author: CHOY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Leon Dudley NOAH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard R. STUART, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Willie WILLINGHAM and Abraham Griffin, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Virgil METCALF, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Humphrey ROSS, Defendant-Appellant.
    Nos. 72-1807 to 72-1810, 72-1865.
    United States Court of Appeals, Ninth Circuit.
    March 2, 1973.
    Rehearing Denied April 25, 1973.

      Wesley G. Hohlbein (argued), Seattle, Wash., Jack Steinberg (argued), Seattle, Wash., Murray Guterson (argued), Seattle, Wash., Robert C. Mussehl (argued), Seattle, Wash., Arthur Sherman (argued), Marks, Sherman & Schwartz, Beverly Hills, Cal., B. Gray Warner, Warner, Pierce & Peden, Seattle, Wash., for defendants-appellants.
    Charles Pinnell, Asst. U. S. Atty. (argued), Tom Russell, Asst. U. S. Atty., Stan Pitkin, U. S. Atty., Seattle, Wash., for plaintiff-appellee.
    Before BARNES and CHOY, Circuit Judges, and JAMESON, District Judge.

       Honorable William J. Jameson, Senior United States District Judge, District of Montana, sitting by designation.

   CHOY, Circuit Judge:

Appellants were indicted on 18 counts for trafficking in heroin and cocaine and conspiring to do so. Two of the counts were for possession of narcotics with intent to distribute, based on the seizure of narcotics from the residence of two of the appellants. The other fourteen substantive counts were for twelve sales by various members of the conspiracy to a government undercover agent. These sales took place between March 5, 1971 and July 28, 1971. Two separate counts of conspiracy were charged.

All six appellants were tried jointly by a jury and found guilty on all counts as charged. All six have filed timely appeals. We affirm as to all with directions and one of Ross’s $7,500 fines is stricken. We consider each appeal separately.

LEON DUDLEY NOAH

1. Missing witness instruction.

Noah asked that the court give an instruction to the effect that since the government did not produce a certain witness there is a presumption that her testimony would have been unfavorable to the government's case. The court refused to give the instruction and Noah appeals that ruling.

The failure of a party to produce a material witness who could elucidate matters under investigation gives rise to a presumption that the testimony of that witness would be unfavorable to that party if ‘the witness is peculiarly within the party’s control. World Wide Automatic Archery, Inc. v. United States, 356 F.2d 834, 837 (9th Cir. 1966). Here the government did not call as a witness a paid informer who was instrumental in the government’s investigation. Noah asserted that the government entrapped him and the missing witness could have elucidated this aspect of the case. We do not think that the trial court erred in not giving the instruction.

The record does not indicate that this witness was peculiarly within the power of the government. The issue of her availability was a question of fact for the trial court to decide. While the informer was at one time associated with the government, there was a break in the relationship. The witness left the state about three months before appellant’s indictment and five months before trial and no one knew of her whereabouts. She was equally unavailable to both Noah and the government. The instruction was properly rejected as not warranted by the facts of this case. United States v. Makekau, 429 F.2d 1403 (9th Cir.), cert.. denied 400 U.S. 904, 91 S.Ct. 143, 27 L.Ed.2d 141 (1970).

2. Entrapment instructions.

Noah claims that the court erred by instructing the jury that the defense of entrapment is applicable only when a person has no previous intent or purpose to violate the law and has a readiness and willingness to break the law. Noah maintains that since he was a drug addict he should be entitled to a special entrapment instruction. The law is clear that if a predisposition to break the law exists before the government makes any offer, the entrapment defense does not apply. United States v. Griffin, 434 F.2d 978 (9th Cir. 1970), cert. denied 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971).

3. Dismissal of part of the indictment.

Noah contends that his Fifth Amendment rights were violated when the court, pursuant to F.R.Crim.P. 48(a) dismissed five substantive counts from the indictment. Noah claims that by eliminating the substantive counts the theory of the original indictment was changed without the indictment being resubmitted to the grand jury.

We see no merit in Noah’s contention. He was in no way prejudiced by the elimination of part of the indictment. An indictment may not be broadened except by the grand jury. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). Here the indictment was not expanded, but consolidated and some of the charges were eliminated. There is no Fifth Amendment prohibition against this.

4. Prejudicial publicity.

The day after the prosecution rested, a newspaper article appeared in a local paper. The headline read, “Dope Case Witness Refuses to Testify.” The article referred to a government witness who the government claimed was too sick to testify. The court asked the jurors whether any of them had either read the article or seen the headline. Only one juror admitted that he had read the headline. This juror was examined at length to determine if he had been influenced by the article. The court decided that the juror could still remain fair and impartial.

During the examination, however, this juror said that probably half a dozen other jurors also saw the headline. The defense was given an opportunity to question the other jurors, but declined to do so and moved for a mistrial instead. That motion was denied. We affirm the ruling.

“The trial judge has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. Holt v. United States, 218 U.S. 245, 251 [, 31 S.Ct. 2, 6, 54 L.Ed. 1021], Generalizations beyond that statement are not profitable, because each case must turn on its special facts.” Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250 (1959). Here, all that was established was that one juror admitted reading the headline and he thought that others had also seen the headline. The headline itself was not prejudicial. It simply stated that a witness had refused to testify. The jury was already aware that the witness had not appeared after she was called as a witness.

While the article itself was potentially prejudicial, there is no evidence that anyone read it. The defense was given an opportunity to question the jury. Unless we assume that each juror purposely lied to the court, we cannot find that the publicity prejudiced the jury against the appellants. The burden to show that a defendant had been unfairly treated is on the defendant. Marshall v. United States, 355 F.2d 999, 1007 (9th Cir.), cert. denied 385 U.S. 815, 87 S.Ct. 34, 17 L.Ed.2d 54 (1966). Here that burden has not been met.

5. Habeas corpus petition.

Pending this appeal, Noah filed a motion for a writ of habeas corpus. He contends that the method used to select the jury violated the Fifth and Sixth Amendments. Noah notes that of the approximately 200 odd veniremen only two were non-whites and that nonwhites constitute 5.9% of the population of the Western District of Washington.

Since an appellate proceeding is pending, we have the power to issue a writ of habeas corpus. Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). But Noah has failed to sustain the burden of proof of showing a systematic exclusion of non-whites. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); United States v. Parker, 428 F.2d 488 (9th Cir.), cert. denied 400 U.S. 910, 91 S.Ct. 155, 27 L.Ed.2d 150 (1970). “The use of voter registration lists as the sole source of the names of potential jurors is not constitutionally invalid, absent a showing of discrimination in the compiling of such voter registration lists.” Parker, supra at 489.

Noah concedes that there was no conscious effort to exclude non-whites, but he argues that discrimination is inherent in the use of voter lists. Noah, however, has failed to present sufficient evidence to prove that there is in fact a sufficiently large under-representation of non-whites. Bloomer v. United States, 409 F.2d 869 (9th Cir. 1969).

The motion for a writ of habeas corpus is denied.

EICHAED STUAET

1. Improper counts.

Stuart contends that one of his two conspiracy convictions should be reversed. The indictment contained two conspiracy counts. The first one charged a conspiracy to violate 21 U.S.C. § 174 between March 1, 1971 and April 30, 1971; the second charged conspiracy to violate 21 U.S.C. § 841(a) between May 1, 1971 and July 28, 1971. Two conspiracy counts were charged because of the conspiracy statutes themselves although there was but one continuing conspiracy. On May 1, 1971, a new statute, the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 801-966, took effect, replacing other federal narcotics laws. For activities preceding May 1, appellant was charged under the old statute, and for activities after May 1, he was charged with conspiring under the new statute.

Presenting evidence of violations of different statutes does mot create separate conspiracies out of one conspiracy. The gist of the crime of conspiracy is an agreement to commit unlawful acts. “The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.” Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 102, 87 L.Ed. 23 (1942).

No evidence was advanced at the trial to suggest that the defendant and his co-conspirators formed a new agreement, made new plans, or developed a new purpose after the new federal law went into effect. Since there was only one agreement there could be only one conspiracy conviction. Therefore, we vacate Stuart’s conviction of the first count and order that it be dismissed.

Even though we vacate one of the conspiracy convictions, this does not alter Stuart’s sentence. Stuart received a thirty-year sentence on the first conspiracy count and a fifteen-year sentence on the second conspiracy count. In addition, he received five other thirty-year sentences and five other fifteen-year sentences for participating in ten illegal narcotics sales. All of the sentences are concurrent. We can say with fair assurance that the improper conspiracy conviction did not in any way influence the other convictions. Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). There was clear evidence that Stuart had participated in several sales.

Stuart also maintains that two of the substantive convictions were improper. He contends that it was improper to charge a separate count for the sale of heroin and cocaine. We need not reach the merits of this issue because even if we reversed these two convictions, the validity of the other concurrent sentences would not be affected. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); United States v. Munns, 457 F.2d 271, 274 (9th Cir. 1972).

2. Improperly admitted evidence.

Stuart contends that he should be acquitted on all counts because the government failed to prove that the heroin tested by its chemists was the same substance sold to the government. This contention has no merit. First, no objection was made at the time the evidence was admitted. On this fact alone we could affirm. Scott v. United States, 115 U.S.App.D.C. 208, 317 F.2d 908 (1963). Second, ample evidence was adduced during the trial to enable the jury to conclude that the narcotics purchased from Stuart were the same as the exhibits admitted into evidence. Barquera v. California, 374 F.2d 177 (9th Cir. 1967); United States v. Baca, 444 F.2d 1292 (10th Cir.), cert. denied 404 U.S. 979, 92 S.Ct. 347, 30 L.Ed.2d 294 (1971).

3. Entrapment instructions.

Stuart maintains that the court’s instructions on entrapment were erroneous because they were ambiguous and they did not clearly explain who had the burden of proof. If the instructions were vague or ambiguous that would be grounds for reversal. Notaro v. United States, 363 F.2d 169 (9th Cir. 1966). But the instructions in the case at bar were not defective. In United States v. Griffin, 434 F.2d 978, 981 (9th Cir. 1970), cert. denied 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed.2d 160 (1971), we approved exactly the same instructions.

WILLIE WILLINGHAM and ABRAHAM GRIFFIN

1. Conspiracy conviction.

Willingham and Griffin contend that their convictions for conspiring with Ross and Stuart after May 1 must be reversed because there was no evidence that two conspiracies existed. Griffin also contends that there was insufficient evidence to support his conviction.

Willingham and Griffin were named in but one conspiracy count, unlike Stuart and Ross. The government concedes that the evidence showed only one pattern of conspiratorial activity by the appellants from March through July 1971, but because of the changes in the law they elected to prosecute Willingham and Griffin under the new law. The evidence of their participation in the conspiracy surfaced after the change in the law. They were indicted and convicted on only one conspiracy charge. Under these circumstances, and in light of the fact that the penalties under the new statute are smaller, we see nothing improper or prejudicial to them in the government’s separation of the illegal activities.

We also affirm Griffin’s conspiracy conviction. On appeal the evidence is viewed in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Magana, 453 F.2d 414 (9th Cir. 1972). While there was no evidence that Griffin directly participated in any of the illegal sales, there was sufficient evidence to sustain a finding by the jury that Griffin was a member of the conspiracy.

Griffin’s home was used as a stash for the drugs and the site where the drugs were cut into retail quantities. Moreover, when Griffin was arrested 16 balloons of heroin were discovered in his bedroom. Paraphernalia for both diluting and packaging heroin was found in various common areas of the house. The jury rejected Griffin’s defense that he was a mere bystander. Testimonial evidence also supports the conviction. United States v. Stanley, 427 F.2d 1066, 1070 (9th Cir. 1970), cert. denied 404 U.S. 996, 92 S.Ct. 542, 30 L.Ed.2d 548 (1971).

VIRGIL METCALF

1. Challenge to the jury.

Metcalf contends that the Jury Selection Plan for the Western District of Washington adopted pursuant to the Jury Selection and Service Act of 1968, 28 U.S.C. §§ 1861-1871 does not comply with the policies set forth in sections 1861-1863. We do not reach the merits of this objection because Metcalf failed to make a timely challenge as required by 28 U.S.C. § 1867.

2. Fifth amendment privilege.

During his closing argument, the prosecutor commented:

“In my opinion what has happened is that the defense has collapsed, because of all the six defendants before you not one of them has brought one witness in to deny that anything that we have alleged happened in terms of the substantive sales that we have told you about.
Mr. Noah brought in no witnesses to deny that he participated in the sales. Mr. Stuart brought in no witnesses to deny that he participated in the sales.”

At this point the court interrupted the prosecutor and admonished the jury that the burden of proof was on the prosecution to establish guilt, not on the defendants to prove innocence, and that the defendants had no burden to prove anything. Later the court instructed the jury that the prosecutor’s comments were improper and they should not be considered.

Metcalf contends that the prosecutor’s comments infringed his Fifth Amendment privilege and violated the doctrine of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), and that neither the court’s admonition nor the later instruction rendered the error harmless.

The comments in this case are quite different from a specific comment on the defendant’s failure to take the stand. “[W]here the prosecutor confines himself to arguing the strength of his case by stressing the credibility and lack of contradiction of his witnesses, we will not be astute to find in this a veiled comment on the defendant’s failure to testify even if in practical fact, although not in theory, no one else could controvert them.” United States ex rel. Leak v. Follette, 418 F.2d 1266, 1270 (2nd Cir. 1969), cert. denied 397 U.S. 1050, 90 S.Ct. 1388, 25 L.Ed.2d 665 (1970); accord, United States v. Lepiscopo, 458 F.2d 977 (10th Cir. 1972).

Here the disputed comments were specifically directed to the lack of contradictory witnesses and contained no explicit reference to the failure of the appellants to testify. We do not think that it focused attention on their failure to testify. The trial judge understood the comment to be directed at the weight of the evidence because in his correction he instructed the jury as to the burden of proof, not the Fifth Amendment rights of the appellants.

Even if we found the comment impermissible, it was harmless error. The comment by the prosecutor was brief, composed of only three sentences. The silence of the appellants was not mentioned to the jury. The trial judge immediately interrupted and properly instructed the jury as to the burden of proof. Any impropriety was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972).

HUMPHREY ROSS

I. Insufficiency of the evidence.

On appeal the evidence is viewed in the light most favorable to the government. Glasser, supra; Magana, supra. Ample evidence sustains Ross’s conviction. Although Ross never directly sold any narcotics, there was sufficient evidence that he actively assisted in the completion of two illegal sales. Ross drove Stuart to the place where the sales were completed and there was evidence that Ross supplied Stuart with the heroin used in the sales.

2. Denial of the motion for severance.

Ross moved for a separate trial pursuant to Rule 14, F.R.Crim.P., on the ground that if tried with his co-defendants he would be denied supposedly exculpatory testimony from two of them. The trial judge ruled that Ross failed to show the prejudice required by Rule 14 for a severance. The ruling will not be reversed absent a clear abuse of discretion. United States v. Figueroa-Paz, 468 F.2d 1055 (9th Cir. 1972); Daut v. United States, 405 F.2d 312, 314 (9th Cir. 1968), cert. denied 402 U.S. 945, 91 S.Ct. 1624, 29 L.Ed.2d 114 (1971).

Ross made no affirmative showing that the two co-defendants would be willing to testify for him in a separate trial. When there has been an insufficient showing that a co-defendant would actually testify at a severed trial, the district court has not abused its discretion by refusing to grant a motion to sever. United States v. Thomas, 453 F.2d 141 (9th Cir. 1971), cert. denied 405 U.S. 975, 92 S.Ct. 1195, 31 L.Ed.2d 249 (1972); Fields v. United States, 408 F.2d 885 (5th Cir. 1969).

Ross also asserts that his defense was prejudiced by his joinder with others who had sold narcotics directly to government agents. The burden of proving prejudice is a difficult one, and the ruling of the trial judge will rarely be disturbed on review. United States v. DeSapio, 435 F.2d 272, 280 (2nd Cir. 1970), cert. denied 402 U.S. 999, 91 S.Ct. 2170, 29 L.Ed.2d 166 (1971). Again, we find no abuse of discretion.

3. Prejudicial publicity.

This argument has already been considered and rejected. See part 4 of the Noah opinion, supra.

4. Fifth amendment privilege.

This argument has already been considered and rejected. See part 2 of the Metcalf opinion, supra.

5. Instructions.

Ross asserts that the court erred when it refused to give the jury his requested instruction on conspiracy. There is no requirement that any specific instruction must be accepted. It is, however, reversible error not to instruct as to defendants’ theory of the case if the record contains evidentiary support for the theory and the theory is supported by law. Perkins v. United States, 315 F.2d 120, 124 (9th Cir.), cert. denied 375 U.S. 916, 84 S.Ct. 201, 11 L.Ed.2d 155 (1963).

Ross contends that the instructions given failed to allow for the possibility that Ross might be acquainted with the members of the conspiracy and still not be a co-conspirator because he had no financial stake in the success of the conspiracy. Ross is incorrect in his assumption that each conspirator must have a financial stake in the venture. All that is required is that he not be indifferent to its outcome. United States v. McKnight, 253 F.2d 817 (2nd Cir. 1958).

The instructions actually given state that the defendant must have willfully participated with the intent to advance some object of the conspiracy, and that mere similarity of conduct or association does not establish a conspiracy. These instructions adequately presented defendant’s theory of the case.

6. Peremptory challenge.

During the selection of the jury the government excused the only black member of the jury panel. Ross, a black, contends that this prejudiced his case. Since there is no evidence of any purposeful discrimination, there is no basis for Ross’s objection. Swain, supra 380 U.S. at 221, 85 S.Ct. 824. A criminal defendant has no constitutional right to a proportionate number of his race or ethnic group on the jury that tries him. United States v. Gonzalez, 456 F.2d 1067, 1068 (9th Cir. 1972).

7. Conspiracy conviction.

Ross does not raise this issue, but we note that like Stuart he was also convicted on two conspiracy convictions. As in Stuart’s case we vacate the conviction on the first conspiracy count and order that it be dismissed. Like Stuart this does not affect Ross’s sentence since he also received other similar concurrent sentences. These other convictions are not tainted by the improper conspiracy conviction.

However, in addition to receiving terms of imprisonment, Ross was also fined $7,500 for each of his four convictions. Since one of the convictions is invalid, one $7,500 fine is dismissed.

The judgments of conviction, and sentences of all appellants are affirmed, except that the convictions of Stuart and Ross on the first conspiracy count for violation of 21 U.S.C. § 841(a) are vacated and ordered dismissed, and one of the $7,500 fines levied on Ross is stricken.

      . The original indictment filed on July 2S, 1971 contained 26 counts. A trial was conducted, but because of the prejudicial testimony of a government witness a mistrial was declared. The case was consolidated and 8 substantive counts were dropped by the government before the commencement of the second trial.

      . Two of the sales involved both heroin and cocaine and for these sales there are four instead of two counts. All of the other sales involved only heroin.

      . Two conspiracies were charged instead of one because pending the investigation a new federal narcotics statute went into effect.

      . We note that there is an additional aspect to the problem of the witness’s unavailability. The government helped her leave the jurisdiction since they provided her with a train ticket. The government should not cause a prospective witness to leave the jurisdiction so that he would not be available to testify. In this ease, however, we find nothing improper since there was no evidence of such sinister motivation on the part of the government. The witness departed five months before the trial (three months before the end of the investigation) and it appears that the witness herself wanted to leave so that she could start a new life in another city.

      . We also note that the defense of entrapment is not available to either Noah or Stuart. The rule in this circuit requires that the defendant admit the criminal act before he can successfully assert that he was entrapped. United States v. Azadian, 436 F.2d 81, 83 (9th Cir. 1971). Although this rule has been criticized, it is still the law in this circuit. Moreover, the instant case does not present such an intolerable degree of government participation in the criminal enterprise, to come within the limited exception to the prevailing rule. See United States v. Granger, 475 F.2d 1022 (9th Cir. 1973).

      . The gist of the article was that the witness had refused to testify not because she was sick but because she was afraid she would be harmed if she did testify.

      . In the light of our disposition of the case we need not reach this issue, but we uphold the least severe of the convictions. Brown v. United States, 112 U.S.App.D.C. 57, 299 F.2d 438, 440 (1962).

      . See note 5, supra.

      . Although we have not reached the merits, we note that objections similar to those raised in this case have been rejected by this court. United States v. Ross, 468 F.2d 1213 (9th Cir. 1972); United States v. Ware, 473 F.2d 530 (9th Cir. 1973).

      . 28 U.S.C. § 1867 reads in part:
      (a) In criminal cases, before the voir dire examination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the defendant may move to dismiss the indictment or stay the proceedings against him on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury.
      (e) The procedures prescribed by this section shall be the exclusive means by which a person accused of a Federal Crime, the Attorney General of the United States or a party in a civil ease may challenge any jury on the ground that such jury was not selected in conformity with the provisions of this title.

      . While we think the comment was ill-advised, it was not of such a character that the jury would naturally and necessarily take it to refer to the appellant’s failure to testify. United States v. Hawk Wing, 459 F.2d 428, 430 (8th Cir. 1972).

      . The rejected instruction read:
      “The mere knowledge, approval or acquiescence in the object or purpose of a conspiracy by the defendant is insufficient to convict inasmuch as the accused must in some sense promote the venture himself, make it his own, or have a stake in its outcome, before he is guilty as a ‘conspirator’ and/or ‘abettor’.”


source: Caselaw Access Project

author: FRANK W. WILSON, District Judge. PER CURIAM.

license: Public Domain

text:
    Howard J. CONTE, Petitioner-Appellant, v. Harold J. CARDWELL, Warden Ohio State Penitentiary, Respondent-Appellee.
    No. 71-1745.
    United States Court of Appeals, Sixth Circuit.
    June 29, 1972.
    Rehearing Denied March 2, 1973.
    Richard F. Swope, Thompson, Swope & Burns, Reynoldsburg, Ohio, for petitioner-appellant.
    Leo J. Conway, Asst. Atty. Gen., William J. Brown, Atty. Gen. of Ohio, Columbus, Ohio, for respondent-appellee.
    Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and WILSON, District Judge.

       The Honorable Frank W. Wilson, Chief Judge, United States District Court for the Eastern District of Tennessee sitting by designation.

   FRANK W. WILSON, District Judge.

This is appeal from the order of the District Court denying a state prisoner’s petition for federal habeas corpus relief. The record upon this appeal reflects that the petitioner was convicted upon four counts of participating in two successive prison riots that occurred upon June 24 and August 20, 1968, at the Ohio State Penitentiary. As grounds for seeking federal habeas corpus relief the petitioner contends (1) that the prison riot statute upon which he was convicted was discriminatory in its terms and application, thereby denying him equal protection of the law; (2) that he was denied due process by the refusal of the state trial court (a) to sever the counts in the indictment and grant a trial upon the two June riot counts separate from a trial upon the two August riot counts, (b) to admit evidence of justification or self-defense upon the August riot counts, and (c) to com pel the testimony of witnesses; and (3) that he was denied the effective assistance of counsel.

It is conceded that no issue was raised by the petitioner in the state court with regard to the constitutionality of the Ohio Prison Riot Statute (Section 2921.18, Ohio Revised Code). The petitioner contends, however, that to have raised the issue in the Ohio courts would have been a futile gesture in that the constitutionality of the statute has been upheld in certain unreported cases in the lower appellate courts in that jurisdiction. The existence of such unreported decisions is not sufficient to excuse the petitioner from the obligation of testing the constitutionality of the state statute in the state courts before resort may be had to federal habeas corpus relief. Anderson v. Johnson, 371 F.2d 84 (6th Cir., 1966); Wilson v. Dixon, 256 F.2d 536 (9th Cir., 1958); 28 U.S.C. § 2254.

Regarding the remaining issues, the District Court held an evidentiary hearing at which the transcript of the evidence upon the criminal trial was filed and at which testimony was received from the petitioner and from his state court trial attorney upon the issue of the alleged denial of effective assistance of counsel. Upon the record thus established, the District Court found the petitioner’s federal habeas corpus contentions to be without merit. We affirm.

The record upon the trial reflects that two successive prison riots occurred at the Ohio State Penitentiary during the summer of 1968. The first riot occurred upon June 24 and the second upon August 20 and 21, Extensive property and fire damage was caused in the first riot. Hostages were seized in the second riot and they had to be forcibly rescued before order was restored.

With regard to the June riot the state introduced evidence that shortly after the riot began the petitioner was seen armed with a knife and a club and was observed breaking windows and clubbing furniture in the prison auditorium. Later on that date he was observed urging other prisoners not to return to their cells as ordered. By way of defense, and in addition to denying participation in the riot, evidence was introduced that during the June riot the petitioner had rescued a number of patients and other personnel who were trapped by a fire started in the prison hospital.

With regard to the August riot the evidence was undisputed that the petitioner participated in seizing hostages and in threatening their lives and that he was the spokesman for the prison inmates who were rioting. In defense of his participation in the August riot, the petitioner sought to offer evidence of inmate mistreatment and of general prison conditions and grievances as justification for his participation, but the trial court declined to permit this evidence to be presented to the jury. It is upon this trial record that the petitioner contends that he was denied due process by failure of the trial court to sever the June and August riot counts, by failure of the court to compel testimony and by refusal of the court to admit evidence of justification or “self-defense” as regards the petitioner’s participation in the August riot. It is upon both the state court trial record and the testimony of the petitioner and his attorney at the evidentiary hearing held before the District Court that the petitioner bases his claim of denial of effective assistance of counsel.

The matter of granting separate' trials upon the various counts within the indictment was within the sound discretion of the trial court in the context of this case. The offenses charged in each of the four counts of the indictment were sufficiently related both in time and in character to permit their joinder in the indictment and upon the trial. Allegations of participation by the petitioner in successive prison riots in the same institution separated in time by less then two months are sufficient circumstances to permit their joinder in an indictment and in a trial without violation of due process. See Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509 (1897); Beckett v. United States, 84 F.2d 731 (6th Cir., 1937); Williams v. United States, 115 U.S.App.D.C. 134, 317 F.2d 545 (1963); Bradley v. United States, 140 U.S.App.D.C. 7, 433 F.2d 1113 (1969). See also Rules 8, 13 and 14, Federal Rules of Criminal Procedure. That the joinder of two riots in one trial may have confronted the petitioner with an election as to whether he should testify or exercise his right to refrain from testifying does not constitute a constitutionally impermissible infringement of his right to refrain from self-incrimination. See Kirk v. United States, 457 F.2d 400 (6th Cir., 1972); United States v. Lee, 428 F.2d 917 (6th Cir., 1970). Moreover, .the trial court avoided possible prejudice to the petitioner by permitting him to testify regarding the June riot but to decline to testify regarding the August riot, a privilege the Court was not legally impelled to grant. See Crampton v. Ohio, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971); Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958).

A principal contention advanced by the petitioner is that constitutional error was committed when the trial court declined to admit proffered defense testimony regarding prison conditions and inmate abuses in justification of the offenses charged, and in particular in justification of the August riot counts. There was no error on the part of the trial court in excluding this evidence. Prison abuses, whether real or fancied, form no justification for prison riots. Other lawful remedies exist for correction of such abuses. The petitioner seeks to draw an analogy between the motives prompting his participation in the August riot and the legal defense of self-defense to a charge of assault or homicide. No such analogy exists. See Miller, Criminal Law, pp. 189-224; Prosser, Law of Torts, 4th Ed., pp. 108-117; 40 Am.Jur.2d, “Homicide” § 140.

The petitioner’s contention regarding self-defense or justification being without merit, much of the basis for his other contentions is removed from the case. His contentions regarding both the failure of his counsel to subpoena witnesses and the failure of the Court to compel witnesses to testify appear to relate only to witnesses who were proffered in support of his erroneous contention of justification or who he anticipated might, if called, have supported that contention. The record is devoid of any showing that the petitioner was denied the testimony of any witness who had relevant and admissible testimony. To the extent that the petitioner sought to subpoena some 80 inmates, in addition to the 23 witnesses that were subpoenaed or proffered by his attorney, merely to discover whether they might have information helpful to him, his request was properly denied as an abuse of process.

Finally, the petitioner contends that he was denied the effective assistance of counsel. It is apparent that this contention is in fact largely predicated upon the petitioner’s dissatisfaction with the action of the trial court in refusing to sever counts in the indictment, in refusing to subpoena witnesses for discovery, and in refusing the defense of self-defense, all as noted above. No error having been found in these rulings, they certainly could form no basis for a charge of ineffective assistance of counsel. Upon the record before us we are of the opinion that the District Court properly found no denial of effective assistance of counsel.

The judgment of the District Court is affirmed.

ON PETITION FOR REHEARING

PER CURIAM.

This is an appeal from an order of the District Court denying a state prisoner’s petition for habeas corpus relief. This Court affirmed that decision in a memorandum opinion entered upon June 29, 1972. The case is presently before the Court upon a motion for leave to file an untimely petition for rehearing and a suggestion of rehearing en banc. Two affidavits accompany the motion. In each the affiant states that due to an error by a law student with regard to the date of the opinion, the ninety-day period for petitioning for certiorari to the Supreme Court expired. Having considered the motion and the affidavits filed in support thereof, the Court is of the opinion that the affidavits are insufficient to support a delayed filing of the motion to reconsider.

In denying the said motion to file a petition for rehearing, the Court has carefully reviewed the petition, the authorities cited therein, the bill of exceptions and the entire record made on this appeal.

The single matter now complained of is the failure of the trial court to compel the testimony of Ellie Davis, Jr., and Richard Armstrong, two prison inmates called as witnesses by the defense. A careful reading of the trial record clearly reflects that the testimony of Ellie Davis was proffered in support of the defense that prison conditions justified the riot. The testimony was excluded by the trial judge as irrelevant, and properly so. No error would lie for failure to compel incompetent and irrelevant testimony.

The testimony of the witness Richard Armstrong was likewise proffered in the absence of the jury. While the record does not reflect the purpose for which the testimony was proffered, the record reveals no refusal on the part of the Court to compel the witness to testify. While it is true that the trial court did erroneously instruct the witness when it advised him that he would not be compelled to answer questions that might “incriminate or degrade” him, the witness neither requested nor was he granted this privilege. Rather, he expressed an unwillingness to testify unless given assurance against reprisals by prison staff personnel. At this point the examination of the witness ceased without any ruling by the Court or any request for a ruling by the Court. Reluctance of a witness to testify, when it is acceded to by counsel, does not rise to the level of a judicial failure to compel testimony.

The petition to rehear will be denied for untimely filing.


author: COFFIN, Chief Judge.

text:
    Robbie Mae HATHAWAY, Plaintiff, Appellant, v. WORCESTER CITY HOSPITAL et al., Defendants, Appellees.
    No. 72-1114.
    United States Court of Appeals, First Circuit.
    Heard Jan. 3, 1973.
    Decided March 22, 1973.

      Mel L. Greenberg, Worcester, Mass., with whom Teshoian, Greenberg & Drapos, Worcester, Mass., and Matthew Feinberg, Boston, Mass., were on brief, for appellant.
    Bennett S. Gordon, Asst. City Sol., for appellees.
    Roger P. Stokey and Goodwin, Procter & Hoar, Boston, Mass., on brief for Planned Parenthood League of Massachusetts, amici curiae.
    Before COFFIN, Chief Judge, ALD-RICH and McENTEE, Circuit Judges.
   COFFIN, Chief Judge.

Appellant, who has had twelve pregnancies resulting in eight live offspring, and whose life would be jeopardized by future pregnancies, challenges as unconstitutional the policy of the Worcester City Hospital barring the use of its facilities in connection with any consensual sterilization.

The following facts are established by the record. Appellant, married and 36 years old at the time of the complaint, suffers from high blood pressure and an umbilical hernia which, in addition to the sheer number of past pregnancies, render future pregnancies a risk to her life. Her blood pressure and heavy, irregular menstrual flow render birth control bills, intrauterine devices and other generally reliable contraceptive means either dangerous or ineffective. A therapeutic sterilization has therefore been recommended by her physician. The correctness of this advice is not disputed. In addition, a psychological ÍCite ivealed that “further preglt represent a sufficiently ¡umstance to result in her deterioration.” Finally, husband, who both work, lined yearly income of ap$7500, which is below the federally defined poverty level for a non-farm family of 10. Although they are insured, through her husband’s employment, by Blue Cross and Blue Shield, their policy, while covering the expenses of childbirth, does not cover the expenses of the recommended' tubal ligation.

The hospital is a municipal hospital established pursuant to state law, Mass. Gen.Laws Ann. ch. 40, § 5(20), ch. 266, Mass.Acts of 1953, and city ordinance, ch. 4, § 1, Revised Ordinances of Worcester (1951 ed.), “for the reception of persons requiring relief during temporary sickness.” Being an “acute short term general hospital”, it does not provide indefinite or custodial treatment. The hospital recognizes the right of the appellant, as a resident of Worcester, to in-patient admission for any surgical or other procedure, such as childbirth, which it permits and for the performance of which it has the proper facilities. Although the hospital does not recognize a right of the appellant to have any in-patient procedure done free of its ordinary charges, it would admit her regardless of her financial condition for the performance of any permitted in-patient procedure. The hospital does provide free of charge, through its clinics, both pre-natal and post-partem care for Worcester residents who meet the hospital’s income standards. The cost of a tubal ligation, whether performed in conjunction with a childbirth (in which case it is less expensive, painful, and disruptive of the patient’s life) or separately, is significantly less at the Worcester C|ty Hospital than at nearby private hospitals.

In June, 1970, the Board of Trustees, following reijfeipt of an opinion by the Assistant City Solicitor of Worcester, formally adopted its pre-existing policy barring physicians from utilizing operating room facilities or staff personnel employed in support of those facilities, for the purpose of sterilization. Appellee administrator specifically refused appellant’s request that the hospital permit her doctors to perform a tubal ligation at the time of the delivery of her eighth child in April, 1971. Nor was the operation performed after the delivery, despite apparent further requests. In the interim, the instant suit was filed in the district court, pursuant to 42 U.S.C. § 1983, seeking declaratory and injunctive relief and damages. The district court originally dismissed the complaint against the hospital because it was not a body corporate and thus not a proper party; and against the three named doctors, the chief of the surgical division, who is also president of the Board of Trustees, the chief of obstetrics and the administrator, for failure to state a claim. Uncertain of the state law and finding the record inadequate, we remanded the ease for further findings and certification to the Massachusetts Supreme Judicial Court. After several evidentiary hearings, the district court again dismissed the complaint, this time solely on the ground “that plaintiff’s substantive federal claim under 42 U.S. C. § 1983 is without merit”, after concluding that the state law could not reasonably be construed to require the hospital to perform this type of operation. Hathaway v. Worcester City Hospital, 341 F.Supp. 1385, 1387 (D.Mass.1972). After a further remand to determine other facts, this appeal is now ripe for adjudication.

The Assistant Solicitor’s opinion, on which the hospital’s policy is based, was that the legality of sterilization operations was “highly doubtful”, in the light of Massachusetts statutes concerning birth control assistance, Mass.Gen.Laws Ann. ch. 272, §§ 19, 20, 21 A, and in any event, at least non-therapeutic sterilizations were beyond the hospital’s charter authority. Whatever merit his conclusion as to the illegality of such operations may have had at the time, subsequent authority makes it clear that the Commonwealth no longer has, or could have, such an all-encompassing anti-birth control policy as he took the cited statutes to describe. Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973).

As to the issue of authority, we conclude that the hospital is neither required nor forbidden to perform such operations. Section 2 of chapter 266 of the Mass.Acts of 1953, which re-enacted and modified the provisions of the earlier law establishing the Worcester City Hospital, ch. 339, Mass.Acts of 1871, states:

“The Worcester City Hospital is established for the reception of persons requiring relief during temporary sickness, including paying patients, and of such persons settled in the City of Worcester who by misfortune or poverty may require such relief.”

Section 4 merely provides that the Board of Trustees has the power to make rules and regulations as are deemed expedient and not inconsistent with law. The city ordinance similarly states the hospital’s purpose and the power of the Trustees to ipake rules and regulations. §§ 1, 5, ch. 4, Revised Ordinances of Worcester. The general statute concerning city hospitals, ch. 40 § 5(20), and the specific authorizing statutes for other city hospitals use the identical language in stating the purpose of their establishment.

Neither we nor the parties have found any state interpretation of the key words “relief during temporary sickness” or of the nature of a city hospital’s obligations to perform procedures arguably or indisputably covered by that phrase. By stipulation, however, it appears that at the appellee hospital, “[t]he range of surgical problems and services includes, but may not be limited to” appendectomies, varicose veins, pilonidial cystectomies, hemorrhoidectomies, circumcisions, “andMther less complicated prophylactic surMfal procedures, such as removal of wth stones”. In addition, “the Board of tees has permitted surgeons who spe|HK' in the field of plastic or cosmetiij|PB|;ery to perform certain types of procedures, including but not limited to rhinoplasty, [known colloquially as plastic n<f)se surgery] [and] skin graph's [sic]!” The Assistant Solicitor concedes that many of these procedures do not fall within the narrow reading of “temporary sickness” which he would apply to sterilizations. We also know through evidence that tubal ligations are regularly performed at both Boston and Cambridge City Hospitals, in the former “almost on demand”, both hospitals being subject to the same general authorizing statute.

The differing hospital practices suggest to us the most obvious and reasonable interpretation of the authorizing statutes and ordinance: that the range of services to be provided by the hospital is to be determined by the hospital’s board of trustees, limited only by inconsistent provisions of law and the hospital’s broad general mandate. Thus, for example, we think it clear that the hospital could not, until recent times, have liberally permitted abortions or prescribed contraceptives. Similarly, it could not restrict itself to the indefinite care of mentally retarded children or bar poor residents of Worcester. Yet, within that broad area, the board may set policies commensurate with its budget, facilities, the ability of its staff, its role as an educational hospital for young interns and residents, the needs of the community, and other similar relevant factors.

Probably the most significant factor dictating such an open-ended definition is the anticipation of change in medical science. Freezing the hospital’s services at those common in 1871; f|s the Assistant Solicitor suggested, even those common in 1953 would dátate obsolescence. Moreover, whatever the definition of “sickness” may have been in ear-Her epochs, it now encompasses “ [a] condition or an episode marked by pronounced deviation from the normal healthy state”, Borland’s Illustrated Medical Dictionary, 24th ed., or “a disordered, weakened, or unsound condition”, Webster’s New International Dictionary, 3d ed. Removal of tonsils or an appendix highly susceptible to infection or, as the stipulation describing the appellee’s services notes, “excisions of benign tumors which could cause subsequent neurological problems”, would seem not only required by sound medical practice but consistent with a more expansive reading of “sickness”. The same could be said of termination of appellant’s capacity for childbearing. On the other hand, requiring the performance of every new available procedure which could help remedy anything encompassed by a modern delineation of “sickness”, would impose vast budgetary, administrative and physical re-ordering without regard to community or hospital needs.

We thus do not believe that, in the absence of constitutional considerations, the Massachusetts Supreme Judicial Court would require a city hospital to perform a specific surgical procedure if its general operations were sufficiently broad-based to satisfy the statutory purpose or that it would bar any specific operation absent a clear statutory prohibition, not present here. Although we realize that the state statute might fairly have been interpreted differently by the Massachusetts court, we now believe it imperative not to further delay decision of this controversy which vitally affects the appellant’s very life, Zwickler v. Koota, 389 U.S. 241, 252, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Harman v. Forssenius, 380 U.S. 528, 537, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Baggett v. Bullitt, 377 U.S. 360, 379, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). We therefore decline to exercise our discretionary power to abstain or certify the question. Baggett, 377 U.S. at 375, 84 S.Ct. 1316.

Appellee’s principal present argument is that even if it is not in any way impermissible to perform this procedure, the Trustees are free to decide what they will and will not do. Even under the “rational relationship” test applied in Eisenstadt v. Baird, supra, 405 U.S. at 447, 92 S.Ct. 1029, we might have had difficulty in upholding the policy of a complete ban on sterilizations. For here the evidence shows that tubal ligations involve no greater risk than appendectomies, which the hospital regularly performs, and by inference, than the other listed procedures of like complexity which are also performed. In addition, elective surgery, of unspecified risk, is permitted, though not in any sense therapeutic. No special facilities, equipment or staff are required for a ligation.

But it seems clear, after Roe and Doe, that a fundamental interest is involved, requiring a compelling rationale to justify permitting some hospital surgical procedures and banning another involving no greater risk or demand on staff and facilities. While Roe and Doe dealt with a woman’s decision whether or not to terminate a particular pregnancy, a decision to terminate the possibility of any future pregnancy would seem to embrace all of the factors deemed important by the Court in Roej in finding a fundamental interest, 410 U.S. at 155, 93 S.Ct. 705, but in magJ nified form, particularly so in this casá given the demonstrated danger to appellant’s life and the eight existing children.

The state interests, recognized by Roe as legitimate, are far less compelling in this context. Whatever interest the state might assert in preserving the possibility of future fetuses cannot rival its interest in preserving an actual fetus, which was found sufficiently compelling to outweigh the woman’s interest only at the point of viability. The state maintains of course a significant interest in protecting the health and life of the mother who, as here, cares for others whom the state might otherwise be compelled to provide for. Yet whatever health regulations might be appropriate to vindicate that’ interest, and on the present record we need not decide the issue, it is clear under Roe and Doe that a complete ban on a surgical procedure relating to the fundamental interest in the pregnancy decision is far too broad when other comparable surgical procedures are performed.

Doe is particularly apposite' in this regard. The Court there struck down the Georgia requirements of advance approval of an abortion by a hospital committee of three staff members and the additional concurrence of two doctors other than the patient’s attending physician, primarily on the ground that “We are not cited to any other surgical procedure made subject to committee approval” and “no other voluntary medical or surgical procedure for which Georgia requires confirmation by two other physicians has been cited to us.” 410 U.S. at 199, 93 S.Ct. at 751. Here we are cited to no other surgical procedure which is prohibited outright and are told that other procedures of equal risk are performed and that non-therapeutic procedures are also permitted. Doe therefore requires that we hold the hospital’s unique ban on sterilization operations violative of the Equal Protection Clause of the Fourteenth Amendment.

In so holding, we are not mandating the city or state to maintain this hospital, or to retain its present size, staff or facilities. The hospital is not required to perform all kinds of non-therapeutic or even all therapeutic surgical procedures. We are merely saying, consistent with the Supreme Court’s reasoning in Shapiro with regard to welfare payments, that once the state has undertaken to provide general short-term hospital care, as here, it may not constitutionally draw the line at medically indistinguishable surgical procedures that impinge on fundamental rights. See Klein v. Nassau County Medical Center, 347 F.Supp. 496 (E.D.N.Y.1972), appeals pending, 410 U.S. 922, 93 S.Ct. 1361, 35 L.Ed. 584 (1973) (New York’s refusal of Medicaid assistance for performance of other than “medically indicated” abortions denies equal protection to indigent pregnant women seeking abortions for other reasons).

Accordingly, we reverse and remand for entry of an order declaring the Worcester City Hospital’s policy against the use of its facilities in conjunction with sterilization operations unconstitutional and enjoining the individual appellees from enforcing the policy in the future. Since we are uncertain whether the appellant will press her claim for damages, and since there is no record relating to damages, we intimate presently no views in that regard.

Reversed and remanded for further proceedings consistent with this opinion.

      . Although sterilization of her husband would be an equally effective means of insuring against all future pregnancies, the hospital’s ban applies to sterilization of both males and females. Thus even were such a course recommended or considered, the status of this ease would not change.

      . Although in a strict sense, Roe and Doe could be said only to establish that the sterilization decision may not be made subject to criminal sancmns, fundamental interests are not protected only against affirmative state impositions. Rather, as the many voting, see, e. g., Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965), Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), and welfare cases, see, e. g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), indicate, any infringement of a fundamental interest, including a simple denial of a benefit must be carefully scrutinized.

      . We note that one medical witness testified that a ligation at the time of childbirth would not be considered as “any hazard to the patient”. Moreover, the comparability of risk between an independent ligation and an appendectomy suggest that the restrictions on the former should be no greater than those imposed on the latter. Finally, health regulations would have to account for cases such as the appellant’s in which the operation’s value in preserving life and health might •be said to outweigh the health dangers involved in the operation itself.

      . In the course of discussing the committee requirement, the Court mentioned that the hospital there was in any case protected by a statutory provision leaving it free not to admit a patient for an abortion. The Court, however, promptly .noted that this provision was “obviously” designed to provide protection to “the denominational hospital”. Id., 410 U.S. at 198, 93 S.Ct. 739. The Court’s use of this provision as partial explanation of the invalidity of the committee requirement cannot, of course, be taken as approving a similar ban in a state or state-supported hospital, like the appellee, which is subject to the First and Fourteenth Amendments of the Constitution.

      . Although we fr^sse our holding in equal protection terms, we note that Roe and Doe establish that the samé compelling interest analysis applies when fundamental rights are adjudicated in due process terms.

      . Since we believe that Roe and Doe require that we strike down the hospital policy, we have no occasion to consider the constitutional significance of the fact that this policy’s primary impact is upon the indigent, that the ban is consonant with the views of a certain religious group, or that the general state authorizing statute, as applied in the various municipal hospitals of the Commonwealth, discriminates on the basis of the geographic residence of its citizenry.

      . In its motion to dismiss and here on appeal the hospital claimed that it was not liable because it was not a “person” within the meaning of § 1983, citing Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Since it is clear from the record that the hospital is a department of the city of Worcester, it is not subject to damages. Henschel v. Worcester Police Dept., 445 F.2d 624 (1st Cir. 1971). The circuits are split, however, on whether Monroe also means that municipalities are immune from equitable relief. Compare, e. g., Harkless v. Sweeny Independent School District, 427 F.2d 31 (5th Cir. 1970) with Deane Hill Countr., Club, Inc. v. City of Knoxville, 379 F.2d 321 (6th Cir. 1967). We need not decide this complex issue here since a declaration and injunction against the relevant supervising hospital officials will fully satisfy appellant’s claim.


author: PHILLIPS, Chief Judge.

text:
    Ruth ROBINSON, Plaintiff-Appellant, v. The BOARD OF REGENTS OF EASTERN KENTUCKY UNIVERSITY, a Body Corporate, and Robert R. Martin, President of Eastern Kentucky University, Defendants-Appellees.
    No. 72-1867.
    United States Court of Appeals, Sixth Circuit.
    March 28, 1973.

      Robert Allen Sedler, Lexington, Ky., for plaintiff-appellant.
    Bert T. Combs, Louisville, Ky., for defendants-appellees; Charles R. Simons, Louisville, Ky. (Tarrant, Combs, Blackwell & Bullitt, Louisville, Ky., of counsel), John W, Palmore, Richmond, Ky., on brief.
    Before PHILLIPS, Chief Judge, KENT, Circuit Judge, and McALLISTER, Senior Circuit Judge.
   PHILLIPS, Chief Judge.

This is another case in which this Court is urged to assume the prerogatives of a super Board of Regents and make a decision concerning the internal administrative affairs of a university involving no violation of any constitutional right of any student. This we decline to do.

Like many universities and colleges, Eastern Kentucky University promulgated dormitory hour regulations for women students during the 1971-72 academic year. During their freshman year, women students were required to be in their dormitories by 10:30 p. m. Monday through Thursday. The curfew hour on Friday and Saturday nights was 1 a.'m. and 12:00 midnight was the Sunday curfew.

Beginning with the second year of study, the women students could have the privilege of unrestricted hours with no curfew requiring their presence in their dormitory by a certain hour. Three conditions had to be met, however, to qualify for this privilege: 1) the student was required to have a C average in her academic work and not be on academic or social probation; 2) she was required to pay a $15 fee' per semester; 3) if under 21, the student was required to gain her parents’ written consent to the exercise of self-regulated hours. Those sophomore, junior and ior women failing to qualify for unrestricted hours were required to be in their dormitories by midnight Sunday through Thursday and by 2 a. m. on Friday and Saturday nights. The "regulations were issued by the Board of Regents of the University, an agency of the Commonwealth of Kentucky, K.R.S. § 164.310. These regulations were clearly those of the State.

During the pendency of this action, the University announced new regulations in this area. First semester freshman women, under the new regulations, are required to be in their dormitory by midnight Sunday through Thursday and by 2 a. m. on Friday and Saturday nights. All other women students in the University can have self-regulated hours by paying a $10 fee per semester and gaining permission of their parents if they are under 21. All women who do not have self-regulated hours are subject to the same curfews as the first-semester freshmen. It should be noted that at no” time relevant to this action, either under the ojd or new regulations, have there been any curfew restrictions on male students at; Eastern Kentucky.

Appellant^ class action was filed in the District Court for the Eastern District of Kentucky during the 1971-72 school year when she was a freshman at Eastern Kentucky. She claims that the University, by imposing dormitory hours for women, while granting self-regulated hours to all male students, regardless of age or permission from their parents, has violated her Fourteenth Amendment right to the equal protection of the law. Appellant appeals from the dismissal of her suit by the District Court. We affirm.

Appellant was a sophomore at the University at the time of the District Court’s dismissal of her suit. She claims that even though under the presently applicable dormitory regulations she can, and does, have self-regulated hours with her parents’ permission, the fact that she must get her parents’ permission for unrestricted hours while male students need not get such permission results in a continuing denial of her equal protection rights. In view of our disposition of this case we need not decide this issue.

At the outset, we point out that students, no less than any other citizens of the United States, are protected by the Constitution of the United States. For a general discussion, see Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027 (1969). As the Supreme Court stated, in Tinker v. Des Moines School District, 393 U.S. 503, 506, 89 S.Ct. 733, 736, 21 L.Ed.2d 731 (1969): “It can hardly be argued that either students or teachers shed their constitutional rights ... at the schoolhouse gate.” See also Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972). Although Tinker concentrated on the First Amendment rights of students, we construe it as equally applicable to all constitutional protections. It also is clear that the state, in operating a public system of higher education, cannot condition attendance at one of its schools on the student’s renunciation of his constitutional rights. West Virginia v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961); Knight v. State Board of Education, 200 F.Supp. 174 (M.D.Tenn.1961).

However, the Supreme Court has recognized repeatedly that the campus presents a unique situation which imposes special considerations in the application of Constitutional protections and “judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 270, 21 L.Ed.2d 228 (1968). See also Tinker, supra, 393 U.S. at 507, 89 S.Ct. 733; Bright v. Nunn, 448 F.2d 245 (6th Cir. 1971); Norton v. Discipline Committee of East Tennessee State University, 419 F.2d 195 (6th Cir. 1969).

The equal protection clause does not require identical treatment for all people. The states retain, under the Fourteenth Amendment, the power to treat different classes of persons in different ways. Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Barbier v. Connolly, 113 U.S. 27, 5 S.Ct. 357, 28 L.Ed. 923 (1885). This is a well-established doctrine, dating from soon after the ratification of the Fourteenth Amendment. Courts often have upheld state classifications based on sex. Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961); Schattman v. Texas Employment Commission, 459 F.2d 32 (5th Cir. 1972), cert. denied, - U.S. -, 93 S.Ct. 901, 34 L.Ed.2d 688 (1973); Gruenwald v. Gardner, 390 F.2d 591 (2d Cir.), cert. denied, 393 U.S. 982, 89 S.Ct. 456, 21 L.Ed.2d 445 (1968). Therefore, the appellant has not overcome the presumptive validity of the state regulations involved, McDonald, supra, merely by showing that one set of rules applied to men and another to women students at Eastern Kentucky.

Before addressing the question of whether there has been a deprivation of the right of appellant to equal protection of the law, we must determine which standard of review will be applicable. Two separate and distinct standards of review under the equal protection clause have emerged. The first, which has a much longer history, is the traditional or rational basis test. It requires that a state classification be upheld unless there is' no rational relationship between the classification imposed by the state and the state’s reasonable goals. Under this standard, “[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). See also Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 55 L.Ed. 369 (1911).

The second alternative standard, the compelling state interest test, is relatively recent in formulation and provides a greater burden for the state to meet in justifying a classification in its statutes or regulations. This test, which becomes applicable when a fundamental right of the aggrieved party is at issue or a suspect classification, such as race, is used, requires that to justify the classification, the state must demonstrate a compelling state interest. Fundamental interests which have triggered the application of the compelling state interest test have included the right to vote, Dunn v. Blumstein, 405 U.S. 330, 337, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Evans v. Cornman, 398 U.S. 419, 422, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); the right to interstate travel, Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); the right to procreate, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); and the right to fair treatment in criminal appeals, Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). At least one commentator has observed that the Supreme Court seems to be very reluctant to extend the scope of the so-called “new equal protection” and declined to insert its application into new areas last Term. Gunther, The Supreme Court 1971 Term: Foreword, 86 Harv.L.Rev. 1, 12-13 (1972).

In its most recent case involving discrimination on the basis of sex, the Supreme Court, although striking down the Idaho statute in question, did not apply the compelling state interest standard. Instead, in Reed, supra, 404 U.S. at 76, 92 S.Ct. at 254, the Court carefully framed the issue as “whether a difference in the sex of competing applicants for letters of administration bears a rational relationship to a state objective . . . .” (emphasis added). By the holding, the Court impliedly denied the contention of the appellant in that case that sex is a “suspect classification,” capable of triggering the application of the compelling state interest standard. The most recent case in this circuit concerning discrimination on the basis of sex also imposed the rational relationship test and refused to find that discrimination by sex was a suspect classification. Morris v. Michigan State Board of Education, 472 F.2d 1207 (6th Cir. 1973). Likewise, in this case we can find neither a fundamental right at issue nor_ja. suspect classification being applied. yThe right which is the subject of regulation here is the right to have self-regulated hours without parental permission. This is not fundamental. We reaffirm that classification on the basis of sex is not a suspect classification. "^Therefore, we conclude that the rational relationship or traditional standard of equal protection review is applicable here.

The State’s basic justification for the classification system is that of safety. It asserts that women are more likely to be criminally attacked later at night and are physically less capable of defending themselves than men. It concludes that the safety of women will be protected by having them in their dormitories at certain hours of the night. The goal of safety is a legitimate concern of the Board of Regents and this court cannot say that the regulations in question are not rationally related to the effectuation of this reasonable goal.

The appellant claims that the safety justification is undermined by the shifting curfew for different nights of the week asserting that the streets are no safer at 12:30 a. m. on Saturday than they are at 12:30 a. m. on Wednesday. We hold, however, that the State could properly take into consideration the fact that on weekend nights many coeds have dates and ought to be permitted _tp_.stay out — later than on weekday nights. A" classification having some reasonable basis does not offend the equal protection clause merely because it is not drawn with mathematical nicety. Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Lindsley, supra.

We are mindful of this court’s recent decision in LaFleur v. Cleveland Board of Education, 465 F.2d 1185 (6th Cir. 1972), petition for cert. granted, 41 U.S.L.W. 3565 (April 23, 1973). We conclude that our affirmance of the District Court in the present case is not inconsist with the majority opinion in LaFleur, in which this court held that a rule requiring pregnant teachers to take a 5-month pre-delivery leave was unconstitutionally discriminatory. The core of that opinion was that men, as well as women, are subject to “illnesses and disabilities,” while only pregnant women were required to take leave. The LaFleur regulation was struck down for overbreadth. We do not read LaFleur or any other ease as holding or implying that discrimination based on sex is unconstitutional per se.

We hold that the Board of Regents of Eastern Kentucky, an agency of the Commonwealth, has promulgated a reasonable regulation to promote the legitimate aims of the state.

Affirmed.

      . The District Court found that the $10 fee per semester under the new regulations charged to those women with unrestricted or self-regulated hours is “to defray the cost of security guards and additional monitoring services necessary for those dormitories which remain open all night.” The men’s dormitories on the campus do not have such service. Presumably, the same justification was present for the $15 fee under the original regulations. No contention is made by the appellant that the fee is improper or in any way restrictive of her rights.


author: PER CURIAM: CHAMBERS, Circuit Judge

text:
    Paul J. BORDALLO, Plaintiff-Appellant, v. Carlos G. CAMACHO, Defendant-Appellee.
    No. 72-2259.
    United States Court of Appeals, Ninth Circuit.
    March 9, 1973.
    Howard G. Trapp, of Trapp, Gayle & Co., Agana, Guam, for plaintiff-appellant.
    Vincent T. Perez, Atty. Gen., Richard D. Magee, Deputy Atty. Gen., William S. Amsbarg, Asst. Atty. Gen., Agana, Guam; Stuart R. Foutz, San Bruno, Cal., John Peter Saul, San Francisco, Cal., for defendant-appellee.

      Kent Frizzell, Asst. Atty. Gen., Jacques B. Gelin, Henry J. Bourguinon, Attys., Dept, of Justice, Washington, D. C., amicus curiae.
    Before CHAMBERS, ELY and WALLACE, Circuit Judges.
   PER CURIAM:

On behalf of the Government of Guam, Governor Carlos G. Camacho executed a land exchange agreement with the United States of America on April 26, 1972. It called for the exchange of Guamanian public land in the area of Sella Bay for certain land on Guam owned by the United States. Paul Bordallo, a Guam senator, taxpayer and owner of land in the vicinity of Sella Bay, sued to enjoin the exchange until approval by the Guam legislature. The trial court denied the request for preliminary and permanent injunctions and dismissed the action. We reverse.

The land in question was transferred by the United States to Guam in 1952. The transfer document stipulated:

[I]f the Government of Guam, without the prior approval of the Secretary of the Interior, sells, leases or otherwise disposes of said lands . . . title to such . land shall automatically revert to the

United States. (Emphasis added.) The Governor contended, and the district judge agreed, that the legislature cannot restrict the Governor in making his proposal to the Secretary of the Interior and disposing of the land. This overlooks the fact that the Guam legislature is a part of the “government of Guam,” Organic Act of 1950, 48 U.S.C. § 1421a, and as such can put appropriate conditions on any request to the Secretary of the Interior which the law allows.

Clearly, the Organic Act allows the legislature to act in reference to this land so long as it does not do so inconsistently with acts of Congress. In response to this mandate, the legislature has passed two statutes which require interpretation. In 1953, Guam Government Code § 13524 was adopted; it provides in part:

[T]he Governor of Guam may transfer, with the recommendation of the Land Transfer Board, any interest in the land of the government of Guam which he deems necessary for the functions of the United States of America .... (Emphasis added.)

In 1970, Guam Government Code § 13525(c) was adopted:

Whenever lands owned by the United States of America are required by the government of Guam for a program or project specifically authorized by law, the Director of Land Management, with the approval of the Governor and the concurrence of the Legislature by resolution, may exchange such lands with lands owned by the government of Guam and cash as to equalize respective values of such properties. (Emphasis added.)

The only logical interpretation is that the legislature intended in 1970 to carve out of the general transfer authorization granted to the governor in 1953 those land exchanges specified in § 13525(c).

This proposed exchange falls within the ambit of § 13525(c). Evidence indicated that the lands to be exchanged by the United States were required by Guam for a program or project authorized by law. Therefore, § 13525(c) applies, and the exchange must be made by the Director of Land Management subsequent to the approval of the Governor and the concurrence of Guam’s legislature.

This matter is reversed and remanded to the district court for further proceedings consistent with this opinion.

CHAMBERS, Circuit Judge

(concurring) :

I concur in the decision. However, I read Section 13525(c) of the Guam Government Code as requiring the concurrence of the Legislature only when the Government of Guam initiates a land exchange and not, as here, where the impetus came from the United States. To some degree I think my view is confirmed by the Guam Legislature’s action in 1972 in amending § 13524. (Guam Public Law 11-213 (1972)).

      . We do not deem the United States to he an indispensable party to this litigation. Indeed, the amicus curiae brief filed by the United States in reponse to our request states at page 3:
      The Navy considers the present disagree-Legislature of Guam concerning the aument between the Governor and the thority to transfer these lands, to be a question internal to the affairs of Guam in which the United States should not intervene.

      . Transfer of Land to the Government of Guam, Department of Land Management Document No. 25219.

      . 48 U.S.O. § 1421f provides in part:
      (a) The title to all property, real and personal, owned by the United States and employed by the naval government of Guam in the administration of the civil affairs of the inhabitants of Guam, including automotive and other equipment, tools and machinery, water and sewerage facilities, bus lines and other utilities, hospitals, schools, and other builldings, shall he transferred to the government of Guam within ninety days after August 1, 1950.
      (b) All other property, real and personal, owned by the United States in Guam, not reserved by the President of the United States within ninety days after August 1, 1950, is placed under the control of the government of Guam, to he administered for the benefit of the people of Guam, and the legislature shall have authority, subject to such limitations as may be imposed upon its acts by this chapter or subsequent Act of the Congress, to legislate with respéot to such property, real and personal, in such manner as it may deem desirable. (Emphasis added.)

      . § 13524 was amended in 1972 to read as follows:
      Section 13524. United States agencies. Upon receipt of a request from an authorized representative of an agency of the government of the United States of America, the Governor of Guam may transfer, with the recommendation of the Land Transfer Board, and with the concurrence of the Guam Legislature by a resolution duly adopted by a majority of its members, any interest in land of the government of Guam which he deems necessary for the function of the United States of America and its agency. (Emphasis added.) Guam Pub.L.No.11-213, § 1 (Dec. 29, 1972).

      . The district judge made the following findings:
      [T]hat the Government of Guam also has need for certain land and interests in land owned by the United States in Guam.
      In consideration of the agreement by the Government of Guam to convey lands and interests in land in the Sella Bay area to the United States, the United States will execute a Joint Use Agreement for the use of certain facilities at the United States Naval Air Station, Agana, Guam, and a lease of certain non-excess lands in the Masso Reservoir area.
      The United States of America and the Government of Guam under the Agreement have also agreed to enter into a joint use conservation plan for the Susa River area, including public use consistent therewith. The United States of America has also agreed to relinquish control to the Government of Guam of the Island-Wide Power System, a successful commercial operation.
      Included in the Joint Use Agreement executed between the United States of America and the Government of Guam is the use of certain facilities at the United States Naval Air Station which are necessary to the efficient and safe operation of the Guam International Airport. The airport terminal and other facilities connected therewith are owned by the Government of Guam, but its operation must comply with certain basic standards necessary for efficiency and safety. The Federal Aviation Administration is charged by law for seeing that basic standards are complied with. The Guam International Airport is within the cognizance of the Federal Aviation Administration. At the request of the Government of Guam, the Honolulu Regional Office of the Federal Aviation Administration has undertaken studies, inspection and examination of the existing facilities at the Guam International Airport for the purpose of enabling Guam to be eligible for a grant from the United States, i. e., federal grant for airport facilities.
      As a result of the studies, it is discovered that the apron and ramp areas utilized by commercial airlines are in very bad shape, fast approaching the unsafe standard, thus necessitating a daily inspection by the local agency of the Federal Aviation Administration.
      By virtue of the Joint Use Agreement, the Government of Guam has obtained from the United States of America the necessary facilities and area space required to make Guam eligible under the federal airport grant. The immediate effect is that a little over one million dollars of federal grant on a matching basis is now available to Guam to develop the existing facilities at the Guam International Airport to meet the basic needs and standards of a sound and safe airport operation.
      The Guam International Airport is the only access to Guam via commercial aircraft. It is the main traffic channel of tourists coming to Guam.


author: McENTEE’, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. George F. CABRAL, Defendant, Appellant.
    No. 72-1336.
    United States Court of Appeals, First Circuit.
    Heard Jan. 3, 1973.
    Decided March 23, 1973.

      Wayne P. Libhart, Brewer, Me., by appointment of the Court, with whom Joseph L. Ferris and Libhart & Ferris, Brewer, Me., were on brief, for appellant.
    John B. Wlodkowski, Asst. U. S. Atty., with whom Peter Mills, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, ALD-RICH and McENTEE, Circuit Judges.
   McENTEE’, Circuit Judge.

After trial by jury appellant, George F. Cabral, was convicted on a one count indictment for possession of a firearm which was not identified by a serial number in violation of 26 U.S.C. § 5861 (i) (1970). On appeal he urges that this conviction may not stand because he was denied a speedy trial and also because of an alleged deficiency in the government’s proof. For the reasons set forth below, we find appellant’s contentions to be without merit and affirm the conviction.

In order to evaluate appellant's speedy trial claim the underlying facts must be set forth in some detail. On October 4, 1970, State Police Sergeant Graves and Deputy Sheriff Goggin drove to a cabin located in a remote section of the Schoodic Lake region of Brownville, Maine, to investigate a report that parts from a stolen vehicle were being sold there. When the officers, who were dressed in plain-clothes and were driving an unmarked car, arrived at the camp, they approached appellant and one Martin Chase and asked them if they had any mag wheels for sale. After showing the officers some automobile parts inside the cabin, appellant said that he had some additional ones stored in the woods behind the camp. Before leaving the cabin, however, he pulled out the firearm in question, a shotgun which had both the barrel and butt sawed off, and announced that he was taking it along just “to keep things honest.”

The foursome then proceeded down a woods road which ran alongside the camp. About seventy-five yards down the road a Chevrolet Corvette came into view. Before they reached the car, however, Sergeant Graves ordered appellant to freeze, identified himself as a police officer, and, after a brief struggle, placed him under arrest. When appellant asked why he had been arrested, Graves said for possession of the sawed-off shotgun “as openers.” After the officers checked the engine number on the Corvette, they arrested appellant and Chase for possession of stolen property.

Thereafter appellant was transported to a local jail and eventually he was arraigned in state court on a charge of grand larceny. Approximately one month later he was transferred to a Connecticut state prison where he was held for past parole violations. In the meantime, on October 7, 1970, the weapon in question was turned over to federal authorities. On January 18, 1972, some fifteen months later, appellant was indicted for possession of this weapon and in February 1972 a detainer warrant was served on prison officials in Connecticut. After being released on April 15, 1972, appellant was arraigned in Maine on this charge on May 3 and on May 18, through counsel, he moved to dismiss the indictment pursuant to Rule 48(b), Fed.R.Crim.P., on the basis of the pre-indictment delay. This motion was denied and in September trial and conviction followed.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court considered the sixth amendment speedy trial guarantee and refused to adopt an inflexible standard when dealing with claims based upon this provision. Rather, the Court mandated the use of an ad hoe balancing test in which the length of delay, the reason for the delay, the accused’s assertion of his right, and the prejudice to the accused resulting from the delay, along with other relevant circumstances, were to be taken into consideration in analyzing speedy trial claims. No single factor was to be regarded “as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial .... [T]hese factors have no talismanic qualities; courts must . . . engage in a difficult and sensitive balancing process. [Footnote omitted.]” Id. at 533, 92 S.Ct. at 2193.

In applying this standard in the instant case, the first question which must necessarily be faced' is the extent of the delay. As appellant points out, fifteen months elapsed between his arrest and the return of the indictment and an additional eight months passed between indictment and trial. The government contends, however, that the fifteen month period should not be counted since the arrest for possession of the shotgun was a mere “temporary device” used to restrain appellant until the Corvette’s engine number could be checked and he could be arrested for possession of stolen property. This argument is not persuasive.

In United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), the Court held:

“it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.” Id. at 320, 92 S.Ct. at 463.

In the instant case the testimony of Sergeant Graves unequivocally demonstrates that he arrested appellant for possession of the illegal firearm. The government’s prosecution of this charge was initiated only three days later when, on October 7, 1970, state authorities turned over this weapon to a federal officer. Under these circumstances, regardless of the almost simultaneous arrest for possession of stolen goods, it is clear that appellant’s right to a speedy trial crystallized at the time of his initial arrest. On the other hand, appellant’s attempt to include the eight month period which passed between the return of the indictment and the time of his trial as a part of the claimed delay is equally impermissible. As the pretrial memorandum and the September 7, 1972, motion which he filed indicate, the basis for his attack on the indictment in the district court was that “there was unnecessary delay in presenting the charge against [him] to the grand jury from the time of the arrest ... to the return of the bill.” When appellant’s initial motion to this effect was presented at the pretrial hearing in May 1972, he made no demand for an immediate trial and did not object to having his case continued until September. Under these circumstances, appellant may not complain about any post-indictment delay. His claim is thus limited to the fifteen month period which passed between the time of his arrest and the return of the indictment.

Turning next to the reasons for this delay, we note initially that since we consider only pre-indictment delay this is obviously not a case in which some portion of the delay may be attributed to appellant either as the result of difficulties he had .in managing his defense or because he purposely chose to employ a dilatory tactic in meeting this charge. See United States v. Daley, 454 F.2d 505, 508-509 (1st Cir. 1972). On the other hand, as appellant recognizes, there is no evidence which indicates that the prosecution acted in any improper manner in order to hamper the preparation of his defense. In the absence of any plausible explanation by the government for its sloth in obtaining this indictment, however, we conclude that this delay probably resulted from neglect. Delays of this sort, like those caused by over-crowded courts, although “more neutral” than intentional delays, are, of course, still viewed with disfavor. Barker, supra, 407 U.S. at 531, 92 S.Ct. 2182. Cf. Uviller, Barker v. Wingo: Speedy Trial Gets A Fast Shuffle, 72 Colum.L.Rev. 1376, 1386-87 (1972).

With regard to appellant’s obligation to assert his right, it is undisputed that he did not waive his claim as to the pre-indictment delay by his failure to move for the dismissal of the indictment until May 1972. Until he was indicted, he could not have known with certainty that he was going to be prosecuted for this offense. Thereafter, as soon as he had been released from prison, he retained counsel and, having been apprised of the possibility of a speedy trial defense, moved to quash the indictment on that basis. In so doing, appellant acted with sufficient haste to preclude the possibility of waiver. See United States v. Butler, 426 F.2d 1275, 1278 (1st Cir. 1968).

A fourth factor to consider is the extent to which appellant has been prejudiced by this delay. In evaluating this indicium, reference must be made to the purposes which underlie the speedy trial provision which the Court in Barker, supra, 407 U.S. at 532, 92 S.Ct. at 2193 identified as the following: “(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. [Footnote omitted.]” In Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), the Court fleshed out the meaning of these factors as they apply to individuals who are incarcerated in one jurisdiction while charges are pending against them in another. With regard to factor (i), the Court noted that prejudice might result from the loss of the possibility of receiving “a sentence at least partially concurrent with the one [being served.]” In addition, the pendency of another charge might also cause an increase in the duration of the present imprisonment and a worsening of the conditions under which that sentence must be served. Id. at 378, 89 S.Ct. at 577. As to factor (ii), the Court recognized that a pending charge “can have fully as depressive an effect upon a prisoner as upon a person who is at large.” Id. at 379, 89 S.Ct. at 577. Finally, as to factor (iii), the difficulties one faces in preparing his defense are obvious. “Confined in a prison, perhaps far from the place where the offense covered by the outstanding charge allegedly took place, [one’s] ability to confer with potential defense witnesses, or even to keep track of their whereabouts, is obviously impaired.” Id. at 379-380, 89 S.Ct. at 578. When appellant’s claim is analyzed under these criteria, however, he fares none too well.

In the first place, with regard to the possibility that this charge increased the duration or exacerbated the conditions of appellant’s prison stay, we note that here the detainer was not served on Connecticut prison officials until sometime after February 3, 1972, no more than two months before appellant was released. Given this circumstance, as well as the fact that appellant has not alleged that he suffered any privation in this regard, we may assume that the effects of this charge on the term and conditions of his imprisonment were minimal. Much the same may be said for any “anxiety or concern” which he may have suffered. Again he has not alleged nor is there any evidence in the record which indicates that he suffered any anxiety or public embarrassment as a result of this charge. As we observed in Daley, supra, 454 F.2d at 509,

“While at least some such adverse effects would appear inherent in every trial delay, where . . . there has been no allegation or evidence of any inconvenience, public embarrassment, or manifestation of prejudice the overall adverse effect can be assumed to be insubstantial.”

Further, this has not been a case where pretrial delay has impaired the ability of the accused to defend himself. Appellant has not alleged that the delay in question caused him to lose contact with any potential defense witnesses. Also, unlike Butler, supra, the prosecution’s ease did not rest upon the testimony of, lay eyewitnesses “which necessarily [becomes] less reliable with the passage of t time.” Id. 426 F.2d at 1277. The only witnesses who testified at trial were either state or federal officers and the underlying factual situation was both simple and straightforward. Finally, appellant’s sole allegation of prejudice, that he lost a possible opportunity of receiving a sentence which would run concurrently with the term he was serving in Connecticut, is highly speculative and falls far short of a demonstration of actual prejudice. See McCrory v. Cook, 329 F.Supp. 83, 89 (N.D.Miss.1971), aff’d, 454 F.2d 1173 (5th Cir. 1972). The court in the instant case could have suspended sentence if it deemed appellant to have already served enough time. While such a decision is conceivably less likely than making a sentence concurrent with the one already being served, this possibility of prejudice alone cannot weigh heavily in the scales.

In balancing all of the factors discussed above in this ease, we conclude that the trial court did not err in denying appellant’s motion to quash the indictment. We are seriously disturbed by the government’s delay in obtaining this indictment but, in the absence of a demonstration of any actual prejudice, we do not feel that the encroachment upon appellant’s right to a speedy trial has been so egregious as to warrant the exercise^ of “the severe remedy of dismissal.”^ Barker, supra, 407 U.S. at 522, 92 S.Ct. 2182. Our holding to this effect, however, should not be taken as an indication of any willingness on our part to condone delays of this sort. Were it not for the minuscule quantum of prejudice which we find in the instant record, our result might well be to the contrary.

Appellant’s additional argument that the government was required, under the indictment, to prove that the weapon in issue was a sawed-off shotgun “intended to be fired from the shoulder” merits little discussion. The short answer to this contention is that Title 26 of the United States Code, under which he was indicted, does not contain any definition of “sawed-off shotgun,” let alone a definition which would require that such a weapon be designed to be fired in a particular manner. 26 U.S.C. § 5845(d), which defines “shotgun,” does contain a provision that such weapons, as originally manufactured, must be designed to be fired from the shoulder and it is undisputed that the firearm which was taken from appellant fell within this definition before it was altered. Subsection (a) (2) of the same provision defines the word “firearm” as used in the indictment as follows: “a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length.” Since appellant concedes that the weapon in question falls within this definition, the frivolity of his argument on this issue is clear.

Affirmed.

      . Sometime after this transfer the grand larceny charge against appellant was dismissed.

      . The government’s attempt to explain the pre-indictment delay fell short when the Assistant United States Attorney, in explaining that there was no grand jury sitting in the Northern Division of Maine from April 1971 to January 1972, admitted that an indictment could have been obtained from the grand jury sitting in Portland during this period.

      . Cf. 18 U.S.C. § 921(a)(6), which provides :
      “The term ‘short-barreled shotgun’ means a shotgun having one or more barrels less than eighteen inches in length and any weapon made from a shotgun (whether by alteration, modification, or otherwise) if such a weapon as modified has an overall length of less than twenty-six inches.”