judge, CAMPBELL, Senior District Judge, and GRANT, Senior District Judge.

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

       Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation.

   CAMPBELL, Senior District Judge.

Defendant Fred E. Jordan was charged in a four count information with failure to file an income tax return for the years 1966, 1967, 1968 and 1969, in violation of 26 U.S.C. § 7203. Following a jury trial, defendant was found guilty as charged in each count of the information. He thereafter received a sentence of one year on Count I, and sentences of one month on each of Counts II, III and IV, said sentences to run consecutively for a total of fifteen months. We affirm.

§ 7203 provides that “[a]ny person required ... to make a return . , who willfully fails to make such return, . . . shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $10,000.00, or imprisoned not more than 1 year, or both, together with the costs of prosecution.”

During the years 1966 through 1969, defendant derived his income from the operation of C & L Service Co., of which he was the sole owner. In 1964, according to defendant’s testimony, he was required by the Internal Revenue Service to undergo an audit of his 1963 return. Defendant testified that the agent who conducted the audit indicated that future returns would also be audited. Thereafter, and through at least 1969, defendant filed annual “returns” with the I.R.S. containing only his name, address and Social Security Number and asserting his refusal to “answer the above questions on the grounds of the Fifth Amendment . . .”.

The various arguments raised by defendant on appeal may be summarized as follows:

(1) That the forms filed with the I.R.S. by the defendant satisfied the filing requirements of 26 U.S.C. § 6011, and accordingly the defendant may not be prosecuted pursuant to § 7203 for the misdemeanor offense of willfully failing to make a return.
(2) That once defendant had asserted his Fifth Amendment right against self-incrimination, he could not be prosecuted under § 7203 without first being afforded a judicial determination respecting the validity of his Fifth Amendment plea.
(3) That defendant was entitled to be charged by indictment.
(4) That the court erred in refusing to allow defendant to be represented by one Jerome Daly, a disbarred attorney.
(5) That the court erred in refusing to instruct the jurors that they were to judge the law, as well as the facts, of the case.

Defendant’s first contention, that the “returns” which he filed were sufficient to satisfy the filing, requirements of § 6011, must be rejected. As the Tenth Circuit stated in United States v. Porth, 426 F.2d 519 (1970):

“A taxpayer’s return which does not contain any information relating to the taxpayer’s income from which the tax can be computed is not a return within the meaning of the Internal Revenue Code or the regulations adopted by the Commissioner.” 426 F.2d at 523.

In filing I.R.S. forms 1040 containing only the defendant’s name, address, Social Security Number and a blanket declaration regarding his Fifth Amendment privilege, defendant failed to file a return as required by law. See United States v. Daly, 481 F.2d 28 (8th Cir., 1973), and cases cited by the Porth court at 426 F.2d 523.

Defendant further argues that his “returns” were never rejected by the Internal Revenue Service as unsatisfactory, and that the I.R.S. did not attempt to summon him for the purpose of conducting an administrative hearing regarding his Fifth Amendment claim. Defendant contends that such action by the I.R.S. is a necessary prerequisite to prosecution for willful failure to file a return, and that since the I.R.S. failed to satisfy this prerequisite, defendant’s conviction should be overturned.

First of all, the evidence disclosed that in June of 1965, after defendant had filed his 1964 “return”, the Internal Revenue Service sent defendant a letter indicating that his return could not be processed since it showed no taxable income. Later in 1965, the I.R.S. sent a second letter to defendant requesting a conference with the taxpayer. Although defendant apparently received this letter, he did not respond. Again, in March of 1966, defendant was sent a certified letter requesting that he contact the Internal Revenue Service to discuss and resolve this matter. Although the letter was properly addressed and mailed, it was never claimed by the addressee. This evidence clearly disputes defendant’s contention that the Service did not attempt to summon him and did not object to his purported claim of a Fifth Amendment privilege against disclosure of his taxable income.

More fundamentally, defendant never validly asserted his Fifth Amendment privilege. In this respect, United States v. Daly, 481 F.2d 28 (8th Cir. 1973) is instructive. Faced with a similar contention, the court held as follows:

“Defendant’s second contention involves the scope of his Fifth Amendment protection against self-incrimination. . . . The chief error in defendant’s position is his blanket refusal to answer any questions on the returns relating to his income or expenses for the years in question. ‘[Ejven [if a particular] question was incriminating, since the government has a substantial interest in its tax revenues, appellant’s privilege would relate only to his refusal to respond to the question, not to a total failure to file the return.’ United States v. Egan [459 F.2nd 997, 998 (2nd Cir. 1972)]. As previously suggested, defendant’s conduct in this case amounts to ‘a total failure to file.’ ... In an analagous situation involving the same defendant’s ‘blanket Fifth Amendment objection to an inquiry and interrogation by the Internal Revenue Service’ this court held ‘that the taxpayer, cannot assert the privilege to every question asked by the examiner, most of which are innocuous on their face.’ . . . ”. 481 F.2d at 30.

Since defendant failed to assert a valid Fifth Amendment claim on the forms filed with the Internal Revenue Service, and since those forms did not constitute valid returns, defendant’s assertion that he could not be prosecuted under 26 U.S.C. § 7203 without first being given a hearing regarding his purported Fifth Amendment claim is without merit.

Defendant next contends that the district court erred in denying defendant’s motion to dismiss the information on the ground that the government had not proceeded by indictment. The Fifth Amendment of the United States Constitution states, in pertinent part, 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, . . 26 U.S.C. § 7203 provides that the willful failure to file a return is “a misdemeanor” and is punishable by imprisonment for a term not exceeding one year. Consistent with numerous decisions defining “infamous crime,” Rule 7(a) of the Federal Rules of Criminal Procedure provides that:

“[a]n offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment or, if indictment is waived, it may be prosecuted by information. Any other offense may be prosecuted by indictment or by infor-, mation.”

Since the offense with which defendant was charged is not punishable by a sentence of imprisonment in excess of one year, the defendant did not have a constitutional right to be prosecuted by indictment. The fact that the defendant received consecutive sentences totalling fifteen months imprisonment does not convert the offenses with which defendant was charged into “infamous” crimes for purposes of the Fifth Amendment. Accordingly, the district court properly denied defendant’s motion to dismiss the information.

Defendant further argues that the district court erred in not allowing one Jerome Daly to cross examine witnesses at trial and to address the jury. Daly was formerly an attorney, but some time pri- or to defendant’s trial, he was disbarred by the State of Minnesota. Nevertheless, Judge Austin allowed Daly to sit at defendant’s table, to advise him and to address the court regarding matters of law. When this matter first came before the district court, Judge Austin instructed the defendant that if he could not afford a lawyer, the court would appoint the Federal Defender to represent him. Apparently, Jordan subsequently conferred with a staff attorney in the Federal Defender’s Office and was told that his purported constitutional arguments were without merit. After the defendant had rejected representation by the Federal Defender’s Office, the district judge promised to appoint counsel of Jordan’s choosing, provided that the lawyer had been admitted to practice in some state. The defendant insisted that Daly represent him, and this request was properly refused by the district court. Thereafter, the defendant proceeded to trial, pro se, with Daly’s assistance.

Under these circumstances, Jordan clearly waived his right to be represented by counsel. The district court is not obligated to appoint counsel of defendant’s choice where the chosen attorney is not admitted to practice. The record indicates that Judge Austin made every effort to accommodate the defendant by offering to appoint any licensed attorney of defendant’s choosing, but defendant failed to nominate a duly licensed attorney. Under these circumstances, defendant waived his right to counsel.

Finally, defendant contends that the court erred in refusing to instruct the jury that they were to judge both the law and the facts in the case. Since it is the judge’s role, not the jury’s, to determine issues of law, this proposed instruction was properly refused.

For the foregoing reasons, the judgment of the district court is affirmed.

Affirmed.


author: McENTEE, Circuit Judge. MOORE, Circuit Judge

text:
    James ROSS, Jr., Petitioner-Appellee, v. Theodore RISTAINO et al., Respondents-Appellants.
    No. 74-1222.
    United States Court of Appeals, First Circuit.
    Dec. 31, 1974.
    Dennis J. LaCroix, Deputy Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief Crim. Div., were on brief, for respondents-appellants.
    Michael G. West, Springfield, Mass., by appointment of the Court, with whom Kamberg, Berman & Hendel, P. C., Springfield, Mass, was on brief, for petitioner-appellee.
    Before COFFIN, Chief Judge, McENTEE, Circuit Judge, and MOORE, Senior Circuit Judge.

       Of the Second Circuit sitting by designation.

   McENTEE, Circuit Judge.

We are required in this case to decide whether it was a denial of due process, where the defendant was a black man accused of violent crimes against a white security officer, for a state court judge to deny a defense request to interrogate prospective jurors specifically on the issue of racial prejudice.

The Commonwealth of Massachusetts appeals from a memorandum and order entered by the district court granting a writ of habeas corpus to appellee, who was convicted of armed robbery, assault and battery by means of a dangerous weapon, and assault and battery with intent to murder. The Massachusetts Supreme Judicial Court unanimously affirmed these convictions, Commonwealth v. Ross, 1972 Mass.Adv.Sh. 873, 282 N.E.2d 70, but the United States Supreme Court granted certiorari, vacated the judgment and remanded the case for further consideration in light of Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). Ross v. Massachusetts, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265 (1973). On remand the Supreme Judicial Court held that Ham did not affect the result reached in its earlier deliberation, Commonwealth v. Ross, 1973 Mass.Adv.Sh. 839, 296 N.E.2d 810. Ross sought a writ of habeas corpus from the district court, which the court granted, saying:

“The questions propounded to the jurors in the present case were directed to the general issue of bias and prejudice, and were far more extensive and carefully worded than those given in Aldridge [v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931),] and Ham. They were exemplary in every respect, except the failure to specifically direct the attention of the jurors to the issue of racial prejudice. In substance, they were no different than the ones given in Ham. The fact that one juror responded that he suffered from racial prejudice and was excused does not cover the situation, because his perception cannot be imputed to the twelve who were chosen.
“In the instant case, there was a white victim. The offense in Ham was victimless, i. e., possession of marijuana. The likelihood of infection of the verdict was at least as great as it was in Ham. . . The petitioner had a constitutional right to have the issue of racial prejudice specifically called to the attention of the prospective jurors on the voir dire examination.”

In Ham v. South Carolina, supra, the defendant was a black civil rights leader charged with possession of marijuana. His defense was that the police were out to get him and were framing him on the drug charge. His counsel requested the judge to ask on voir dire two questions designed to ferret out any possible racial prejudice against the defendant. The judge did put three general questions to the prospective jurors on the issue of bias, but he refused to ask any question directed specifically to racial prejudice. The Supreme Court, in a unanimous opinion, held “that the Fourteenth Amendment required the judge in this case to interrogate the jurors upon the subject of racial prejudice.” 409 U.S. at 527, 93 S.Ct. at 850. The contours of the Ham decision were not sharply defined by the Court. Justice Rehnquist’s opinion did not explicitly state that whenever a black defendant requests the trial judge to inquire specifically on the issue of racial prejudice on voir dire the trial judge must do so. Nor did the opinion explicitly state that the defense request for specific questions directed to racial prejudice need only be honored where the defendant was a civil rights leader .or other “special target of racial prejudice,” which was the construction the Supreme Judicial Court gave Ham. Commonwealth v. Ross, 1973 Mass.Adv.Sh. 839, 296 N.E.2d 810.

Under the view we take of the facts in this case, however, we are not required to resolve this ambiguity. In Ham the defendant was a civil rights leader, while in this case the black defendant is for the purpose of this inquiry an ordinary black citizen. But in this case, the charges against the defendant involved violence against a white, not a victimless crime like possession of marijuana. Moreover, the white victim, a security officer at Boston University, had a status close to that of a police officer. In addition, the eyewitness testimony of a white gas station attendant was a major part of the state’s case against Ross. On these facts the district court was not in error in concluding that “[t]he likelihood of infection of the verdict [by racial prejudice] was at least as great as it was in Ham.’’ In effect, the court held that a black defendant charged with violent crimes against a white security officer would be likely to be a special target of racial prejudice.

Our dissenting brother suggests that the rule of Ham should only apply to cases brought to trial after the date Ham was decided. However, we do not feel the writ should be denied on the ground that Ham should not be given retroactive application. The Supreme Court implicitly decided that Ham applied to this case when it summarily vacated the judgment of the Supreme Judicial Court of Massachusetts and remanded the case to that court for reconsideration in light of Ham. See Ross v. Massachusetts, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265 (1973).

It is not a significant distinction between this case and Ham that Ham took the stand and put his credibility in issue, while Ross did not take the stand. If a juror is prejudiced against blacks, he would not be able to appraise the defense offered by the black defendant impartially, whether or not that defense included the defendant’s taking the stand. Nor is it particularly relevant that the trial court here doubted that questions directed to discovering racial prejudice would result in any admissions of bias. This objection would apply equally well to other questions the court is required to put to proposed jurors. See Mass.Gen.Laws Ann. c. 234, § 28 (Supp.1974). For example, a proposed juror biased by pretrial publicity might aver he is not biased or a juror who believes anyone indicted is guilty as charged might answer that he believes the defendant is innocent until proven guilty, yet we do not allow the possibility of a false answer to serve as an excuse for not asking these questions.

By deciding in this case that the trial judge should have questioned the proposed jurors specifically on the question of racial prejudice, we do not hold that he had to ask the specific questions sought by Ross’s counsel. “[T]he trial judge was not required to put the question in any particular form, or to ask any particular number of questions on the subject, simply because requested to do so by petitioner.” Ham v. South Carolina, supra, 409 U.S. at 527, 93 S.Ct. at 850. See Featherston v. United States, 491 F.2d 96 (5th Cir.), cert. denied, 417 U.S. 971, 94 S.Ct. 3176, 41 L.Ed.2d 1142 (1974). The trial judge has broad discretion as to the questions to be asked regarding racial prejudice.

The writ of habeas corpus shall issue unless within 90 days from the date of this opinion the Commonwealth has either instituted proceedings to retry the petitioner or applied for a writ of certio-rari. If certiorari is sought and granted, the issuance of the writ of habeas corpus shall be stayed pending further order of the Supreme Court. If certiorari is sought and denied, the writ of habeas corpus shall issue unless the Commonwealth has instituted proceedings to retry the petitioner within 30 days after the date certiorari is denied.

So ordered.

MOORE, Circuit Judge

(dissenting).

The sole issue on this appeal relates to the voir dire examination of prospective trial jurors during which the trial judge denied a specific request on behalf of the petitioner, Ross, to ask a particular question, accurately stated by the majority as follows: “Are there any of you who believe that a white person is more likely to be telling the truth than a black person?” No question was sought by Ross’ counsel addressed to prejudice against Ross as a black. Other questions addressed to prejudice against blacks were requested by co-defendants not involved on this appeal. In my opinion the request of Ross’ counsel cannot be given the broad interpretation that the majority has given in saying that it was “a defense request to interrogate prospective jurors specifically on the issue of racial prejudice.”

The majority hold, as did the District Court, that the failure of the trial judge to question “the proposed jurors specifically on the question of racial prejudice” amounted to a denial of constitutional due process. In so holding, they rely primarily on the recent Supreme Court decision in Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), although they concede that the Ham opinion “did not explicitly state that whenever a black defendant requests the trial judge to inquire specifically on the issue of racial prejudice on voir dire the trial judge must do so.”

If the District Court be correct in saying that “The petitioner had a constitutional right to have the issue of racial prejudice specially called to the attention of the prospective jurors on the voir dire examination.” and if it was a “denial of due process” of constitutional dimension to deny a defense request to interrogate prospective jurors specifically on the issue of racial prejudice and if the District Court had no choice but to enter the order granting the writ of habeas corpus because “The mandate of Ham is so clear . . . then, in my opinion, Pandora’s box of potential evil has indeed been opened wide and I look with Cassandra-like foreboding upon the fu- * ture of the voir dire jury examination in cases involving black defendants.

Starting with the question, which the majority quite accurately states this litigation involves, “Are there any of you who believe that a white person is more likely to be telling the truth than a black person?”, I find no relation between such a question and the ultimate desideratum, namely, to uncover racial prejudice against a black defendant. Such a question could not be properly answered unless prosecution and defense read to the prospective juror the name and color of all witnesses they intended to call. Even then it would be impossible to obtain a juror’s pre-trial commitment as to a witness’ credibility until the particular witness had been seen and heard. Will it be constitutionally impermissive to deny interrogation as to a prospective juror’s feelings as to the credibility of a witness of the “X” race, nationality or religion? Illustrative of the problem are questions proposed by petitioners’ co-defendants:

“18. Do you have any feelings either for or against persons of the Black race who wear the Afro style haircut and long sideburns?” (App. p. 56) or
“7. Do you feel that this increase (in crime) is due primarily to blacks in the city?” and
“12. Do you object to the number of blacks and Puerto Ricans on the welfare rolls in the city?” (App. p. 58.)

The other forty questions sought to be asked by these co-defendants were undoubtedly intended in good faith by counsel to ferret out the more intimate prejudices of the panel which was to pass judgment on their clients but query, did not the state trial judge probe sufficiently deeply, as a practical matter, in inquiring “Can you under oath return a fair and impartial verdict based upon the evidence that you hear in the courtroom and not upon any extraneous factors; no bias or prejudice or personal interest in the case, and no prejudice of any kind.” (App. p. 494.)

Petitioner argues that the state judge’s failure to focus the attention of the prospective jurors as to any racial prejudice they might entertain is “as a matter of constitutional law” reversible error. • If this is to be the rule by judicial legislation, in fairness to trial judges, state and federal, the rule should only be so promulgated for future cases.

The District Court concedes that the questions propounded on the general issue of bias and prejudice were exemplary in every respect “except the failure to specifically direct the attention of the jurors to the issue of racial prejudice.” However, if there are to be rules they should be clear and capable of objective application. In other words, it is easy to understand and apply a rule which requires a trial judge in every case in which there is a black defendant to inquire of each individual juror whether he would be adversely prejudiced against such a person because of his race. But is the trial judge duty bound to ask such a question in the absence of a request? If he asks the question sua sponte, the appeal in all probability will be on the ground that he injected the racial issue into the case — hence reversible error. If he fails to ask the question, the same result will obtain and, if counsel fails to make the request, incompetence of counsel will be the charge on the habeas corpus application.

The importance of appellate pronouncements in the field of trial procedure is because of the guidance they should give to trial judges. What are we telling the trial judge as to how he should conduct the voir dire on the next trial so as to avoid constitutional error?

A “next” trial can be assumed. Only a few years have elapsed since the first trial. The witnesses and their whereabouts in all probability are known. The facts supporting guilt as found on the first trial may be read in the two opinions of the Massachusetts Supreme Judicial Court. But juries, not courts, are to determine guilt or innocence and the method of selection of the jury will be the most important element initially.

Neither Aldridge, Ham, supra, the District Court opinion nor this court’s opinion will be of real value as guidelines. Aldridge and Ham indicate that questions regarding racial prejudice must be asked. And, although Ham and the majority state that the questions need not be “in any particular number” or form, Ham, 409 U.S. at 527, 93 S.Ct. 848, only an appellate court will be able to decide whether the future trial judge will have properly exercised that “broad discretion” with which appellate courts so liberally endow him.

If the courts are satisfied to accept “No” to the single question “Are you prejudiced against blacks?” and this colloquy is considered to be constitutionally sufficient, such a question should be permitted if counsel should choose to request it. But the courts are not so easily satisfied — and probably properly so. Few jurors will reveal the innermost workings of their minds — particularly in public. The mere “obtaining jurors’ assurances of impartiality is insufficient [to test that impartiality].” The courts have said that a prospective juror’s eligibility “should not be adjudged on that juror’s own assessment of self-righteousness without something more.”

It is all very well to speak of a standard to be used in the exercise of discretion in passing upon requested inquiries as meeting “the essential demands of fairness.” Aldridge, supra, 283 U.S. at 310, 51 S.Ct. 470, but, what these demands may be, will only be known to the trial judges years later in the opinion of some appellate court.

Take for example a single instance derived from this case because it falls into the category of the “something more” field of inquiry. A proposed question submitted to the trial judge here followed the questions: “Do you have children? Do they go to public schools?” and was:

“16. If in private schools, is this a result of your feelings towards the number of blacks and Puerto Ricans in the school system?”

In view of certain situations recently reported in the public press existing in Eastern Massachusetts with respect to the public schools such a question might well be included in a probing group, including “Are you at all nervous about walking the streets of your town or city after dark?” Almost unlimited questions along this line can be conjured up for obtaining a true picture of the potential juror’s mind. To obtain such a picture the voir dire might well more properly be relegated to the psychiatrist.

However, our present concern must be this case. We are given some 120 pages of transcript devoted entirely to the trial judge’s efforts to obtain an impartial jury. Successive panels were interrogated. The defendants who are black stood before the prospective jurors. The trial judge was most specific as to “bias or prejudice” generally. The jurors knew when asked about prejudice that the defendants were black. Each juror was given an opportunity to approach the Bench and express whatever his own personal reasons for not wishing to serve. Any possible reluctance to express racial bias or prejudice in public was thus avoided. In fact two jurors' were excused because of prejudice; one in particular, because of racial prejudice. The ultimate jury consisted of 10 whites and 2 blacks. No incident has been pointed out to us which might indicate that this was not a normal and average American jury which heard the evidence and reached their verdict thereon. If there is to be a new voir dire rule, mandating upon request the injection of a racial prejudice issue into the case, I am not prepared to fault the trial judge for not knowing it before it was promulgated.

Finally, I am not unmindful of the fact that a distinguished court (the Massachusetts Supreme Judicial Court) has twice passed upon the issue of fair trial for this defendant. After the first af-firmance certiorari was granted and the case remanded for reconsideration in light of Ham. That reconsideration was given and again there was affirmance. Certiorari was denied, three Justices vigorously dissenting, as appears in the opinion of Mr. Justice Marshall. 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486.

The Supreme Court has stated that denial of certiorari has no legal significance — at least as to the merits of the controversy. Nor would I question the sound philosophy behind such an interpretation. Two cases in particular in which the opinions were written by Mr. Justice Frankfurter clearly demonstrate that “such a denial (of certiorari) carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review.” Maryland v. Baltimore Radio Show, 338 U.S. 912, 919, 70 S.Ct. 252, 255, 94 L.Ed. 562 (1950). Again in 1953 the Supreme Court devoted itself in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), to the effect, if any, which might be attributed to denial of certiorari. In a separate opinion (pp. 488 — 497, 73 S.Ct. 397) Mr. Justice Frankfurter set forth most specifically the reasons why no effect should be given to denial. The many instances cited of petitions “rarely drawn by lawyers,” “almost unintelligible,” inadequate records, no clear statements of the issues, the lack of importance of the issues, the mere numerical quantity of the petitions, all justify the conclusion that “The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, . ” Quite rightly did the Justice say: “The reasons why our denial of certiorari in the ordinary run of cases can be any number of things other than a decision on the merits are only multiplied by the circumstances of this class of petitions.” Brown, supra, at 497, 73 S.Ct. at 441. However, this very expression is pregnant with the possibility as Mr. Justice Jackson pointed out in his separate opinion that “There may be circumstances so extraordinary that I do not now think of them which would justify a departure from this rule, but the ordinary run-of-the-mill case certainly does not.” Brown, supra, at 545, 73 S.Ct. at 429.

This small opening in an otherwise seemingly impregnable fortress entitles one to peer into the interior — a hypothetical conference chamber in which consideration of certiorari in this case is being discussed. Ham for all practical purposes had just been decided. The constitutional issue of the “black” question presented by Ross was so clear that a remand was directed in light of Ham. When Ross next arrived it was in the same garb — no other questions, no procedural issues, no diminution in importance of the only issue — just the same single “black” question. If there were any doubt on the subject Mr. Justice Marshall must have made all conscious of the singleness of the issue in his dissent, Justices Douglas and Brennan joining. Under these circumstances I would be reluctant to characterize this case as an “ordinary run-of-the-mill case.” The intervening remand had not created a new issue. If the absence of the “black” question called for remand on the first petition, its continued absence must have been noted on the second. Very possibly the denial of the Ross second certiorari petition has no legal significance but in my opinion the scope and intent of voir dire in the specific field of bias and prejudice as presented here has great legal significance. If counsel are permitted to endeavor to obtain via the voir dire a juror’s commitment as to his views of prospective witnesses’ credibility I foresee countless future appeals arising therefrom.

For these reasons — but primarily because I believe that the petitioner received a fair trial in Massachusetts — I dissent and would reverse the granting of the writ.

      . The defendant’s motion for examination of proposed jurors asked that various questions be put to the voir dire panel. The question which this litigation involves was “Are there any of you who believe that a white person is more likely to be telling the truth than a black person?”

      . After the decision of the Massachusetts Supreme Judicial Court on remand, Ross again filed a petition for certiorari with the United States Supreme Court. The Court denied the petition, Ross v. Massachusetts, 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973), but Justice Marshall filed an opinion, in which Justices Douglas and Brennan joined, dissenting from the denial. This part of the procedural history of this case has no legal effect in this court. The denial of a petition for certiorari from a state court judgment affirming a conviction has no legal significance when an application for a writ of habeas corpus thereafter comes before a district court. Brown v. Allen, 344 U.S. 443, 488-497, 73 S.Ct. 397, 97 L.Ed. 469 (1953) (opinion of Justice Frankfurter, for a majority of the Court). That only three Justices voted to grant Ross’s second petition for certiorari does not mean that five or more Justices were voting, or even would have voted, to affirm on the merits the decision of the Massachusetts Supreme Judicial Court on remand. That the three dissenting Justices filed a lengthy opinion with the denial of certiorari does not reverse the effect to be accorded the denial; the opinion only indicates how strongly those Justices feel about the case. Denial of certiorari may be motivated, among other reasons, by a desire “to have different aspects of an issue further illumined by the lower courts,” Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912, 918, 70 S.Ct. 252, 255, 94 L.Ed. 562 (1950) (opinion of Justice Frankfurter respecting denial of certiorari), or by a preference for administrative reasons to have the prisoner seek habeas corpus in the district court. See generally R. Stern & E. Gressman, Supreme Court Practice §5 5.4-5.7 (4th ed. 1969).

      . The two questions sought to be asked were:
      “1. Would you fairly try this case on the basis of the evidence and disregarding the defendant’s race?
      “2. You have no prejudice against ne-groes? Against black people? You would not be influenced by the use of the term ‘black’?” 409 U.S. at 525 n. 2, 93 S.Ct. at 849.

      . If a juror were prone to racial bias, we question whether it is reasonable to conclude that he would confine that bias, and its destructive effects on his impartiality, to cases where the defendant was a civil rights leader. That the juror might be particularly prone to vent his bias in such a case in no way supports the conclusion that he would be an impartial juror in the absence of such a special factor, as the due process clause requires, see Peters v. Kiff, 407 U.S. 493, 501, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972) (opinion of Justice Marshall).

      . Other state cases suggest any black criminal defendant, target or not, who requests a specific inquiry about racial prejudice is entitled to it. Cochran v. State, 505 S.W.2d 520 (Ark.1974) (prosecution for assaulting an officer during an assemblage or riot); McNichols v. State, 279 So.2d 377 (Fla.App.1973) (state confessed error; facts not stated); Mize v. State, 131 Ga.App. 538, 206 S.E.2d 530 (1974) (black defendant charged with simple battery against white prosecutrix entitled to question on racial prejudice); Reid v. State, 129 Ga.App. 657, 200 S.E.2d 454 (1973) (error not to allow black woman charged with theft to have questions concerning racial bias); People v. Wray, 49 Mich.App. 344, 212 N.W.2d 78 (1973) (black defendant charged with carrying concealed weapon in motor vehicle entitled to question all-white jury on racial bias); Shabazz v. State, 506 S.W.2d 60 (Mo.Ct.App.1974) (dictum); People v. Rubicco, 42 A.D.2d 719, 345 N.Y.S.2d 624 (2d Dept. 1973), aff’d on another ground, 34 N.Y.2d 841, 359 N.Y.S.2d 62, 316 N.E.2d 344 (1974) (possession of gambling records; “reversible constitutional error” to deny motion to ask jurors whether they are biased against Italians); People v. Williams, 41 A.D.2d 611, 340 N.Y.S.2d 504 (1st Dept. 1973) (narcotics convictions reversed because of “direct conflict with Ham”). But see United States v. Walker, 491 F.2d 236 (9th Cir.), cert. denied, 416 U.S. 990, 94 S.Ct. 2399, 40 L.Ed.2d 768 (1974) (prosecution for uttering forged U. S. treasury check; inquiry about racial prejudice not mandated because no racial overtones shown); Commonwealth v. Brown, 228 Pa. Super. 166, 323 A.2d 281 (1974) (conviction for forcible rape affirmed by 3 to 2 vote; requested racial question held irrelevant and overbroad).

      . We observe with respect to our brother’s dissenting opinion that whenever trial judges are vested with broad discretion it is possible to evoke Pandora, but only if one assumes that discretion will be thrown to the winds. As for this and the other points made, we come to rest with the conviction that they would apply equally to the case presented in Ham.

      . Commonwealth v. Ross, 282 N.E.2d 70 (1972) and 296 N.E.2d 810 (1973).

      . Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931).

      . United States ex rel. Bloeth v. Denno, 313 F.2d 364 at 372 (2nd Cir. 1963), cert. denied, 372 U.S. 978, 83 S.Ct. 1112, 10 L.Ed.2d 143.

      . Silverthorne v. United States, 400 F.2d 627, 639 (9th Cir. 1968). (Emphasis in original).

      . United States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361 (1923).


author: RONEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harold James TAYLOR and Woodrow Hunter, Defendants-Appellants.
    No. 74-2198.
    United States Court of Appeals, Fifth Circuit.
    Feb. 21, 1975.

      David B. Byrne, Jr., Montgomery, Ala., for Taylor.
    Michael I. Kent, Opelika, Ala., for Hunter.
    Ira DeMent, U. S. Atty., Wade B. Perry, Jr., D. Broward Segrest, Asst. U. S. Attys., Montgomery, Ala., for plaintiff-appellee.
    Before BELL, AINSWORTH and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

Woodrow Hunter and Harold James Taylor were convicted of the armed robbery of the Tuskegee Institute Branch of the City Bank of Tuskegee, Alabama, a bank with federally insured deposits. 18 U.S.C.A. § 2113. We affirm the conviction of Hunter against several alleged trial errors. We reverse as to Taylor on the ground that the prosecution placed before the jury a statement of Hunter’s implicating Taylor, which the Government in a successful effort to avoid a severance of the two cases had agreed not to introduce into evidence, and which violated Taylor’s Sixth Amendment right to confrontation under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

About 9:30 in the morning on February 4, 1974, the Tuskegee bank was robbed of $11,375 by two armed men wearing masks and protective clothing so that none of their flesh was exposed. The Government obtained the defendants’ convictions with the circumstantial evidence of seventeen witnesses and forty-five exhibits.

Woodrow Hunter

Woodrow Hunter raises six points on this appeal. A complete reading of the transcript of the pretrial and trial proceedings, a study of the briefs, and a review of the oral argument convinces us that Hunter’s conviction should be affirmed.

In accordance with our Local Rule 21, we dispense with a written opinion in connection with all but one of the points raised by Woodrow Hunter because the evidence in support of the jury verdict is not insufficient, no error of law appears, and we determine that an opinion would have no precedential value. In so doing, we find that first, the trial judge did not so identify himself with the prosecution, engage in conduct, or make comments that affected a fair trial; second, there was not such prosecutorial misconduct as to constitute a violation of due process; third, there was no error in the admission of various photographs which were used to indicate the height of the bank robbers, contrary to two points asserted by Hunter; and fourth, the trial court properly instructed the jury as to the elements of the offense.

As to the denial of Hunter’s motion to suppress statements made to the F.B.I. on the ground that Hunter was under the influence of drugs at the time, there was no positive testimony as to whether the amount of heroin or LSD or both that Hunter had allegedly consumed prior to the statements would affect his voluntariness and reliability. The resolution of this fact issue depended upon a credibility choice among several witnesses. The district court decided the issue against Hunter, there is ample evidence to support the decision, and no room is left for interference by a-reviewing court. The mere fact that the defendant had taken drugs prior to giving the statement does not render it inadmissible. The evidence must show the defendant was so affected as to make his statement, after appropriate warnings, unreliable or involuntary. See United States v. Welsh, 417 F.2d 361 (5th Cir. 1969); Ortiz v. United States, 318 F.2d 450 (9th Cir. 1963), cert. denied, 376 U.S. 953, 84 S.Ct. 971, 11 L.Ed.2d 972 (1964).

Harold James Taylor

Crucial evidence against Harold James Taylor was given to the jury when F.B.I. Agent Byrne testified that Hunter told him that “he and Taylor had hidden the clothes that they used and gun under an abandoned house.” The statement was anchored in the jury’s mind when the prosecutor asked, “And who was the Taylor that Hunter was referring to?” and received the reply that “Harold Taylor is the man he said.”

Because Taylor’s separate counsel was concerned that a statement by Hunter inculpating Taylor might be used against his client, he moved for severan- prior to trial. Defendant Taylor would apparently have been entitled to a separate trial under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Bruton held that, the admission of a confession made by a co-defendant implicating the defendant, where the co-defendant did not take the stand, violated the defendant’s right to cross-examination secured by the Confrontation Clause of the Sixth Amendment.

In the hearing on this motion, the Government reported that of the three statements which Hunter had made to the F.B.I., only one inculpated Taylor. To avoid a severance and the Bruton problem in a joint trial, Government counsel told the court that, in this third statement, “there is material which might, arguably, incriminate Taylor. For that reason we will not use the third statement. Therefore, I think there are no Bruton grounds left in the case.”

“THE COURT: You mean you will not use the third statement if they are tried together?
MR. PERRY: Yes, sir, if they are tried together, and if Hunter does not take the stand.

There is no dispute that the statement testified to by the F.B.I. agent at the trial was in the “third statement.”

Seeking to justify its violation of the agreement not to use the statement by Hunter against Taylor, and prevent reversal under Bruton, the Government asserts that the incriminating statement was not used on direct, but only upon redirect after Taylor’s counsel had “opened the door” to inquiry about the third statement. The Government relies on several cases which have held that a defendant cannot obtain reversal because of the admission of otherwise inadmissible evidence where the defendant himself has opened up the constitutionally forbidden subject matter. Sometimes called the doctrine of invited error, the accepted rule is that where the injection of allegedly inadmissible evidence is attributable directly to the action of the defense, its introduction does not constitute reversible error. See generally Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954); Birns v. Perini, 426 F.2d 1288 (6th Cir. 1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1609, 29 L.Ed.2d 120 (1971); United States v. Fioravanti, 412 F.2d 407 (3rd Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969). Though the Government argues that cross-examination of the agent by Taylor’s counsel placed the “third statement” in issue and opened the way to interrogation about it on redirect examination, the record neither supports the argument factually nor justifies the application of the principle asserted by the Government.

Prior to the testimony of the agent, another witness testified that one of the weapons used by the robbers was a sawed-off shotgun, possibly double-bar-relled. The F.B.I. agent testified on direct examination that he found a sawed-off rifle, which certain witnesses then identified as the weapon. On cross-examination, defense counsel for Taylor was trying to develop the inconsistency between a shotgun and a rifle and this exchange resulted:

Q. [D]id you ask them to explain the inconsistency between this and a double barrel shotgun or a shotgun?
A. I didn’t talk with any of those people that you say described the weapon. It was described to me as a rifle, sawed-off rifle, and that’s what I was looking for, a rifle.
Q. And when and who provided you with a description that the item you were looking for was a sawed-off rifle? A. Woodrow — (interrupted).
Q. Other agents of the FBI?
Mr. Segrest (Government counsel). No sir, he asked the question we request that he allow the agent to answer the question.
The Court: Yes, sir, let him answer. A. Woodrow Hunter.

Because it was Hunter’s “third statement” which contained the information about the rifle, the Government argues that this brief exchange opened the door to bringing in the incrimination of Taylor by Hunter on redirect examination of the Government witness. The argument is unsound for several reasons: first, the trial court, after an “off-the-record” bench conference, sustained an objection to the Government’s next question after the incrimination of Taylor: “All right, what else did Hunter tell you on that day?” Although an “off-the-record” bench conference prevents us from discerning the basis of the court’s ruling, it can be assumed that by directing “the attorneys not to go into that particular statement further” the court was unpersuaded by the Government’s argument that the door had been opened. Second, the Government had never shown Hunter’s statements to Taylor’s attorney, so he had no way to know that asking about the sawed-off rifle would lead the witness into the third statement. Since the application of the invited error rule here would be tantamount to a waiver of the Sixth Amendment right to confrontation, a purposeful rather than inadvertent inquiry into the forbidden matter must be shown. Third, there was no reference to a “statement” as such, so the jury was not left to speculate on the remainder of the statement with possible adverse consequences to the prosecution. Fourth, the testimony that Hunter told of the sawed-off rifle was understandable on its own, negating any argument that the complete statement should be admitted for proper understanding of the testimony given. Fifth, while the Government was helped in its case against Hunter by the answer on redirect, it was completely unharmed in its case against Taylor, so the Government had no need to develop further the third statement. There was no evidence before the jury to indicate that Woodrow Hunter would exculpate Taylor from the robbery, which might justify exploration of the incriminating statement upon the Government’s interrogation of the witness. In short, the trial court apparently did not think that Taylor had invited error, opened the door, or waived his rights under the Confrontation Clause of the Sixth Amendment, and neither do we. We hold, therefore, that the testimony of the agent concerning that part of Hunter’s “third statement” which inculpated Taylor denied Taylor his constitutional right to confront and cross-examine his accuser.

Taylor asserts that the district court erred in failing to limit the effect of the agent’s testimony by proper instruction. The Bruton decision teaches us that such limiting instruction would probably not have been an adequate substitute for Taylor’s rights under the Confrontation Clause of the Sixth Amendment even had it been given. Before violating its agreement with the court and the defendant not to introduce the co-defendant’s incriminating statement, Government counsel should have sought a ruling from the court outside the hearing of the jury and should not have plunged the trial into possible error, irretrievable under Bruton.

The Government’s argument that no objection was made to the question which brought forth the damaging answer fails for two reasons: first, since defense counsel had not seen the statements, there was no way for him to know what Government counsel well knew, that the inquiry of the witness concerned the incriminating third statement; and second, the defendant had every right to rely on the Government counsel’s agreement. The following exchange facially shows, as far as it would appear to defense counsel and the court, the Government counsel could have been inquiring as to the first or second statement on his initial question. By the time the second question was asked, the trial was irreparably damaged.

(By Mr. Perry, Government counsel)
Q. Now Mr. Byrne asked you what investigation you had done and how you learned the location of that rifle. What else did Hunter tell you?
A. Well, I interviewed Mr. Hunter on the same day the 15th and he told me that he and Taylor had hidden the clothes that they had used and gun under an abandoned house.
Q. All right, and who was the Taylor that Hunter was referring to?
A. Let’s see, Harold Taylor is the man he said.
Q. All right, what else did Hunter tell you on that day?
A. He told me that (interrupted Mr. Kent: We object. Mr. Byrne: May we approach the bench. All counsel went to the bench. Pause in time). The Court: I will overrule the motion as to the previously entered evidence. I will sustain the objection to the present question and direct the attorneys not to go into that particular statement further.

We have reviewed the transcript to determine whether the agent’s testimony concerning Hunter’s “third statement” was harmless error. If there were overwhelming evidence against Taylor, and if the agent’s statements were merely cumulative, and not controlling evidence of Taylor’s involvement in the armed robbery of the Tuskegee bank, the conviction might be affirmed under the harmless error rule. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Hoover v. Beto, 467 F.2d 516 (5th Cir.) (en banc), cert. denied, 409 U.S. 1086, 93 S.Ct. 703, 34 L.Ed.2d 673 (1972).

Although the record may well contain enough evidence other than the incriminating statement to support the jury conviction under the substantial evidence rule, we do not find the evidence so overwhelming as to demand a verdict against Taylor. We cannot say the erroneous admission of the incriminating statement was harmless error. Our af-firmance of Hunter’s conviction will necessarily give Taylor the separate trial he requested upon retrial, regardless of the Government’s predisposition as to use of the incriminating statement.

We reverse the conviction of Harold James Taylor and remand for a new trial. It is unnecessary for us to rule upon the other points of error asserted by Taylor.

Affirmed as to Hunter.

Reversed and remanded as to Taylor.


author: GEE, Circuit Judge:

text:
    Rue Ann ADAMSON, Plaintiff-Appellee, v. HOME LIFE INSURANCE COMPANY, Defendant-Appellant.
    No. 74-1995.
    United States Court of Appeals, Fifth Circuit.
    Feb. 21, 1975.
    John E. Agnew, Joe Hill Jones, Dallas, Tex., for defendant-appellant.
    Howard V. Tygrett, Jr., Dallas, Tex., for plaintiff-appellee.
    Before DYER, MORGAN and GEE, Circuit Judges.
   GEE, Circuit Judge:

In this Texas diversity case, Rue Ann Adamson seeks to recover on a policy of insurance issued her deceased husband, George A. Adamson. Finding the jury reached the proper result, we affirm.

On April 20, 1971, George A. Adamson applied for insurance with Home Life Insurance Company. The application included the question:

Have you flown as a.pilot, crew member or student pilot within the past three years or do you contemplate such flights?

The jury found that Adamson told Home Life agents that he had flown as a pilot to some extent. There is disputed evidence as to whether the agents advised Adamson to answer in the negative since his “limited” flying activities would not bring him within the policy definition of pilot. In any case, Adamson did respond negatively to the question and signed the application. Attached to the policy application was a medical examiner’s report. Noted in the report were the facts that Adamson had been an Air Force pilot and that he had received annual physicals and electrocardiograms while in the Air Force. Also available to Home Life was a Retail Credit Company Special Narrative Life Report which, while stating on the one hand that Ad-amson had a past interest in aviation and no interest in hazardous sports, stated (if we may so loosely employ the term) on the other:

AIVATION — HAZARDSOU SPORTS: We learned of ninterest in the field of aivaton and we learned of interest in any hazardous sports.

The policy was issued. On November 6, 1972, George Adamson crashed while piloting a plane and was killed. Rue Ann Adamson, deceased’s widow and beneficiary under the policy, sued Home Life Insurance Company for the proceeds, as well as a statutory penalty and attorney’s fees. Home Life answered and sought to avoid liability by charging that Adamson had fraudulently misrepresented his piloting activities. The case was submitted to a jury on interrogatories; after the jury returned answers the court entered a judgment favorable to appellee Rue Ann Adamson. Home Life contests the results of the trial here.

Since the case was submitted to the jury on special interrogatories, our appellate task is eased. If we find that the evidence supports some controlling jury answers, we need look no further since the remaining answers would be without consequence. See In re Double D Dredging Co., 467 F.2d 468, 469 n. 2 (5th Cir. 1972); Dicks v. Cleaver, 433 F.2d 248, 252 n. 6 (5th Cir. 1970); 5A Moore’s Federal Practice II 49.02 (1974).

Starting then with what appellee maintains is an overriding issue, we find that the jury responded affirmatively to the following:

Do you find from a preponderance of the evidence that Defendant, Home Life Insurance Company, had sufficient information, excluding knowledge of the soliciting agents, Derrick and Perry, that the Deceased, George A. Adamson, had flown as a pilot within the 3 years preceding April 20, 1971 as would have put a prudent insurance company on notice and would have caused the insurance company to start an inquiry which, if carried out with reasonable thoroughness, would have revealed the truth?

Home Life Insurance Company attacks this submission as based on an erroneous theory of law and the jury finding as based on insufficient evidence. Appellant further contends the issue was a proper candidate for directed verdict. The theory involved — waiver or estoppel to raise the defense of fraudulent misrepresentation — has been considered by our court previously in a Texas diversity case. There we said:

With reference to allowing the jury to decide if Lincoln waived the fraudulent misrepresentations by not following up its leads, this court in Apperson v. United States Fidelity & Guaranty Co., 318 F.2d 438, 441 (5th Cir. 1963), held:
“The mere fact that the insurer makes an independent investigation does not absolve the applicant from telling the truth nor lessen the right of the insurer to rely upon his representations, UNLESS THE INVESTIGATION either discloses the falsity of the representations or DISCLOSES FACTS WHICH WOULD PUT A PRUDENT PERSON ON FURTHER INQUIRY.” (Emphasis added.)

Jefferson Amusement Co. v. Lincoln National Life Ins. Co., 409 F.2d 644, 650 (5th Cir. 1969). See also Guardian Life Ins. Co. of America v. Eagle, 484 F.2d 382, 384 (5th Cir. 1973). The instruction correctly submits the theory to the jury. Also, there was sufficient evidence to allow submission. This being so, “it is the clear rule in this Circuit that questions concerning the diligence and justified reliance of an insurance company are issues of fact to be governed on appeal by the clearly erroneous standard.” Guardian Life Ins. Co. of America v. Eagle, supra, 484 F.2d at 384.

Mr. Cunningham, head of Home Life’s underwriting department but not the underwriter who approved issuance of the policy, testified to company reliance on Adamson’s application, the medical examiner’s report and the Retail Credit Company Special Narrative Life Report in deciding whether to issue the policy. Given the information in the medical examiner’s report about Adam-son’s eárlier piloting activities and the ambiguity of the credit report, we cannot say that the jury was clearly erroneous in concluding that the insurer had such notice as would lead a prudent person to look further, despite Cunningham’s own interpretation of the material. Further there is evidence to support a finding that the investigation would have revealed the truth. It was company practice to have an applicant complete an aviation supplement if indications were he was a pilot. Further, there is testimony in the record, and the jury found, that Adamson had told the insurance agents about his piloting experience. The jury could have reasonably inferred that Adamson would have likewise filled out the aviation supplement correctly. Adamson’s piloting activities were hardly of a sort which would have been easily concealed or peculiarly within the knowledge of Adamson. The jury finding is based on sufficient evidence; no directed verdict or judgment n.o.v. was appropriate.

Having so concluded, we need not deal with the remaining jury answers. They deal with the issue of fraudulent misrepresentation, an issue assumed for the purpose of determining waiver. Also, we need not consider whether in this case the agents’ knowledge could be imputed to the company in the first instance, their knowledge being specifically excluded from the waiver question.

Since the issue of knowing misrepresentation has no effect on the outcome of the case, the trial court’s exclusion from evidence of the report detailing the circumstances of Adamson’s crash is not harmful to Home Life, even if error.

Finally, Home Life claims that the trial .court erred in awarding Rue Ann Adamson attorney’s fees. Article 3.62 of the Texas Insurance Code provides:

In all cases where a loss occurs and the life insurance company, or accident insurance company, or life and accident, health and accident, or life, health and accident insurance company liable therefor shall fail to pay the same within thirty days after demand therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of the loss, twelve (12%) per cent damages on the amount of such loss together with reasonable attorney fees for the prosecu-
tion and collection of such loss. Such attorney fee shall be taxed as a part of the costs in the case. The Court in fixing such fees shall take into consideration all benefits to the insured incident to the prosecution of the suit, accrued and to accrue on account of such policy. Acts 1951, 52nd Leg., ch. 491.

Home Life contends it is a mutual company and not subject to 3.62 under Texas case law. We do not agree. The Texas cases cited by appellant refer only to mutual assessment companies, not mutual life insurance companies, such as Home Life. Further, the exemption no longer exists for statewide mutual as-, sessment associations. Tex.Ins.Code Ann. art. 3.62 — 1. In Texas, mutual life insurance companies are governed by Chapter 11 of the Insurance Code. Article 11.19 of that chapter expressly allows application of provisions of Chapter 3, wherein appears Article 3.62, to mutual life insurance companies unless they conflict with provisions of Chapter 11. We see no such conflict. See John Hancock Mutual Life Insurance Co. v. Schroder, 349 F.2d 406 (5th Cir. 1965). Award of attorney’s fees was proper. Accordingly, we affirm the trial court decision in all respects and remand for assessment of interest in conformance with the trial court’s order.

Affirmed.

      . As authorized by Texas Insurance Code, Art. 3.62, V.A.T.S. A claim for accidental death benefits was abandoned before submission to the jury.

      . A very recent Texas case supports the proposition that waiver can be found if the insurer has such notice as would necessitate additional inquiry. Johnson v. Prudential Ins. Co. of America, 506 S.W.2d 238, 245 (Tex.Civ.App.-San Antonio 1974, writ granted). See also Trice v. Georgia Home Ins. Co., 81 S.W.2d 1055, 1057 (Tex.Civ.App.-Amarillo 1935, no writ) (“ ‘Actual knowledge of facts forfeiting a policy is not necessary to a waiver, if attending circumstances are of such nature as to put a prudent person on his guard.’ ”) and Maniatis v. Texas Mutual Life Ins. Co., 90 S.W.2d 936 (Tex.Civ.App.-Waco 1936, no writ) (“suspicious circumstances”).

      . This testimony was contested, but the jury was entitled to credit it.

      . We, the Jury, return our answers to the following questions as our verdict in this case.
      QUESTION NO. 1:
      Do you find from a preponderance of the evidence that George A. Adamson knew that the “No” answer to the question “Have you flown as a pilot, crew member or student pilot within the past 3 years or do you contemplate such flights?” on the application signed by him was false?
      ANSWER:
      [ ] He did so know.
      [x] He did not so know.
      QUESTION NO. 2:
      Do you find from a preponderance of the evidence that the negative answer to the question “Have you flown as a pilot, crew member or student pilot within the past 3 years or do you contemplate such flights?” on the application of insurance signed by George A. Adamson was made with the intent to induce Home Life Insurance Company to act on it?

        ANSWER:
      [x] It was made with such intent.
      [ ] It was not made with such intent.
      QUESTION NO. 3:
      Do you find from a preponderance of the evidence that the defendant Home Life Insurance Company relied in whole or in part upon the negative answer to the question “Have you flown as a pilot, crew member or student pilot within the past 3 years or do you contemplate such flights?” by George A. Adamson on the application of insurance signed by him?
      ANSWER:
      [x] It did so rely.
      [ ] It did not so rely.
      QUESTION NO. 4:
      Do you find from a preponderance of the evidence that the negative answer to George A. Adamson to the question “Have you flown as a pilot, crew member or student pilot within the past 3 years or do you contemplate such flights?” on the application signed by him, was material to Home Life Insurance Company’s risk?
      ANSWER:
      [x] It was material.
      [ ] It was not material.

      . See Odom v. Insurance Company of State of Pennsylvania, 455 S.W.2d 195 (Tex.1970). This does not preclude our considering the agents’ knowledge, as we have done, for purposes of determining what the results of an independent inquiry would be.

      . The rationale for the exemption turned on the nature of a mutual assessment company. See, e. g., Logan v. Texas Mut. Life Ins. Ass’n, 121 Tex. 603, 51 S.W.2d 288, 292 (1932, opinion adopted).

      . Home Life admitted in its answer that it was a life insurance company. The term “mutual” appears on the face of the policy. We note that Texas courts had placed the initial burden on the defendant insurer to plead and prove that it was a mutual assessment company. Bankers Life & Loan Ass’n v. Jayroe, 133 Tex. 287, 127 S.W.2d 291 (1939, opinion adopted); Blue Bonnet Life Ins. Co. v. Robinson, 153 S.W.2d 200, 203 (Tex.Civ.App.-Fort Worth 1941, writ dism’d).