author: CRAVEN, Circuit Judge:

text:
    MILLERS MUTUAL INSURANCE ASSOCIATION OF ILLINOIS, Appellee, v. SOUTHERN RAILWAY CORPORATION, Appellant. MILLERS MUTUAL INSURANCE ASSOCIATION OF ILLINOIS, AppeUee, v. CENTRAL SOYA COMPANY, Appellant.
    Nos. 73-1465, 73-1466.
    United States Court of Appeals, Fourth Circuit.
    Argued Oct. 4, 1973.
    Decided Nov. 8, 1973.

      Harold K. Bennett, Asheville, N. C. (W. T. Joyner, Raleigh, N. C. and Bennett, Kelly & Long, Asheville, N. C., on brief), for appellant in No. 73-1465.
    O. E. Starnes, Jr., Asheville, N. C. (Van Winkle, Buck, Wall, Starnes & Hyde, P. A., Asheville, N. C., on brief), for appellant in No. 73-1466.
    Charles R. Worley, Asheville, N. C. (J. M. Baley, III, McGuire & Wood, Asheville, N. C., on brief), for appellee in Nos. 73-1465 and 73-1466.
    Before B OREM AN, Senior Circuit Judge, and CRAVEN and FIELD, Circuit Judges.
   CRAVEN, Circuit Judge:

Some time during the winter of 1970, the Earle-Chesterfield Mill received from Central Soya Company six railroad cars of No. 2 yellow corn shipped via Penn Central and Southern Railway. Some days later hot spots and smoldering heat or fire occurred in one of the corn storage bins, resulting in damage to 19,426 bushels of corn, considerable injury to the bin itself, and incidental expense — a net loss to Earle-Chesterfield of approximately $24,000. The plaintiff, Millers Mutual Insurance Association of Illinois, paid Earle-Chesterfield Mill under a fire insurance policy and then, as subrogee to the Earle-Chesterfield claim, sued Central Soya, Penn Central, and the Southern Railway in the United States District Court. From a judgment entered against them on a jury verdict of negligence in furnishing and transporting the corn, Central Soya and Southern Railway have appealed.

We think the district court erred in failing to grant motions of Central Soya and Southern for judgment notwithstanding the verdict, and reverse.

The lawsuit grew out of the misadventures of Southern Railway covered hopper car 96398, designated “For Phosphate Loading Only” but diverted by Southern for a shipment of unslaked lime. It was then again used for a shipment of phosphate and came into the custody and control of Penn Central at Cincinnati. The waybill that accompanied car 96398 was plainly marked, “When empty return to Occidental Corp., Occidental, Fla. via reverse route.” Instead of returning the car empty, Penn Central furnished it to Central Soya in February 1970 for a shipment of corn consigned to the Earle-Chesterfield Mill in Asheville, North Carolina. Accepting delivery of the grain-loaded car from Penn Central, Southern transported it to Asheville, where Earle-Chesterfield’s employees unloaded the corn directly into their bins • — -so far without untoward incident. During unloading the employees noticed “little white pellets” in the corn. Several days later hot spots developed in the bin that contained the Central Soya corn. The smoldering heat and resulting damage were caused by residual quantities of unslaked lime present in car 96398 when it was loaded with corn.

The complaint alleged that all three defendants were negligent, and the case was tried on that theory, resulting in a verdict and judgment against all defendants.

Central Soya

Central Soya urges that the trial judge should have either directed a verdict in its favor or granted its motion for judgment notwithstanding the ver-, diet. We agree, and reverse the verdict of negligence as to Central Soya.

We apply a federal standard to determine whether the plaintiff’s case presented a jury question. Wratchford v. S. J. Groves & Sons Co., 405 F.2d 1061 (4th Cir. 1969). The test is whether, viewing the evidence in the light most favorable to plaintiff, we find “substantial evidence supporting the verdict.” C. Wright, Law of Federal Courts § 95, at 425 (2d ed. 1970).

The case was tried under the law of North Carolina and none of the parties has formally challenged the choice of law on appeal. During oral argument, however, counsel for Central Soya expressed a belief that its conduct should be judged by Ohio law. We believe that the trial court was correct in applying North Carolina law to plaintiff’s claims against the shipper. As a federal court sitting in North Carolina, we apply North Carolina’s rule on conflicts. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The North Carolina Supreme Court’s most recent decision on the choice of law in tort cases reveals a determination to retain the rules of lex loci delicti. Petrea v. Ryder Tank Lines, Inc., 264 N.C. 230, 141 S.E.2d 278 (1965). Under this principle, the law of the ease' is not drawn from the place where the alleged negligence occurred, but from “the state where the last event necessary to make an actor liable for an alleged tort takes place.” Restatement of the Conflict of Laws § 377 (1934). Apparently the un-slaked lime did not absorb sufficient moisture en route to get “hot”; the injury occurred in the bin at the Earle-Chesterfield Mill in North Carolina, and thus North Carolina law will govern. Cf. Brendle v. General Tire & Rubber Co., 408 F.2d 116 (4th Cir. 1969).

The North Carolina courts have decided only one case on a shipper’s liability for using defective railroad cars. In Yandell v. National Fireproofing Corp., 239 N.C. 1, 79 S.E.2d 223 (1953), National Fireproofing shipped material in an obviously defective boxcar. During the unloading process, a door fell off the boxcar and injured an employee of the consignee. On demurrer, the North Carolina Supreme Court held that a shipper would be liable for loading a defective railroad ear if it had actual or constructive knowledge that the ear would be dangerous for unloading.

Yandell does not hold that actual or constructive knowledge is a necessary prerequisite for successful suits against shippers, but we think it so intimates, and the law of other jurisdictions supports such a rule. Under the federal common law that prevailed before Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), this circuit held that shippers may ordinarily assume that railroads have inspected the cars they furnish. The court made only one tentative exception to this broad statement, saying that a shipper might be negligent if it ignored an obvious danger. Waldron v. Director General of Railroads, 266 F. 196 (4th Cir. 1920). The Texas Supreme Court has gone to the extreme position that a shipper cannot be charged with knowledge of defects in a vehicle furnished by a carrier even if reasonable inspection would have revealed the danger. A. J. Tebbe & Sons Co. v. Brown Express, 161 Tex. 456, 341 S.W.2d 642 (1960). See also 13 Am.Jur.2d Carriers § 173 (1964). Although all these eases, including Yandell v. National Fireproofing Corp., involved personal injuries to employees of the consignee, we think a shipper’s duty must be the same with respect to property damage.

As a matter of general negligence law, the Second Restatement of Torts supports our conclusion that actual or constructive knowledge is a precondition to liability for loading a defective car.

It is negligence to use an instrumentality . . .' which the actor knows or should know to be so . inappropriate or defective, that its use involves an unreasonable risk of harm to others.

Restatement (Second) of Torts § 307 (1965), quoted in Scott v. Clark, 261 N.C. 102, 107-108, 134 S.E.2d 181, 185 (1964). A comment to that section seems to cover the shipper’s duty to inspect cars furnished by the railroad:

If a third person has turned over the thing to the actor for the purpose of the particular work or similar work, the actor usually is entitled to assume that the thing is in normally fit condition unless there is some reason to suspect the contrary.

Id., comment b, at 99. See also, id. § 300, commnt c.

Applying the rule that we believe the North Carolina courts would adopt, we conclude that the trial judge erred in submitting the question of Central Soya’s negligence to the jury. The record contained no evidence that Central Soya had actual knowledge that car 96398 contained residual deposits of unslaked lime. Nor do we find any evidence that would support a finding of constructive knowledge, i.e., that the circumstances are such that it is fair to impute to Central Soya knowledge it did not have. Penn Central had furnished this car to Central Soya with knowledge that it would be used for a corn shipment. Central Soya was entitled, in the absence of suspicious circumstances, to assume that the car was suitable for hauling grain. There was nothing about the exterior appearance of the car to suggest that it contained a dangerously incompatible substance. Although the ear bore the stenciled legend, “For Phosphate Loading Only,” Gregory Minch testified for Central Soya that it was “no different” from other stenciled cars they had used. The record showed that in the course of using similarly stenciled cars, Central Soya had received only one other complaint of foreign material in the corn it shipped, and that apparently occurred after the shipment to Earle-Chesterfield. Moreover, the testimony of plaintiff’s witnesses James M. West-all and Charles W. Parish indicated that phosphate and corn were compatible and that no harm would have resulted if the residue later discovered in the car had been phosphate instead of unslaked lime.

Even if we assume arguendo that Central Soya had a duty to inspect the ear in the absence of suspicious circumstances, we believe its employees sufficiently discharged the duty. Gregory Minch testified that Central Soya’s employees made a visual inspection which revealed only that the car was empty and that no remnants of previous loads were visible. We think this was all they could be expected to do without special facilities. The evidence established that each hopper of the car had only two openings that would permit inspection: the loading hatch on top and a sliding gate at the bottom. The bottom opening is only 18 inches off the ground, and it would be difficult, if not impossible, for a man to crawl up inside the car to inspect it. The top opening permits a cursory visual inspection of the inside, but the absence of light and the hopper’s funnel-like configuration would make discovery of foreign substances largely a matter of chance. Moreover, discovery of a residue of white powder or pellets would not necessarily put Central Soya on notice of the danger of an incompatible substance.

Southern Railway

Southern Railway raises several points of error on appeal, urging mainly that the trial judge erred in denying its motions for directed verdict and judgment n. o. v. We have concluded that plaintiff did not make out a prima facie case of negligence against Southern and therefore we reverse.

Ordinarily the Interstate Commerce Act’s Carmack Amendment, 49 U. S.C. § 20(11) (1970), governs railroad liability for damages to interstate shipments. The statute essentially adopts the common law of carriers and makes railroads virtual insurers against loss or damage to property received for transportation. Yet plaintiff chose to try the case on the theory of negligence. Since the opening paragraph of plaintiff’s brief displays counsel’s awareness and understanding of the “insurance” theory of liability, we must assume this was a deliberate tactical choice. In Lit-vak Meat Co. v. Baker, 446 F.2d 329 (10th Cir. 1971), the Tenth Circuit held that the Carmack Amendment leaves room for this kind of election.

Doubtless, counsel’s choice was dictated by a belief that the evidence would tend to show that the corn arrived in good condition and that the unslaked lime became “hot” after being unloaded into Earle-Chesterfield’s bins. Damages included not only the corn but also injury to the bin. Indeed, the record suggests no heating occurred until several days after unloading. Thus there is some question about the Carmack Amendment’s applicability to this case. Still, in a case that strongly parallels this one, the Sixth Circuit held that the Carmack Amendment was the consignee’s exclusive remedy. American Synthetic Rubber Corp. v. Louisville & N.R.R., 422 F.2d 462 (6th Cir. 1970) (the railroad delivered the wrong car, and the consignee unloaded ethylene oxide into facilities for butadiene). See also W.D. Lawson & Co. v. Penn Central Co., 456 F.2d 419 (6th Cir. 1972); Sylgab Steel & Wire Corp. v. Strickland Transportation Co., 270 F.Supp. 264 (E.D.N.Y. 1967).

Although we are inclined to think the Carmack Amendment preempts state remedies in the area that it covers, the posture of this case weighs heavily in favor of applying state law. Even now all parties seem content with the application of state law, and we are hesitant to inject a theory on appeal that has not been considered below and is not presently urged upon us.

The evidence established that Southern Railway had used car 96398 for a shipment of unslaked lime, had not cleaned the car before the phosphate shipment, and that residual deposits of lime remaining in the car caused the damage to the corn and storage bin. It is true, of course, that had Southern “cleaned” the car of lime the damage would not have occurred, but under North Carolina law foreseeability is an essential element of proximate cause, Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Brady v. Southern Ry., 222 N.C. 367, 23 S.E.2d 334 (1942), aff’d, 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239 (1943), and the evidence in this record does not support a finding of foreseeability.

We agree with the trial judge’s instruction that foreseeability does not require “that the defendant must have foreseen the injury in the exact form in which it occurred, but requires only that in the exercise of reasonable care the defendant or defendants might have foreseen that some injury would result from his act or omission or that consequences of a generally injurious nature might have been expected.” See Johnson v. Lamb, 273 N.C. 701, 161 S.E.2d 131 (1968). But we are convinced that plaintiff has failed to show that Southern should have foreseen that its use of car 96398 would spawn any harmful consequences. Although Southern knew that it had released an unclean car to Penn Central, it could reasonably assume that Penn Central would (a) return the car empty or, failing that, (b) clean the car before furnishing it for any commodity other than phosphates. This is so because of railroad rules that may be likened to the law of the trade or shop. Association of American Railroads Circular CSD 435, which was binding on both Southern and Penn Central, provided:

Class “L” Car Types, in interline service . . . after being unloaded shall be returned promptly to the originating line via reverse of service route .... The only exception to [this] procedure shall be on specific instructions by the car owner, or by the Car Service Division [of the American Association of Railroads].

Plaintiff insists, however, .that regardless of the “return empty” rule, actual practice in the industry was to the contrary and that Southern was glad indeed to have the revenue for hauling corn rather than to have its stenciled instruction honored. Plaintiff insists, in short, that the rule is honored in the breach. Thus, in plaintiff’s view, Southern knew that in all probability its car would return, not empty, but loaded with some commodity that might well be incompatible with unslaked lime. Various witnesses from Earle-Chesterfield and Central Soya testified that most of the cars hauling corn had stenciling on them and that they had received cars with stenciled return instructions and' “things like that.” One witness recalled that he saw one car stenciled “Return Empty to Southern Railway,” and another witness testified that many cars loaded with corn at Earle-Chesterfield were stenciled “Return Empty.” Although weak, we think this sort of evidence sufficient to raise a jury question of Southern’s capacity to foresee that some injury could result from releasing a car that contained remnants of unslaked lime. It matters not that Southern’s testimony was to the contrary and that its superintendent of car distribution testified that the instructions to return empty were followed “pretty strictly.”

But even though this testimony, liberally construed, permits a jury inference that Penn Central had diverted stenciled cars to grain shipments so often that Southern should have known about it, there is not one scintilla of evidence in the record to suggest that Penn Central had done so without first cleaning the cars. It is not enough for foreseeability that Southern might have anticipated that Penn Central might divert the car containing residual deposits of lime to carry corn unless Southern also should have anticipated and foreseen that Penn Central would violate the rules on inspection and cleaning. American Association of Railroads rule 64(a) imposed the following duty on Penn Central:

Car shall be inspected while empty and before each loading by carrier furnishing the equipment and, if necessary, properly cleaned and placed in good condition so that loss of or damage to freight may not result from defects in car, filth, waste, oil, grease or other substance or from anything liable to cause loss of or damage to freight; such inspection to be governed by the kind of freight to be loaded and the probability of loss or damage .... Carrier furnishing the equipment shall keep a permanent record showing where car was inspected, name of person making the inspection, condition of ear, and extent of inspection at time of such inspection.

Penn Central had no inspection records on ear 96398.

The second paragraph of rule 64(a) reads as follows:

When the physical facts developed by inspection at destination or enroute prove beyond a reasonable doubt that car was furnished in a defective, unclean, or otherwise unfit condition to transport the commodity without loss or damage, such facts shall render the origin or carrier furnishing the equipment responsible for the entire loss.

We think this rule governs the case. Although Southern was at fault in the sense of setting car 96398 in motion with deposits of unslaked lime, we think it is clear that this rule relieves Southern of liability, permitting it to rely on Penn Central to inspect and clean the car before letting it be used to carry other commodities. For us to hold otherwise would be presumptuous. We lack expertise in the operation of our incredibly complex transportation system. On this record we can only enforce the rule as it is clearly written.

Finally, plaintiff urges that the verdict against Southern should be allowed to stand because of its negligence in accepting the car loaded with corn and unslaked lime for the trip to Ashe-ville. We think this contention is without merit. Southern’s duty to make a reasonable inspection of railroad ears accepted from another carrier must necessarily, we think, be confined to a duty of exterior inspection — absent circumstances suggesting an interior defect. To hold otherwise is to suggest that each connecting carrier must unload every car before resuming transit. The law cannot go so wide of reality. The most careful inspection of car 96398 after it had been loaded with corn would not have disclosed the presence of un-slaked lime. Thus a presumed failure to inspect cannot be said to have been the proximate cause of the subsequent injury and damage.

If a delivering carrier is subject to liability of this sort, as plaintiff insists, it must be in the nature of strict liability without regard to fault. Plaintiff points to Lucas & Lewis v. Norfolk S. Ry., 165 N.C. 264, 80 S.E. 1076 (1914), as an indication of this type of liability. We agree that the facts suggest the possibility of such a theory, but in Tucker v. Norfolk & W.R.R., 194 N.C. 496, 140 S.E. 77 (1927), the court limited the strict liability implication of Lucas and explained the liability of the delivering carrier in that case on the ground of obvious danger. Tucker affirmed a judgment of nonsuit in favor of the delivering carrier and in so doing necessarily held, we think, that a plaintiff does not make out a prima facie case against a delivering carrier merely by showing that the car was defective and that the delivering carrier accepted it without an inspection. See also Roy v. Georgia R. & Banking Co., 17 Ga.App. 34, 86 S.E. 328 (1915).

In Yandell v. National Fireproofing Corp., 239 N.C. 1, 79 S.E.2d 223 (1953), the North Carolina Supreme Court described the delivering carrier’s duty as a “duty to make a reasonable inspection of the car to ascertain whether it is reasonably safe for unloading, and to repair or give warning of any dangerous condition in the car discoverable by such an inspection.” Id. at 6, 79 S.E.2d at 227.

We have found no North Carolina cases, other than Lucas and Tucker, that help define what is a reasonable inspection at an interchange. Other jurisdictions have uniformly held that delivering carriers do not have to open cars to inspect the interior unless an external inspection suggests interior defects. See Copeland v. Chicago, B. & Q.R.R., 293 F. 12 (8th Cir. 1923); Smith v. Louisville & N.R.R., 267 F.Supp. 716 (S.D.Ohio 1966); Martin v. Southern Pac. Co., 46 F.Supp. 957 (N.D.Cal.1942); Butler v. Central of Georgia Ry., 87 Ga.App. 492, 74 S.E.2d 395 (1953); cf. Butler v. Norfolk S. Ry., 140 F.Supp. 601 (E.D.N.C. 1956) (construing North Carolina law on initial carrier’s duty to inspect a sealed car). There was nothing on the exterior of car 96398 to put Southern on notice that the corn in it might be contaminated or dangerous.

Plaintiff insists that, entirely aside from on-the-site physical inspection at point of interchange, Southern is charged with knowledge of the transportation history of all of its cars and, indeed, maintains such a history. Thus, plaintiff argues that Southern knew that car 96398 had been loaded with unslaked lime and had not been cleaned when turned over to Penn Central at the interchange. Plaintiff urges that Southern cannot disclaim such knowledge when Penn Central returns the car loaded with corn to Southern. We think the theory wholly unrealistic. There is no evidence in the record suggesting that the employees who actually accept and handle cars at interchanges can readily obtain the history of Southern’s cars. Indeed, Southern insists that even with the use of a computer print-out, there is a two-month delay in getting a car’s loading history. Nothing in the record contradicts this contention. We think that Southern’s obligation to obtain histories on its cars at the interchange, like its duty to inspect, must be limited by the concept of reasonableness. In this instance, the duty that plaintiff would impose on Southern is both impractical and out of proportion to the risk involved.

Reversed.

      . The jury also returned a verdict against Penn Central upon which judgment was entered, but Penn Central has not appealed.

      . With respect to Central Soya, an alternate theory of breach of warranty of fitness was conditionally submitted to the jury, i. e., that it would not answer the breach of warranty issue unless it absolved Central Soya of negligence. Plaintiff made no objection to this instruction, and the point is not pressed on appeal.

      . At trial plaintiff introduced Central Soya’s answer to an interrogatory that requested information about any other complaints. Central Soya answered as follows:
      We had one complaint from Holly Farms Poultry Industries of Mocksville, North Carolina in the last eighteen months [this set of answers was dated Dec. 13, 1971] that a white substance was in corn shipped to one of their plants. It was concluded that the substance was sodium-tripoly phosphate, a substance often added to poultry feeds in small quantities. Transcript at 188.

      . Central Soya, like most shippers presumably, had no “cleaning track” such as railroads use.

      . The Carmack Amendment codifies the common law rule that requires no proof of negligence. Secretary of Agriculture v. United States, 350 U.S. 162, 165 n. 9, 76 S.Ct. 244, 100 L.Ed. 173 (1956). It also allows a plaintiff to make out a prima facie case by proving that the goods were delivered' to the carrier in good condition but arrived damaged. Litvak Meat Co. v. Baker, 446 F.2d 329, 336-337 (10th Cir. 1971). While these principles were established by statutory interpretation, the Carmack Amendment’s major advantage over common law remedies appears on its face. It allows the holder of a bill of lading to sue either the initial carrier or the delivering carrier for all his damages. The railroad may then sue other carriers that handled the shipment in hope of shifting the loss. 49 U.S.C. § 20 (12) (1970).

      . This paragraph is followed by a proviso that changes the rule of liability when the “carrier furnishing the equipment does not receive a switch or road haul of the loaded car.” In this ease, however, the parties stipulated that Penn Central received both a switching charge and a road haul charge.


source: Caselaw Access Project

author: MOORE, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Enrique SANCHEZ, Appellant.
    No. 1030, Docket 73-1452.
    United States Court of Appeals, Second Circuit.
    Argued July 17, 1973.
    Decided Aug. 27, 1973.

      E. Thomas Boyle, New York City (Robert Kasanov, The Legal Aid Society, New York City, on the brief), for appellant.
    Myles C. Cunningham, Asst. U. S. Atty., Brooklyn, N. Y. (Robert A. Morse, U. S. Atty., E. D. N. Y., L. Kevin Sheridan, and James A. Pascarella, Asst. U. S. Attys., on the brief), for appellee.
    Before MOORE and OAKES, Circuit Judges, and GURFEIN, District Judge.

       Hon. Murray I. Gurfein, United States District Judge for the Southern District of New York, sitting by designation.

   MOORE, Circuit Judge:

Enrique Sanchez appeals from a judgment of conviction entered after trial by jury in the United States District Court for the Eastern District of New York. Appellant was found guilty on all three counts of an indictment that charged him and co-defendant Rafael A. Duarte, Jr., with: (1) conspiracy to extort a sum of money by transmitting in interstate commerce communications containing threats to injure the reputation of Dr. Roberto Sanchez, in violation of 18 U.S.C. § 875, and the laws of New Jersey and New York under 18 U.S.C. § 1952(a)(2) and (3); (2) use of a facility in interstate commerce with the intent of committing extortion; and (3) transmission in interstate commerce of communications containing threats to injure the reputation of Dr. Sanchez. On appeal appellant raises two claims: (1) that the trial court deprived him of his Sixth Amendment right to the effective assistance of counsel and to counsel of his own choosing; and (2) that he is entitled to a hearing to determine whether his conviction was tainted by an unlawful electronic surveillance. We reject both contentions and affirm the judgment of conviction.

The relevant facts, briefly stated, are as follows. On an evening in mid-June of 1971, Dr. Roberto Sanchez (unrelated to appellant), pursuant to a scheme planned by appellant, Duarte, and one Amado Alfonso, went to appellant’s apartment in Union City, New Jersey. Present at the apartment were appellant, Alfonso, and, hiding in a bedroom closet with a camera and pistol, Duarte. After a brief conversation among the doctor, appellant, and Alfonso, appellant left the apartment; Doctor Sanchez and Alfonso remained. The two men then went into the bedroom where Duarte was hiding, undressed, and proceeded to engage in homosexual activity. At a prearranged signal from Alfonso, Duarte came out of the closet and, threatening to use the pistol, photographed the doctor and Alfonso engaging in homosexual acts.

In the weeks following this incident, the doctor received numerous (anonymous) threatening telephone calls at his home in New Jersey and at his office in Brooklyn, New York. He was informed that unless he paid a sum of money ranging from $35,000 to $55,000, the photographs would be released to his family and friends, and his reputation would be ruined. The doctor was sent copies of the photographs, as well as a copy of the community Cuban newspaper in which an article had appeared (based on- information provided by appellant) describing photographs that depicted the “strange passions” of an unnamed local doctor. (Trial Transcript, hereinafter “Tr.”, at 281-86).

Approximately two to three months thereafter, upon the advice of his attorney, Dr. Sanchez recorded several of the threatening telephone calls and took the tapes to the FBI; the doctor also provided the FBI with the photographs he had been sent and the Cuban newspaper which had referred to the incident. On September 23, 1971, in a recorded telephone conversation, the doctor was instructed to deliver $35,000 in cash to a Union City, New Jersey, restaurant, where appellant was then employed. On September 27, 1971, Dr. Sanchez, followed by FBI agents, drove to the parking lot of the restaurant with an envelope containing $2,000 in cash. The bills had been photocopied by the agents (for purposes of later identification) and Dr. Sanchez had been “wired” with an electronic transmitter for the purpose of enabling the FBI agents to overhear any conversation he might have with the blackmailers.

At the restaurant, FBI agents took surveillance positions around the area. One agent, in possession of the receiver portion of the transmitter set carried by the doctor, was stationed in a store near the restaurant. Another agent moved in and out of that store, alternately listening to the transmissions picked up on the receiver, if any, and walking to the parking lot to observe Dr. Sanchez in his parked auto. After some time, appellant walked out of the restaurant and . to the doctor’s vehicle. After a brief exchange, during which appellant looked furtively in all directions (Tr. 312, 9/6/72 Tr. 103), appellant went to his own auto and drove it to a position near that of the doctor. He then returned to the doctor’s vehicle, took the envelope containing the $2,000 in cash from the doctor, and returned to his vehicle to depart. The FBI agents promptly arrested appellant.

Just prior to trial, co-defendant Duarte pleaded guilty to Count I of the indictment and later testified at appellant’s trial. Appellant took the stand in his defense and denied any involvement in the conspiracy to extort money from Dr. Sanchez. He testified that he had taken the $2,000 from the doctor only as an intermediary upon the doctor’s request, and that he was to hold the money until contacted by an unknown third party who, in return for the cash, would give appellant (on the doctor’s behalf) the photographs and negatives. After déliberation the jury found appellant guilty on all counts of the indictment. He was subsequently sentenced to concurrent terms of imprisonment totalling four years.

Appellant’s first argument on appeal is that he was deprived of his Sixth Amendment right to the assistance of counsel by the actions of the trial court. Specifically, appellant alleges that (1) he was denied counsel of his own choosing, and (2) he was denied the effective assistance of counsel when the court ordered appellant’s two counsel to proceed to trial, allegedly without adequate preparation on their part. A brief factual background is necessary in order to measure the merit of these contentions.

The indictment against appellant was filed on December 23, 1971, at which time Mr. Phillip Brown was appointed as his defense counsel. Appellant thereafter also retained the services of another counsel, Mr. Andres Astaeio Santos. At his arraignment appellant was represented by attorney Brown. On January 13, 1972, appellant, represented by attorney Santos, pleaded not guilty to the charges. The docket record shows that the ease was first called before Judge Bartels on February 4, 1972, and that it was adjourned to February 10, 1972. On that date the case was again adjourned until February 18, 1972; the government filed notice of readiness for trial on February 15, 1972. On February 18 appellant (by attorney Santos) withdrew his motion for inspection and a bill of particulars, which had been filed by Mr. Santos on January 26, 1972. On July 12, 1972, Judge Bartels called the ease and set trial for August 14, 1972; it was again adjourned, however, with trial commencing on August 28, 1972.

On that date both (assigned) attorney Brown and (retained) attorney Santos appeared in court. Mr. Brown apparently was entering an appearance officially to withdraw as appellant’s counsel, since Mr. Santos had been retained by appellant, and since Mr. Brown had failed to file an order of substitution with the court. With no advance notice to anyone, however, Mr. Santos also made application for permission to withdraw as counsel, on the ground that some ten months prior to trial, and prior to his retention by appellant, he had suffered a broken ankle and that, as a result thereof, he “had an emotional problem” and lacked a “clear mind.” (Tr. 14). Judge Bartels, after some discussion, denied the applications to withdraw, ordered the trial to proceed, and directed both counsel to discuss the handling of the trial with each other and with appellant. (Tr. 15, 16). After accepting the guilty plea of co-defendant Duarte, Judge Bartels inquired of the two counsel which of them would try the case. Attorney Brown informed him:

I have discussed it with the defendant [Enrique Sanchez] and my colleague [attorney Santos] and we are going to try it together. I will try it; he will sit in, if it’s all right with the Court and the defendant. (Tr. 30).

Judge Bai’tels then indicated, “All right, both of you will try it. That’s fine”, to which Mr. Brown responded, “That will be under the original assignment.” (Tr. 30-30A).

A luncheon recess was then called, after which a jury was empaneled to hear the case. During the ensuing six-day trial, Mr. Brown conducted the defense with Mr. Santos sitting at the defense table, providing consultation and interpreting for the Spanish-speaking defendant.

Appellant here alleges that he was denied counsel of his own choosing when the court permitted Mr. Brown to represent him, since he had manifested his desire not to be represented by Mr. Brown when he retained Mr. Santos as his attorney. Moreover, argues appellant, he was not aware of the pre-trial switch in attorneys since “he [had] stood by in dumb silence” without the services of a Spanish interpreter during discussion among counsel and the court. (Brief, hereinafter “Br.”, at 12). We find no merit in appellant’s contentions.

The record shows that the trial court and the government took more than adequate precaution to insure that appellant was represented by counsel, and that he was made completely aware during the pre-trial discussion of the situation regarding his trial representation. In addition to the appointment of counsel with Spanish-speaking ability (Mr. Brown) (Tr. 32), appellant was also provided with a Spanish interpreter from the commencement of the pre-trial discussion between counsel and the court. (Tr. 8). Appellant himself later agreed to dismiss the interpreter, since both his counsel spoke Spanish, and since Mr. Santos would sit at the defense table with appellant throughout the trial. (Tr. 32). There was also evidence that appellant, aged 34, residing in this country since 1958, and having served in the United States Army, had facility with the English language; he was able to respond to the trial court during the trial that he was understanding “everything that [had] gone on.” (Tr. 119).

We fail to see how appellant could have “stood by in dumb silence” unaware of what was transpiring at pretrial as regards which of his two counsel would try the case, when there were present not one, but three, Spanish-speaking persons to explain the proceedings to appellant, and when he himself knew English well enough to understand. We therefore find no error as regards the requirement that a defendant be provided with an interpreter when necessaxy. United States ex rel. Negron v. New York, 434 F.2d 386, 390 (2d Cir. 1970). See United States v. Diaz Berrios, 441 F.2d 1125, 1126-1127 (2d Cir. 1971). Nor, more importantly, do we find that the trial court erred in directing counsel to proceed to trial. It is obvious that during the many months prior to trial, and during trial, appellant had the services of not one, but two, attorneys. As noted above, Mr. Brown informed the court that he had discussed the matter with both appellant and his co-counsel, and that all three had agreed to proceed to trial under the arrangement outlined by Mr. Brown. It ill-behooves appellant to argue on appeal that he was denied counsel of his own choosing when in fact, the record shows that he consented to the arx'angement, and that both his retained and appointed counsel jointly represented him at trial.

Equally without merit is appellant’s second Sixth Amendment argument, wherein he alleges that he was deprived of the effective assistance of counsel when the trial court directed der fense counsel to proceed to trial on August 28, 1972, as had been scheduled by the court on July 12, 1972 — some six weeks-previously, and over seven months from the date of arraignment. It is clear that counsel had more than ample time to prepare for trial in the months preceding August 28, 1972, and that the court was justified in directing counsel to decide which of them would try the case, in view of the fact that neither attorney had given any indication prior to August 28th that he would seek permission to withdraw. Be that as it may, however, our inquiry does not end there, for a defendant is not lightly to be penalized for the lack of assiduousness on the part of counsel upon whom he relies. In situations wherein a defendant alleges ineffective assistance of counsel, we must determine whether counsel’s overall representation of defendant (whether through counsel’s own performance, or as it is affected by the actions of the trial court) was “so woefully inadequate ‘as to shock the conscience of the Court and make the proceedings a farce and mockery of justice.’ ” United States v. Currier, 405 F.2d 1039, 1043 (2d Cir.), cert. denied, 395 U.S. 914, 89 S.Ct. 1761, 23 L.Ed.2d 228 (1969), quoting United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950).

Reading the record as a whole, we cannot conclude that appellant’s trial was a farce, nor do we find representation of counsel or judicial actions relating thereto such as would shock the conscience of this Court. On appeal Sanchez points to four acts of commission or omission which, he alleges, demonstrate that his counsel rendered, or as a result of trial court rulings was caused to render, ineffective representation: (1) counsel failed to request a bill of particulars from the government detailing the specific provisions of the New Jersey and New York state laws which the indictment charged appellant with having violated (Br. 21); (2) counsel prior to trial failed to move for suppression of, and during trial failed to object to, certain statements made by appellant to an FBI agent after his arrest (Br. 22); (3) counsel failed to call certain witnesses, as a result of court rulings, who were “essential to” appellant’s case (Br. 23); and (4) counsel failed to request a hearing as to whether the government had conducted an unlawful electronic surveillance at appellant’s place of work, an issue which we discuss in detail infra, under appellant’s second major argument on appeal (Br. 22-23).

As regards counsel’s alleged failure to request a bill of particulars, we noted supra that appellant’s counsel (Mr. Santos) in fact did make such a request on January 26, 1972, and that he later withdrew the request on February 18, 1972. Moreover, we also note that the indictment is sufficiently detailed, with specific reference to both the federal and state extortion laws appellant was charged with having violated, so that a bill of particulars would have served little purpose. In short, we see no merit to the argument that defense counsel erred in not requesting a bill of particulars.

As to the árgument that defense counsel failed to move for suppression of, and at trial failed to object to, statements made by appellant to the arresting agent, which were admitted into evidence, we find good reason for counsel’s actions. The record shows that a motion to suppress would have been unavailing since the arresting officer, Agent Brana (who spoke Spanish fluently), had advised appellant in Spanish of his constitutional rights both upon arrest and again at FBI headquarters prior to questioning. At headquarters appellant was provided with a form (printed in Spanish) which explained his constitutional rights, and to which he affixed his signature. Regardless of the fact that this waiver was not introduced into evidence, it is evident that the waiver was valid, that appellant’s statements were admissible, and that therefore failure of counsel to move for their suppression did not prejudice appellant. See United States v. Pacelli, 470 F.2d 67, 72 (2d Cir. 1972), cert. denied, 410 U.S. 983, 93 S.Ct. 1501, 36 L.Ed.2d 178 (1973); Massimo v. United States, 463 F.2d 1171, 1173 (2d Cir. 1972), cert. denied, 409 U.S. 1117, 93 S.Ct. 920, 34 L.Ed.2d 700 (1973).

Appellant’s other contention relating to inadequacy of counsel is that, because of counsel’s unpreparedness for trial, necessary witnesses were not called on behalf of appellant. The witnesses not called were Maria Goicochoea, appellant’s aunt, who was a terminal leukemia patient in a Jersey City, New Jersey, hospital at the time of trial; and a witness from Miami, Florida, named Altimo Perez. Appellant argues that defense counsel should have obtained the deposition of Maria Goicochoea, and that the court erred in denying a continuance so that Perez could come up from Miami to testify.

The record shows that defense counsel had ample time prior to and during the six-day trial (which included a three-day Labor Day weekend) to depose the witness Goicochoea. It is unclear precisely what the value of her testimony would have been. At trial it was alleged that Dr. Sanchez had gone to see her right after the sordid photographing incident occurred, and that what the doctor had told her about the incident was at variance with his trial testimony that Duarte had forced him at gunpoint to engage in homosexual activity with Amado Alfonso. Even if it be assumed that the testimony of Maria Goicochoea would have been offered to impeach that of Dr. Sanchez, failure to depose her evidences no error, since impeachment was accomplished on the government’s own case when both Duarte (who had pleaded guilty) and Alfonso testified at variance with the doctor’s trial testimony.

As to the Miami witness, even though the trial court did deny defense counsel’s request for a continuance in order to await the arrival of Perez (made on September 6th), on the ground that counsel could make no offer of proof as to the witness (9/6/72 Tr. 100), the record shows that the trial was nonetheless adjourned until September 8th for other reasons. Defense counsel thus had time either to bring the witness into court (counsel had represented on September 6th that the witness was already on his way up from Miami (9/6/72 Tr. 99)); or to interview the witness by telephone so as to be able to make an offer of proof to the trial court in support of a continuance request. Counsel apparently chose neither course, for reasons not reflected in the record. What the record does reflect, however, is that at no time did defense counsel demonstrate the relevancy or materiality of Perez’ potential testimony. We thus question appellant’s description of the testimony that might have been offered by either Maria Goicochoea or Altimo Perez as being “essential to” the defense; more importantly, however, we fail to see any prejudice to appellant from the non-appearance of either of those persons.

We have considered carefully each of appellant’s allegations on the adequacy of counsel issue, and his arguments in support thereof, and we conclude that neither individually nor collectively do they give rise to a meritorious claim of ineffective assistance of counsel meeting the standard set forth in United States v. Wight, supra.

Appellant’s other point of error on appeal relates to the contention that defense counsel should have requested, and that the trial court erred in not conducting, a hearing pursuant to 18 U.S.C. § 2518(10) (a) to determine whether the government used information at trial which had been derived, from an electronic surveillance allegedly conducted at the restaurant where appellant was employed as a waiter. This argument presupposes that, in addition to the electronic surveillance conducted by means of the transmitter carried by Dr. Sanchez, use of which is not here challenged, the government also conducted electronic eavesdropping at the restaurant, a supposition which is simply not supported in the record.

Appellant bases his contention, as best we are able to determine, solely on a piece of trial testimony by FBI Agent Paul J. Brana. As taken out of context, Agent Brana’s statement regarding the events at the restaurant leading to appellant’s arrest, upon which appellant relies was as follows:

Well, I was across the street and I was listening to part of a conversation because he was in and out of the particular store where our receiver was, to see if there was possibly another accomplice in the area. (Tr. 313).

Appellant urges that by “store” the agent was referring to the restaurant, and by “he” the agent was referring to the appellant; thus, argues appellant, the agent’s statement establishes that an electronic surveillance was conducted at the restaurant, notice of which appellant was required to be given before trial under 18 U.S.C. § 2518(9).

Our reading of the record, and specifically the testimony of Agent Brana in its entirety (Tr. 300-67, 9/6/72 Tr. 102-12), leads us to a contrary opinion. As noted above, the FBI agents had positioned themselves in the vicinity of the restaurant. One agent, who had possession of the receiver part of the transmitter set with which Dr. Sanchez had been outfitted, was stationed in a store near the restaurant, the “store” alluded to in Agent Brana’s testimony. Brana himself went in and out of that store, alternately listening to the receiver and walking to the parking lot to observe Dr. Sanchez in his parked auto. The trial testimony of Agent Brana that precedes and follows the passage relied upon by appellant leads us to conclude that, as argued by the government, “store” does not refer to the restaurant, and “he” in the passage, when viewed in context with the rest of the testimony, should read “I”; use of the word “he” resulted either from an error by the court reporter in transcribing Agent Brana’s testimony, or from the agent’s own confusion as to pronoun use. In either case, the passage does not establish, as appellant alleges, that the government conducted any electronic surveillance, lawful or unlawful, in appellant’s place of work. Therefore appellant’s second claim on appeal, like his first claim, is unmeritorious.

Finding no error in the proceedings below, we affirm.

OAKES, Circuit Judge (concurring): ■ I concur in the result.

      . Dr. Sanchez and appellant had known each other for many years, since appellant’s youth.

      . At trial Dr. Sanchez testified that he and Amado Alfonso had been forced at gunpoint by Duarte to go into the bedroom, disrobe, and pose engaging in homosexual acts.

      . The caller was later identified to be co-defendant Rafael Duarte, Jr. (See Tr. 510).

      . References to the transcript of trial for the first four days of the six-day trial will be to “Tr.”. Since, however, the pagination for the transcript of the last two days of trial was begun again at page “1”, references to the transcript of those two days will be preceded by the date “9/6/72”.

      . At the sentencing hearing appellant had no difficulty discussing with the court (in English) particulars regarding an appeal. See Transcript of Hearing, Nov. 17, 1972, at 11.


author: HEANEY, Circuit Judge. PER CURIAM.

text:
    Robert O. McDONNELL, etc., Appellant, v. Charles L. WOLFF, Jr., etc., et al., Appellees. Robert O. McDONNELL, etc., Appellee, v. Charles L. WOLFF, Jr., etc., et al., Appellants.
    Nos. 72-1331, 72-1332.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 9, 1973.
    Decided Aug. 2, 1973.
    Rehearing Denied Sept. 12, 1973.

      Douglas F. Duchek, Cline, Williams, Wright, Johnson & Oldfather, Lincoln, Neb., for McDonnell.
    Melvin K. Kammerlohr, Asst. Atty. Gen., Dept, of Justice, Lincoln, Neb., for Wolff.
    Before LAY, HEANEY and STEPHENSON, Circuit Judges.
   HEANEY, Circuit Judge.

Robert O. McDonnell brought this civil rights action on behalf of himself and other inmates of the Nebraska Penal and Correctional Complex. He alleged that disciplinary proceedings in the Complex were conducted without regard for procedural or substantive due process, that the inmate legal assistance program did not meet constitutional standards, and that the regulations regarding prisoners’ mail were violative of the inmates’ constitutional rights.

The trial court, relying on our decision in Morrissey v. Brewer, 443 F.2d 942 (8th Cir. 1971), held that the Complex was not required to afford procedural due process to inmates in disciplinary hearings, but that it was required to afford substantive due process to inmates. It also held that a rule limiting legal assistance to help, which could be provided by a designated inmate, was reasonable and valid; but that a rule limiting the use of the library to seven hours per week was impermissible, and that a regulation requiring that all incoming and outgoing mail be read and inspected was improper.

McDonnell and the defendants appeal. McDonnell contends the trial court erred in holding that minimum due process requirements were not applicable to prison disciplinary hearings, and that the inmate legal assistance program met constitutional standards. The defendants contend that substantive due process was unavailable to inmates, and that the court erred in striking down the prison regulations with respect to the use of the prison library and mail censorship.

I. Due Process

The District Court reluctantly relied on our Morrissey v. Brewer decision, in holding that procedural due process requirements were not applicable to disciplinary hearings. It stated:

“Courts have begun in recent years to recognize that fundamental due process is a right of all persons, including inmates, and have specifically held that before good time or other substantial rights may be taken there must be an impartial tribunal, notice, a hearing, a right to cross-examination of adverse witnesses, that the decision be based upon evidence adduced at the hearing, and that the inmate be allowed representation if he so desires. See, e. g., Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971).
“However, the Eighth Circuit has not yet followed the trend regarding application of procedural due process to good time revocation, but continues to view the problem in terms of the right/privilege dichotomy that was popular prior to Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) and its progeny. Douglas v. Sigler, 386 F.2d 684 (8th Cir. 1967). Such a position was recently affirmed in Morrissey v. Brewer, 443 F.2d 942 (8th Cir. 1971), which, although the question was then of parole revocation, must be applicable to good time as well. * * * ”

McDonnell v. Wolff, 342 F.Supp. 616, 627-628 (D.Neb.1972). It’s reluctance was well founded. This Court was reversed by the Supreme Court. Morris-sey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In light of Morrissey, we subsequently held that minimum procedural due process requirements are applicable to prison disciplinary hearings. Remmers v. Brewer, Warden, et al., 475 F.2d 52 (8th Cir. 1973); Dodson, etc. v. Haugh, etc., et al., 473 F.2d 689 (8th Cir. 1973).

In view of the developments in the law, subsequent to trial, the defendants no longer contend that inmates are not entitled to minimum due process in disciplinary hearings which may result in the loss of good time, or the imposition of other substantial penalties. Instead, they argue that existing procedures provide such due process. Under present procedures, inmates are given an informal hearing before an adjustment committee but are not given: (a) notice of the charges in time to prepare a defense; (b) an opportunity to summon, confront or cross-examine witnesses; (c) legal assistance in the presentation of a defense; or (d) a written statement by the fact finders as to the evidence relied on and reasons for the action taken. We find no merit to the argument that existing procedures provide minimum due process.

In our view, the procedural requirements outlined by the Supreme Court in Morrissey, and as supplemented by Gagnon, Warden v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), should be generally followed. We believe, however, that specific requirements, including the circumstances in which counsel may be required, should be laid down by the District Court after further hearings. See, Remmers v. Brewer, Warden, et al., supra; Dodson, etc. v. Haugh, etc., et al., supra.

The trial court properly held that Fourteenth Amendment substantive due process requirements are applicable to disciplinary proceedings. Even in those earlier cases in which we held procedural due process inapplicable in comparable settings, we recognized that administrative determinations must not be arbitrary. See, Morrissey v. Brewer, supra, 443 F.2d at 950; Douglas v. Sigler, 386 F.2d 684, 687 (8th Cir. 1967). It would serve little purpose to require fair procedures but to permit arbitrary results. The procedures are not ends in themselves, but are a means to insure that decisions imposing substantial penalties will be based on the knowledge that grounds for the imposition of the penalties exist. The courts, therefore, have a limited right to review the merits of decisions imposing substantial penalties. In each case, the sole concern of the court must be whether the decision of the prison authorities is arbitrary and capricious. It must not substitute its judgment for that of the prison authorities.

We believe that the District Court correctly applied the above standard when it held that prison authorities violated the rights of inmates by subjecting them to substantial penalties for relatively minor offenses. Not only was such a revocation contrary to Neb.R.R. S.1943, § 83-185 (1971), but also it was arbitrary and capricious.

It is necessary to digress at this point, to discuss the effect of Preiser, Commissioner of Correctional Services, et al. v. Rodriguez et al., 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), on the disposition of this case. In that case, several prisoners, without exhausting state remedies, brought civil rights actions under 42 U.S.C. § 1983 in federal court, arguing that they had been unconstitutionally deprived of good time; they sought restoration of that good time. The Supreme Court held that the relief requested could not be granted in a § 1983 action. The Court stated:

“* -x- -x- [W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate or more speedy release from that imprisonment, his sole federal remedy is a writ of habeas corpus. * * * [Moreover, state remedies must be exhausted before coming into federal court if such relief is sought.]”

Id. at 500, 93 S.Ct. at 1841.

The Court noted, however, that an inmate retains the right to litigate claims relating to the conditions of his confinement under a § 1983 action in federal court without exhausting state remedies.

It follows from Preiser that it would be improper for the District Court on remand to restore good time which may have been taken from inmates in proceedings that did not meet the requirements of procedural or substantive due process. A federal court can restore good time only if state remedies have been exhausted.

On the other hand, it will be appropriate for the District Court to establish minimum procedural due process requirements for disciplinary hearings which may result in serious penalties other than loss of good time, such as incarceration in a dry cell or solitary confinement.

It will also be appropriate for the District Court to order expunged from prison records, determinations of misconduct arrived at in hearings that fail to comport with minimum due process requirements. See, Neb.R.R.S. 1943, § 83-185 (1971); McDonnell v. Wolff, supra, 342 F.Supp. at 640.

We recognize that the above result may mean that the federal courts may often establish minimum due process standards for all types of disciplinary hearings for serious misconduct in state prisons and that there may be simultaneous litigation in state and federal courts, but the Supreme Court anticipated these results would probably occur. Preiser, Commissioner of Correctional Services, et al. v. Rodriguez et al., supra 411 U.S. at 499, n. 14, 93 S.Ct. 1841.

To summarize, the District Court must, on remand, determine what procedures are necessary to meet minimum procedural due process standards and whether they are being met. If the defendant is not meeting these standards, the court may grant such declaratory and injunctive relief as it deems necessary, except that it may not restore good time.

We turn next to the questions of whether the Complex’s regulations relating to inmate legal assistance and mail censorship are unconstitutional and should be enjoined. These questions clearly relate to conditions of confinement, and thus relief may be granted under § 1983.

II. Inmate Legal Assistance

The court upheld as reasonable a regulation adopted by the Complex which regulates inmate legal assistance and struck down restrictions which limited inmate use of the law library to seven hours per week.

.The plaintiff contends that the court erred in upholding the following rule:

“Legal Work
“A legal advisor has been appointed by the Warden for the benefit of those offenders who are in need of legal assistance. This individual is an offender who has general knowledge of the law procedure. He is not an attorney and can not represent you as such.
“No other offender than the legal ad-visor is permitted to assist you in the preparation of legal documents unless with the specific written permission of the Warden.”

McDonnell v. Wolff, supra 342 F.Supp. at 631.

He argues that this rule unlawfully restricts the inmate’s right of equal access to the courts in violation of the Supreme Court’s decision in Johnson v. Avery, 393 U.S. 483, 490, 89 S.Ct. 747, 751, 21 L.Ed.2d 718 (1969), in which the Court stated:

“ * * * But unless and until the State provides some reasonable alternative to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce a regulation * * * barring inmates from furnishing such assistance to other prisoners.” (Footnote omitted.)

See also, Gilmore v. Lynch, 319 F.Supp. 105 (W.D.Cal.1970) (three judge court), aff’d per curiam sub nom., Younger v. Gilmore, 404 U.S. 15, 92 S.Ct. 250, 30 L.Ed.2d 142 (1971).

The District Court in this case held:

“The Court should first examine the inmate assistance program whereby the Complex provides for the use of the inmate legal assistant. This procedure must satisfy the test of Johnson v. Avery, * * *. Here, the Complex allows for inmates to assist each other upon permission of the Warden. Assuming such permission is freely given, then it is certainly arguable that no Johnson v. Avery, supra, problem is presented, since the procedure and the alternative both are allowed. But at least it should seem evident, and the Court so finds, that such a regulation in conjunction with the comprehensive program of inmate legal assistance afforded by the Complex satisfies the reasonable alternative requirements of Johnson v. Avery, supra. * * * ”

McDonnell v. Wolff, supra 342 F.Supp. at 621.

The record, however, does not support the court’s assumption that permission for inmates to assist each other is freely given. Rather, documentary evidence shows that permission has been apparently denied solely because of the existence of the inmate legal advisor. Thus, the inmate legal advisor program must be evaluated on its own to determine whether it is a reasonable alternative under Johnson v. Avery, supra. We do not think we can answer that question on this record; and for that reason, the decision of the trial court must be reversed and remanded with regard to this issue. The burden is on the defendants to demonstrate that they are providing a reasonable alternative. Johnson v. Avery, supra 393 U.S. at 489, 89 S.Ct. 747; Novak v. Beto, 453 F.2d 661, 663-664 (5th Cir. 1971), cert. denied, 409 U.S. 968, 93 S.Ct. 279, 34 L.Ed.2d 233 (1972). In meeting this burden, the defendants must produce evidence establishing in specific terms what the need is for legal assistance, and must show that the state is reasonably meeting that need. This the defendants have not done. Furthermore, in determining the need for legal assistance, the defendants must take into account the need for assistance in civil rights actions as well as habeas corpus suits. See, Nolan v. Scafati, 430 F.2d 548, 551 (1st Cir. 1970). See also, Andrade v. Hauck, 452 F.2d 1071 (5th Cir. 1971).

We note that on oral argument the attorneys for the parties indicated that the inmate legal assistance program at the Complex has been changed and now includes the assistance of law students.

We leave it to the trial court to determine whether this program meets the standards outlined above.

The defendants, in their cross-appeal, argue that the court erred in holding unreasonable restrictions which limited inmate use of the legal library to seven hours a week. The defendants rely on Johnson v. Avery, supra 393 U.S. at 490, 89 S.Ct. at 751, in which the Court stated:

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

In this case, however, unlike in Hatfield v. Bailleaux, supra, no justification has been given for limiting the use of the prison library. In Hatfield, restrictions were justified because of limited library facilities. In the present case, the District Court found that there is “no evidence that Reformatory unit legal library is not adequate for the needs of the inmates.” McDonnell v. Wolff, supra 342 F.Supp. at 622. Thus, we cannot say that the restrictions on the defendants’ right of access to the courts are “justified by the considerations underlying our penal system,” Moore v. Ciccone, 459 F.2d 574, 576 (8th Cir. 1972), and we affirm the District Court in this regard.

III. Mail Regulations

The evidence shows that no mail from or to courts or counsel is stopped, but all is opened. McDonnell v. Wolff, supra 342 F.Supp. at 623. The Complex’s regulations provide that “all incoming and outgoing mail will be read and inspected.” Id. at 635.

The District Court found that these practices and regulations unjustifiably abridged the right of inmates to have access to the courts, and ordered:

“ * * * that, regarding censorship of mail between inmates and their attorneys or the Courts, outgoing mail may not be inspected or opened; incoming mail may be opened only if manipulation of the envelope, use of fluoroscopes and metal detectors or other alternate means to opening the envelopes fail to disclose contraband and there is a real possibility that contraband will be included in such mail; in addition, if the envelope from the attorney or Court is marked ‘Privileged’, it cannot be opened except in the presence of the inmate addressee * * * ”.

In the present case, the District Court undertook, by taking evidence and making findings, the task of determining the precise manner in which mail is hindered at the Complex, the extent to which this impedes the appellant’s asserted rights and the justification offered by the defendants in support of their procedures. Compare, Moore v. Ciccone, supra 459 F.2d at 576.

Its order follows the guidelines suggested in Moore v. Ciccone, supra at 577 (Lay, Heaney, Bright and Ross, JJ, concurring) and is, we think, a proper one. As we indicate in Moore, a regulation of the right of inmates to correspond with attorneys is proper “only to the extent ‘justified by the considerations underlying our penal system’.” Id. at 576. The justification for this regulation asserted on appeal is that:

“Insofar as incoming mail is involved, opening it is the only way such things as drug impregnated stationery, paper money or other type material may be discovered. Obviously, the fact that the envelope has an attorney’s name printed on it is no guarantee that it is not fictitious or being used by unauthorized or unscrupulous persons, or even persons under duress.”

No justification is given on appeal for restrictions on outgoing mail to attorneys, and it appears that this part of the District Court’s order is not disputed. The cases cited and discussed in Moore v. Ciccone, supra at 578 & n. 1, sufficiently meet the objections raised by the defendants to the District Court’s order.

Practical methods exist for insuring that incoming mail is actually from an attorney. See, Marsh v. Moore, 325 F.Supp. 392, 395 (D.Mass.1971); Gierasch, Judicial Recognition of Prisoners’ Constitutional Rights to Send and Receive Mail, 76 Dickinson L.Rev. 775, 787-788 (1972). If there is doubt, a simple telephone call should be enough to settle the matter; and the danger that a letter from an attorney, an officer of the court, will contain contraband is ordinarily too remote and too speculative to justify the defendants’ regulation permitting the opening and inspection of all legal mail. And the court’s order does provide, as we suggested in Moore, legitimate means for detecting weapons or escape materials including, in the appropriate circumstances, opening a letter in the presence of the inmate.

We recognize that some courts, see e.g., Sostre v. McGinnis, 442 F.2d 178, 201 (2nd Cir. 1971), cert. denied sub. nom., Sostre v. Oswald, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972), have held that prison authorities have the right to open and read incoming mail from attorneys. We think such decisions unduly limit an inmate’s rights without sufficient justification. Prison authorities must show that the regulation of an inmate’s right to send and receive mail furthers a substantial interest, and that the incidental restrictions placed on an inmate’s rights are no greater than essential to further that interest. Cf., United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); Nolan v. Fitzpatrick, 451 F.2d 545, 548 (1st Cir. 1971); Note, Prison Mail Censorship and the First Amendment, 81 Yale L.Rev. 87, 94-104 (1971). The District Court’s order comports with these principles, and we affirm it in this respect.

The plaintiff argues that the District Court should also have enjoined censorship of mail between inmates and parties other than attorneys and the courts. The District Court held that it was unnecessary to decide this issue at the present time because the plaintiff’s attack was directed at censorship between counsel and inmate. We have reviewed the record and conclude that the court was correct in this regard.

Affirmed in part; reversed in part; and remanded for action consistent with this opinion.

ON PETITION FOR REHEARING

PER CURIAM.

The petition for rehearing or rehearing en banc is denied.

Our opinion of ^August 2, 1973, does not require the state to provide or permit legal counsel to every state prisoner involved in a prison disciplinary hearing which may result in a serious penalty. Rather, we follow Gagnon, Warden v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), in holding that counsel is required only in those cases where fundamental fairness cannot be achieved absent counsel.

Prison authorities are to be given an opportunity, on remand, to state whether they will provide or permit counsel in those eases which must be reheard for lack of procedural or substantive due process pursuant to this opinion. They will also be afforded an opportunity to give reasons for their decision in each case. Thereafter, the District Court may, on request, reexamine the state’s decision in the light of Scarpelli.

      . See, McDonnell v. Wolff, 342 F.Supp. 616, 640 (D.Neb.1972).

      . Compare, Landman v. Royster, 333 F.Supp. 621 (E.D.Va.1971) ; Sostre v. Rockefeller, 312 F.Supp. 863 (S.D.N.Y. 1970), rev’d in part, modified in part, aff’d in part, sub nom., Sostre v. McGinnis, 442 F.2d 178, 198 (2nd Cir. 1971), cert. denied sub nom., Sostre v. Oswald, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972). See also, The President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: Corrections, 86 (1967) ; Turner, Establishing the Rule of Law in Prisons: A Manual for Prisoners Rights Litigation, 23 Stan.L.Rev. 473, 496-99 (1971).

      . See, Marnin v. Pinto, 463 F.2d 583 (3rd Cir. 1972) ; Sostre v. McGinnis, supra 442 F.2d at 198-199; United States ex rel. Campbell v. Pate, 401 F.2d 55, 57 (7th Cir. 1968) ; Holland v. Oliver, 350 F. Supp. 485 (E.D.Va.1972) ; Ferrell v. Huffman, 350 F.Supp. 164 (E.D.Va.1972). Of., Thompson v. Louisville, 362 U.S. 199, 206, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960) ; Schware v. Board of Bar Examiners, 353 U.S. 232, 239, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957) ; Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932) ; United States ex rel. Vajtauer v. Comr. of Immigration, 273 U.S. 103, 106, 47 S.Ct. 302, 71 L.Ed. 560 (1927) ; Fisher v. Snyder et al., 476 F.2d 375 (8th Cir., 1973).

      . The parties have, at our request, submitted statements setting forth their views on the effect of Preiser, Commissioner of Correctional Services, et al. v. Rodriguez, et al., 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), on this case.

      . We express no opinion as to whether Nebraska remedies are adequate. We leave this issue to be determined by the District Court on remand. See, United States of America ex rel. Luther Miller, etc., et al. v. John J. Twomey, Warden, and Peter B. Bensinger, Director, etc., et al., 479 F.2d 701 (7th Cir. 1973).

      . This means that the District Court must rescind its order requiring prison authorities to restore “blood time” taken from prisoners.

      . Courts have recognized the damaging nature of such a record entry. “ * * * [It] may follow him throughout the prison system; if his punishment was without cause, he is punished anew each time his record is used against him. * * * Similarly, his disciplinary record may affect his eligibility for parole. * * * ”
      Hudson v. Hardy, 137 U.S.App.D.C. 366, 424 F.2d 854, 856 (1970) (Citations and footnote omitted.). See, Black v. Warden, U. S. Penitentiary, 467 F.2d 202, 204 (10th Cir. 1972).


author: WIDENER, Circuit Judge: WINTER, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Harold WRIGHT, Appellant.
    No. 73-1916.
    United States Court of Appeals, Fourth Circuit.
    Argued Aug. 16, 1973.
    Decided Sept. 7, 1973.
    David B. Javits, Miami, Fla., for appellant.
    Michael E. Marr, Asst. U. S. Atty., for appellee.
    Before WINTER, FIELD and WIDENER, Circuit Judges.
   WIDENER, Circuit Judge:

Contending that bail set in the amount of $250,000 was excessive, and not in accord with the Bail Reform Act, the defendant, Harold Wright, appeals the denial of his motion for reduction of bail. We affirm.

Wright was arrested on July 3, 1973 and charged with importing and possession with intent to distribute approximately sixty-six pounds of cocaine, a controlled narcotic substance. Following the arrest, the district judge, sitting in lieu of a federal magistrate, set bond in the amount of $250,000 cash, or with collateral. A grand jury, on July 10, 1973, indicted the defendant on four counts. Wright then filed a petition for bond reduction, which was heard on July 12, 1973. The district court denied the motion to reduce bond and this appeal was taken pursuant to Rule 9(a) of the Federal Rules of Appellate Procedure.

The scope of our inquiry is delineated by provisions of the Bail Reform Act of 1966. Accordingly, a denial of a motion to amend an order imposing conditions of release “shall be affirmed if it is supported by the proceedings below.” 18 U.S.C. § 3147(b). Since we find adequate support for the district judge’s action in the proceedings below, we find no merit in Wright’s appeal and thus affirm the decision of the district court.-

To provide the setting for the district court’s actions and Wright’s appeal, it is appropriate to recite the facts as shown by the record and oral argument.

Federal agents received advance notice from government informers that a shipment of cocaine, hidden in falsebottomed cartons of plantains, was to be smuggled into the United States through the port of Baltimore aboard the motor vessel Ciudad de Bogota. The agents also learned that the plantains, in approximately 500 cartons, were consigned to “Bronx Bananas, New York City, New York.” This information was confirmed on July 2, 1973 when port authorities disclosed that a shipment of 450 cartons of plantains aboard the Ciudad de Bogota and consigned to Bronx Bananas was due to arrive the following day.

On the morning of July 3, 1973, John S. Conner, a Baltimore Customs broker, received a letter from the Bronx Terminal Banana Company signed by Harold Wright, as manager of the sales department, authorizing J. S. Conner to clear Wright’s shipment through Customs. On that same morning, the defendant entered Pier I in Baltimore, identified himself, and asked permission to load the plantains. He was permitted to load the shipment but instructed not to leave the pier area until he had been cleared by customs. Wright then telephoned J. S. Conner regarding the necessary clearance. At this point, Customs agents discovered the cocaine concealed in the cartons of plantains and Wright was subsequently placed under arrest.

The primary purpose of bail is to insure the presence of the accused at his trial. Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). In setting bail, courts should first consider release on personal recognizance or upon execution of an unsecured appearance bond of a specified amount, among other restrictions, before requiring cash bail or collateral. See 18 U.S.C. § 3146(a). But, should a judge determine that a release on recognizance, or unsecured bond, or on other less demanding restrictions, will not reasonably assure the appearance of the accused, he is obligated to impose a condition or combination of conditions of release which in his judgment gives that assurance. Thus, the fixing of the amount of bail is peculiarly a matter of discretion with the trial court. United States v. Radford, 361 F.2d 777 (4th Cir.), cert. den., 385 U.S. 877, 87 S.Ct. 158, 17 L.Ed.2d 105 (1966); Kaufman v. United States, 325 F.2d 305 (9th Cir. 1963).

In determining which conditions of release will reasonably assure appearance, the judicial officer must consider the nature and circumstances of the offense charged, the weight of the evidence against the accused, the accused’s family ties, employment, financial resources, character and mental condition, and his record of appearance at past court proceedings. 18 U.S.C. § 3146(b).

We are of opinion the present conditions of release were made by the district judge after analysis of these factors. Weighing heavily against personal recognizance or a nominal bond is the seriousness of the nature and circumstances of the offenses charged. In this connection, it also should be noted that the capture of sixty-six pounds of cocaine with a street value exceeding $7,500,000 is represented by the United States to be the largest shipment of. cocaine ever seized in the Harbor of Baltimore.

“An appeal 'authorized by law from an order refusing or imposing conditions of release shall be determined promptly. Upon entry of an order refusing or imposing conditions of release, the district court shall state in writing the reasons for the action taken. The appeal shall be heard without the necessity of briefs after reasonable notice to the appellee upon such papers, affidavits, and portions of the record as the parties shall present. The court of appeals or a judge thereof may order the release of the appellant pending the appeal.”

A number of additional factors increase the risk of flight in this case. There appears to be a considerable amount of evidence against the accused. Wright was arrested in the act of importing the cocaine into the United States, the substance of the offense charged. He was in possession of the drug when apprehended. Moreover, the existence of the letter of instructions to J. S. Conner signed by the defendant as manager of the sales department tends to refute much of Wright’s assertion that he is an unknowing courier for third parties. The district judge was aware that the defendant lives not in Baltimore, but in Miami, Florida, a point from which escape from the United States is a relatively simple matter. Indeed, it was brought out that Wright had traveled to Colombia in South America as recently as March of 1973. In the hearing below, Wright gave vague and unclear responses to questions regarding his sources of income and employment before and at the time of his arrest. He related a highly implausible story that he had obtained a passport because his wife wanted to go to Nassau (passports are not required to go to Nassau), and said he went to South America to “deliver a message,” not in writing — “just my word.”

Favoring Wright are his family ties —he is married and has three children —and his lack of a criminal record. The district judge, in exercising his discretion, however, determined that these facts did not negate the requirement of a substantial bond.

The defendant urges his impecunious financial status as an essential criterion of excessiveness which the Eighth Amendment forbids. We point out, however, that the governing criterion to test the excessiveness of bail is not as the defendant suggests, but whether bail is set at a figure higher than an amount reasonably calculated to insure that the accused will stand trial. United States v. Radford, supra; Forest v. United States, 203 F.2d 83 (8th Cir. 1953).

We are accordingly of opinion the district judge did not abuse his discretion, and the decision of the district court is

Affirmed.

WINTER, Circuit Judge

(dissenting):

While I do not differ in substantial degree from the majority with regard to the rules of law governing the decision of this case, I would reach a different result on the facts. Of course, I would not release defendant on his own recognizance, or on a nominal bond; even defendant has not made that request. But I think that defendant’s presence at trial would be reasonably assured if he were released on a bond in the range of $25,000 to $50,000, with corporate surety, on conditions that he (a) remain within the Southern District of Florida, except for necessary court appearances in the District of Maryland, (b) periodically verify his presence to a probation officer within the Southern District of Florida, and (c) surrender his passport. Certainly, I think that bail of $250,000 under the facts of this case, is so excessive as to violate the Eighth Amendment and to make a shambles of the Bail Reform Act. For that reason, I would reverse and remand the case with instructions to the district court.

Defendant is married, lives with and supports his wife and three children in an apartment in Miami, Florida. Defendant, who is 30, has lived there all of his life. His occupation is that of an over-the-road truck driver, and he earns an average of $200 per week. He usually trucks loads of fruit and ladies’ apparel between Miami and New York in trucks which he arranges to rent or which are furnished by the shipper. His only visible assets are an equity in an automobile and small savings accounts in his name and those of his children. He has no record of prior convictions or even of prior arrests.

Defendant is accused of serious crimes and the amount of cocaine seized when defendant was apprehended had substantial value. Defendant’s name appeared on written instructions to the customs’ broker authorizing the broker to effect customs clearance of the bananas in which the cocaine was concealed. Defendant’s counsel claims that, he possesses competent evidence to establish that the purported signature is a forgery. But, even if the claim of forgery is rejected, it taxes my credulity to think that defendant’s participation in the illegal enterprise, if established by competent proof at trial, was more than that of a simple courier. Whether he was an unknowing courier may be litigated at trial; but even if he possessed knowledge of what he was to carry, there is utterly lacking any evidence, in the nature of defendant’s life style, his known possessions, the circumstances of his arrest, or his suspected participation in the crimes, even to generate a strong suspicion that he was a principal in the illegal importation of cocaine. He, thus, cannot be supposed to have the same incentive and the same resources for flight of one who was a principal in an illegal importation of this magnitude. His state of residence should not be a factor requiring bail in a greater amount than if he lived elsewhere. National and international means of transportation are available to anyone in the United States, irrespective of his residence.

To repeat, at best (or at worst), I see defendant as a mere courier, one who has substantial family ties, who has lived a life of considerable stability and who has no previous criminal record. I see no more than the ordinary risks of flight that can be minimized by reasonable bail and reasonable restrictions. To my mind, it follows that bail of $250,000 was excessive, especially in view of defendant’s manifest inability to raise that amount.

      . The Eighth Amendment provides, in relevant part: “Excessive bail shall not be required. . . .”

      . Cocaine is a Controlled Schedule II substance as defined in 21 U.S.C. § 812 (1972) ; its importation is prohibited by 21 U.S.C. §§ 952, 963 (1972).

      . The defendant was charged with importation of cocaine in violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 18 U.S.C. § 2; possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a) (1) ; attempted importation of cocaine in violation of 21 U.S.C. §§ 846, 952, 960(a)(1) and 18 U.S.C. § 2; and attempt to possess with intent to distribute in violation of 21 U.S.C. §§ 846, 841(a) (1) and 18 U.S.C. § 2.

      . Rule 9(a) of the Federal Rules of Appellate Procedure provides:

      . It was pointed out in oral argument that the fugitive rate in Region 4, which encompasses nearly every state in the Fourth Circuit, is the highest in the nation. That would appear to be a factor which should not be disregarded. Moreover, large bonds are apparently often required of those accused of violating the narcotics laws. For example, bonds of $250,000 and even $400,000 have been set in this circuit and met by defendants.


author: CLARK, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Chester Lee THAXTON, Defendant-Appellant.
    No. 73-2066
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 11, 1973.

      Robert B. Thompson, Gainesville, Ga., for defendant-appellant.
    William J. Schloth, U. S. Atty., Ronald T. Knight, U. S. Atty., Macon, Ga., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of N. Y., 431 F.2d 409, Part I (5th Cir. 1970).

   CLARK, Circuit Judge:

Chester Lee Thaxton was convicted on three counts charging possession and transportation of untaxed liquor in violation of 26 U.S.C. § 5205(a)(2) and 26 U. S.C. § 5604(a). The only question on appeal is whether the trial court committed reversible error in its instructions on the presumption of innocence. We affirm.

The trial court instructed the jury as follows:

Now, in this case as in all other cases like it, we enter upon the trial with the presumption that the defendant is innocent. That presumption while not evidence strictly speaking is yet in the nature of evidence on behalf of the defendant, because that presumption is a rule of law which casts upon the United States the burden of proving the charges it brings against the defendant, and it is the duty and the burden of the Government to prove the charges and each and every essential ingredient thereof beyond a reasonable doubt. If and when the Government does that, then this presumption of innocence entirely disappears from the case, because in the last analysis it is the evidence which ought to control a fact finding body in search of the true facts.

The defendant promptly objected to that portion of the charge “where the Court instructed the jury that the presumption of innocence disappears at a certain point in the trial of the case.” He further requested that the court charge the jury that “the presumption of innocence alone is sufficient to justify the verdict of not guilty, and that the presumption does not disappear except with a verdict of guilty.”

The presumption of innocence performs a two-fold function in our criminal process. First, as a corollary to the standard of proof in a criminal case, it serves to remind the jury that the prosecution bears the burden of persuading the fact-finder of the defendant’s guilt beyond a reasonable doubt and that in the absence of such proof that the jury must acquit. Second, “it cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced.” 9 Wigmore on Evidence § 2511, at 407 (3d ed. 1940). The charge usually given in both state and federal courts informs the jury of both the “persuasion” and “purging” functions of the presumption. While the charge as delivered by the trial court in the case at bar departs from the common form of instruction that has previously met appellate approval, the mere failure to instruct by use of the customary formula does not constitute reversible error unless the charge given fails to inform the jury of the purpose and functions of the presumption. United States v. Nimerick, 118 F.2d 464, 467 (2d Cir.), cert. denied, 313 U.S. 592, 61 S.Ct. 1117, 85 L.Ed. 1546 (1941); see also Black v. United States, 309 F.2d 331, 342-343 (8th Cir. 1962); United States v. Senior, 274 F.2d 613, 616-617 (7th Cir. 1960).

In the context of the concluding charge to the jury, the court’s charge in the present case contains a description of the operation of the presumption that was wholly correct in a technical legal sense. Although this presumption is “one of the strongest rebuttable presumptions known to the law,” it does not constitute evidence in favor of the accused and “it disappears when a verdict of guilty, supported by substantial evidence, is returned against the defendant.” Bradford v. United States, 129 F.2d 274, 277 (5th Cir.), cert. denied 317 U.S. 683, 63 S.Ct. 205, 87 L.Ed. 547 (1942).

Thaxton contends, however, that the present charge is misleading since the jury might infer that, after some point during the course of the trial when the government had produced sufficient evidence to establish each element of the offense beyond a reasonable doubt, they could disregard the hortatory commands that the presumption carries. He points out that the charge lacks the customary instruction that the presumption accompanies the accused down to the moment at which each member of the jury concurs in a verdict of guilty. H. Underhill on Criminal Evidence § 18,.at 33 (2d ed. 1910); but cf. C. McCormick, Law of Evidence § 342, at 805-806 (2d ed. 1972). Federal courts have never held that the failure to instruct the jury, in the vernacular idiom, that the accused is “presumed innocent until proven guilty” constitutes reversible error. Compare, for example, the instruction approved by the Supreme Court in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), and that approved in Agnew v. United States, 165 U.S. 36, 17 S.Ct. 235, 41 L.Ed. 624 (1897), with the charge given in the case sub judice Both charges approved by the Supreme Court were framed in language that would have the effect of allowing the presumption to vanish when the jury’s deliberations brought them to the conclusion that the government had proven the guilt of the defendant beyond a reasonable doubt, iSee 2 C. Wright, Federal Practice and Procedure § 500, at 345-46 (1969).

The timing of the court’s action in instructing the jury is the salient factor in distinguishing the present case from Dodson v. United States, 23 F.2d 401 (4th Cir. 1928), the primary decision relied upon by the appellant. In that case the court instructed the jury prior to the introduction of evidence that the presumption of innocence stayed with the defendant only “until you have been satisfied that the defendant is guilty. . . .” The trial court refused to give any additional instruction on the continuing effect of the presumption at the close of all the evidence. In reversing Dodson’s conviction, the Fourth Circuit pointed out that under the circumstances the jury might have ignored the presumption of innocence as a matter to be considered along with the evidence when they began their deliberations. “[I]t is the duty of jurors not to make up their minds about a case until they have heard all of the evidence, the arguments of counsel, and the charge of the court.” 23 F.2d at 402. See also Lurding v. United States, 179 F.2d 419, 422 (6th Cir. 1950). In the present case, the disputed instruction was given at the conclusion of the evidence and after arguments of counsel. Only the jury deliberation remained. Obviously, the import the court’s charge could have here was to tell the jurors they were to consider the presumption of innocence along with the evidence during their deliberations but if they should conclude that the prosecution had established its case beyond a reasonable doubt, the presumption had no further effect and would not prevent the return of a guilty verdict based on the evidence.

The instruction as delivered did not deny Thaxton “the right to have the jury take [the presumption of innocence] to the jury room with them as the voice of the law . . . ” Merrill v. United States, 338 F.2d 763, 768 (5th Cir. 1964), quoting Dodson v. United States, supra, 23 F.2d at 403. The court’s instruction, while not a preferable articulation of the operation of the presumption of innocence, did not constitute reversible error and the appellant’s convictions are

Affirmed.

      . See, e. g., 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 1101 at 205 (2d ed. 1970) :
      The law presumes a defendant to be innocent of crime. Thus a defendant, although accused, begins the trial with a “clean slate” — with no evidence against him. And the law permits nothing 'but legal evidence presented before the jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit a defendant, unless the jurors are satisfied beyond a reasonable doubt of the defendant’s guilt after careful and impartial consideration of all of the evidence in the ease.

      . In Agnew, the trial court charged the jury as follows:
      “The defendant is presumed to be innocent of all the charges against him until he is proven guilty by the evidence submitted to you. This presumption remains with the defendant until such time, in the progress of the case, that you are satisfied of the guilt beyond a reasonable doubt.” 165 TJ.S. at 51, 17 S.Ct. at 241.
      In Allen, the trial court charged the Jury as follows:
      “That a party starts into a trial, though accused by the grand jury with the crime of murder, or any other crime, with the presumption of innocence in his favor. That stays with him until it is driven out of the case by the testimony. It is driven out of the case when the evidence shows beyond a reasonable doubt that the crime as charged has been committed, or that a crime has been committed. Whenever the proof shows beyond a reasonable doubt the existence of a crime, then the presumption of innocence disappears from the case. That exists up to the time that it is driven out in that way by proof to that extent.”
      164 U.S. at 500, 17 S.Ct. at 157.