author: EDWARDS, Circuit Judge. LAMBROS, District Judge

text:
    Albert William HALE, Petitioner-Appellant, v. C. Murray HENDERSON, Warden Tennessee State Penitentiary, Respondent-Appellee.
    No. 72-2185.
    United States Court of Appeals, Sixth Circuit.
    Argued April 18, 1973.
    Decided Oct. 5, 1973.

      Charles Stephen Ralston, New York City, for petitioner-appellant; Walter L. Bailey, Jr., Memphis, Tenn., and Jack Greenberg, New York City, on brief.
    James M. Tharpe, Sp. Counsel, State of Tenn., Memphis, Tenn., for respondent-appellee; David M. Pack, Atty. Gen. of Tenn., Nashville, Tenn., of counsel.
    Before EDWARDS and MILLER, Circuit Judges, and LAMBROS, District Judge.

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

   EDWARDS, Circuit Judge.

This petitioner, after issuance of a writ of habeas corpus in his favor by the United States District Court for the Western District of Tennessee, appeals the two issues which the District Court decided against him. The state did not appeal from the District Court’s grant of the writ of habeas corpus, but does resist reversal of the two issues decided in its favor below. In the interest of judicial economy, we decide both issues sought to be appealed.

Petitioner was indicted and convicted of first degree murder and sentenced to life imprisonment in 1965. Concededly he has exhausted state remedies on the issues concerned.

This case has a lengthy history. Its factual background may be found recited in Hale v. Henderson, 400 F.2d 655 (6th Cir. 1968) (where this court remanded the instant habeas corpus case to the District Court for evidentiary hearing on the admissibility of petitioner’s confession), and in Hale v. Henderson, 336 F.Supp. 512 (W.D.Tenn.1972). On remand of this case after evidentiary hearing, the District Judge found facts warranting issuance of the writ of habeas corpus on the basis of an illegal arrest and unconstitutional search, the products of which had been admitted against appellant. But he specifically rejected petitioner’s additional claims 1) that the confession which was introduced against him was the product of an illegal and unconstitutional arrest, and 2) that the grand jury which had indicted him was unconstitutionally constituted in that no black foreman or foreman pro tern of the jury had ever been appointed in Shelby County, albeit 150 such appointments had been made by the Court in whom state law placed that authority.

As to the confession issue, the District Judge found that the arrest of petitioner on the day after the murder was discovered was not based on probable cause and was illegal and violative of petitioner’s constitutional rights. The state does not dispute this finding. The District Judge also found that the confession was not the product of the illegal arrest:

Here the statement was made approximately 42 hours after the arrest and after petitioner had talked privately with his wife and after he had been confronted with all of the witnesses. He then hung his head and said he would tell what had happened. The means of obtaining the statement, we therefore find, were “sufficiently distinguishable as to be purged of the primary taint.”

The last quoted phrase is found in Wong Sun v. United States in the following sentences:

We now consider whether the exclusion of Toy’s declarations requires also the exclusion of the narcotics taken from Yee, to which those declarations led the police. The prosecutor candidly told the trial court that “we wouldn’t have found those drugs except that Mr. Toy helped us to.” Hence this is not the ease envisioned by this Court where the exclusionary rule has no application because the Government learned of the evidence “from an independent source,” Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 [40 S.Ct. 182, 183, 64 L.Ed. 319]; nor is this a case in which the connection between the lawless conduct of the police and the discovery of the challenged evidence has “become so attenuated as to dissipate the taint.” Nardone v. United States, 308 U.S. 338, 341 [60 S.Ct. 266, 268, 84 L.Ed. 307], We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality,- the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Maguire, Evidence of Guilt, 221 (1959). We think it clear that the narcotics were “come at by the exploitation of that illegality” and hence that they may not be used against Toy. Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).

Toy’s statement had previously been held inadmissible because of an unconstitutional arrest during which the statement was made. The distinction made in this same case holding Wong Sun’s statement to be admissible is instructive :

We turn now to the case of the other petitioner Wong Sun. We have no occasion to disagree with the finding of the Court of Appeals that his arrest, also, was without probable cause or reasonable grounds. At all events no evidentiary consequences turn upon that question. For Wong Sun’s unsigned confession was not the fruit of that arrest, and was therefore properly admitted at trial. On the evidence that Wong Sun had been released on his own recognizance after a lawful arraignment, and had returned voluntarily several days later to make the statement, we hold that the connection between the arrest and the statement had “become so attenuated as to dissipate the taint.” Nardone v. United States, 308 U.S. 338, 341 [60 S.Ct. 266, 84 L.Ed. 307], Wong Sun v. United States, supra at 491, 83 S.Ct. at 419.

In our instant case there was no break in custody (and apparently little break if any in custodial interrogation, see Hale v. Henderson, 400 F.2d 655, 657 (6th Cir. 1968)) prior to petitioner’s confession. Contrary to the holding of the District Judge, we do not believe that “the connection between the arrest and the statement had ‘become so attenuated as to dissipate the taint.’ ” Wong Sun v. United States, supra at 491, 83 S.Ct. at 419. The confrontations which preceded the statement were made possible by and were a product of the illegal arrest.

Appellee’s brief cites only one case in support of its argument for affirmance. Swinney v. United States, 391 F.2d 190 (5th Cir. 1968). We find no reason to disagree with the holdings of the Fifth Circuit in that case, but consider the facts to be completely inapposite. The court there declined to decide whether or not there had been “a primary taint” and held that the arrest and search were lawful and valid.

As to the confession issue, we reverse the District Court and hold that petitioner’s custodial statement was a fruit of the poisonous tree and should be excluded at any retrial of this case.

As to the last appellate issue pertaining to the petitioner’s claim of unconstitutional racial discrimination in the choice of (or the system of choosing) the grand jury foremen, we affirm the District Court.

Appellant did not raise this issue at the time of his original trial but subsequently did so in a state habeas corpus proceeding. We do not think we can properly dispose of this issue under the rationale of the recent decision of the United States Supreme Court in Davis v. United States, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216 (1973). Here the Tennessee Supreme Court passed on the appellant’s federal constitutional contention as to the grand jury foreman on the merits. In this situation settled case law holds that the federal courts will likewise reach the merits. Warden v. Hayden, 387 U.S. 294, 297 n. 3, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Irvin v. Dowd, 359 U.S. 394, 406, 79 S.Ct. 825, 3 L.Ed.2d 900 (1959); Brown v. Allen, 344 U.S. 443, 486, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Herndon v. Lowry, 301 U.S. 242, 247, 57 S.Ct. 732, 81 L.Ed. 1066 (1937).

As to the grand jury foreman issue the judge who heard the evidence found:

Notwithstanding the petitioner’s argument that grand jury foremen have been arbitrarily appointed and that over a period of history all grand jury foremen so appointed have been white, it appears that the particular grand jury indicting the petitioner was composed wholly of men selected from the venire. The grand jury indicting the petitioner was not chaired by the regular foreman, but by the foreman pro tempore, who was chosen from a body of grand jurors which were selected from the venire. There has been no evidence produced, nor has it been argued that the venire was discriminatorily constituted. The court must conclude that the venire was selected in a manner that did not systematically exclude blacks.
The foreman pro tempore was, prior to his appointment, a member of the grand jury body that ultimately rendered the petitioner’s indictment. Following his appointment, his vacancy on the jury was filled by a member of the venire. Judge Sellers, Judge of Division I of the Criminal Court of Shelby County, Tennessee, wherein the petitioner was convicted, testified that the formation of the grand jury body was purely by lot. Certainly it cannot be contended that the foreman pro tempore’s presence on the grand jury was effected by a discriminatory selection process.
The court does not believe that the fact that Judge Sellers exercised his discretion in appointing a member of the grand jury body to act as foreman pro tempore is significant where the members he chose from were all randomly selected. That Judge Sellers had the authority to select, in whatever manner he saw fit, the man whom he thought could best discharge the duties of foreman, was not discriminatory where the body from which the selection was made had been randomly created.
Some additional facts should be added.

It is undisputed that the grand jury which indicted petitioner was headed by a foreman pro tempore who was selected from the then existing grand jury (which had black grand jurors) and that that grand jury was chosen at random from a grand jury venire whose constitutionality is not disputed and which did in fact contain black citizens in general proportion to their presence in the population of Shelby County.

The state judge who had the statutory power to appoint both the grand jury foreman and in his absence the foreman pro tempore, testified that he had considered black grand jurors, but had largely relied upon the foreman’s recommendation in choosing foremen pro tempore. The net effect of his testimony was to deny any racially discriminatory intention in the appointment of four foremen and 146 foremen pro tempore. Petitionér, however, points out that in fact all of the appointees were white.

Petitioner also points out that the grand jury foreman has important statutory duties in Tennessee, T.C.A. §§ 40-1510, 40-1622 (1955), and exercises a leadership role as well as casting a vote in the grand jury. Although petitioner points to no legal barrier to the appointment of black foremen and makes no claim of prejudice in his indictment from any action of the white foreman pro tempore of the grand jury which indicted him, we are by no means unimpressed by dominant race appointments in 150 successive instances.

We do not, however, find a curative measure available. Proportional representation is not required either in grand juries or in the appointment of grand jury foremen. Swain v. Alabama, 380 U.S. 202, 208-209, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Cassell v. Texas, 339 U.S. 282, 286-287, 70 S.Ct. 629, 94 L.Ed. 839 (1950).

We have read and considered the holding of the cases relied upon by petitioner in this case. Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940). They all pertain, however, to unconstitutional exclusion of blacks from grand jury venires or grand juries. No'such exclusion is claimed in this case.

The closest case in point appears to be Carter v. Jury Commission, 396 U.S. 320, 338-339, 90 S.Ct. 518, 528, 24 L.Ed.2d 549 (1970), where the Supreme Court again clearly rejected proportional representation as a constitutionally required (or permitted) remedy. See also Swain v. Alabama, supra and Cassell v. Texas, supra. This ease dealt with an historically all white jury commission which had consistently selected jury lists palpably distorted against Negro representation. Nonetheless, the Court held:

For present purposes we may assume that the State may no more exclude Negroes from service on the jury commission because of their race than from the juries themselves. But the District Court found the appellants had shown only that for many years the jury commission had been composed entirely of white men, and concluded that without more the appellants’ attack failed for want of proof. We think that ruling was correct. Quite apart from the problems that would be involved in a federal court’s ordering the Governor of a State to exercise his discretion in a particular way, we cannot say on this record that the absence of Negroes from the Greene County jury commission amounted in itself to a prima facie showing of discriminatory exclusion. The testimony before the District Court indicated that the Governor had appointed no Negroes to the Greene County commission during the 12 years preceding the commencement of suit. But the appellants’ trial counsel conceded that he could not prove his charge of discriminatory selection without the testimony of the Governor. Whether or not such a concession was necessary, the statement may well have led counsel for the appellees to conclude that they were not obliged to produce witnesses on the State’s behalf with respect to this phase of the appellants’ case.
Nor can we uphold the appellants’ present contention that, apart from the question of discrimination in the composition of the jury commission, the absence of Negroes from the commission compelled the District Court to order the appointment of Negro commissioners. The appellants are no more entitled to proportional representation by race on the jury commission than on any particular grand or petit jury. Carter v. Jury Commission, supra at 338-339 of 396 U.S., at 528 of 90 S.Ct. (Footnote omitted.)

We feel the principles applied in Carter to jury commissioners would apply a fortiori to our instant problem dealing with jury foremen pro tempore. Thus we are bound to follow Carter until and unless it is overruled.

As to this issue the judgment of the District Court is affirmed.

The judgment of the District Court is reversed in part and affirmed in part, and the case is remanded to the District Court for further proceedings consistent with this opinion.

LAMBROS, District Judge

(concurring) .

I disagree with the majority opinion’s application of Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970).

The major question presented on the grand jury issue is whether the rule that a black criminal defendant is entitled to have his indictment quashed, regardless of prejudice, if the grand jury venire selection system discriminates against blacks should be extended to a situation in which there has been systematic discrimination only with respect to one member of the grand jury venire —the grand jury foreman pro tempore. The majority opinion does not specifically discuss this issue. Instead, it rules that the issues are governed by the Supreme Court decision in Carter v. Jury Commission of Greene County. I disagree that Carter is relevant and binding for two reasons.

First, the language quoted from Carter in the majority opinion, which states that the facts presented regarding discrimination in the jury commission were insufficient to warrant a prima facie finding of discrimination, is not dispositive of the facts in this case. In general, a showing that the percentage of blacks selected over a period of time varied significantly from the percentage of blacks in the population and that the selection system is amenable to discrimination is sufficient to warrant a prima facie finding of discrimination. Alexander v. Louisiana, 405 U.S. 625, 630, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Eubanks v. Louisiana, 356 U.S. 584, 587, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Neal v. Delaware, 103 U.S. 370, 397, 26 L.Ed. 567 (1881). Even in Carter, in a portion not quoted in the majority opinion, the Supreme Court cited as “compelling” evidence of discrimination the fact that the number of blacks on the jury rolls never exceeded 7 per cent while the county population was 15 per cent black — in spite of the lack of evidence of discriminatory intent on the part of those officials selecting the venire. Carter, supra at 327, 337, of 396 U.S., 90 S.Ct. 518. That portion of Carter quoted in the majority opinion is inapposite, since it merely indicates that the Court did not find the statistics regarding the jury commission of three persons as compelling as those for the larger number of persons on the venire. Id. 338, 90 S.Ct. 518.

Under the rationale developed in these cases, the evidence clearly warranted a prima facie finding of discrimination in the selection of the grand jury foreman pro tempore. The evidence showed that in the history of the county none of the 150 foremen and foremen pro tempore had been black while the county population was from 25 to 37 per cent black and further that the criminal trial judge who had the discretion with, respect to the appointment of foremen and foremen pro tempore knew only a few blacks. It is difficult to imagine what more the majority would require to warrant a prima facie finding of discrimination except a confession on the part of the state judges that they were prejudiced against blacks and had intentionally avoided appointing them as grand jury foremen pro tempore.

Second, I believe the language quoted from Carter regarding proportional representation is not relevant here. While Carter was brought by black residents seeking representation on the grand jury and grand jury commission, this case was brought by a criminal defendant seeking to have his indictment quashed. The relief sought in Carter, that of proportional representation, was denied by the Supreme Court. However, the relief sought here is not proportional representation but rather the quashing of an indictment because of systematic exclusion of blacks from the position of grand jury foreman pro tempore. With respect to this relief, the issue of proportional representation is irrelevant.

With respect to the major question presented, I would not require a quashing of the indictment because of discrimination in the selection of the grand jury foreman pro tempore. The remedy of quashing the indictment without a showing of prejudice was one adopted by Justice Harlan in 1881 because without it “the constitutional prohibition has no meaning. Neal v. Delaware, 103 U.S. 370, 397, 26 L.Ed. 567 (1881). Although the Neal ruling has been applied continuously during the past ninety years, it has not been broadened to apply to the situation in which the grand jury foreman pro tempore rather than the grand jury itself has been selected through a racially discriminatory system. Alexander v. Louisiana, 405 U.S. 625, 628-632, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) (applying Neal to discrimination with respect to the grand jury venire).

In determining whether the extraordinary remedy of quashing an indictment after conviction without a showing of prejudice should be broadened to cover this situation, it is important to examine the social policy reasons for which the original ruling was adopted to determine whether that rationale also compels the creation of a similar ruling regarding the grand jury foreman pro tempore. The Neal ruling was based on the lack of alternative remedies to discrimination with respect to the grand jury system and the importance of the grand jury in the criminal system. Since there are presently effective class action remedies available for discrimination under 42 U.S.C. § 1983 and since the grand jury foreman pro tempore has a role less critically important to the criminal process than the entire grand jury, the rationale of the Neal-ruling is not directly applicable to the case at hand. I would therefore decline to broaden the Neal ruling to require quashing the indictment without a showing of prejudice, even though the grand jury foreman pro tempore was selected under a discriminatory system.

For these reasons, I would concur with the result reached in the majority opinion.

      . The District Judge who heard this case separated this issue from the others and it was heard before a District Judge from the Eastern District of Kentucky, who held that no relief was appropriate, 349 F.Supp. 567. The two decisions were subsequently incorporated in one order for purposes of this appeal.


source: Caselaw Access Project

author: CHOY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Victor G. POMEROY, Defendant-Appellant.
    No. 73-1501.
    United States Court of Appeals, Ninth Circuit.
    Sept. 26, 1973.
    As Amended on Denial of Rehearing Nov. 8, 1973.

      Richard M. Botteri (argued), Davies, Biggs, Strayer, Stoel & Boley, Portland, Or., for defendant-appellant.
    D. Richard Rammersley, Asst. U. S. Atty. (argued), Sidney I. Lezak, U. S. Atty., Portland, Or., for plaintiff-appellee.
    Before DUNIWAY and CHOY, Circuit Judges, and RENFREW, District Judge.

      The Honorable Charles B. Renfrew, United States District Judge for the Northern District of California, sitting by designation.

   CHOY, Circuit Judge:

Victor G. Pomeroy was convicted after a jury trial, at which he defended himself, of two counts of knowingly and intentionally distributing and aiding and abetting the distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He was sentenced to two five-year terms of imprisonment to run concurrently. We affirm.

Pomeroy’s bail had initially been set at $20,000. Six days prior to trial, Pomeroy’s attorney moved for a reduction of bail and indicated that he was having difficulties in locating witnesses who would testify on Pomeroy’s behalf. The district judge reduced bail to $10,000 and instructed Pomeroy to give his attorney the names and addresses of potential witnesses for interviewing purposes. The judge indicated that if the witnesses would not talk with Pomeroy’s attorney, that matter would be taken up at a later time.

On the morning of the trial Pomeroy’s attorney again moved for a reduction of bail and requested a two-week continuance arguing that he was not prepared to go to trial because of his inability to locate witnesses and that Pomeroy’s assistance was absolutely necessary for his defense. The trial judge denied both motions and commenced voir dire. Pomeroy attempted to dismiss his attorney during voir dire, but the judge refused to entertain the motion in the presence of the jury. After voir dire, Pomeroy moved to dismiss his attorney and requested new counsel. The judge denied the motion for new counsel, then warned Pomeroy of the dangers of proceeding pro se and urged him to reconsider. Failing in that effort, the judge permitted Pomeroy to proceed pro se after Pomeroy consented to accept his former attorney as advisor. The jury was returned to the court and Pomeroy was given the right to make peremptory challenges. He declined to do so and the trial proceeded.

Pomeroy conducted a substantial portion of the trial on his own with procedural guidance from the judge and his advisor. At the close of the government’s case, the trial judge granted a continuance of three days to enable Pomeroy to obtain witnesses. The court asked Pomeroy’s advisor to assist Pomeroy in corollary state court criminal proceedings to make his federal release on personal recognizance effective.

At the close of the trial the government submitted instructions, but Pomeroy did not. The judge pointed out the absence of defense instructions and suggested that Pomeroy and his advisor confer on instructions and examine proposed government instructions. Neither Pomeroy nor his advisor voiced any objection to the instructions submitted.

DISCUSSION

After a thorough examination of the record, we find that the trial judge did not deny Pomeroy’s right to a fair trial in denying his motions for continuance and reduction of bail at either the pretrial stage or on the morning of the trial. Pomeroy had retained his attorney for eight weeks yet failed to provide him with the names and addresses of potential witnesses until a week before trial and then only at the request of the judge. The judge was not faced with a situation similar to that in Kinney v. Lenon, 425 F.2d 209 (9th Cir. 1970), where the defendant did not know the names of witnesses and could identify them only on sight. The judge indicated that if Kinney problems arose, he would deal with them. Further, Pomeroy was granted a continuance and released without bail at the close of the government’s case for the purpose of contacting some of the twenty-five to thirty witnesses he claimed could demonstrate his innocence. He was therefore not prejudiced by the pretrial denial and was afforded sufficient time to gather witnesses.

There was no abuse of discretion or deprivation of a constitutional right when the trial judge refused to appoint new counsel for Pomeroy on the morning of the trial. United States v. Price, 474 F.2d 1223, 1226 (9th Cir. 1973). The court was fully apprised of Pomeroy’s reasons for dismissal of his attorney. There was no irreconcilable conflict with his attorney during the course of their relationship so as to warrant appointment of another attorney. Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970).

The record reveals that Pomeroy intelligently waived his right to assistance of counsel. The trial judge sufficiently informed Pomeroy of the consequences of his choice and convinced him to accept his former attorney as advisor. Hodge v. United States, 414 F.2d 1040, 1042 (9th Cir. 1969).

Pomeroy was not denied his statutory and constitutional right to proceed pro se. There was no error in the trial judge’s refusal to entertain Pomeroy’s motion to dismiss his attorney and proceed pro se until after voir dire. Voir dire was being conducted by the judge and no questions had been submitted by Pomeroy’s attorney. Pomeroy’s role, had he been allowed to represent himself during voir dire, would have been limited to peremptory challenges. The judge afforded Pomeroy the opportunity to exercise his ten peremptory challenges, as provided by Rule 24(b), Fed.R.Crim.P., after he had dismissed his attorney at the conclusion of voir dire,

During the course of the trial, Pomeroy conducted his own defense with limited assistance' from the judge and his advisor. The record does not reveal intrusions by Pomeroy’s advisor that would amount to interference with Pomeroy’s presentation of his case. The ad-visor’s assistance in corollary state court proceedings and in obtaining release on personal recognizance were actions taken at the request of the trial judge outside the scope of the trial proceedings. The actions were purely for Pomeroy’s benefit in that they insured his release to seek out witnesses. As for the advisor’s alleged aid in the review of government instructions, that too was done at the behest of the trial judge. Pomeroy indicated that he had no objections to the instructions.

There is no evidence in the record that Pomeroy specifically requested assistance in the collateral proceedings or in reviewing the proposed instructions of the government. Pomeroy asserts that the injunction of United States v. Price, supra, 474 F.2d at 1227, that advisory counsel may not interfere with the defendant’s presentation of the ease and may give advice only upon request was not heeded. We disagree. The court in Price indicated that the right to proceed pro se is not unlimited. It would be unreasonable to require trial courts to extract requests from defendants each time beneficial action is to be taken in their behalf relating to matters about which they appear to be totally unfamiliar. Otherwise trial courts would be placed in a predicament similar to that depicted in Meeks v. Craven, 482 F.2d 465 (9th Cir. 1973). We hold that when a defendant proceeding pro se agrees to the appointment of an attorney as his advisor and the trial judge requests the attorney to aid the defendant in procedural matters requiring expert assistance with no objection being made by the defendant, this is not interferenee as the term is used in Price and the constitutional right to proceed pro se is not infringed.

The evidence was ample to support the verdict of the jury convicting appellant.

Affirmed.


author: KAUFMAN, Chief Judge:

text:
    UNITED STATES of America, Appellee, v. Stephen MANCUSO, Defendant-Appellant.
    No. 193, Docket 73-2109.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 25, 1973.
    Decided Oct. 10, 1973.

      Roy R. Cesar, Buffalo, N. Y., for appellant.
    John T. Spotila, Washington, D. C., Atty. for the U. S. Dept. of Justice (John T. Elfvin, U. S. Atty., for the W. D. N. Y., Jerome M. Feit, Washington, D. C., Atty., for the U. S. Dept. of Justice, and Lloyd George Parry, Special Atty. for the U. S. Dept. of Justice, Buffalo, N. Y., on the brief), for appellee.
    Before KAUFMAN, Chief Judge, MOORE and MANSFIELD, Circuit Judges.
   KAUFMAN, Chief Judge:

It is in the nature of a perjury case that there be conflicting versions of the underlying facts — one version, constituting the claimed perjury, having been asserted by the accused at a prior proceeding, and the other being put forth by prosecution witnesses at trial. We are met in this appeal with an unusual case in which three versions have appeared, with the appellant having maintained essentially the same position at both proceedings, but the Government witness having himself given two conflicting stories at trial.

Maneuso appeals his conviction following a jury trial, on two counts of a three-count indictment brought under 18 U.S.C. 1623. Three portions of his testimony, given on May 23, 1972, before a United States grand jury empaneled in the Western District of New York, were alleged to be perjurious. The jury acquitted on Count One. On Counts Two and Three Judge Curtin imposed concurrent terms of imprisonment of 18 months, with two months to be served in a jail-type institution, the balance suspended, and probation for two years. Although Maneuso mounts numerous attacks upon these convictions, we deem it necessary to treat only one issue extensively — whether the testimony embodied in either count satisfied the materiality requirement of the statute.

The grand jury investigation centered on extortion and official corruption involving the construction industry and certain public officials of the City of Batavia, New York. More particularly, the inquiry concerned possible illegalities surrounding a specific construction project performed by the Twin Village Construction Corporation (“Twin Village”) for the City of Batavia in the latter half of 1970.

Prior to Mancuso’s appearance, the grand jury had heard testimony from Joseph Laraiso. The pertinent parts of Laraiso’s testimony concerned three matters. He testified that Twin Village had been extorted by Joseph Zito in its ultimately successful attempt to secure a contract awarded by the City for reconstruction of Dewey Avenue, and that he rewarded Zito by putting him on the payroll of that project for several weeks, although Zito neither did nor was expected to do any useful work. He stated that soon after the project began, in May or June 1970, an unforeseen problem arose on the site. He instructed Mancuso, Twin Village’s project supervisor, to offer John Claypool, Batavia’s Chief Engineer, a bribe to persuade Claypool to recommend that the contract be modified. Finally, he asserted that soon after Claypool refused to alter the contract, Laraiso and Mancuso learned of an incipient City investigation of the attempt to bribe him. Zito offered to “fix” this investigation by bribing certain City Councilmen. Laraiso was agreeable, but needed a method of transmitting funds to Zito for this purpose. Laraiso and Mancuso hit upon the idea of having Laraiso draw a $500 corporate check to Mancuso. Mancuso cashed the check, and gave the proceeds to Zito, but the problem arose of accounting for the check to Mancuso. At a meeting among Mancuso, Joseph Laraiso, and Laraiso’s brother Carmen, Mancuso suggested that he would be willing to execute a $500 bill of sale to the corporation for a fictitious sale of a chain saw and surveyor’s transit. This procedure was adopted.

After this testimony by Joseph Laraiso, Mancuso was called to appear before the grand jury. He was served with a subpoena at about 6:00 p. m. on May 22, requiring him to appear before the grand jury the following morning. He did so, without having consulted an attorney. The Justice Department prosecutor presenting the case to the grand jury, Robert Ozer, informed Mancuso that the grand jury was investigating possible crimes against the United States, but did not identify the specific nature of the inquiry. He advised Mancuso that he could consult an attorney at any time, and that he need not answer questions which might incriminate him. Mancuso waived his right to confer with counsel and answered all questions, often elaborating upon his responses extensively. Relying on Laraiso’s story, Ozer asked him, inter alia, whether Zito was a bona fide employee during the period he was on the Dewey Avenue payroll (Count One), whether Mancuso ever told Laraiso to falsify the Twin Village records to account for a $500 check to Mancuso (Count Two), and whether Mancuso ever learned of a City investigation of the alleged attempt to bribe Claypool (Count Three).

I.

The portion of grand jury testimony embodied in Count Two deals with alleged falsification of corporate records. Ozer asked Mancuso whether he had ever received money other than his paycheck from Laraiso. Mancuso freely admitted that on one occasion he had permitted Laraiso to “funnel” a $500 corporate cheek through him. He stated that he had cashed the check and returned the proceeds to Laraiso. He flatly denied that he had given the money to Zito, and disclaimed knowledge of whether Laraiso had done so. Ozer then repeatedly asked Mancuso whether he had told Laraiso to falsify the corporate records to account for this check. Although Mancuso at first denied any memory of the subject, and then displayed some confusion as to the meaning .of the question, he finally made the statement that “I have had no reason to ever even suggest” such falsification. Count Two charged that it was material to the grand jury to know whether Mancuso suggested falsification of Twin Village’s records, and that Mancuso’s denial was knowingly false.

At the trial Laraiso repeated the version he had related to the prosecutors and the grand jury. On cross-examination, however, the telling event transpired which lifts this case above the commonplace perjury case. In melodramatic fashion, defense counsel pointedly reminded Laraiso that the alleged attempt to bribe Claypool, which Laraiso claimed had occasioned the need to put money in the hands of Zito, occurred at the beginning of the Dewey Avenue project, in May or June 1970. The check and bill of sale, however, bore the date November 12, 1970, when the job was virtually complete. To everyone’s surprise and the Government’s dismay, Laraiso suddenly remembered on the witness stand that the story he had told the prosecutors more than a year before, and then repeated both before the grand jury and on direct examination at trial, was totally erroneous. He recalled that the transaction in issue had nothing to do with Zito, Dewey Avenue or the City of Batavia at all. He admitted on cross-examination that in November 1970, Twin Village was engaged in the performance of a wholly private construction contract for Litton Industries, in Batavia. This was entirely unrelated to Dewey Avenue, or any other City project. Laraiso then revealed that Andrew Clemons, an individual architect employed by Litton, had helped Twin Village obtain and perform the private contract. Laraiso had decided it would be appropriate to offer Clemons a “gratuity” in appreciation of his assistance, and it was for this purpose that the $500 check to Mancuso and the false bill of sale were intended. Laraiso insisted, however, that as he had originally testified, it was Mancuso who suggested use of the bill of sale to account for the attempted payment to Clemons.

Carmen Laraiso, testifying for the prosecution, parroted his brother by stating that he too suddenly recalled that the transaction involved the Clemons affair, not the Dewey Avenue project. He corroborated his brother’s testimony that the bill of sale was Mancuso’s suggestion.

Mancuso testified in his own defense at the trial, and insisted that the documents — the check and bill of sale — related to the private architect, not the public contract. He stated his belief that he had not suggested the method of falsifying the corporate records, but could not exclude that possibility.

At the conclusion of the government’s case the defense unsuccessfully moved for dismissal of Count Two because the testimony was not material. This motion was renewed at the conclusion of the entire case and again after the verdict. We need not consider Mancuso’s claim that the evidence does not support the jury finding of knowing falsity, for we are of the opinion that the trial court erred in failing to dismiss the count for lack of proof of materiality.

II.

Materiality is an essential element of the statutory offense which the Government has the burden of establishing. United States v. Stone, 429 F.2d 138, 140 (2d Cir. 1970). The Government concedes that whether testimony is material is a question of law to be decided by the court. United States v. McFarland, 371 F.2d 701, 703 n. 3 (2d Cir. 1966), cert. denied, 387 U.S. 906, 87 S.Ct. 1689, 18 L.Ed.2d 624 (1967); United States v. Marchisio, 344 F.2d 653, 665 (2d Cir. 1965). The issue, in the language of § 1623(a), is whether the defendant made a “false material declaration.”

False testimony before a grand jury need not bear upon the ultimate question of guilt or innocence of specific federal crimes in order to possess the requisite materiality. We have held on several occasions since our landmark case, Carroll v. United States, 16 F.2d 951 (2d Cir.), cert. denied, 273 U.S. 763, 47 S.Ct. 477, 71 L.Ed. 880 (1927), the famous controversy over the lady in Earl Carroll’s bathtub, that it is sufficient if the untrue declaration has “a natural effect or tendency to influence, impede or dissuade the grand jury from pursing its investigation. . . ..”16 F.2d at 953. We are required to examine both the nature of the inquiry at which the testimony was given and the evidence introduced at trial to prove its falsity, in order to determine whether a truthful answer could conceivably have aided the grand jury investigation.

The ultimate issue, therefore, is whether the Government has shown that it could possibly have assisted the grand jury if it knew that Mancuso suggested the means of accounting for an attempted “gratuity” to the private architect, Clemons, in connection with a job unrelated to the inquiry. We believe that the evidence totally fails to support such a view. The question posed to Mancuso related to a wholly immaterial event. Neither the answer he in fact gave nor the truth he allegedly concealed could have impeded or furthered the investigation. The question could not, therefore, have elicited a material reply. See cases cited note 17, supra. The only argument offered in support of materiality is that until Mancuso testified, the grand jury had received a single coherent version of the facts from Laraiso. Mancuso’s contradiction of Laraiso’s claim that Mancuso suggested the false bill of sale presented the first conflict in evidence, which, it is said, confused the grand jury, forced it to reconsider its investigation, and therefore in a general sense “impeded” the inquiry. The difficulty with this argument is that the grand jury’s confusion is more properly traceable to Laraiso’s erroneous testimony, compounded by prosecutor Ozer’s misapprehension, that the transaction bore some relationship to the alleged bribery associated with the Dewey Avenue job, when in fact it did not. Had Mancuso admitted that he told Laraiso how to falsify the corporate records, the misconception would have been reinforced, not dissipated. We therefore cannot agree that the truth Mancuso allegedly concealed could conceivably have led to the discovery of relevant evidence or that his alleged false statements tended to influence, impede or dissuade the grand jury from pursuing its investigation. A finding of materiality must have some basis in the content of the testimony itself. That which is otherwise wholly immaterial cannot become material solely because a prior witness, innocently but mistakenly led on by the prosecutor, has given the false or erroneous impression that it has some materiality. Accordingly, we reverse the conviction on Count Two.

III.

The Count Three conviction is grounded in Ozer having asked Mancuso before the grand jury whether he and Laraiso ever received word that the City was to begin an investigation of them concerning a bribe attempt. This elicited an “answer” which consumes more than three pages of the grand jury transcript, Mancuso admitted learning of the investigation, and then in great detail described a second meeting he claimed he initiated with Claypool. Mancuso’s version was that he convinced Claypool of his error in having construed Maneuso’s prior effort to persuade him to approve revision of the Dewey Avenue contract as a bribe offer. Count Three alleged that this testimony was false because a second meeting never occurred.

At trial Claypool testified that Mancuso had offered a bribe at their one and only meeting. Claypool stated that this had angered him greatly, causing him to depart promptly. He reported the incident to his superiors. When asked whether he had any second meeting with Mancuso such as the latter had described, he replied three times, “Not that I recall, no.”

Mancuso’s attacks on the sufficiency of the evidence to support Count Three are wholly without merit. We shall treat only the claim that his testimony concerning the claimed second meeting with Claypool lacked the requisite materiality. We deem this desirable to explicate further our discussion of Count Two.

The claim is that the testimony was not material because an indictment dealing with the attempt to bribe Clay-pool was never returned by the grand jury. Moreover, it is urged, no evidence was introduced at trial to indicate any interstate nexus of the incident to warrant federal jurisdiction. This argument completely misconceives the nature of both the grand jury function and the materiality requirement.

At the time Mancuso appeared, the grand jury had heard testimony from Laraiso depicting a pattern of extortion and public corruption involving Twin Village and the City of Batavia. An attempt to bribe Claypool, the City’s Chief Engineer, could clearly play a significant part in the case being developed, either as an independent crime or as an evidentiary stone in the larger edifice. And although it is certainly not necessary to materiality of grand jury testimony that an indictment be returned, the fact that Zito and Valenti were ultimately indicted and convicted for federal crimes establishes a fortiori that the possibility of federal jurisdiction existed.

Since evidence of the bribe attempt itself would be material, Mancuso’s false testimony that he had convinced Clay-pool that there had been no bribe offer was clearly material, as it tended to impede or dissuade the grand jury from pursuing its investigation. Carroll v. United States, supra; cases cited note 16, supra. Neither the failure of the grand jury to return an indictment concerning the alleged bribery attempt, nor the absence of proof that federal jurisdiction over it would have existed, is relevant to the issue of materiality. The conviction on Count Three is affirmed. We have reviewed appellant’s other arguments and they are equally unpersuasive.

Since the trial court imposed identical concurrent sentences on Counts Two and Three and we have today reversed the conviction on Count Two, it is appropriate that we remand the case to the district court for review of sentence. We do so because of the possibility that conviction on both counts might have affected the punishment set for each. Of course, we do not imply any view on the propriety of the original sentence. We leave the sentence to be imposed entirely to the discretion of district court.

      . Section 1623.reads, in pertinent part:
      (a) Whoever under oath in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both.

      . Judge Curtin continued Maneuso’s release on $5000 recognizance pending the determination of this appeal.

      . Laraiso was president and part-owner of Twin Village during the relevant period of May to December 1970. In December 1970 he was apparently forced out of the corporation by his brother, Carmen Laraiso, who then became its president.
      Laraiso approached first the Federal Bureau of Investigation and then attorneys of the Department of Justice Strike Force based in Buffalo, New York, and divulged to them a pattern of illegal conduct in which he and Twin Village had been involved. The grand jury investigation was commenced and conducted largely on the basis of Laraiso’s information.

      . Zito and another individual, Frank Valenti, were ultimately indicted and convicted for extortion in violation of the Hobbs Act, 18 U.S.C. § 1951. Although the record of that trial is not before us, the record in the present case indicates that the extortion scheme included “prevention” of labor union difficulties in Twin Village’s performance of . the Dewey Avenue project and threats of personal violence against Joseph Laraiso, in addition to “help” in securing the contract.
      Apparently no charges have been brought against any public officials of the City of Batavia as a result of this investigation.

      . The crew unexpectedly struck bedrock at a depth of 10 feet below the street. The contract. called for the sewer line to be installed 15 feet deep, and provided no added payment for the extra excavation expense, which Laraiso estimated to be $4,500.

      . Laraiso had met Mancuso, who was an experienced but then unemployed construction man in Batavia, in the spring of 1970. He offered Mancuso employment if Mancuso would help him prepare the successful bid on the Dewey Avenue contract, to be awarded by the City in May. Mancuso agreed, and the bid of Twin Village was the lowest. They learned, however, that the City was reluctant to award the contract to the company, because of its reputation for poor quality work. It was at this point that Laraiso and Mancuso allegedly engaged Zito to “help” secure the contract. Whether through fair means or foul, Twin Village was awarded the job, and Mancuso became its supervisor.
      The contract revisions sought would have provided payment for the unforeseen costs or, alternatively, would have permitted redesign of the sewer.

      . Mancuso testified that Zito performed useful work on the project. At trial he repeated his statement, as Laraiso repeated his testimony to the contrary. On the basis of substantial corroboration of Mancuso’s version by other defense witnesses who observed Zito working at the site, the jury acquitted on Count One.

      . Ozer liacl the $500 cheek and bill of sale in his possession, but did not show them to Mancuso or indicate their existence. We can say with the luxury of hindsight that had Ozer at least mentioned the date, November 12, 1970, which appears on the two documents to Mancuso, the confusion which engulfed this investigation from the start, but which did not become apparent until the middle of the trial, might have been abated promptly.

      . Other than by suggesting the money had come to rest in Zito’s hands, Ozer did not reveal the purpose which, based on Laraiso’s story, he believed the transaction had served.
      Mancuso stated his understanding of the reason for the “funnelling” to be that Laraiso needed funds personally, but was prevented by a subordination agreement with a bonding company from withdrawing money from the corporation. It was proved at trial that such an agreement did exist during the relevant time.

      . It is apparent that in several of his answers Mancuso equated the word “told” with “instructed,” and therefore responded by disclaiming the power to “tell” his employer to do anything.

      . Unfortunately, the briefs submitted on this appeal were inadequate both in the statement of facts and discussion of the law. Only after a reading of the entire transcript have we been able to ascertain all the detailed facts and the bizarre fashion in which the revelations came.

      . Laraiso testified that “somewhere” there was another $500 cheek which did involve Zito and the attempt to quash investigation of the Claypool incident. This check, of course, never came to light.

      . He also remembered that he had ultimately offered the gift to Clemons, who refused it, and that he had then returned the money to his brother Joseph.

      . Corroboration was not a prerequisite to this prosecution. § 1623(e) specifically abrogates the “two-witness rule” for prosecutions brought under that section.

      . Our prior decisions dealing with materiality of testimony in perjury prosecutions have arisen under 18 U.S.C. § 1621, the older, more general statute. There is, however, nothing in § 1623, the newer provision under which the present prosecution was brought, to indicate that Congress intended any change in the nature of the materiality requirement, nor is this a matter of contention.

      . E. g., United States v. Cohn, 452 F.2d 881, 883 (2d Cir. 1971), cert. denied, 405 U.S. 975, 92 S.Ct. 1196, 31 L.Ed.2d 249 (1972); United States v. Marchisio, 344 F.2d 653, 655 (2d Cir. 1965); United States v. Collins, 272 F.2d 650, 652 (2d Cir. 1959), cert. denied, 362 U.S. 911, 80 S.Ct. 681, 4 L.Ed.2d 619 (1960).

      . There is language in United States v. Siegel, 263 F.2d 530 (2d Cir.), cert. denied, 359 U.S. 1012, 79 S.Ct. 1147, 3 L.Ed.2d 1035 (1959), which may seem to imply that materiality exists unless the question, divorced from the context in which it was asked, could not have elicited a material reply. Our precedents, including Siegel, demonstrate that such a view cannot be maintained ; see, e. g., Carroll v. United States, 16 F.2d 951 (2d Cir.), cert. denied, 273 U.S. 763, 47 S.Ct. 477, 71 L.Ed. 880 (1927); United States v. Hirsch, 136 F.2d 976 (2d Cir.), cert. denied, 320 U.S. 759, 64 S.Ct. 66, 88 D.Ed. 452 (1943); United States v. Marchisio, supra; United States v. Stone, supra. In each case the court has examined the factual background to determine whether the question had some bearing on a subject which was material to the proceeding, and whether a truthful answer might possibly have aided the inquiry. We have never permitted materiality to turn simply on whether the question, on its face, could conceivably have evoked a material reply.
      We recently stated in United States v. Freedman, 445 F.2d 1220, 1227 (2d Cir. 1971), that before the materiality requirement could be satisfied, the Government was required to establish “ . . . that a truthful answer would have been of sufficient probative importance to the inquiry so that, as a minimum, further fruitful investigation would have occurred.” This statement was repeated in United States v. Birrell, 470 F.2d 113, 115 n.1 (2d Cir. 1972). Neither Freedman nor Birrell, however, concerned grand jury investigations. Both cases involved alleged perjury in contexts where the factual questions to be determined were clearly defined. In Freedman the Securities and Exchange Commission was investigating securities laws violations concerning the shares of three named corporations. The failure of the witness to disclose a profit-sharing agreement relating to the stock of a wholly unrelated corporation could not have had any bearing on that inquiry. In Birrell the issue was a narrow one — whether Birrell was indigent and therefore entitled to appointment of counsel.
      The issues before a grand jury, however, are not predetermined. Its function is to investigate possible crimes against the sovereign so that it can make a judgment whether a trial on specific charges is necessary. The scope of legitimate inquiry is therefore broad, and materiality of testimony may more readily appear than in a proceeding whose dimensions are established at the outset. United States v. Stone, supra, 429 F.2d at 140; United States v. Cohn, 452 F.2d 881, 883 (2d Cir. 1971), cert. denied, 405 U.S. 975, 92 S.Ct. 1196, 31 L.Ed.2d 249; see Branzburg v. Hayes, 408 U.S. 665, 701, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).
      Because of this investigative, rather than adjudicative, function, our prior decisions state the test of materiality of grand jury testimony to be whether a truthful answer could conceivably have furthered the inquiry. We need not decide whether the more stringent view of materiality, expressed in Freedman and Birrell, has effected any change in the test as it applies to a grand jury proceeding, for we are of the opinion that on any view of this case, the testimony was not material.

      . Before the grand jury, Claypool stated that Mancuso hinted at a bribe. At trial he was more specific:
      [Mancuso] said something along these lines, “What can we do to make you give a favorable recommendation on the extra we submitted for the rock excavation and the sewer,” and I said “What do you mean,” and he said “Well, Joe [Laraiso] is willing to pay money for it”
      Mancuso denied vehemently that he had offered a bribe and contended, as he had before the grand jury, that he had convinced Claypool during the putative second conversation that Claypool had misunderstood when Mancuso indicated that the City would save about $500 if redesign of the sewer were permitted.

      . Mancuso’s claim that this evidence was insufficient to support the finding that a second meeting had never occurred is frivolous. A witness can only truthfully testify about his current recollection, and the jury could well find on the record before us that if a second conversation had in fact occurred, Claypool would “recall.”
      There is, of course, no failure of proof in the fact that Claypool was the sole witness to testify that Mancuso had lied. As we have indicated, § 1623(e) has abolished the “two-witness” rule for prosecutions under this statute.

      . The alleged bribery attempt possibly could have constituted a separate federal offense under the so-called Travel Act, 18 U.S.C. 1952, but we need not pass on the question here.

      . See United States v. Mapp, 476 F.2d 67, 82 (2d Cir. 1973); United States v. Hines, 256 F.2d 561 (2d Cir. 1958); cf. United States v. Febre, 425 F.2d 107, 113 (2d Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 40, 27 L.Ed.2d 87 (1970).


author: FIELD, Circuit Judge:

text:
    GEORATOR CORPORATION, Appellee, v. UNITED STATES of America, Appellant.
    No. 73-1187.
    United States Court of Appeals, Fourth Circuit
    Argued June 4, 1973.
    Decided Oct. 2, 1973.

      Ann Belanger, Atty., Tax Div., U. S. Dept. of Justice (Scott P. Crampton, Asst. U. S. Atty. Gen., Meyer Rothwacks and Ernest J. Brown, Attys., Tax Div., U. S. Dept, of Justice, and Brian P. Gettings, U. S. Atty., on brief), for appellant.
    Mark P. Friedlander, Arlington, Va. (Harry P. Friedlander, Friedlander, Friedlander & Brooks, Arlington, Va., on brief), for appellee.
    Before WINTER, BUTZNER and FIELD, Circuit Judges.
   FIELD, Circuit Judge:

This case presents the question whether for federal income tax purposes fees incurred while resisting a petition to cancel registration of a trademark may be deducted annually as an ordinary business expense or must be treated as a capital expenditure.

In 1964 Wincharger Corporation, a subsidiary of Zenith Corporation, filed a petition in the Patent Office to cancel Georator Corporation’s (Georator) registration of the trademark “NO-BRUSH” on the ground that the trademark had become the common descriptive name for certain types of electric generators and motors. After four years of litigation the Patent Office dismissed the proceeding because of the petitioner’s failure to present any substantial evidence to refute the presumptions afforded the trademark by virtue of its registration.

In the course of defending its trademark registration, Georator incurred legal fees in excess of $18,000. These expenses were deducted annually as ordinary business expenses under Section 162(a) of the Internal Revenue Code, 26 U.S.C. § 162(a). Upon audit the Internal Revenue Service held the legal fees to be capital expenditures and determined an income tax deficiency for the years in question in the amount of $9,967.15. Georator paid the deficiency, petitioned for a refund and upon denial thereof brought suit against the government in the district court to recover the amount paid on the deficiency assessment. The district court agreed with Georator’s contention that the legal fees were ordinary business expenses fully deductible in the years incurred and ordered that the deficiency, with interest, be refunded. From that judgment the government has appealed.

Our analysis of this question begins with the principle of taxation reflected in Section 162(a) of the Internal Revenue Code that an expenditure securing benefits which are realized and exhausted in the same tax period is fully deductible in that tax period. Conversely, an expenditure securing benefits beyond the taxable year must be capitalized. Darlington-Hartsville Coca-Cola Bot. Co. v. United States, 393 F.2d 494 (4 Cir. 1968); Richmond Television Corporation v. United States, 345 F.2d 901 (4 Cir. 1965).

It is clear that an expenditure need not be for a capital asset, as described in Section 1221 of the Code, 26 U.S.C. § 1221, in order to be classified as a capital expenditure. Expenditures for equipment used in a trade or business and qualifying for the depreciation allowances of Section 167 of the Code, 26 U.S.C. § 167, while specifically excluded from the provisions of Section 1221, nonetheless constitute capital expenditures. Nor is it necessary that an expenditure increase the value of an asset in order to be classified as a capital expenditure, as the district court apparently assumed. Costs of defending title to property, although adding nothing to the value of the property, have been held to be capital expenditures. Garrett v. Crenshaw, 196 F.2d 185 (4 Cir. 1952); Bowers v. Lumpkin, 140 F.2d 927 (4 Cir. 1944). It is also clear that Section 263 of the Code, 26 U.S.C. § 263, which disallows deductions for expenditures which increase the value of any property, does not provide a complete or exhaustive list of nondeductible expenditures. Commissioner v. Lincoln Savings & Loan Assn., 403 U.S. 345, 358, 91 S.Ct. 1893, 29 L.Ed.2d 519 (1971).

Registration of a trademark in the Patent Office, while not enlarging the common law rights of a trademark, does confer very real benefits upon the holder of such trademark. Those benefits include: (1) constructive notice of the registrant’s claim of ownership of the trademark; (2) prima facie evidence of the validity of the registration, of the registrant’s ownership of the mark, and of his exclusive right to use the mark in commerce as specified in the certificate; (3) the possibility that, after five years, registration will become incontestible and constitute conclusive evidence of the registrant’s right to use the mark; (4) the right to request customs officials to bar the importation of goods bearing infringing trademarks; (5). the right to institute trademark actions in federal courts without regard to diversity of citizenship or the amount in controversy; and (6) treble damage actions against infringing trademarks and other remedies. 15 U.S.C. § 1051 et seq. Registration is effective initially for twenty years, but the possibility of renewal at the end of that time makes a determination of the effective life span impossible. Since the benefits of trademark registration are of indeterminate duration and likely to extend over several tax periods, the costs of registration have been held to be capital expenditures. Duesenberg, Inc. of Delaware, 31 B.T.A. 922 (1934), aff'd on other grounds, 84 F.2d 921 (7 Cir. 1936); see also our discussion of Section 177 of the Internal Revenue Code, 26 U.S.C. § 177, infra.

In our view, legal costs incurred resisting cancellation of a trademark registration must be treated in the same manner as the costs of the original registration. Plainly, successful opposition to a cancellation proceeding secures the benefits of registration as much as does the original registration of the trademark. The fact that dismissal of a cancellation petition is not res judicata does not alter the fact that the benefits of registration have been protected and preserved at least temporarily. If anything, successful opposition to a vigorous challenge will ordinarily deter all but the frivolous from future attempts at cancellation and, as appellee has noted, it is the realities rather than the formalities which must be given weight in tax litigation. Of significance here is the fact that the benefits of successful opposition to the cancellation petition were likely to extend, and in fact did extend, beyond the tax period in which they were secured.

However, our decision does not depend entirely upon this analysis. Under Section 177 of the Code, 26 U.S.C. § 177, the owner of a trademark may elect to deduct over a period of not less than sixty months “any trademark or trade name expenditure.” The Senate Report accompanying Section 177 stated that

“Under present law, expenditures paid or incurred by smaller companies in connection with trademarks and trade names, such as legal fees, are not deductible but must be capitalized.”

In Danskin, Inc. v. Commissioner, 331 F.2d 360 (2 Cir. 1964), in which the legal costs of an infringement action were held to be capital expenditures, the court noted the Congressional desire to effect a measure of equity between large corporations which could deduct the salaries of staff attorneys and smaller corporations which were required to capitalize such legal expenses, but also observed that “if the expenses of trademark infringement litigation were intended by Congress to be classified as ordinary business expenses under section 162(a) of the Code, it would [hardly] have been necessary to provide in section 177 a special rule covering them, a rule less advantageous to a taxpayer than section 162(a)” Id. at 362. Thus, unless the legal expenses of trademark cancellation proceedings are excluded from Section 177, a strong inference may be drawn that such expenses are capital in nature.

“Trademark or trade name expenditures” are defined in Section 177(b) of the Code as “any expenditure which: (1) is directly connected with the acquisition, protection, expansion, registration (Federal, State or foreign), or defense of a trademark, trade name, (2) is chargeable to capital account; and (3) is not part of the consideration [or purchase price] paid for a trademark, trade name or business.” The district court held this section inapplicable to this case because “the expenditures here claimed were not connected with the acquisition of the registration or the validity of the trademark — they were incurred in defending a cancellation proceeding.” We find this to be an incorrect reading of Section 177. That section does not refer to expenses incurred in connection with the “acquisition of registration; ” rather, it refers to expenses incurred in connection with the “acquisition * * * of a trademark,” or in connection with the “registration * * * of a trademark.” No reason appears in the language of the statute to distinguish between costs of the original registration and costs of a cancellation proceeding. Assuredly, costs incurred resisting a cancellation petition are “directly connected with the * * * registration * * * of a trademark.”

Concededly, some ambiguity as to the scope of Section 177 has been occasioned by the Treasury Regulations interpreting that section. 26 CFR 1.177-l(b) (1) provides that

“Generally, section 177 will apply to expenditures such as legal fees and other costs in connection with the acquisition of a certificate of registration of a trademark from the United States or other government, * * * litigation expenses connected with infringement proceedings, and costs in connection with the preparation and filing of an application for renewal of registration and continued use of a trademark.”

Arguably, the failure to specifically include legal fees incurred in cancellation proceedings may be said to imply that such fees are not covered by Section 177 since, as appellee urges, they are not “chargeable to capital account.” As noted earlier, however, the express language of the statute does not require such a narrow reading. Moreover, Revenue Ruling 55-158 suggests the opposite construction. In order to avoid automatic cancellation of a trademark registration after six years, 15 U.S.C. § 1058 requires a registrant to file by the end of the fifth year an affidavit of use with the Patent Office. Revenue Ruling 55-158 holds that amounts spent in preparation and filing of an affidavit of use may not be deducted under 162(a) of the Code, but must be capitalized. Appellee has not suggested nor do we perceive any basis in logic or policy for treating legal fees incurred resisting a petition to cancel a trademark registration in a manner different from legal fees incurred avoiding the automatic cancellation under 15 U.S.C. § 1058. In both situations the benefits secured extend beyond the tax period during which the fees are paid out. Thus, regardless of the type of trademark expenses which may fall outside the ambit of Section 177(b) (2), it is clear that the legal costs of cancellation proceedings are not among them.

We conclude that the Internal Revenue Service properly classified the fees incident to the cancellation proceeding as a capital expenditure and the deficiency assessed on that basis was correct. Accordingly, the judgment of the district court is reversed and the case remanded with instructions to enter judgment in favor of the plaintiff/appellee herein in the sum of $1,111.60 in taxes and $116.-98 as assessed interest, or a total of $1,-228.58, under the stipulations filed in the court below, in lieu of the judgment entered below for $11,278.

Reversed.

      . S.Rep.No.1941, 84th Cong., 2d Sess., p. 8, 1956 U.S.Code Cong. & Admin.News, p. 2918 (1956-2 Cum.Bull. 1227, 1232).

      . 1955-1 Cum.Bull. 319.


author: STEPHENSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Walter Louis ALLSUP, a/k/a Walter Lewis Allsup, Appellant.
    Nos. 73-1081, 73-1232.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 10, 1973.
    Decided Oct. 19, 1973.

      Peter Denger, Rock Island, Ill., for appellant.
    Allen L. Donielson, U. S. Atty., Des Moines, Iowa, for appellee.
    Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
   STEPHENSON, Circuit Judge.

The dispositive issue on this appeal is whether the trial court erred in permitting the government to “impeach” the court’s witness by offering the testimony of two witnesses as to oral out-of-court statements previously given by the court’s witness allegedly inconsistent with his trial testimony. We hold the court erred and that under the circumstances a new trial must be granted.

Defendant was indicted in a 3 count indictment charging interstate transportation of stolen motor vehicles: Count I involved a 1963 Ford implement truck from Southern Illinois to Iowa on June 23, 1971; Count II a John Deere 4020 tractor on the same date (the proof indicated this tractor was hauled on the truck in Count I which was then abandoned) ; Count III a John Deere 450 crawler from Ohio to Iowa on October 6, 1971.

Defendant filed a pretrial motion for severance of Count III upon the basis that the transaction involved occurred over three months after the events alleged in Counts I and II, and the transportation was alleged to be from Ohio whereas the originating state was Illinois in the other counts. The motion was denied. Immediately prior to trial defendant renewed his motion for severance with the added ground that if the government failed to prove Count III, the prejudice to defendant would call for a mistrial. The motion was denied. At the close of the government’s case, defendant moved for judgment of acquittal on Count III grounded upon insufficiency of the evidence and particularly urged that the only evidence pointing to guilt was “impeaching” evidence offered by the government in an attempt to impeach the court’s witness. The trial court sustained the motion upon the grounds there was insufficient evidence of guilt to submit Count III to the jury. Defendant offered no evidence. The jury returned verdicts of guilt on Counts I and II.

In this appeal defendant urges the trial court erred in (1) denying his motion for severance; (2) permitting the government to call the witness Gabeline (upon whose premises the stolen vehicles in Count II and III were ultimately found) as a court witness and then under the guise of impeaching his credibility getting before the jury the testimony of two other witnesses which incriminated the defendant. We confine our comments to the latter contention.

The evidence favorable to the government disclosed that on June 22, 1971 defendant and one Everett Conover, after an evening of drinking beer, drove from Keokuk, Iowa across the Mississippi river and then south about 8 miles to Sutter, Illinois where they stole the Ford Implement truck referred to in Count I. They then proceeded to Gabeline’s farm where the tractor was sold to Gabeline who made out a check to Conover for $750 as part payment. The Ford truck was abandoned by defendant and Conover, who then drove to Burlington, Iowa where Conover cashed the check and gave $100 to defendant. Later that day the abandoned Ford truck (Count I) was recovered by local authorities. In early January 1972 the F.B.I. visited the Gabeline farm, recovered the 4020 tractor (Count II) and after visiting with Gabeline checked out the serial number on the 450 crawler (Count III) and ascertained it had been stolen from its owner in Ohio.

During the course of the trial, counsel for the government moved the court to call Gabeline, recipient of the two stolen vehicles, as a court witness. The court and defense counsel were advised that originally the government had subpoenaed Gabeline and intended to put him on the stand; that initially Gabeline had been interrogated by an agent of the F. B.I. and two local officials and had made certain statements with respect to dealing with the defendant and Conover with respect to purchasing the tractor (Count II) and that he had also purchased the crawler (Count III) from defendant; that thereafter Gabeline was called before the grand jury and testified almost to the reverse, i. e., that he dealt only with Conover regarding the 4020 tractor and hadn’t seen defendant the day in question; that later he bought the 450 crawler from one, R. S. Smith, that defendant was in the area but wouldn’t say that defendant heard the conversations regarding the sale of the crawler; that the morning of the trial the United States Attorney had visited with Gabeline “and for the life of me, your Honor, I still can’t figure out what he’s going to testify to;” that Gabeline should be made a court witness and both sides be given an opportunity to cross-examine him. Copies of a summary of Gabeline’s oral statement to the F.B.I. and local authorities, plus a transcript of his grand jury testimony, were furnished the court and defense counsel.

Defendant resisted the motion pointing out that the United States Attorney could not show surprise; that although the court had broad discretion, the matter of calling a witness as a court witness should be exercised with extreme caution. The court then ruled that Gabeline should be called as a court witness, explaining his ruling as follows :

Gentlemen, I can see the Government’s reluctance to call Mr. Gabeline in view of his testimony before the grand jury that is in conflict with the statements given to the investigating officers. I can also understand why the defendant might be reluctant to call him and subject him to cross-examination and impeachment after having been considered his own witness. And as I have also indicated, I think it’s testimony that in the interests of justice should be in this record. It appears to me less prejudicial to both parties if the Court does call Mr. Gabeline as his own witness. To what extent I will permit impeachment, impeachment will be permitted to an extent, but there is a danger, in my opinion, of too extensive an impeachment, of the possibility that might cause some prejudice to this defendant on the first two counts. And I see no problem in Count III as far as prejudice is concerned, because if he testified the way he did before the grand jury, there will be no Count III. There is a possibility that the proof may be otherwise and would make a case on Count III. And if he does testify, you are certainly entitled to impeach him, both of you. On the other hand, I may, in what I consider the interests of justice, put some limitations on it so that it won’t be blown up all out of proportion.

In answer to an inquiry by the United States Attorney with respect to the limitation on impeachment, the Court added further:

Well, yes, there would have to be objection, of course, before I would call a halt to it, but I think the Government should be permitted to put the witnesses on the stand and show the prior inconsistent statements, but to go into an extensive examination concerning those statements is the thing that I am concerned about now. The cases seem clear that you are entitled to impeach, and certainly that’s necessary for impeachment.

Thereafter Gabeline was called as a court’s witness. Under interrogation by the United States Attorney he testified that defendant and Conover visited his premises in June 1971, and defendant, a previous acquaintance of his, introduced Conover to him. Conover then negotiated the sale of the Count II tractor to him. Approximately a week later at about 7:00 a.m., Conover delivered the tractor. Gabeline did not observe anyone with him. At that time Gabeline gave Conover a cheek for $750 in partial payment for the tractor. The United States Attorney then inquired about Gabeline’s visit with an F.B.I. agent and two local officials in early 1972. In the process he handed Gabeline a copy of an F.B.I. summary concerning the visit and asked him to look it over for the purpose of refreshing his memory. After doing so the witness testified he did not recall who negotiated the sale of the tractor and that he could not recall what he said to the agents with respect to who negotiated the sale. He did not remember whether he told the officers there was one or two meetings concerning his purchase of the tractor. He recalled telling the agents he thought the crawler (Count III) might be hot too and ought to be checked out. He bought it from R. S. Smith paying approximately $1400. He identified a $1000 check he wrote to Smith for it and also one for $200 to R. S. Smith. The balance was cash. He stated defendant and R. S. Smith were in the vicinity cutting trees at the time of the crawler transaction. He did not remember telling the officers or anyone that he bought the crawler from defendant.

The United States Attorney then called two local officials who testified concerning their visit in January 1972 with witness Gabeline. Each testified that Gabeline stated he bought the 4020 tractor from Walter Allsup and that he bought the 450 crawler tractor from the defendant. Defendant made no further objection when these two local officials were called. Although additional objection might have further alerted the court to the error involved, we do not consider this controlling inasmuch as the court had already indicated that the government should be permitted to put the witnesses on the stand and show prior inconsistent statements for purposes of impeachment. Since the issue had been fairly presented to the trial court, argued and decided “. . it is neither desirable nor seemly for counsel to continually repeat their objections to the same class of testimony * * Sanchez v. United States, 293 F.2d 260, 264-265 (CA8 1961).

We have consistently adhered to the orthodox view that out-of-court statements cannot be substituted for courtroom testimony even though the witness is present to be cross-examined by the other side. United States v. Rainwater, 283 F.2d 386 (CA8 1960); Goings v. United States, 377 F.2d 753, 761-762 (CA8 1967) and United States v. Watson, 450 F.2d 290 (CA8 1971). We have recognized that distinguished professors and writers have urged the acceptance of impeaching hearsay testimony as substantive evidence under these circumstances. See discussion, Rainwater, Goings, supra. Rule 801(d)(1) of the proposed Rules of Evidence for United States Courts and Magistrates submitted by the Supreme Court to the Congress would permit prior inconsistent statements to be admissible as substantive evidence where the declarant testifies at the trial and is subject to cross-examination concerning the statement. The House Subcommittee considering the proposed Rules has published a tentative draft of H.R. 5463, a bill to establish Federal Rules of Evidence, which modified 801(d)(1) by adding:

Provided, That a prior inconsistent statement under clause (A) shall not be admissible as proof of the facts stated unless it was given under oath and subject to the penalty or perjury at a trial or hearing or in a deposition or before a grand jury;

H.R.Rep.No.5463, 93d Cong., 1st Sess., June 28, 1973; 42 U.S.L.W. No. 3, Supplement July 17, 1973.

For the present we shall continue to adhere to the orthodox view.

The general rule also requires that before a party may impeach its own witness “surprise” and “affirmative” damage must be established. See Watson, supra; Goings, supra; United States v. Dunmore, 446 F.2d 1214, 1220-1221 (CA8 1971). In the instant case the government could not claim surprise in view of Gabeline’s more recent sworn testimony before the grand jury which was inconsistent with his prior oral statement to the F.B.I. agent and two local officials. Neither did the government establish “affirmative damage”.

Gabeline testified he did not recall what he told the agents during their interview. He did not deny making the statements implicating defendant, but insisted that he dealt with Con-over for one tractor and with R. S. Smith on the crawler. Checks offered in evidence were made payable to these named individuals. (The Smith check was ultimately not received in evidence since Count III was withdrawn by the Court.) We recognize that loss of memory may be feigned and thus subject to impeachment. See, United States v. Insana, 423 F.2d 1165, 1169-1170 (CA2 1970). In this case the government’s claim of “affirmative damage” would be marginal at best. We are satisfied the government did not meet the test of affirmative damage when Gabeline’s testimony is reviewed in its entirety.

The government, however, seems to contend that since Gabeline was called as a court witness the general rules with respect to impeachment and the use 'of such .testimony do not apply. We have sanctioned the limited use of court’s witnesses. “The practice in criminal cases of calling someone as a court’s witness, while seldom used and not particularly desirable, is recognized as proper in both state and federal courts.” Smith v. United States, 331 F.2d 265 (CA8 1964). It is generally recognized that when such a witness is called, either of the parties is entitled to impeach him by the usual methods, including proof of prior inconsistent statements. United States v. Browne, 313 F.2d 197 (CA2 1963); United States v. Lutwak, 195 F.2d 748, 754-755; Litsinger v. United States, 44 F.2d 45, 47 (CA7 1930). “The result of one being called as a court’s witness is not too dissimilar from that of having a witness adjudged a hostile or a surprise witness.” Smith, supra, 331 F.2d at 273.

We recognize that the trial court should have considerable discretion in determining whether or not to permit the calling of a court’s witness. We should not interfere unless there has been an abuse of discretion which is prejudicial to the defendant. Smith, supra; United States v. Wilson, 447 F.2d 1, 8-9 (CA9 1971); Estrella-Ortega v. United States, 423 F.2d 509 (CA9 1970).

We would not be inclined to reverse the trial court for permitting the witness Gabeline to be called as a court witness or in permitting each side to cross-examine. Gabeline was the purchaser of two stolen vehicles, one of which was delivered in the early morning hours. He had given evasive testimony before the grand jury, some time after advising the three officers that defendant had purchased the vehicle in question. The error was in permitting the government to extend the impeachment by placing into evidence through two local officers the out-of-court statements by Gabeline that he had purchased the vehicles in question from defendant. Gabeline testified he did not remember telling the officials that he had purchased the vehicles from defendant. He did not deny making the statements. See Goings v. United States, supra, 377 F.2d at 758-759; United States v. Cunningham, 446 F.2d 194, 197 (CA2 1971).

At the time the government requested that Gabeline be made a court’s witness, the trial court expressed its concern over the problem of impeachment and its possible prejudice to the defendant with respect to Counts I and II. Nevertheless, the government proceeded with its “impeachment” to such an extent that we are compelled to hold that this cause must be remanded for a new trial. The trial court’s instruction to the jury to limit its consideration of the evidence of prior inconsistent statements by Gabeline solely to the issue of his credibility does not suffice to cure the evil. In this situation it was asking too much. See, United States v. De Sisto, 329 F.2d 929, 933 (CA2 1964).

The evidence of guilt is not sufficiently strong to permit us to say that the admission of “impeachment” testimony was harmless beyond a reasonable doubt. United States v. Mancino, 468 F.2d 1350 (CA8 1972). We cannot say the evidence of guilt was overwhelming or that it leaves us with no reasonable doubt that the jury would have reached the same result without hearing the “impeachment” testimony. Milton v. Wáinwright, 407 U.S. 371, 377-378, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1971). The government’s case to a large extent rested upon the evasive testimony of defendant’s alleged accomplice, Conover, a four-time convicted felon. The impact of two law enforcement officers testifying that the recipient of two stolen vehicles told them defendant sold them to him does not leave us with an impression of harmless error.

Reversed and remanded for new trial.

      . Subcommittee Note
      Present Federal law generally permits the use of x)rior inconsistent statements of a witness for impeachment only. Subdivision (d) (1) as proposed by the Court would permit such statements to be admissible as substantive evidence. Although there was some support expressed for the Court Rule, based largely on the need to counteract the effect of witness intimidation, the Subcommittee tentatively decided to adopt a compromise version of the Rule patterned after the position of the Second Circuit. See United States v. De Sisto, 329 F.2d 929, cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747; United States v. Cunningham, 446 F.2d 194. The Rule as approved draws a distinction between tyx>es of x>rior inconsistent statements and allows only those made before a grand jury, or at a trial or hearing, or in a deposition, to be admissible for their truth. The rationale for the Subcommittee’s decision was that (1) unlike in other situations, there can be no dispute' as to whether the prior statement was made; and (2) the context of a formal proceeding and an oath provides firm additional assurances of the reliability of the statement. The Subcommittee intends that nothing in the Rule should be deemed to impair the secrecy of grand jury investigations.

      . Accomplice Conover had testified the tractor was delivered as it was breaking daylight— between 4:30 and 5:00 o’clock.


author: ROSS, Circuit Judge.

text:
    Oran YOUNG, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1324.
    United States Court of Appeals, Eighth. Circuit.
    Submitted Sept. 12, 1973.
    Decided Oct. 3, 1973.
    Rehearing and Rehearing En Banc Denied Oct. 24, 1973.

      Oran Young, pro se.
    Bert C. Hura, U. S. Atty., and Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, LAY and ROSS, Circuit Judges.
   ROSS, Circuit Judge.

This is an appeal from the dismissal of Young’s 28 U.S.C. § 2255 motion. Young claims that his sentence in a federal criminal case was improperly enhanced by prior constitutionally invalid state and federal convictions, and thus United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), requires resentencing. We affirm the judgment of dismissal.

Young, after a waiver of indictment, was charged with violating the provisions of 18 U.S.C. § 2113(b) (Count 1); § 2113(a) (Count 2); and § 2113(a) and (d) (Count 3), all arising out of a bank robbery. On January 17, 1969, Young entered a plea of guilty to Count 1 and the other charges were later dismissed. On February 20, 1969, he was sentenced to ten years imprisonment. The sentence was to be served pursuant to the provisions of 18 U.S.C. § 4208(a) which allows the Board of Parole to entertain an application for parole at any time. Young’s conviction was affirmed by this Court. United States v. Young, 430 F.2d 1176 (8th Cir.), cert. denied, 401 U.S. 915, 91 S.Ct. 892, 27 L.Ed.2d 815 (1970). Young then brought the instant § 2255 motion and the motion was dismissed by the same judge who sentenced Young. The judge said:

“The files and records show that the Court took steps to avoid any enhancement of the sentence imposed in this case-by requiring the Board of Parole to execute a parole violator’s warrant on an earlier sentence, in order that the unexpired time which movant would have been required to serve consecutively could be served concurrently with the sentence of this Court. .
“The files and records show when the full proceedings are read in context that the only inquiry made concerning any past sentence was simply to confirm dates of service. They do not show that such sentences were used to enhance the sentence in question. Indeed, our memory of movant is vivid and we state affirmatively that this Court did not in any way consider the validity of any past sentence as a factor in imposing the sentence finally imposed in this case.” (Emphasis supplied.)

Young asserts that the judge relied upon the following allegedly invalid convictions :

1. Two 1951 Missouri state convictions for burglary are said to be constitutionally void because sentence was imposed in the absence of Young and his counsel, and, furthermore, the charges were changed after he pleaded guilty.

2. A 1951 Missouri state conviction-for assault with -intent to kill is said to have been voided by a Missouri state court in 1952.

3. Two 1958 bank burglary convictions obtained in the Federal District Court for the District of Kansas are alleged to be invalid because they rely on the prior invalid state convictions to enhance punishment, and for failure of the trial court to inform Young of the range of penalties prior to his plea of guilty.

In United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the Supreme Court ruled that where prior constitutionally invalid state convictions may have enhanced the punishment allocated by a federal judge in a subsequent criminal case, resentencing was required. In Tucker the state convictions had been determined to be invalid prior to the attack on the federal sentence. Although Young claims that Tucker requires resentencing in this case, we disagree for a number of reasons.

First, the 1951 state burglary convictions have apparently not been ruled upon in state court. The United States Court of Appeals for the Fourth Circuit has concluded that before a § 2255 motion of this type should be used it must at least appear that the petitioner has exhausted his remedies in state court:

“In short, a 2255 proceeding based on Tucker, which is itself a collateral proceeding, should not have as its essential predicate a collateral attack on still another sentence, especially if the sentence was imposed by a state court of another jurisdiction, which has not been invalidated in proceedings originally begun in that latter jurisdiction. A contrary conclusion would mean that a petitioner might use a collateral proceeding in one jurisdiction to make ‘a collateral second-level’ attack on judgments of convictions rendered in state courts, in which there had been not the slightest attempt at exhaustion of state remedies.” Brown v. United States, 483 F.2d 116, 118 (4th Cir. 1973).

We recognize that the United States Court of Appeals for the Fifth Circuit has determined this question differently, see Lipscomb v. Clark, 468 F.2d 1321, 1323 (5th Cir. 1972), but we, like the Fourth Circuit, are not disposed to rendering the exhaustion requirement a nullity in cases such as this.

Second, although Young claims that the sentencing judge here relied upon the voided state assault conviction, we do not find that any reference was made to that particular conviction. Since that conviction was voided in 1952 and the only state conviction mentioned by the trial judge related to Young’s release from custody in 1957, the reference to the state conviction was more likely to have been to the two burglary convictions which had not been voided. Moreover, Young was asked by the sentencing judge to confirm the accuracy of the dates of the state conviction mentioned by the judge. Young did so without a claim that the conviction had been voided. This failure should be noted since when the 1958 federal convictions were mentioned Young was quick to claim that those convictions were void for failure to follow Rule 11 of the Federal Rules of Criminal Procedure. Thus we are convinced that the voided state conviction was simply not relied upon by the trial judge to enhance the sentence, and that on resentencing the petitioner’s record would not appear in “a dramatically different light.” See Taylor v. United States, 472 F.2d 1178, 1180 (8th Cir. 1973).

Third, we do not believe that the 1958 federal convictions are void since the transcript submitted by Young clearly establishes that the federal judge in 1958 was fully aware that the 1951 assault conviction had been voided in 1952; as we have said, the other 1951 state convictions have apparently not been attacked in state court; and finally, the United States Court of Appeals for the Tenth Circuit has upheld the 1958 federal convictions in the face of the precise argument Young advances here with respect to the alleged failure to inform Young of the range of penalties before he pleaded guilty. See Young v. United States, 433 F.2d 626 (10th Cir. 1970), cert. denied, 401 U.S. 995, 91 S.Ct. 1242, 28 L.Ed.2d 534 (1971).

Fourth, assuming the foregoing were not true, affirmance is nevertheless required. Since the sentencing judge has expressly stated that he did not rely upon the allegedly invalid convictions, remand would be fruitless because it is clear that the same sentence would be imposed even assuming the invalidity of all the prior convictions. Compare James v. United States, 476 F.2d 936 (8th Cir. 1973) and Taylor v. United States, supra, with Jorgenson v. United States, 477 F.2d 905 (8th Cir. 1973) and McAnulty v. United States, 469 F.2d 254 (8th Cir., 1972).

For the reasons hereinbefore stated, the dismissal is affirmed.

      . Young did file an action.seeking to vacate these convictions in state court, but he later dismissed the action.


author: PER CURIAM.

text:
    Robert John RYAN, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1305.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 12, 1973.
    Decided Oct. 3, 1973.
    Robert John Ryan, pro se.
    Robert G. Renner, U. S. Atty., and Francis X. Hermann, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

      Before VAN OOSTERHOUT, Senior Circuit Judge, LAY and ROSS, Circuit Judges.
   PER CURIAM.

Robert John Ryan appeals the dismissal of his 28 U.S.C. § 2255 motion. The motion alleged that prior constitutionally invalid sentences were used to enhance his sentence rendered after a conviction for violating the provisions of 18 U.S.C. § 2113(a) and (d). We affirm.

Ryan was found guilty, by a jury, of violating the provisions of 18 U.S.C. § 2113(a) and (d) and sentenced to less than the maximum allowable sentence. Ryan then filed a motion for reduction of the sentence, which was denied. Ryan’s conviction was affirmed by this-Court. Ryan v. United States, 71-1501 (8th Cir.), cert. denied, 409 U.S. 866, 93 S.Ct. 163, 34 L.Ed.2d 115 (1972). Ryan then brought the present § 2255 motion before the same judge who sentenced him with respect to the § 2113(a) and (d) conviction. When the judge dismissed the motion he said:

“[E]ven were all prior convictions to be disregarded and eradicated thé court would still not put defendant on probation but would meet and impose the same sentence considering the seriousness and character of the crime. if

Ryan asserts that various state and federal convictions are invalid and were used to enhance the sentence involved here. Essentially Ryan relies upon the Supreme Court’s decision in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). In Tucker the Court ruled that where constitutionally invalid state sentences may have influenced a later federal sentence, the ease must be remanded to the trial court for reconsideration of the sentence. In Tucker the state convictions had been determined to be invalid by a state court.

We do not believe that remand would be appropriate in this case despite United States v. Tucker, supra,, for two reasons: First, the sentencing judge has made an express statement that the sentence imposed was appropriate regardless of the alleged invalidity of the prior convictions. Hence we believe that remand would be fruitless. Compare James v. United States, 476 F.2d 936 (8th Cir. 1973) and Taylor v. United States, 472 F.2d 1178 (8th Cir. 1973) with Jorgenson v. United States, 477 F.2d 905 (8th Cir. 1973) and McAnulty v. United States, 469 F.2d 254 (8th Cir. 1972).

Secondly, it appears that the state convictions which Ryan claims are void have not been challenged in state court. As we have stated in a similar case, Young v. United States, 485 F.2d 292 (8th Cir. 1973), a § 2255 motion of this type should not be used to obviate the generally recognized principle of exhaustion of state remedies.

For the reasons hereinbefore expressed, the dismissal is affirmed.

      . The federal conviction for violation of the Dyer Act is challenged also, but in that case the question raised by petitioner relates to whether he intelligently and knowingly waived his right to counsel. The trial court noted that the judgment of conviction in the Dyer Act case provided that Ryan had expressly waived the right to counsel after being fully advised by the court of his rights. Ryan failed to allege any facts in his complaint relating to this conviction and in his brief merely makes the conclusory allegation that ho did not intelligently and knowingly, waive his right to counsel. In addition, it should be noted, that this Dyer Act conviction was less serious than most of the others and no useful purpose would be served under these circumstances in testing its validity at this time.