author: KOELSCH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Arthur R. BLACK, Defendant-Appellant.
    No. 73-3003.
    United States Court of Appeals, Ninth Circuit.
    March 11, 1975.

      Anthony Savage, Jr. (argued), Kemp-ton, Savage & Gossard, Seattle, Wash., for defendant-appellant.
    Irwin H. Schwartz, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellee.
    Before MERRILL and KOELSCH, Circuit Judges, and MURRAY, District Judge.

       The Honorable William D. Murray, United States District Judge for the District of Montana, sitting by designation.

   OPINION

KOELSCH, Circuit Judge:

Arthur R. Black appeals from a judgment convicting him of three counts of unlawfully distributing a controlled substance. 21 U.S.C. § 841(a)(1).

The first of his two assignments is in the nature of a claim of variance.

21 U.S.C. § 841(a)(1) reads, in pertinent part:

“(a) Except as authorized by this subchapter, it shall be’ unlawful for any person knowingly or intentionally—
(1) to . distribute, or dispense ... a controlled substance . . ..”

Black contends, in substance, that his violations — if any were established — were those of dispensing not distributing (with which he was charged). Although recognizing that the quoted provision proscribes both acts, he argues that because he was — as the government itself proved — a duly licensed “practitioner,” defined in § 802(20) as “a physician licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices or does research, to distribute [or] dispense a controlled substance in the course of professional practice . . ” and because the deliveries here were pursuant to his prescriptions, that the matters came within the purview of 21 U.S.C. § 802(10), which reads: “The term ‘dispense’ means to deliver a controlled substance to an ultimate user pursuant to the lawful order of, a practitioner, including the prescribing . . of a controlled substance . ” and not within 21 U.S.C. § 802(11): “The term ‘distribute’ means to deliver (other than by administering or dispensing) a controlled substance. ff

We disagree. By definition “dispense” expressly contemplates a “lawful order”; if the order is not such, the prescription is not lawful under 21 U.S.C. § 829. If the prescription is not lawful, the “practitioner” does not dispense; rather, under § 802(11), he “distributes” — that is, he effects delivery “other than by dispensing.” In short, a “practitioner” who dispenses does not violate the Act.

Black’s second assignment, which he characterizes as one relating to evidence, in reality poses a very nice question of substantive law.

Black was tried to the court. At the conclusion of the government’s case in chief, he moved for a judgment of acquittal for failure of the government to prove that the prescriptions were not written “for a legitimate medical purpose in the usual course of his professional practice” and hence had not proved the nonapplicability of § 822(b), the medical exception which permits “practitioners” to lawfully dispense controlled substances.

The government, relying on 21 U.S.C. § 885(a)(1), took the position that the medical exception was not in issue because Black had not produced evidence showing or tending to show that his prescriptions were for a legitimate medical purpose and hence had not fulfilled his burden of “going forward with the evidence with respect to any such exemption . .

The trial court agreed with the government and when Black thereupon declined to adduce any proof and rested, the court found him guilty.

The reporter’s transcript manifests that the court did not find that the prescriptions were not for a “legitimate medical purpose by an individual practitioner in the usual course of professional practice,” and hence that Black’s acts were outside the medical practitioner’s exception. Instead, what appears is that the court based the conclusion of guilt solely upon the showing that the prescriptions were signed by Black and that controlled substances were transferred pursuant to those orders. This was error. The court confused burden of proof with burden of going forward.

Section 885(a)(1), viewed in the light of Supreme Court decisions governing the validity of presumptive devices which shift the burden of proceeding to a defendant, cannot validly be construed to require Black to put on evidence beyond that already adduced by the government in its case in chief. As we have pointed out above, the government by its own evidence established that Black was a “practitioner.” To avoid running afoul of constitutional restrictions, this proof must be considered sufficient under § 885(a)(1) to raise the medical exception and to then require the government to prove beyond a reasonable doubt that Black’s acts were outside that exception, and hence criminal.

We are compelled to this conclusion by the standards set forth in Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970); Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), and Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943), for judging the validity under the Due Process Clause of statutory devices which authorize a presumption of guilt on proof of facts less than those statutorily defined to constitute the elements of the offense. That the statutory scheme involved here — a general prohibition with exceptions, with the burden on the defendant to raise the issue of exception — operates as such a presumptive device is, upon inspection, manifest. 21 U.S.C. § 841(a)(1), set out earlier in this opinion, does not proscribe all distributions of controlled substances but only those which are unauthorized, non-excepted distributions. In this case the exception is found in 21 U.S.C. § 822(b):

“Persons registered by the Attorney General under this subchapter to dispense controlled substances are authorized to dispense such substances ... to the extent authorized by their registration and in conformity with the other provisions of this subchapter.”

To “dispense,” of course, Black must, as indicated above, do so pursuant to a prescription “issued for a legitimate medical purpose ... in the usual course of his professional practice . . ..” Stated in terms of the exception involved here, the offense described by 21 U.S.C. § 841(a)(1) is distribution of controlled substances not authorized by § 822(b) because either (a) the physician issuing the prescription was not registered, or (b) the prescription was not “issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice.” (Indeed, the government conceded below that were the issue of exception raised, it would then bear the burden of proving each element of the crime as just described.)

21 U.S.C. § 885(a)(1) merely relieves the government of the necessity of proving one of the elements of the crime as defined, /. e., “lack of authorization in the subchapter,” and places the burden on an accused of going forward with evidence respecting a potential exemption. Thus § 885(a)(1) effectively creates a presumption dictating that any transfer of a controlled substance is non-authorized and consequently criminal unless the accused introduces some evidence that the transfer is lawful under the statute. Although not worded in presumptive language, the statute here operates precisely like the presumptions dealt with in Leary, Turner, or Tot. It authorizes a finding of guilt in the absence of proof of one of the elements of the crime defined — here “non-exception” —upon proof of other elements of the crime — here “knowing transfer, of a controlled substance.”

Thus, the validity and permissible manner of application of the statutory presumption of non-exception created by § 885(a)(1) must be measured by the standards applied by the Court in judging presumptions, the clearest statement of which is perhaps found in Tot:

“Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience.” 319 U.S. at 467, 63 S.Ct. at 1245.

The Court clarified that formulation in Leary, Turner, and Barnes. In Leary the Court explained:

“The upshot of Tot, Gainey (United States v. Gainey, 380 U.S. 63 [85 S.Ct. 754, 13 L.Ed.2d 658] (1965)), and Romano (United States v. Romano, 382 U.S. 136 [86 S.Ct. 279, 15 L.Ed.2d 210] (1965)) is, we think, that a criminal statutory presumption must be regarded as ‘irrational’ or ‘arbitrary,’ and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.” 395 U.S. at 36, 89 S.Ct. at 1548.

In Turner and Barnes the Court reaffirmed that position but expressly declined to decide the issue, left open in Leary (see 395 U.S. at 36 n. 64, 89 S.Ct. 1532), of whether or not a presumed fact in a criminal case must follow beyond a reasonable doubt from the fact proved, or whether it is sufficient that the presumed fact follow more likely than not; in both cases the Court decided that the attacked presumptions satisfied the more stringent standard.

In addition, the Court, rejecting Holmes’ “greater includes the lesser” and Cardozo’s “comparative convenience” tests, also made clear in this line of cases that before the burden of producing evidence to establish his innocence may -be shifted to a defendant, the presumption which shifts the burden must be rational — that is, it must be more likely than not that the defendant’s guilt follows from the proved facts. In Barnes the Court stated:

“In Tot v. United States, 319 U.S. 463, [63 S.Ct. '1241, 87 L.Ed. 1519] (1943), the Court stated that the burden of going forward may not be freely shifted to the defendant. See also Leary v. United States, 395 U.S. 6, 44-45, [89 S.Ct. 1532, 23 L.Ed.2d 57] (1969). Tot held, however, that where there is a ‘rational connection’ between the facts proved and the fact presumed or inferred, it is permissible to shift the burden of going forward to the defendant.” 412 U.S. at 846 n. 11, 93 S.Ct. at 2363.

See Turner, supra, 396 U.S. at 407 n. 8, 90 S.Ct. 642; 4 Wigmore, Evidence § 1356, at 872 n. 27 (Chadbourn rev. 1972). The necessary corollary to this proposition is that once sufficient facts have been shown to render the statutory 'presumption of guilt irrational as applied to those particular facts, the presumption may not then be used to justify imposition of a further burden of production or to deprive the accused of a factual determination upon the disputed issue — the government must then prove its case.

Whatever the validity of the presumption of non-exception on a necord showing only a transfer of controlled substances and devoid of any facts bearing on the issue of exception, an issue we do not here decide, we are clear that the presumption as applied here did not meet the Court’s standards. The government here proved a variety of facts bearing on the medical practitioner’s exception, among them that Black was a medical practitioner, that he was duly registered with the Attorney General to dispense controlled substances, that the controlled substances were transferred pursuant to a writing purporting to be a prescription, and that the transfers were to patients át a clinic where Black was the attending physician. The sole issue to be resolved in deciding whether the orders by which the controlled substances were transferred were prescriptions “issued for a legitimate medical purpose by an individual practitioner in the usual course of his professional practice.” By treating that issue as' foreclosed from consideration and concluded against Black’ under § 885(a)(1) by reason of his failure to go forward with evidence on the issue, the court necessarily interpreted the presumption of non-exception to read: “A registered medical practitioner authorized to distribute controlled substances who orders such controlled substances transferred to patients shall be conclusively presumed to do so for a non-authorized purpose unless he comes forward with evidence that the prescriptions were issued for a legitimate medical purpose in the usual course of professional practice.” Such an application of § 885(a)(1) renders it irrational. It is not “more likely than not” that medical practitioners registered to dispense controlled substances do so illegitimately and are guilty of a criminal act; common experience, we think, dictates precisely the opposite conclusion. Given the irrationality of the presumption of non-exception as applied here, it may neither be used to conclude the issue of non-exception nor to transfer the burden of going forward to Black; and he may not be found guilty of violation of § 841(a)(1) unless the trier of fact determines beyond a reasonable doubt that Black’s conduct was not within the medical exception authorized by the statute.

As due process precludes conviction except upon proof beyond a reasonable doubt of every element of the crime, and as the court below clearly did not make a determination on one element of the crime, i. e., lack of authorization under the medical exception, the judgment of conviction cannot stand. The judgment is vacated, and the matter is remanded for further proceedings.

      . 21 U.S.C. § 829(a): “ . . . no controlled substance . . . may be dispensed without the written prescription of a practitioner . . ..”

      . Such is the Attorney General’s interpretation. 21 C.F.R. § 306.04(a), promulgated pursuant to the authority of 21 U.S.C. § 871, explicates the definition of “dispense” thus:
      “A prescription for a controlled substance to be effective must be issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice. . . . An order purporting to be a prescription issued not in the usual course of professional treatment or in legitimate and authorized research is not a prescription within the meaning and intent of section 309 of the Act (21 U.S.C. § 829) . . ..”

      . As succinctly explained by the First Circuit in United States v. Badia, 490 F.2d 296 (1st Cir. 1973):
      “We think the reason Congress included the term ‘dispense’ in § 841(a)(1) was to compel physicians to become properly licensed. If not licensed, a physician could then be convicted of unlawful dispensing. However once licensed, he could not be convicted of unlawful dispensing because, as we stated above, the statute defines the term in and of itself as a lawful act.” 490 F.2d at 298 n. 4.

      . Section 822(b): “Persons registered by the Attorney General under this subchapter to manufacture, distribute, or dispense controlled substances are authorized to possess, manufacture, distribute, or dispense such substances . . .

      . 21 U.S.C. § 885(a)(1) provides:
      “It shall not be necessary for the United States to negative any exemption or exception set forth in this subchapter in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this title, and the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefits.”

      . The cases relied on by the government and the court below, United States v. Collier, 478 F.2d 268 (5th Cir. 1973); United States v. Ramzy, 446 F.2d 1184 (5th Cir. 1971), and United States v. Rowlette, 397 F.2d 475 (7th Cir. 1968), all simply recite the principle embodied in § 885(a)(1) that the burden is on the defendant seeking the benefit of an exception to raise the issue, and that the government need not negative an exception until the issue is presented. They do not deal with the problem here.

      . Presumptive devices vary in form, and there is some disagreement among legal writers as to precisely how a presumptive device operates. See H. Ashford & D. Risinger Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview, 79 Yale L.J. 165 (1969); Morgan, Tot v. United States: Constitutional Restrictions on Statutory Presumptions, 56 Harv.L.Rev. 1324 (1943); Note, Statutory Criminal Presumptions: Judicial Sleight of Hand, 53 Va.L.Rev. 702 (1967). Wigmore defines a presumption as follows:
      “A rule of presumption is simply a rule changing one of the burdens of proof, i. e., declaring that the main fact will be inferred or assumed from some other fact until evidence to the contrary is introduced.” 4 Wigmore, Evidence § 1356, at 857 (Chadbourn rev. 1972).
      Ashford & Risinger define it:
      “A presumption is that legal device which imposes the burden of introducing evidence as to a given issue upon the opponent of the party who has the burden of persuasion as to that issue.” 79 Yale L.J., supra, at 172.
      Under either definition it is clear that a statute assigning the burden of production on an issue creates a presumption at the same time. Indeed, the landmark Cardozo opinion in Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934), which defined, in the context of a statute similar to the one here, the formerly applicable test for judging the due process validity of statutory presumptions, implicitly recognizes the nexus between the two. At one point the opinion states:
      “The decisions are manifold that within limits of reason and fairness the burden of proof may be lifted from the state in criminal prosecutions and cast on a defendant. The limits are in substance these, that the state shall have proved enough to make it just for the defendant to be required to repel what has been proved with excuse or explanation . . . ” 291 U.S. at 88 — 89, 54 S.Ct. at 284.
      Elsewhere it states:
      “ ‘The legislature may go a good way in raising [a presumption] or in changing the burden of proof, but there are limits.’ McFarland v. American Sugar Co., 241 U.S. 79, 86 [36 S.Ct. 498, 501, 60 L.Ed. 899], What is proved must be so related to what is inferred in the case of a true presumption as to be at least a warning signal according to the teachings of experience. ‘It is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.’ McFarland v. American Sugar Co., supra; Bailey v. Alabama [219 U.S. 219, 31 S.Ct. 145, .55 L.Ed. 191], supra; Manley v. Georgia [279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575], supra. There are, indeed, ‘presumptions that are not evidence in a proper sense but simply regulations of the burden of proof.’ Casey v. United States [276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632], supra. Even so, the occasions that justify regulations of the one order have a kinship, if nothing more, to those that justify the others. For a transfer of the burden, experience must teach that the evidence held to be inculpatory has at least a sinister significance (Yee Hem v. United States [268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904], supra; Casey v. United States, supra), or if this at times be lacking, there must be in any event a manifest disparity in convenience of proof and opportunity for knowledge, as, for instance, where a general prohibition is applicable to every one who is unable to bring himself within the range of an exception. Greenleaf, Evidence, vol. 1, § 79.” 291 U.S. at 90-91, 54 S.Ct. at 285.

        See Wigmore, supra, at 865 n. 15.

      . The statute would accomplish precisely the same thing were it written:
      “Distribution of controlled substances, not made by a registered medical practitioner for a legitimate medical reason in the usual course of professional practice, is unlawful. In a prosecution under this section any distribution of a controlled substance shall be conclusively presumed to be unauthorized and unlawful under this section unless and until the defendant produces evidence that he is a medical practitioner registered with the Attorney General, and that the controlled substance was dispensed for a legitimate medical reason in the usual course of his professional practice.”
      Indeed, under § 885(a)(1), as construed by the trial court, unlike the statutes in Turner and Leary, the presumption is not weighed as evidence by the trier of fact in determining whether the defendant is non-excepted beyond a reasonable doubt. Rather, the statute makes the presumption of non-exception and therefore of guilt conclusive until rebutted. The statute therefore potentially operates more oppressively than those in Leary or Turner, where the jury is not compelled to accept the factual proposition the legislature has embodied in the presumption.

      . Holmes’ position, expounded in Ferry v. Ramsey, 277 U.S. 88, 48 S.Ct. 443, 72 L.Ed. 796 (1928), as it applies here, is that if the legislature has the power to make distribution of all controlled substances illegal, it certainly then must have the power to create exceptions as a matter of grace, but put the burden on the defendant benefiting from the exception to prove he comes within it. Holmes’ position has received the support of commentators, see Wigmore, supra, at 859-60; McCormick, Evidence 659 (1954), but was rejected by the Court on the rationale that the presumption must be judged on the basis of what the legislature in fact chose to make criminal, not what it might have. Tot v. United States, 319 U.S. 463, 472, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943). See Wigmore, supra, at 872 n. 27, and cases there cited. See 79 Yale L.J. at 178. But see Wigmore, supra, at 871 n. 24. The Court’s position recognizes a proper legislative function in defining crimes while preventing the legislature from legislatively abolishing the presumption of innocence the judicial system accords those accused of the crime the legislature has defined. By requiring a rational connection between facts the government proves at trial and a conclusion that the defendant is guilty of the act the legislature has in fact deemed criminal, the Court prevents the legislature from statutorily compelling a defendant to prove his innocence until the government has shown at least that he is probably guilty. See 79 Yale L.J., supra, at 178, 188-92.

      . Cardozo recognized the relative ease of access to proof as a reason for shifting the burden of production, subject to flexible limits imposed by the requirement that the accused not be subjected to undue hardship or oppression. See Morrison, supra. See Wig-more, supra, at 867. However, the Court rejected this formulation in favor of rationality of inference in Tot, supra, stating:
      “The argument from convenience is admissible only where the inference is a permissible one, where the defendant has more . convenient access to proof, and where requiring him to go forward with proof will not subject him to unfairness or hardship.” 319 U.S. at 469-70, 63 S.Ct. at 1246.

        See Wigmore at 870 n. 23.

      . We have no facts before us and no judicial knowledge of whether or not a greater portion of the controlled substances transferred are transferred illegally, or pursuant to a statutory exception. As we rule that the burden of production imposed by § 885(a)(1) has been met by the government’s proof, the issue is irrelevant in this case.

      . It is of course irrelevant who produces the facts raising an issue; the defendant’s burden of production may be met either by his own evidence or by the prosecution’s case in chief. Notaro v. United States, 363 F.2d 169, 174 (9th Cir. 1966). See Rodgers v. United States, 402 F.2d 830 (9th Cir. 1968).

      . The court, by finding appellant guilty on proof that he authorized the transfer of controlled substances, treated the presumption of non-exception created by § 885(a)(1) as conclusive, at least until some quantum of evidence raises the issue — i. e., until the issue is raised, the presumption precludes presentation of the issue to the fact finder and compels a finding of non-authorization.

      . The court’s finding of guilt, without deciding whether the appellant’s conduct fell within the medical exception, constituted a ruling that as a matter of law the evidence presented by the government was not sufficient to raise the issue in the face of the presumption, and hence necessarily interpreted the presumption of non-exception as sufficient to overcome the thrust of that evidence.

      . In judging the common sense validity of the presumption as it operates here, we look only to those facts proved by the government bearing on the medical exception which are favorable to the defendant. If, viewed from that perspective, it is “more likely than not” that the defense exists (and hence less likely than not that the statutorily imposed presumption of non-exception is rational), then the defendant is entitled to a resolution of the ambiguities of his conduct, with the government bearing the burden of proof on the issue. Any other standard of review would potentially allow application of the statutory presumption to foreclose resolution of the issue in a situation where the fact finder would have determined that the facts warranted a finding that the defense more likely than not existed. Were the facts bearing on the exception looked at on review in a light favorable to the government, the statutory presumption of non-exception could then be applied to prevent determinations and compel a finding of guilt when the presumption in fact operates irrationally, thereby effectively placing the burden of producing evidence of innocence on the defendant in all cases except those where the government’s case establishes the defendant’s innocence as a matter of law.

      . Black’s brief intimates an objection to § 885(a)(1) on the ground that it places impermissible pressure on him to take the witness stand. We are clear that as we have construed the section, it is immune from constitutional challenge on this basis. The Court has made clear that so long as the presumption which shifts the burden of production is permissible, the coercion thereby created on the defendant to testify is likewise permissible. See Barnes, supra, 412 U.S. at 846-47, 93 S.Ct. 2357; Turner, supra, 396 U.S. at 417-18, 90 S.Ct. 642; Yee Hem v. United States, 268 U.S. 178, 185, 45 S.Ct. 470, 69 L.Ed. 904 (1925). But see Gainey, supra, 380 U.S. at 74-85, 85 S.Ct. 754 (Black, J., dissenting); Turner, supra, 396 U.S. at 431-32, 90 S.Ct. 642 (Black, J., dissenting). Moreover, an accused under this statute has ample ways short of taking the stand to adduce sufficient evidence to rebut the presumption of non-exception and put the government to proof of its case.

      . We, of course, intimate no opinion on the evidence already adduced. Because of the nature of our ruling, we think it not inappropriate for the court below to allow either party to reopen for the purpose of presenting further or other evidence.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Steven Ralph TAVARES, Defendant-Appellant.
    No. 74-2538.
    United States Court of Appeals, Ninth Circuit.
    Feb. 6, 1975.
    Donald B. Marks (argued), Beverly Hills, Cal., for defendant-appellant.
    Michael C. Solner, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiffappellee.
    Before ELY and WALLACE, Circuit Judges, and TURRENTINE, District Judge.

       Honorable Howard B. Turrentine, United States District Judge, Southern District of California, sitting by designation.

      . The other grounds, which we do not consider here, were improper limitation of cross examination, improper denial of motion for mistrial, based on prejudiced testimony, and improper grant of immunity to a government witness without prior written approval and authorization pursuant to 18 U.S.C. § 6003.

   OPINION

PER CURIAM:

The appellant, Steven Ralph Tavares, was indicted for Interstate Transportation of Stolen Property (18 U.S.C. § 2314) on March 11, 1974. He was found guilty by jury trial on May 31, 1974, and was sentenced to five years in custody on June 24, 1974. Tavares appealed his conviction on the ground that the trial court improperly instructed the jury that the prior inconsistent statements of a witness, the co-defendant Darlene Holding, could be considered as substantive evidence of the defendant’s guilt.

BACKGROUND

On the evening of December 7, 1973, Lawrence Miller, a resident of Port Or-ford, Oregon, returned home and discovered his house had been burglarized. Missing was approximately $98,000 in cash which had been taken from a deep freeze.

A subsequent FBI investigation indicated that Harold Reinhardt, Miss Holding, and Tavares may have committed the burglary and transported the money to California. Only the defendant Tavares was brought to trial. Reinhardt died prior to trial and Miss Holding obtained a grant of immunity so that she might testify as a government witness at the trial of Tavares.

At the trial Miss Holding surprised the prosecutor by testifying that Tavares had nothing to do with either the burglary or the transportation of the stolen currency. She stated that in early December 1973, Tavares drove her and Reinhardt from Orange County, California, to Port Orford, Oregon, where they stopped at Battle Rock, a state park located near the Miller residence. Miss Holding and Reinhardt borrowed Tavares’ car on the pretext of going to a store and drove to the Miller residence, and, according to Miss Holding, Reinhardt burglarized the house while she kept wait outside. Twenty minutes later they rejoined Tavares at the beach and the three returned to Orange County. Miss Holding claimed she and Reinhardt divided the money and never informed Tavares of the burglary or their possession of the money.

On further direct examination by the government, Miss Holding admitted that on December 18, 1973, shortly after the burglary, she told FBI Special Agent Philip Hanlon that Tavares had entered the Miller house with Reinhardt while she waited outside, and that the three had immediately returned to California and divided the money three ways. She also admitted that Willie Stansbury, an investigator for the Orange County Sheriff, interviewed her just before trial on May 24, 1974, but denied she made any statement to him regarding Tavares’ involvement in the burglary.

The government called Agent Hanlon and Investigator Stansbury as witnesses. They stated that Miss Holding had told them that both Tavares and Reinhardt entered the house, that the money was divided three ways, and that she, Reinhardt, and Tavares returned to California together.

The attorney for the defense objected to the admission of Miss Holding’s prior inconsistent statement as substantive evidence. The trial judge overruled the objection and gave the jury the following instruction:

During the course of the trial evidence was produced showing that witness Darlene Holding had at some time pri- or to her testimony in this trial made statements to an agent of the Federal Bureau of Investigation and to an officer of the Orange County Sheriff’s Department which were inconsistent with her testimony at trial. You are instructed that if you believe she made those prior statements, you may consider such prior statements not only as evidence bearing upon the credibility of her live testimony, but also as evidence of the defendant’s guilt. (R.T. 269).

PRIOR INCONSISTENT STATEMENTS

In preparing his jury instructions the judge indicated he relied on California Evidence Code § 1235 as interpreted by the Comment of the California Law Revision Commission. The Comment states that prior inconsistent statements may be admitted to prove the truth of the matter asserted for the following reasons:

Section 1235 admits inconsistent statements of witnesses because the dangers against which the hearsay rule is designed to protect are largely nonexistent. The declarant is in court and may be examined and cross-examined in regard to his statements and their subject matter. In many cases, the inconsistent statement is more likely to be true than the testimony of the witness at the trial because it was made nearer in time to the matter to which it relates and is less likely to be influenced by the controversy that gave rise to the litigation. The trier of fact has the declarant before it and can observe his demeanor and the nature of his testimony as he denies or tries to explain away the inconsistency. Hence, it is in as good a position to determine the truth or falsity of the prior statement as it is to determine the truth or falsity of the inconsistent testimony given in court. Moreover, Section 1235 will provide a party with desirable protection against the “turncoat” witness who changes his story on the stand and deprives the party calling him of evidence essential to his case.

The rule proposed in the Comment is constitutionally valid. In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the Supreme Court overruled the previous decisions of the California Supreme Court and held that the confrontation clause of the Sixth Amendment, as applied to the states by the Fourteenth Amendment, was not violated by admitting a declarant’s out-of-court statements as affirmative evidence as long as he is testifying as a witness at trial and is subject to full cross-examination. However, the Court noted that § 1235 was the “considered choice of the California Legislature” and did not pass on the desirability of the statute as a rule of evidence.

Section 1235 is in derogation of the common law. The orthodox rule is that prior inconsistent statements may be used to impeach, but should not be treated as having any substantive or independent testimonial value. 3A J. Wig-more, Evidence § 1018 at 996 (3d ed. 1940). Although harshly criticized, the orthodox rule is the law of this circuit and every circuit. Exceptions have been recognized where a prior inconsistent statement occurred in a former trial or grand jury testimony. United States v. De Sisto, 329 F.2d 929 (2d Cir.), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964); United States v. Nuccio, 373 F.2d 168 (2d Cir. 1967); or where the witness affirms the truth of the prior statement. Zimberg v. United States, 142 F.2d 132, 136 (1st Cir.), cert. denied, 323 U.S. 712, 65 S.Ct. 38, 89 L.Ed. 573 (1944); McIntyre v. Reynolds Metals Company, 468 F.2d 1092, 1094 (5th Cir. 1972).

The controversy over prior inconsistent statements has been resolved to some extent by the enactment of the new Rules of Evidence, Pub.L. No. 93 — 595 (Jan. 2, 1975), 43 U.S.L.W. 137. Rule 801(d)(1) provides that:

A statement is not hearsay if—
(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, . . .

Section 801(d)(1)(A) thus codifies the orthodox rule with an exception as to statements made in specified prior judicial proceedings. Since application of this rule is mandatory within 180 days of enactment, this court sees no reason to diverge from the orthodox rule at this time, at least as far as statements not made in prior judicial proceedings are concerned. Miss Holding’s testimony was hearsay, and was inadmissible to prove the truth of the matter asserted.

It only remains to consider whether the admission of Miss Holding’s extrajudicial statements constituted reversible error. The other evidence against the defendant Tavares consisted of: (1) Tavares’ presence in the vicinity of the burglary, (2) Tavares’ driving the car containing the stolen money from Oregon to California, (3) the statement of a government witness, Curtis L. Monks, that he met Tavares in Hawaii in January 1974, and that Tavares “said that he had made an acquaintance of some people and that they, had informed him of where there could be some money at, and that they had went there and gotten it,” (RT. 154), and (4) Miss Holding’s testimony that her share of the proceeds was only $25,000 — indicating there may have been a three way split between her, Reinhardt and a third individual. These factors have some probative force, but clearly Miss Holding’s statement to the FBI agent and Orange County Sheriff investigator were the strongest and the only direct evidence against Tavares. Their admission was not harmless error. F.R.Crim.P. 52(a).

Reversed and remanded.

      . Section 1235 provides: “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.”

      . People v. Green, 70 Cal.2d 654, 75 Cal.Rptr. 782, 451 P.2d 422 (1969); People v. Johnson, 68 Cal.2d 646, 68 Cal.Rptr. 599, 441 P.2d 111 (1968), cert. denied 393 U.S. 1051, 89 S.Ct. 679, 21 L.Ed.2d 693 (1969).

      . The Supreme Court appeared to retreat from its earlier position in Bridges v. Wixon, 326 U.S. 135, 153-154, 65 S.Ct. 1443, 1452, 89 L.Ed. 2103 (1954), that prior inconsistent statements are not admissible as substantive evidence. There the Court said:
      We may assume [prior inconsistent statements] would be admissible for the purposes of impeachment. But they certainly would not be admissible in any criminal case as substantive evidence. Hickory v. United States, 151 U.S. 303, 309 [14 S.Ct. 334, 336, 38 L.Ed. 170]; United States v. Block [2 Cir.,] 88 F.2d 618, 620. To so hold would allow men to be convicted on unsworn testimony of witnesses — a practice which runs counter to the notions of fairness on which our legal system is founded.

      . “The rule limiting the use of prior statements by a witness subject to cross-examination to their effect on his credibility has been described by eminent scholars and judges as ‘pious fraud,’ ‘artificial,’ ‘basically misguided,’ ‘mere verbal ritual,’ and an anachronism ‘that still impede(s) our pursuit of the truth.’ ” United States v. De Sisto, 329 F.2d 929, 933 (2d Cir.), cert. denied 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964).
      Criticism of the orthodox rule is found in 3A J. Wigmore, Evidence § 1018 (3d ed. 1940); C. McCormick, Evidence § 39 (1953); Maguire, The Hearsay System; Around and Through the Thicket, 14 Vand.L.Rev. 741 (1961); Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 63 Harv. L.Rev. 177, 192-96 (1948).
      For a recent article supporting the orthodox view, see Reutlinger, Prior Inconsistent Statements: Presently Inconsistent Doctrine, Hastings L.J. 361 (1974).

      . United States v. Clardy, 472 F.2d 578 (9th Cir. 1973); Benson v. United States, 402 F.2d 576 (9th Cir. 1968); Subecz v. Curtis, 483 F.2d 263, 267, n.l (1st Cir. 1973); United States v. Pfingst, 477 F.2d 177, 198 (2d Cir.), cert. denied 412 U.S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (1973); United States v. Small, 443 F.2d 497, 500 (3rd Cir. 1971); United States v. Maddox, 394 F.2d 297, 299 (4th Cir. 1968); United States v. Hill, 481 F.2d 929, 932 (5th Cir.), cert. denied 414 U.S. 1115, 94 S.Ct. 847, 38 L.Ed.2d 742 (1973); United States v. Lester, 491 F.2d 680, 682 (6th Cir. 1974); Century Indemnity Company v. Serafine, 311 F.2d 676, 679 (7th Cir. 1963); United States v. Bensinger, 430 F.2d 584, 595 (8th Cir. 1970); United States v. Lemon, 497 F.2d 854, 857 (10th Cir. 1974); United States v. Wright, 160 U.S.App.D.C. 57, 489 F.2d 1181, 1187 (1973).

      . As originally drafted by the Advisory Committee, Rule 801 defined prior inconsistent statements out of the hearsay rule entirely. It read:
      A statement is not hearsay if—
      (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with his testimony

      . The preamble to P.L. 93-595 provides:
      The following rules shall take effect on the one hundred and eightieth day beginning after the date of the enactment of this Act. These rules apply to actions, cases, and proceedings brought after the rules take effect. These rules also apply to further procedure in actions, cases, and proceedings then pending, except to the extent that application of the rules would not be feasible, or would work an injustice, in which event former evidentiary rules apply.


author: BARRETT, Circuit Judge.

text:
    Lavelle STEVENS, Administratrix of the Estate of Robert Wayne Stevens, Deceased, Plaintiff-Appellant, v. James A. BARNARD, III, d/b/a Mid-Continent Bellanca, Defendant-Appellee.
    No. 74-1434.
    United States Court of Appeals, Tenth Circuit.
    Argued Jan. 21, 1975.
    Decided March 21, 1975.

      Earl P. Enos, Duncan, Okl. (Paul F. Fernald, Oklahoma City, Okl., on the brief) for appellant.
    Michael C. Stewart, Oklahoma City, Okl., for James A. Barnard, III, d/b/a Mid-Continent Bellanea, appellee.
    Before HILL, SETH and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

Lavelle Stevens (Stevens) as administratrix of the estate of the decedent, Robert Wayne Stevens, (Robert) appeals from an Order of the Trial Court granting Summary Judgment to the defendant-appellee James A. Barnard III, d/b/a Mid-Continent Ballanca (Mid-Continent).

The facts in summary are: Robert was killed in the crash of an aircraft he was piloting on June 17, 1971, at Halliburton Field, Duncan, Oklahoma; the plane was a Piper PA — 24 235 manufactured March 17, 1964, and was used as an agricultural spray plane; the appellee was at the time an individual engaged in the business of servicing airplanes for hire in Duncan, Oklahoma; immediately prior to the crash, the aircraft had undergone extensive repairs including refabrication of the wings at Mid-Continent’s facilities and had been certified “airworthy” by one Lauron J. Chesley, authorized by the F.A.A. to perform inspections; when work on the plane was finished, Robert agreed to test-fly it; it was noted during the pre-flight inspection that the left door was not on the aircraft and Robert insisted that it be installed even though he apparently knew that one of the door’s two hinges was broken and that a new door had been ordered; Robert assisted employees of Mid-Continent in the installation of the defective door; after take-off, observers testified that Robert first did a series of “dutch rolls” presumably to test the plane’s aileron controls while the plane was approximately 50 feet off the ground; the plane momentarily continued a normal gradual climb then suddenly went into a vertical climb to an estimated height of 250 to 300 feet, at which point it went into what was described as a “hammerhead stall”, fell off to the right and crashed to the ground, nose down; a day after the crash the left door to the plane was found by one Earl McCloud some several hundred feet from the crash site; F.A.A. Inspector Chennault found all control cables on the plane to be intact except for one which had apparently snapped upon impact; Robert was an experienced, safe pilot in good health on the date of the accident.

In her complaint, Stevens alleged: (1) that it was negligence on the part of Mid-Continent to certify the aircraft to be “airworthy” when in fact the plane was unsafe to fly due to the missing left door hinge; (2) that Mid-Continent failed to comply with applicable methods of inspection and repair; and (3) that the doctrine of res ipsa loquitur was applicable under these circumstances.

Based upon the pleadings, depositions and affidavits offered by the parties, the district court for the Western District of Oklahoma found that there existed no genuine issue as to any material fact and granted Mid-Continent’s motion for summary judgment.

1. NEGLIGENCE

In assessing motions for summary judgment, we recognize that appellate courts must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues. Dzenits v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 494 F.2d 168 (10th Cir. 1974); James v. Atchison, Topeka and Santa Fe Railway Company, 464 F.2d 173 (10th Cir. 1972). Pleadings and other documentary evidence are to be construed liberally in favor of the party opposing such a motion. Harman v. Diversified Medical Investments Corporation, 488 F.2d 111 (10th Cir. 1973); Shawver & Son, Inc. v. Oklahoma Gas & Electric Company, 463 F.2d 204 (10th Cir. 1972); Building Mart, Inc. v. Allison Steel Manufacturing Co., 380 F.2d 196 (10th Cir. 1967). The moving party must demonstrate entitlement beyond reasonable doubt and if an inference can be deduced from the facts whereby the non-movant might recover, summary judgment is inappropriate. Dzenits v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra; James v. Atchison, Topeka and Santa Fe Railway Company, supra.

Notwithstanding the difficult legal hurdles confronting a party moving for summary judgment, we have held that when the motion is supported by depositions and affidavits, the party opposing it may not rest upon the mere allegations of his pleadings, but must respond with specific facts showing the existence of a genuine issue for trial. Brown v. Ford Motor Company, 494 F.2d 418 (10th Cir. 1974); Gates v. Ford Motor Company, 494 F.2d 458 (10th Cir. 1974); Rule 56(e) Fed.R.Civ.P., 28 U.S.C. The party opposing the motion may rest upon his pleadings only where it appears that the affidavits and depositions of the movant, standing alone, would not entitle the movant to a directed verdict. Riggs v. British Commonwealth Corporation, 459 F.2d 449 (10th Cir. 1972); Zampos v. United States Smelting, Refining and Mining Co., 206 F.2d 171 (10th Cir. 1953).

Stevens alleges in her complaint that the specific acts of Mid-Continent, or its employees which here constituted negligence were: allowing Robert to test-fly the plane when it was in fact unsafe due to the defective left door; failing to warn Robert that this condition rendered the plane unsafe; and failing in other specific ways to follow applicable inspection and repair methods.

To recover under a theory of negligence, however, Stevens must necessarily present evidence that the negligent acts or omissions complained of were the proximate cause of Robert’s death. The record before us demonstrates that no material issue exists in this regard. In Zampos v. United States Smelting, Refining and Mining Co., supra, we held:

If the cases had been tried to the court or a jury and evidence had been introduced tending to establish all of the facts set forth in all of the affidavits and depositions, the cause of the flood . . . would have been solely a matter of speculation or conjecture. No genuine issue of fact existed ... in respect to the acts or conduct ... on the part of the defendant as the proximate cause or a proximate cause of the flood. And in the absence of a genuine issue of material fact in respect to that essential element in the case, the action of the court in entering summary judgments rather than letting the case go to trial is not open to the challenge presently directed against it. (Emphasis added).

206 F.2d 171 at 175-76.

Stevens’ bald allegation that the presence of this defective door or the occurrence of the other alleged acts or omissions on the part of the appellee constituted the proximate cause of the accident can rise, under the circumstances presented here, no higher than a potential issue.

Assuming, arguendo, that Stevens could establish that the left door of the plane came off during flight and not upon impact, her only “evidence” that the absence of such door could have contributed to the crash was a statement to this effect made by her attorney. We have held that generalized, conclusionary, unsubstantiated, non-personal affidavits are insufficient to successfully oppose a motion for summary judgment. Citizens Environmental Council v. Volpe, 484 F.2d 870 (10th Cir. 1973), cert. denied 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286. Stevens has not presented any evidence that the other acts or omissions complained of were the proximate cause of this fatal crash.

While we agree with Stevens’ contention that causation is generally a jury question, we find inapposite those negligence cases (as opposed to strict liability cases) cited by her for the proposition that summary judgment is precluded where the party opposing the motion has demonstrated the existence of an alleged defect coupled with a permissible inference of causation. In each of those cases there existed strong evidence, lacking here, that the alleged defect in fact cause the accident

In regard to Stevens’ allegations under a theory of negligence, we hold that the Trial Court, after a review of the affidavits, depositions, and other evidence before it, could have directed a verdict in favor of the appellee. Accordingly, the order of summary judgment was appropriate.

2. RES IPSA LOQUITUR

Perhaps aware of her lack of evidence tending to establish negligence on the part of appellee as the proximate cause of the accident, Stevens seeks to invoke the legal doctrine of res ipsa loquitur. In so doing she alleges: (1) that prior to this accident the plane was in the exclusive control of Mid-Continent or its employees; (2) that Robert was a careful pilot and that this fact eliminates any possible causation for the accident other than the negligence of appellee; and (3) that ordinarily a fatal airplane crash is not an “event” which occurs without negligence.

In holding that the doctrine was not applicable, the Trial Court quoted the Oklahoma law stated in National Union Fire Insurance Company v. Elliott, 298 P.2d 448 (Okl.1956):

while there is conflict in the decisions relative to the application of that doctrine there is no dispute relative to the meaning of the words res ipsa loquitur. They simply mean “the thing speaks for itself.” And that means the thing or instrumentality involved speaks for itself. It clearly does not mean the accident speaks for itself. It means that when the initial fact, namely what thing or instrumentality caused the accident has been shown then, and not before, an inference arises that the injury or damage occurred by reason of the negligence of the party who had it under his exclusive control. The inference of negligence arising from the initially established fact compels the defendant, in order to relieve himself of liability, to move forward with his proof to rebut the inference of negligence.
298 P.2d 448 at 451.

The Trial Judge, under this rule, concluded that Stevens, having failed to establish the particular cause of the accident, could not rely upon the benefit of the res ipsa loquitur doctrine.

The views of a federal district judge, who is a resident of the state where the controversy arose in a case involving interpretations of the law of that state, carry extraordinary persuasive force on appeal where there are no state decisions on point or none which provide a clear precedent. United States v. Wyoming National Bank of Casper, 505 F.2d 1064 (10th Cir. 1974) (the absence of a controlling state decision); Hardy Salt Company v. Southern Pacific Transportation Company, 501 F.2d 1156 (10th Cir. 1974) (unsettled peripheral questions of state law); Casper v. Neubert, 489 F.2d 543 (10th Cir. 1973) (on unsettled law in his state); Stafos v. Jarvis, 477 F.2d 369 (10th Cir. 1973), cert. denied 414 U.S. 944, 94 S.Ct. 230, 38 L.Ed.2d 168 (1973) (not aided in its consideration by either administrative interpretation or judicial expression from state courts); Industrial Indemnity Company v. Continental Casualty Company, 375 F.2d 183 (10th Cir. 1967) (no decisions from Oklahoma courts which are in point or are analogous); Mitton v. Granite State Fire Ins. Co., 196 F.2d 988 (10th Cir. 1952) (the Colorado courts have not passed upon the right to interest in cases similar to the one before us and we are unwilling to overrule the considered appraisal of the Trial Judge).

Our research of the Oklahoma authorities indicates that the Trial Court’s conclusion in regard to the doctrine of res ipsa loquitur was warranted. In St. John’s Hospital & School of Nursing, Inc. v. Chapman, 434 P.2d 160 (Okl.1967), the Supreme Court of Oklahoma stated:

. the basic effect ... of the doctrine of res ipsa loquitur is to aid the plaintiff . . . [where] direct proof of why the accident happened (as distinguished from what caused the accident) is beyond the power of the plaintiff . . . (Emphasis added).
434 P.2d 160 at 166-167.

It further cited with approval the rule that:

“An inference (of negligence under the doctrine of res ipsa loquitur) arises only from an established foundation fact. The inference cannot supply the foundation fact from which it arises.” citing National Fire Insurance Company v. Elliott, Okl., 298 P.2d 448, supra. (Emphasis added).
434 P.2d 160 at 168.

In light of these authorities, as well as others cited by the appellee, we cannot accept Stevens’ contention that the mere occurrence of this accident, or appellee’s exclusive control of the aircraft prior to the crash, established the “foundation fact” (i. e., the “thing” or “instrumentality” which speaks for itself), from which an inference of negligence can be drawn under the doctrine of res ipsa loquitur. Stevens has not presented cogent evidence as to the cause of this accident. Under the controlling authorities we may not infer that appellee was negligent in repairing this aircraft and then, from this inference, further infer that such negligence created a defective condition in the aircraft which was the proximate cause of the accident resulting in Robert’s death. See also, Kelley v. Central National Bank of Richmond, 345 F.Supp. 737 (E.D.Va.1972).

In light of our determination above that Mid-Continent was entitled to an order of summary judgment against the contentions of either of Stevens’ theories (i. e., negligence or res ipsa loquitur), we need not decide whether there existed material issues of fact concerning Chesley’s agency relationship to Mid-Continent in his function as a certified inspector, or whether Stevens was precluded from recovery on the basis that Robert bore the final absolute responsibility to inspect the aircraft prior to test-flying it.

We affirm.

      . Defendant Piper Aircraft Corporation was dismissed from the case subsequent to a settlement agreement.

      . The parties are in dispute as to whether Chesley was an agent of Mid-Continent in his function as an authorized inspector.

      . In her reply brief Stevens specifically alleges:
      standards require ten or twelve coats of Butyl, [Chesley] only applied two or three; standards require perforating the gommets in the leading edge of the wing and [Chesley] did not perforate any of the gommets to permit draining; standards and manufacture’s (sic) specifications for this airplane required the fairings to be in place around the airlerons and they were not; standards required the frame and longerons to be sand blasted and chromed, and although Chesley testified he did this it was not true .

      . In Zampos v. United States Smelting, Refining and Mining Co., supra, we stated: “ . flimsy allegations which are transparently not well founded in fact are insufficient to state a justiciable controversy requiring the submission thereof for trial.” 206 F.2d 171 at 173-74.

      . Such an inference is not clear from the facts established. While the left door was found some distance from the wreckage, the crash site was not secured between the time of the accident and this “discovery” made the following day. Furthermore, the only testimony, via deposition, that someone had seen this door fall from the plane was in the form of inadmissible hearsay.

      . Attorney for Stevens stated in his affidavit:
      “6. Other witnesses will testify that the door coming loose in flight could cause a crash.” (TR„ Vol. I, p. 260).

      . The only evidence in the record before us as to whether the absence of this door could' have caused the crash was the deposition of F.A.A. Inspector Chennault who stated that normally this type of aircraft is operated without doors except during winter months. (TR., Vol. IV, p. 33).


text:
    Howard ST. JULES et al., Petitioners-Appellants, v. Oscar SAVAGE et al., Respondents-Appellees.
    No. 75-1387
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    May 12, 1975.
    Rehearing and Rehearing En Banc Denied July 16, 1975.
    Raul A. Rodriguez, pro se.
    Dunklin Sullivan, Asst. Atty. Gen., Austin, Tex., for respondents-appellees.
    Before ■ THORNBERRY, MORGAN and RONEY, Circuit Judges.

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

   PER CURIAM:

Appellant St. Jules, together with 12 other petitioners, all inmates of the Texas Department of Corrections, brought a “class action” habeas claim, challenging the constitutionality of the former Texas enhancement statute, Art. 63 (now § 12.-42(d)) of the Texas Penal Code, Y.T.C.A., as it applied to them and others similarly situated, who are serving mandatory life terms under Article 63 after having been convicted following pleas of not guilty. Appellant contends that: (1) the enhancement statute is used as a tool to coerce guilty pleas; and (2) the petitioners have been denied equal protection as members of a class since they have been subjected to greater punishment by electing to go to trial. He admits that, with the exception of petitioner Stratman, who applied unsuccessfully for state habeas relief on the same grounds, the petitioners have failed to exhaust state remedies, but he contends that this is an unnecessary requirement under Layton v. Carson, 5 Cir., 1973, 479 F.2d 1275, because the Texas Court of Criminal Appeals rendered an adverse decision in Stratman’s case, and there is no reason to believe that the state court will change its position.

The district court dismissed the petitioners’ action without prejudice for failure to exhaust state remedies, holding that Layton v. Carson did not apply because the nature of sentencing is such that each challenge should be considered individually, and the petitioners had failed to show that the Texas Court of Criminal Appeals would not fairly consider the claim of each petitioner on the merits.

Appellants’ challenge is aimed not at each individual sentence, however, but at the alleged systematic use of Article 63 to deprive appellants’ and members of their class of their rights to due process and equal protection. In Stratman’s case, the Texas court rejected, without opinion, this precise contention, the same contention which would be made by all other appellants. Appellants present a single constitutional challenge; individual consideration of each petition would serve no useful purpose since the Texas court has made clear that it considers the point to be without merit. This is exactly the sort of situation for which the Layton rule was devised. We reverse and remand for proceedings not inconsistent with this opinion.

      . In the unreported case of Ex parte Stratman, No. 2806 (Tex.Crim.App., September 7, 1973).

      . Our remand of this case is not to be taken as expressing any view as to the merits of any individual claim or the propriety of the class action. These matters are all left for the initial consideration of the district court.


author: DUNIWAY, Circuit Judge:

text:
    Michael L. ROCKWELL, and Regina Rockwell, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 73-2140.
    United States Court of Appeals, Ninth Circuit.
    March 10, 1975.
    Rehearing Denied June 13, 1975.

      Bernard A. Berkman, Cleveland, Ohio, and Murray C. Lertzman, Beverly Hills, Cal. (argued), for petitioners-appellants.
    Louis Bradbury, Atty., Tax Div. (argued), Washington, D. C., for respondent-appellee.
    Before LUMBARD, KOELSCH and DUNIWAY, Circuit Judges.

       The Honorable J. Edward Lumbard, Senior United States Circuit Judge for the Second Circuit, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

The Rockwells, husband and wife, who filed joint income tax returns for the years in dispute and whom we shall call Rockwell for convenience, appeal from a decision of the Tax Court. Tax Court Memorandum 1972-133, 31 T.C.M. 596, 72 T.C.Memo. 621. The Tax Court found that twelve real properties sold or exchanged by Rockwell during the taxable years 1963 through 1967 were held primarily for sale to customers in the ordinary course of a trade or business. Based on these findings, the Tax Court held that: (1) the gain or loss on “like kind” exchanges of certain of the properties should have been recognized; (2) the gain from the sales and exchanges was taxable as ordinary income rather than capital gain; (3) Rockwell was not entitled to certain deductions for depreciation of the properties; and (4) Rockwell was liable for the self-employment tax. Internal Revenue Code of 1954 (“IRC”), 26 U.S.C. §§ 1031(a), 1221(1), 167, 1401, respectively. See also Treas. Reg. § 1.167(a)-2. Rockwell’s counsel properly concede that the validity of holdings (3) and (4) depend upon the correctness of holdings (1) and (2). We affirm.

I. The Tax Court’s Findings.

Whether property is held primarily for sale in the ordinary course of trade or business is a question of fact. Estate of Freeland v. Commissioner of Internal Revenue, 9 Cir., 1968, 393 F.2d 573, 575, cert. denied, 393 U.S. 845, 89 S.Ct. 132, 21 L.Ed.2d 117; Los Angeles Extension Co. v. United States, 9 Cir., 1963, 315 F.2d 1, 2. We may not overturn the fact finding of the Tax Court unless it is “clearly erroneous.” Commissioner of Internal Revenue v. Duberstein, 1960, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218; Northwest Acceptance Corp. v. Commissioner of Internal Revenue, 9 Cir., 1974, 500 F.2d 1222, and cases there cited.

In a brief of over 100 pages, Rockwell’s counsel analyze the record exhaustively and repetitively and cite a great many cases. The length of the brief seems to be a function of the complexity of Rockwell’s dealings and of the amount of money involved, more than $738,000.00. We commend counsel’s diligence but not their editorial judgment. They could have said everything that they do say in about half as many pages. Almost always, when we grant permission to file an oversized brief, we have cause to regret having done so.

We said in Los Angeles Extension Co. v. Commissioner of Internal Revenue, supra, 315 F.2d at 3, a case which, like this one, involved the trade or business issue:

It is rare indeed that one will find any precedent value in applying the decision of one case to the facts of another case. At the most, other cases decided by the courts on this subject may be persuasive or suggestive of the approach of the courts to cases where the facts may be somewhat similar.

For this reason, we do not burden this opinion with an analysis of the cases that counsel cite. None announces any principle that would require a reversal here.

Moreover, it would serve no useful purpose to repeat here the facts which are detailed in the Tax Court’s memorandum decision. As to certain properties, the Tax Court found that they were held as investments and for the production of income rather than primarily for sale to customers in the ordinary course of trade or business, thus to that extent finding in favor of Rockwell. As to the others, the Tax Court found in favor of the Commissioner. If we were the Tax Court, we might have made different findings as to some or all of the properties. However, it is not our function to retry the case. We are not persuaded that the Tax Court’s findings are clearly erroneous.

II. The Burden of Proof.

A. What the burden is.

Rule 32 of the Rules of Practice of the Tax Court (now Rule 142(a), see 26 U.S.C.A. § 7453 (1975 Supp.)) places the burden of proof on Rockwell. See Helvering v. Taylor, 1935, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623. This burden is a burden of persuasion; it requires Rockwell to show the merits of his claim by at least a preponderance of the evidence. Brumley-Donaldson Co. v. Commissioner of Internal Revenue, 9 Cir., 1971, 443 F.2d 501, 504 n. 4. The Tax Court was correct in imposing this burden of persuasion on Rockwell. He argues that the only burden Rule 32 placed on him was the less onerous burden of producing enough evidence initially to rebut the presumption of correctness which attaches to the Commissioner’s deficiency determination. Not so.

First, Rockwell’s argument confuses the separate functions of the initial presumption in favor of the Commissioner and of the burden of proof placed on the taxpayer. The presumption in favor of the Commissioner is a procedural device which requires the taxpayer to come forward with enough evidence to support a finding contrary to the Commissioner’s determination. Caratan v. Commissioner of Internal Revenue, 9 Cir., 1971, 442 F.2d 606, 608 (taxpayers presented evidence that their lodgings were provided as a requirement of employment and the Commissioner introduced no evidence; taxpayers overcame the presumption and prevailed): Potts, Davis & Co. v. Commissioner of Internal Revenue, 9 Cir., 1970, 431 F.2d 1222 (taxpayer presented insufficient evidence to rebut the presumption and lost).

The burden of proof is yet another hurdle. After satisfying the procedural burden of producing evidence to rebut the presumption in favor of the Commissioner, the taxpayer must still carry his ultimate burden of proof or persuasion. Brumley-Donaldson, supra; American Pipe and Steel Corp. v. Commissioner of Internal Revenue, 9 Cir., 1957, 243 F.2d 125, 126-27, cert. denied, 355 U.S. 906, 78 S.Ct. 333, 2 L.Ed.2d 261. See also United States v. Rexach, 1 Cir., 1973, 482 F.2d 10, 16-17 n. 3, cert. denied, 414 U.S. 1039, 94 S.Ct. 540, 38 L.Ed.2d 330.

Second, Rockwell’s reliance on our decisions in Herbert v. Commissioner of Internal Revenue, 9 Cir., 1967, 377 F.2d 65, 69; Clark v. Commissioner of Internal Revenue, 9 Cir., 1959, 266 F.2d 698, 706; Niederkrome v. Commissioner of Internal Revenue, 9 Cir., 1959, 266 F.2d 238, 241, cert. denied, 359 U.S. 945, 79 S.Ct. 725, 3 L.Ed.2d 678, and Cohen v. Commissioner of Internal Revenue, 9 Cir., 1959, 266 F.2d 5, 11, is misplaced. To the extent that these cases indicate that, when the taxpayer satisfies his burden of production, the ultimate burden of persuasion shifts to the Commissioner, they are different from the case at bar. Herbert, Clark, Niederkrome, and Cohen each involved a dispute over whether and to what extent the taxpayer received certain funds as income. In such cases, it might make sense to impose on the Commissioner the burden of proving his case because the taxpayer may face practical difficulties in attempting to refute the Commissioner’s assertion that the taxpayer received unreported income. We need not here decide that question.

Whatever the proper rule may be where inclusion in income is controverted, there is no dispute that the taxpayer bears the burden of proof in substantiating claimed deductions. As we stated in Herbert, supra, 377 F.2d at 71:

It appears to us that the Tax Court has confused the burden of establishing receipt of income with the burden of supporting allowable deductions from income. In the former case the burden is on the Commissioner, and in the latter case the burden is upon the taxpayer.

In Nor-Cal Adjusters v. Commissioner of Internal Revenue, 9 Cir., 1974, 503 F.2d 359, 361 (affirming the Tax Court’s finding that corporate taxpayer’s payments to officer-shareholders were dividends rather than deductible bonuses), we said:

When as here, a taxpayer claims a deduction which is disallowed by the Internal Revenue Service, the burden is on the taxpayer to prove to the Tax Court the merit of the deduction. The shifting of that burden can only be caused by the interjection of “new matter” as provided by Rule 32 of the Rules of Practice of the United States Tax Court.

Under these principles, the burden of proof falls on Rockwell here, where the principal legal issues are whether the taxpayer was entitled to capital gains treatment, which is achieved through what amounts to a deduction under IRC § 1202 or through the alternative formula provided by § 1201, and certain depreciation deductions. Similarly, whether Rockwell could invoke IRC § 1031 to escape recognition of gain on an exchange of “like kind” real properties is a question of tax mitigation, provided by legislative grace, and falls within the burden of proof rules applicable to disputed deductions. Also incidentally involved in this case is the self-employment tax issue. Where there is no dispute that Rockwell received gains includable in gross income from his real property endeavors and the issue of whether he is exempt from the self-employment tax is incidental to the question of whether his business was trading in real property, the burden of proof as to that incidental issue likewise falls on Rockwell.

The nature of the factual inquiry here bolsters our conclusion that Rockwell must shoulder the burden of proof. Here, as in Brumley, supra, the crucial factual issue is Rockwell’s purpose. Here we are concerned with whether he held the properties primarily for sale in the ordinary course of trade or business. There we were concerned with whether the “principal purpose” of the taxpayer in acquiring a corporation with a net operating loss was the evasion or avoidance of federal income taxes. See IRC § 269. It is logical to place on the tax-payer the burden of proving his reasons for engaging in activities when those reasons affect his tax liability.

We hold that it was proper for the Tax Court to impose the burden of proof on Rockwell. Although we agree with him that he carried his burden of coming forward with evidence to rebut the presumption favoring the Commissioner, we cannot say that the Tax Court erred in finding that he failed to carry his additional burden of proof.

B. The constitutionality of the burden of proof.

Rockwell argues that to impose the burden of persuasion on him is to deny him due process of law. The argument borders on the frivolous. In most litigation, from time immemorial, the burden of proof — i.e., the burden of persuasion — is on the plaintiff. If Rockwell had paid the tax and sued in the district court to recover it, he would have had to shoulder that burden. The alternative right, provided by the Congress, to contest the deficiency before the Tax Court without first paying the tax, is a matter of grace, granted to relieve taxpayers of the necessity of paying before suing. There is no reason to hold that the provision of this alternative remedy shifted the taxpayer’s burden of proof.

In tax matters, the Congress can condition the taxpayer’s right to contest the validity of a tax assessment pretty much as it sees fit. See Cheatham v. United States, 1875, 92 U.S. 85, 88-9, 23 L.Ed. 561; Graham v. Du Pont, 1923, 262 U.S. 234, 254-5, 43 S.Ct. 567, 67 L.Ed. 965; Phillips v. Commissioner of Internal Revenue, 1931, 283 U.S. 589, 595, 51 S.Ct. 608, 75 L.Ed. 1289. See also Helvering v. Taylor, 1935, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623; Lucas v. Structural Steel Co., 1930, 281 U.S. 264, 271, 50 S.Ct. 263, 74 L.Ed. 848. One would have thought that, if there were a constitutional defect in Rule 32 (now Rule 142(a)), the Supreme Court would long since have found it.

Moreover, if the question were res integra, we would uphold the rule. The taxpayer knows the facts that relate to whether he was dealing in buying, trading, and selling the properties in question. He can (and Rockwell did) testify as to what his intent or purpose was. The Commissioner, on the other hand, must rely on circumstantial evidence, most of it coming from the taxpayer and the taxpayer’s records, in deciding whether or not to assert a deficiency. It is not at all unfair, in such a case, to place on the taxpayer the burden of persuading the trier of fact, in this case the Tax Court.

The Tax Court committed no reversible error in exercising its discretion to exclude certain cumulative evidence offered by Rockwell.

Affirmed.

      . These cases need not necessarily be read this way. The First Circuit has attempted to reconcile language in our opinions, to the effect that the Commissioner’s presumption of correctness disappears upon the taxpayer’s presentation of evidence which would support a contrary finding and that the burden of proof then shifts to the Commissioner, with its holding in Rexach, supra, that the burden of proof never shifts to the Commissioner, whether the litigation is a taxpayer’s petition to the Tax Court for redetermination of a deficiency, a taxpayer’s suit for a refund in the district court, or a suit by the Commissioner in the district court to collect taxes:
      [L]anguage relating to the disappearance of the “presumption,” found in Clark, Cohen v. C.I.R., 266 F.2d 5, 11 (9th Cir. 1959) and more recently in Herbert v. C.I.R., 377 F.2d 65, 69 (9th Cir. 1967), would seem to refer not to a shifting of the ultimate burden of persuasion to the Commissioner but to the fateful consequences for him if, in the face taxpayer’s initial presentation of evidence proving the deficiency erroneous, there is added to the record (whether from the Commissioner’s or the taxpayer’s witnesses or documents) no contradictory evidence supporting the bare assessment, [citation omitted] Lawrence v. C.I.R., 143 F.2d 456 (9th Cir. 1944), the other case cited by the district court, stands for this proposition. United States v. Rexach, supra, 482 F.2d at 17 n. 3.
      We would add that Caratan, supra, also supports this proposition.


text:
    ESP FIDELITY CORPORATION, Appellant, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al., Appellees.
    No. 73-2925.
    United States Court of Appeals, Ninth Circuit.
    March 6, 1975.

      Mark A. Ivener, Beverly Hills, Cal., for appellant.
    William D. Keller, U. S. Atty., Los Angeles, Cal., for appellees.
    Before BARNES, WRIGHT and WALLACE, Circuit Judges.
   OPINION

BARNES, Senior Circuit Judge: Appellant ESP Fidelity Corporation sells “ESP”, which stands for Economic Security Program. ESP Fidelity’s executive vice-president, Laurence August (an ex public relations counselor), and apparent developer of this program, euphemistically terms “ESP” a “consumer protection program.” In reality and substance, “ESP” is nothing more than a program of mortgage unemployment insurance. (See C.T. 306 — 307; cf. Plaintiff’s Ex. 1, pp. 40, 41, 47, 49, 53-55, 62, 73).

The “ESP” plan works in the following manner: ESP Fidelity, on behalf of the builder, obtains a master insurance policy, issued by Reserve Insurance Company. The builder in turn delivers to the home buyer an “ESP” certificate containing paraphrased terms of the master policy. Under a typical master policy, the original lender financing the purchase of the home is entitled to receive a maximum of six monthly home payments should the home buyer become involuntarily unemployed during the first three years of home ownership. Benefits become payable after 30 days of consecutive unemployment. The “ESP” certificate recites that the builder is to make the six monthly payments, although in fact the master policy obligates the insurance carrier to pay the lender. The cost of “ESP” is covered by a one time premium paid by the builder, and is equal to one-half of the required monthly debt service payment (/. e., interest, principal, insurance, taxes) for each home buyer. Based on the figures and estimates of ESP Fidelity, the cost to the builder is approximately one-half of one percent of the sales price of the house and lot. (See, e. g., Plaintiff’s Ex. 1, pp. 32, 40.) ESP Fidelity collects the premiums paid by the builder. As compensation for selling the insurance program to the builder, ESP Fidelity retains a portion of the premiums.

ESP Fidelity submitted its “ESP” plan to both the Veterans Administration (VA) and the Federal Housing Authority (HUD) for their approval. After lengthy correspondence including gentle pressure by several members of Congress to approve “ESP”, both the VA and HUD withheld their approval of this plan, and each made determinations that the “ESP” plan constituted what in housing parlance is termed a “giveaway.” As such, the price of the home (including bona fide transaction costs) would be reduced by the amount of the value of the “ESP” policy for the purposes of computing the maximum amount of financing which would be guaranteed or insured by the agencies in question.

ESP Fidelity objected to this determination and brought an action in Federal District Court against HUD, the VA, and the United States seeking “declaratory judgment and injunctive relief to declare unconstitutional a HUD and VA regulation.” (C.T. 1). ESP Fidelity alleged in its complaint that HUD’s and the VA’s determinations were “arbitrary, capricious and unconstitutional” (presumably unconstitutional on due process grounds, although the complaint is not specific — see C.T. 1). ESP Fidelity invoked the Administrative Procedure Act, 5 U.S.C. §§ 701 — 706, and the Declaratory Judgments Act, 28 U.S.C. § 2201 as its basis of jurisdiction.

The district court found jurisdiction under 5 U.S.C. § 702 (C.T. 308) and made the following findings:

“XII. Administrative action was neither arbitrary, capricious, nor an abuse of discretion but was reasonable and in accordance with law.
“XIII. Administrative action was not contrary to constitutional right, power, privilege or immunity.
“VI. The Administrative action herein was in the discretion of the agencies and was in compliance with law.” (C.T. 306, 308).

In taking this appeal appellant calls this Court’s attention to four “issues”:

“1. Whether the District Court erred in not finding that the HUD and VA regulations were arbitrary, capricious and unconstitutional in that they violated the Due Process Clause of the Fifth Amendment of the Constitution by not having a rational basis for the application of these regulations to the instant case.
“2. Whether the District Court erred in not finding that the HUD and VA regulations were arbitrary, capricious and unconstitutional in that they violated the Due Process Clause of the Fifth Amendment of the Constitution in their invidious, discriminatory application.
“3. Whether the District Court erred in not finding that the conduct of HUD and VA in denying the requested relief was arbitrary and capricious.
“4. The Findings of Fact and Conclusions of Law are not supported by the evidence.” (Appellant’s Brief at 2).

We find appellant’s contentions to be without merit. The District Court did not err. Its findings of fact and conclusions of law are well supported by the evidence. The record discloses substantial evidence in support of the position of the agencies in question, and the record discloses that the agencies’ determinations were rational, well considered, fairly reached, and without hint of arbitrary or capricious behavior, or constitutional infringement. On this record, and considering the “issues” appellant raises, this appeal is frivolous.

Even without regard to the merits we would affirm.

First, appellant lacks standing to complain as to any determination which HUD or the VA has made concerning the approval of disapproval of “ESP” or its classification of that plan as a giveaway. Neither ESP Fidelity nor the writer of the master policy, Reserve Insurance, is licensed or authorized to sell or write mortgage unemployment insurance, or any similar insurance program. (See Defendant’s Exhibits 2, 3, 4, C.T. 306-07; cf. California Insurance Code, §§ 12640.10, 12441.)

Second, we concur in the district court’s holding that:

“VII. Plaintiff is seeking equitable relief; the Court denies relief under the doctrine of unclean hands, in view of the misrepresentations and violations of insurance laws which permeate plaintiff’s program.” (C.T. 308).

Third, the district court lacked jurisdiction to grant the relief appellant seeks even if appellant had had standing to complain and was correct as to the merits. The court below properly concluded: “this Court has no jurisdiction to issue an injunction against the Secretary of Housing and Urban Development or the Administrator of the Veterans Administration, because these parties have not been named parties herein and have not been served.” (C.T. 308). Neither HUD nor the VA may be sued eo no-mine. See Evans v. U.S.V.A. Hospital, 391 F.2d 261 (2d Cir.), cert. denied, 393 U.S. 1040, 89 S.Ct. 667, 21 L.Ed.2d 589 (1968); Fermin v. Veterans Administration, 312 F.2d 554 (9th Cir.), cert. denied, 375 U.S. 864, 84 S.Ct. 135, 11 L.Ed.2d 91 (1963); Benson v. City of Minneapolis, 286 F.Supp. 614, 619-20 (D.Minn.1968); cf. Hartke v. F.A.A., 369 F.Supp. 741 (E.D.N.Y.1973); City of Sacramento v. Secretary of Housing and Urban Development, 363 F.Supp. 736 (E.D.Cal.1973); Harms v. F.H.A., 256 F.Supp. 757 (D.Maryland 1966); Napier v. Veterans Administration, 187 F.Supp. 723 (D.N.J. 1960) aff’d 298 F.2d 445 (3rd Cir. 1962), cert. denied and appeal dismissed, 371 U.S. 186, 83 S.Ct. 266, 9 L.Ed.2d 228 (1962).

We affirm.

      . Occasionally Mr. August forgets to call “ESP” a “consumer protection plan.” He is quoted by a columnist in The San Diego Evening Tribune as saying “What we’re offering is an insurance program for anyone subject to involuntary unemployment. . ” (Plaintiff’s Ex. 1, p. 53).

      . The District Court found that Reserve Insurance Company was the only company known to plaintiff writing or willing to write coverage for plaintiff’s program. (C.T. 306)

      . Appellant in its advertisements misrepresented that the VA and HUD had approved its “ESP” plan when in fact they had not. (C.T. 307)

      . E. g., California Insurance Code §§ 12640.-10, 12441, and possibly also §§ 770.1, 755, 755.5.