author: PER CURIAM:

text:
    Joe FRANK, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 74-2130
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 30, 1974.

      Joe Frank, pro se.
    Gerald J. Gallinghouse, U. S. Atty., Mary Williams Cazalas, Asst. U. S. Atty., New Orleans, La., for respondent-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   PER CURIAM:

Following his plea of guilty and receipt of a six year prison term for possessing heroin with the intent to distribute, appellant Frank filed a post-conviction motion in the district court pursuant to 28 U.S.C. § 2255 (1970). Frank alleged in his motion and supporting affidavit that the guilty plea had resulted from promises made by his attorney to Frank and members of his family that a bargain would be struck with the judge and prosecutor for a prison term of only two years. Frank further alleged tliat his attorney’s instructions were to “remain quiet about this at trial.” The district court denied the motion without a hearing after referring Frank’s papers to a magistrate for scrutiny in light of the plea transcript. We affirm/

In Bryan v. United States, 492 F.2d 775 (5th Cir. 1974), this court dealt en band with the problem of determining when a federal prisoner should be ''afforded an evidentiary hearing in order to collaterally attack his guilty plea on the basis of alleged promises or inducements. Although we observed that “[n]o guilty plea which has been induced by an unkept plea bargain can be permitted to stand,” 492 F.2d at 778, we likewise recognized that Section 2255 authorizes the district court to refuse an evidentiary hearing when “the files and records of the case conclusively show that the prisoner is entitled to no relief” upon his allegations. We noted that a highly relevant subject of inquiry is the plea transcript itself. 492 F.2d at 780.

In this case, as in Bryan, the district court conducted a scrupulous' hearing under Rule 11, Federal Rules of Criminal Procedure, at the time of plea entry. The court asked Frank specifically whether anyone had made him any promises concerning the sentence that might be imposed. Frank, like Bryan, “testified without conflict or equivocation that no plea bargain had been made or promised, directly or indirectly.” 492 F.2d at 780. We find this factor controlling in this appeal, and leave to other cases the determination of prisoner motions in the face of records silent on plea bargaining or indicative of specific motives to disclaim plea bargaining.

Affirmed.

      . 21 U.S.C. § 841(a)(1) (1970). Frank received the mandatory 3-year special parole, 21 U.S.C. § 841(b)(1)(A) (1970), along with his prison terna.

      . Frank supplemented his allegation of an unkept plea bargain with a charge that his attorney’s conduct constituted a denial of the Sixth Amendment right to effective counsel.

      . THE COURT: Are you acting voluntarily in this matter? Are you doing this on your own volition, without any pressure or inducement from any person; you are pleading guilty voluntarily?
      A: Yes, sir.
      THE COURT: And do you understand the penalty that I may impose?
      A: Yes, sir.
      THE COURT: Are you positive you understand the penalty that I may impose upon you now that you have pleaded guilty?
      A: Yes, sir.
      THE COURT: Are you pleading guilty in this case because you are, in fact, guilty?
      A: Yes, sir.
      THE COURT: Do you understand that if you don’t plead guilty you are entitled to a speedy trial by a jury?
      A: Yes, sir.

        THE COURT: You understand you can have witnesses called on your own behalf?
      A: Yes, sir.
      THE COURT: Have any threats or promises been made to induce you to plead guilty in this case?
      A: No, sir.
      THE COURT: Do you think there is some kind of understanding with anyone as to what kind of sentence I may impose upon you in this case?
      A: Will you repeat that, your Honor?
      THE COURT: Has anyone told you or suggested to you any type of penalty which I may impose in this case? Have they made you any promises ?
      A: No, sir.
      THE COURT: That is about what kind of penalty I may impose?
      A: No, sir.
      * * * * *
      Transcript of Proceedings at 7-8.

      . Cf. Hilliard v. Beto, 465 F.2d 829 (1972), en banc dissolved and panel opinion vacated, 494 F.2d 35 (5th Cir. 1974).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Captain Milbert MINDES, Plaintiff-Appellant, v. Dr. Robert SEAMAN, Secretary of the Air Force, et al., Defendants-Appellees.
    No. 73-3947
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 20, 1974.

      Charles M. Holcomb, Cocoa, Fla., William A. Jacob, Orlando, Fla., for plaintiff-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Harrison T. Slaughter, Jr., Jeffry R. Jontz, Asst. U. S. Attys., Orlando, Fla., William Kanter, Judith H. Norris, Attys., Dept, of Justice, Washington, D. C., for defendants-appellees.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

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

   PER CURIAM.

Captain Mindes sought correction of his military records, 10 U.S.C. §§ 1552, 1553, after he was twice passed over for promotion to Air Force major and was thus subject to mandatory release from active duty. On remand from this Court, Mindes v. Seaman, 5 Cir., 1971, 453 F.2d 197, the district court denied relief. We affirm.

Appellant failed to show that his not being selected for promotion was due solely to information contained about him in an Officer Effectiveness Report or that this report was factually erroneous. Absent proof of such error, ratings and promotion decisions are peculiarly within the discretion of military authority. Cf. Mindes v. Seaman, supra, at 201.

Appellant’s allegation of denial of equal protection also fails since there was no showing of discrimination in the promotion regulations at issue or in their application.

Finally, there is no merit to Mindes’ claim that he was denied due process of law because the Correction Board did not grant him a hearing and did not issue written findings of fact. Mindes specifically waived appearance at the hearing, and written findings are not required when appearance has been waived.

Affirmed.


text:
    B. B. ADAMS GENERAL CONTRACTORS, INC., Plaintiff-Appellee, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al., Defendants-Appellants, v. James A. PATE, Defendant-Appellant, Modern American Mortgage Corporation, Defendant-Appellee.
    No. 73-2706.
    United States Court of Appeals, Fifth Circuit.
    Sept. 20, 1974.

      Dale Wootton, Dallas, Tex., for James A. Pate.
    Frank D. McCown, U. S. Atty., Fort Worth, Tex., Roger J. Allen, Asst. U. S. Atty., Dallas, Tex., Robert E. Kopp, Barbara L. Herwig, Dept, of Justice, Washington, D. C., for HUD.
    J. P. Jones, Harry M. Roberts, Dallas, Tex., for Modern Am. Mortgage.
    Paul M. Thorp, Dallas, Tex., for B. B. Adams Contr.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   PER CURIAM:

Adams, a general contracting firm, brought this action on claims arising from its work in constructing the Penzance Hamlet Apartments in Dallas, Texas. Adams named as defendants the owner of the apartments, Col. James A. Pate; the lender, Modern American Mortgage Corporation; and the insurer of the loan, the Department of Housing and Urban Development (HUD), together with Manuel Sanchez, HUD’s Dallas Area Director. All parties moved for summary judgment. The district court overruled the motions of Pate, HUD and Sanchez, granted the motion filed by Modern American, and granted in part the motion filed by Adams. Pate, HUD and Sanchez appeal. We dismiss the appeal for want of jurisdiction.

The order on the motions for summary judgment did not dispose of Adams’ claim against Pate for extra work. Thus it adjudicated fewer than all of the claims of all of the parties, and it is not a final, appealable order under Rule 54(b) in the absence of an express determination that there is no just reason for delay and an express direction for the entry of judgment. The record reveals that Pate moved for certification under Rule 54(b) on the same day he filed notice of appeal. The district court, however, never ruled on the motion nor did it file the required certificate. In its absence we have no jurisdiction to entertain this appeal, a fact that we are required to notice on our own initiative even though none of the parties argues it. We therefore dismiss the appeal for lack of jurisdiction. General Motors Corp., Inc. v. Dade Bonded Warehouse, Inc., 5 Cir. 1974, 498 F.2d 327; Anderson v. Robinson, 5 Cir. 1974, 494 F.2d 45; Foret v. McDermott, 5 Cir. 1973, 484 F.2d 992; 10 C. Wright 6 A. Miller, Federal Practice and Procedure: Civil § 2660.

Since this case must be remanded to the district court, we note that there appears to be a serious question regarding the existence of jurisdiction over the subject matter of this suit. Defendants HUD and Sanchez argued below and renewed the argument in their appellate brief that there was no jurisdiction as to them under any of the three jurisdictional statutes cited by Adams. They argue that 28 U.S.C.A. § 1331 cannot confer jurisdiction since Adams’ rights arise from contracts rather than from the Constitution, laws, or treaties of the United States. They also argue that 28 U.S.C.A. § 1346, which grants jurisdiction over suits on express and implied contracts with the United States, is inapplicable because it allows only suits for damages, whereas Adams seeks only declaratory and injunctive relief against HUD and Sanchez. Finally, they argue with much case support that HUD owed no duty whatsoever to either Adams or Pate under its insurance contract with Modern American, so there is no ministerial duty which can be enforced by mandamus under 28 U.S.C.A. § 1361. Furthermore they allege that the functions at issue are discretionary rather than ministerial and therefore are not properly subject to mandamus in any event.

While we cannot decide these questions, since we have no jurisdiction over this appeal, we do observe that the arguments raised appear to be forceful and seem to have considerable case support. The district court’s order merely announces the conclusion that “the Court . . is of the opinion and finds that this Court has jurisdiction of all parties and causes of action asserted herein,” without explaining the reasoning underlying that conclusion. On remand the district court should consider explicitly the jurisdictional issues and state specifically on the record its conclusions so as to make meaningful appellate review possible. We note the possibility that, if HUD and Sanchez are correct in saying that none of the cited statutes supports federal jurisdiction as to them, there may be no federal jurisdiction over any of the claims in this suit at all, since all the other claims seem to arise strictly ex contractu, and the three statutes they attack are the only ones cited to support jurisdiction over any of the claims before the court.

Upon remand the district court should first consider the jurisdictional issues. If it finds jurisdiction, then it should consider whether to rule on Adams’ claim for extra work and enter a judgment finally adjudicating all of the claims of all of the parties. If it does so, a fresh appeal, if desired, could be prosecuted from that final judgment. If the court decides against this course, it should then consider whether or not to grant Pate’s motion for certification under Rule 54(b). Should the district court decide to enter a final judgment on the existing order and issue the Rule 54(b) certificate, the appeal from that judgment may be submitted on the record and briefs prepared for this appeal, supplemented by the new judgment and certificate and the court’s decision on the jurisdictional issues, and on the oral arguments heretofore heard.

Dismissed.

      . Indeed, it may be that there is no jurisdiction over the claims against Pate and Modern American even if there is jurisdiction as to HUD and Sanchez. See 3A Moore’s Federal Practice jf 18.07 [l.-l] (“ [I] f A has a cause of action against X, and there is a federal basis to support this claim, and he joins with it a separate cause of action against Y, and there is no federal basis for the latter claim, then it must be dismissed in the absence of diversity or alienage.”) ; O. Wright, Daw of Federal Courts § 19 (“The pendant jurisdiction concept applies only where the same parties are involved on the state and federal claims. It does not permit bringing in an additional party to respond to a state claim on the ground that that claim is closely related to the federal claim against an existing party.”).


text:
    Karen MARGETTA, Appellant, v. PAM PAM CORPORATION, Appellee.
    No. 73-1720.
    United States Court of Appeals, Ninth Circuit.
    July 25, 1974.
    John C. Cook (argued), San Francisco, Cal., for appellant.
    M. Armón Cooper (argued), Ruben-stein & Hawkins, San Francisco, Cal., for appellee.
    Before KILKENNY and WALLACE, Circuit Judges, and SOLOMON, District Judge.

       The Honorable Gus J. Solomon, Senior District Judge, United States District Court for the District of Oregon, sitting by designation.

   PER CURIAM:

Upon being discharged from her job by Pam Pam, appellant filed a grievance against her union, claiming that the discharge was without sufficient cause and in violation of the Collective Bargaining Agreement between the union and Golden Gate Restaurant Association, of which Pam Pam is a member. Pursuant to the terms of the Agreement, the grievance was submitted to arbitration. After a hearing, the arbitrator made a final award against appellant.

Utilizing the provisions of § 301 of the Labor Management Relations Act [29 U.S.C. § 185], appellant filed a complaint alleging Pam Pam had wrongfully discharged her and that the unions had breached their duty to “ . . . properly and adequately represent plaintiff and acted in bad faith and with dishonesty of purpose in presenting plaintiff’s case to the . . . arbitrator . ” and that in so doing, the unions “ . . . violated their statutory duty to fairly represent plaintiff.” She charged that as a direct result of the unions’ “ . . . arbitrary, discriminatory and perfunctory representation, plaintiff lost the arbitration case.”

Relying upon the arbitrator’s final decision, Pam Pam moved to dismiss for failure to state a claim. The district court granted the motion. Margetta v. Pam Pam Corp., 354 F.Supp. 158 (N.D.Cal.1973). Hence, this appeal.

We have said that an employee may not attack a final arbitration decision, “ . . . except on the grounds of fraud, deceit or breach of the duty of fair representation unless the grievance was a ‘sham, substantially inadequate or substantially unavailable.’ ” Andrus v. Convoy Co., 480 F.2d 604, 606 (CA9 1973) [Emphasis supplied], quoting from Harris v. Chemical Leaman Tank Lines, Inc., 437 F.2d 167, 171 (CA5 1971). Without doubt, the circumstances outlined in appellant’s complaint fall within these narrowly drawn exceptions. Consequently, the district court had jurisdiction to review the merits of the wrongful discharge claim. Steinman v. Spector Freight System, Inc., 441 F.2d 599, 603 (CA2 1971).

Although Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), involved a state court action against the union alone, rather than a § 301 action against the union and the employer, and even though the arbitration there involved was not prosecuted to a final award, nonetheless, Justice White’s in-depth discussion of an employee’s rights, in circumstances such as these, must be given persuasive consideration. To us, it makes little difference whether the union subverts the arbitration process by refusing to proceed as in Vaca or follows the arbitration trail to the end, but in so doing subverts the arbitration process by failing to fairly represent the employee. In neither case, does the employee receive fair representation. The grievance procedure is nothing less than a “sham”.

A similar problem was involved in Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 11 L.Ed.2d 370 (1964). While there may be a distinction between an award issued by a joint committee as in Humphrey and one issued by an arbitrator, the distinction is far less than fundamental. In each situation, the union has complete control of the employee’s grievance and in either can effectively control the outcome of the proceedings through its action or lack of action. In accord, see parts II and III, Beriault et al. v. Local 40, Super Cargoes & Checkers of the International Longshoremen’s & Warehousemen’s Union, et al., 501 F.2d 258 [CA9 1974],

The fundamental teaching of Vaca is that somewhere along the judicial trail, the employee is entitled to a fair hearing on her grievance and, if wrongfully discharged, a judgment for adequate compensation or other relief. To suggest that she may sue her union is no answer. Relief against the union would not restore her job with Pam Pam. As indicated in Vaca, in these circumstances, adequate relief may be obtained only by joining the union and the employer.

The judgment of the district court is vacated and the cause remanded for trial on the merits.

      . Waitresses, Cafeteria and Dairy Lunch Girls Workers Union, Local 48, San Francisco Local Joint Executive Board of Culinary Workers, Bartenders and Hotel, Motel and Club Service Workers.

      . * * * *
      “We cannot believe that Congress, in conferring upon employers and unions the power to establish exclusive grievance procedures, intended to confer upon unions such unlimited discretion to deprive injured employees of all remedies for breach of contract. Nor do we think that Congress intended to shield employers from the natural consequences of their breaches of bargaining agreements by wrongful union conduct in the enforcement of such agreements.
      “For these reasons, we think the wrongfully discharged employee may bring an action against his employer in the face of a defense based upon the failure to exhaust contractual remedies, provided the employee can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee’s grievance.” [386 U.S. at 186, 87 S.Ct. at 914],


text:
    UNITED STATES of America, Plaintiff-Appellee, v. NORTHSIDE REALTY ASSOCIATES, INC., et al., Defendants-Appellants.
    No. 74-1414
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Sept. 23, 1974.
    Harold L. Russell, Lloyd Sutter, Atlanta, Ga., for defendants-appellants.
    William B. Saxbe, Atty. Gen., Dept, of Justice, Jerris Leonard, Asst. Atty. Gen., Frank E. Schwelb, Chief, Housing Section, Civil Rights Div., U. S., Washington, D. C., David T. Kelley, Dept, of Justice, Harold H. Moore, Attys., J. Stanley Pottinger, Asst. Atty. Gen., Washington, D. C., John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., Julian M. Long-ley, Jr., Asst. U. S. Atty., Thomas N. Keeling, Housing Section, Washington, D. C., for plaintiff-appellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit, Judges.

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

   PER CURIAM:

The United States brought this action in July, 1970, against Northside Realty and its .executive vice-president, Ed Isak-son, alleging that defendants had refused to make housing available to Blacks on account of race in violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq. The district court found defendant in violation of the Act and granted in-junctive relief. From the district court’s findings of fact and conclusions of law, we were unable to ascertain whether the determination that the Act had been violated was based on the impermissible ground that Isakson challenged the Act constitutionally. We remanded for clarification and directed the district court to enter fresh findings of fact and conclusions of law. United States v. Northside Realty Associates, Inc., 5 Cir., 1973, 474 F.2d 1164. The district court has now complied with our request and has specifically found, without regard to Isakson’s statements about constitutionality, that the United States is entitled to relief.

Defendants appeal to us once again raising four assignments of error. We find these contentions to be without merit and affirm.

Defendants contend that the lower court’s determination that the Government carried its burden of proving an issue of public importance is erroneous. They also contend the district court’s findings were clearly erroneous and reflected no consideration of essential uncontroverted material facts. They further assert that the grant of injunctive relief was an abuse of discretion. These assignments of error were fully explored the first time this case reached us. We adhere to our position that the question of what constitutes an issue of general public importance is, absent specific statutory standards, a question most appropriately answered by the executive branch. Northside, supra, at 1168. Further, we held that the district court was not clearly erroneous in finding that defendants violated the act and that the violations, absent Isakson’s challenge to the validity of the Act, would alone support the granting of un junctive relief. Northside, supra, at 1170-1171.

Defendants complain that the district court erred, after remand, in refusing to refer this case to the Attorney General for another determination of whether “reasonable cause” existed pursuant to 42 U.S.C. § 3613 because the allegations available to the Attorney General in office when the first complaint was issued failed of proof or were found not to support the relief sought. In view of our holding that the district court found facts sufficient to support a violation of the Act, we find no merit in defendants’ final contention.

Affirmed.


author: ROSS, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Richard Otto PIETRAS, Appellant.
    No. 74-1098.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 12, 1974.
    Decided July 30, 1974.
    Rehearing Denied Aug. 23, 1974.
    Certiorari Denied Dec. 16, 1974.
    See 95 S.Ct. 660.

      C. J. Schauss, Mandan, N. D., for appellant.
    David Peterson, Asst. U. S. Atty., Fargo, N. D., for appellee.
    Before LAY, HEANEY and ROSS, Circuit Judges.
   ROSS, Circuit Judge.

Richard Otto Pietras was charged in a six-count indictment with armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and 924(c); jeopardizing the lives of others in the commission thereof, in violation of 18 U.S.C. § 2113(d); kidnapping in an attempt to avoid apprehension for the offense, in violation of 18 U.S.C. § 2113(e); transportation of a firearm in interstate commerce by a convicted felon, in violation of 18 U.S. C. § 922(g); transportation of a stolen motor vehicle in interstate commerce, in violation of 18 U.S.C. § 2312; and possession of an unregistered firearm, in violation of 26 U.S.C. § 586Í(d). The interstate transportation of a firearm by a convicted felon count was severed from the remaining five counts for trial. The jury returned a verdict of not guilty on the interstate transportation of a stolen motor vehicle count and guilty on the other four counts. From a judgment of conviction pursuant thereto, Pietras appeals. We affirm the judgment of conviction with modification.

On June 28, 1973, Pietras entered the Sterling Branch of the State Bank of Burleigh County, North Dakota. At gunpoint, he forced the two bank tellers located therein to empty their cash drawers of approximately $3,500. After learning that the remainder of the bank’s cash was locked in a time-lock safe, he forced the two tellers into a vault, locked it, and fled in a van which he had parked outside.

Less than half an hour afterwards, the van was spotted by law enforcement officer Lowthers near McClusky, North Dakota. He signaled the van to stop, departed his squad car, and approached the van to ask the driver for his operator’s license. Upon doing so, he was met with a shot from a pistol held by Pie-tras. The van sped off. Officer Lowth-ers fired several shots at the van and then fell unconscious. Two witnesses to the occurrence from another vehicle came to his aid.

Pietras had been wounded by one of Lowthers’ shots and within a few miles, for reasons that are unclear, the van left the road and skidded toward a slough. It was shortly thereafter discovered by North Dakota Highway Patrolmen. In the meantime, Pietras abandoned the van and approached a nearby farmhouse where he forced the occupants, the Reis-wigs, at gunpoint, to dress his wound and drive him in the direction of the Canadian border. Later that afternoon, Pietras released the Reiswig couple and gave them $100 for bus tickets home. He crossed into Canada and was eventually apprehended by a Royal Canadian Mounted Police Officer. At the time of his apprehension he was on foot and carried a bag containing $3,189 in American currency.

On appeal Pietras challenges the court’s failure to sever the unregistered firearm violation count of the indictment for trial; the sufficiency of the evidence to sustain a guilty verdict for the firearm violation; the court’s failure to grant a mistrial on the basis that the government introduced proof relating to the injury of Officer Lowthers yet such injury allegedly was not cognizable as a federal offense under 18 U.S. C. § 2113; and the pyramiding of sentences, though concurrent, under Counts I, II, and III of the indictment relating to the bank robbery.

Motion for Severance

Pietras attempted to elicit a severance of Count VI, relating to possession of an unregistered firearm, from the other remaining counts on the bases that the offense in question was provable only through circumstantial evidence and that the weapon was not used in connection with the robbery charged' in Counts I, II, and III.

Fed.R.Crim.P. 8(a) provides that two or more offenses may be charged in the same indictment if they are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions constituting parts of a common scheme or plan. The separate offenses here are based on the same transaction. Possession of the unregistered firearm derives from the firearm’s presence in the van which Pietras employed as a means of escape. There is no prerequisite to joinder that the firearm be used in the commission of the robbery.

The joinder practice under Rule 8(a) is safeguarded from abuse by the limitation contained in Fed.R.Crim.P. 14 which provides in part:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.

Ordinarily, where the separate offenses arise within the same transaction, the government should not be required to prove up the same facts in separate trials. 8 J. Moore, MOORE’S FEDERAL PRACTICE 1f,8.05[2] at 8-19 (2d ed. 1973). Moreover, severance under the rule is a matter committed to the discretion of the trial court and is not subject to reversal unless clear prejudice is shown. United States v. Sanders, 463 F.2d 1086, 1089 (8th Cir. 1972). Clearly, there was no abuse of discretion by the trial court in this instance where there was no danger that the jury would be confused in the application of the facts to separate crimes and where the offenses charged were all part of a continuous transaction.

Sufficiency of the Evidence Under Count VI

In a prosecution under 26 U.S.C. § 5861(d) the government must prove first, that the defendant at the time and place charged in the indictment possessed a shotgun with a barrel less than 18 inches in length; and second, that the shotgun at the time and place charged was not registered to the defendant in the National Firearms Register and Transfer Record. Scienter is not an element of the offense. United States v. Freed, 401 U.S. 601, 607, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). Nor is knowledge that the gun is not registered. Id. Possession may be either actual or constructive. See, e. g., United States v. DePugh, 452 F.2d 915, 923 (10th Cir. 1971), cert. denied, 407 U.S. 920, 92 S.Ct. 2452, 32 L.Ed.2d 805 (1972); United States v. Virciglio, 441 F.2d 1295, 1298 (5th Cir. 1971).

Herd the evidence demonstrated that the shotgun was unregistered; that Pie-tras was identified by more than one witness as the driver of a distinctively painted van; that the van was recovered by law enforcement officers within an hour after it had been abandoned by Pietras; that the windshield had been knocked out as a result of the van’s leaving the road and loss of control; that immediately beneath the windshield on the path the vehicle had taken from the roadway was found a 13-inch barrel unregistered firearm; and that within the van was found a box of shotgun shells identical to the shells found in the shotgun. Thus some evidence existed on all prerequisites to a conviction under 26 U.S.C. § 5861(d).

An appellate court does not try a case de novo and does not determine the weight of the evidence. United States v. Madden, 482 F.2d 850, 851 (8th Cir.), cert. denied, 414 U.S. 1026, 94 S.Ct. 453, 38 L.Ed.2d 318 (1973). Rather it is for the fact finder, here the jury, to make such determinations. Upon a finding of guilt by the jury, an appellate court must view the evidence and all reasonable inferences which can be drawn therefrom in favor of the jury verdict. That verdict must be sustained if there is substantial evidence, taking the view most favorable to the government, to support it. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Under these criteria and because there is no lack of evidence on an essential element of the crime, the evidence clearly supports a judgment of conviction on Count VI.

Failure to Grant a Mistrial

Pietras next alleges that Count II of the indictment warrants a mistrial of the entire action, since the count alleges jeopardizing lives of others during the commission of the robbery in violation of 18 U.S.C. § 2113(d) and, in addition to bank personnel, details as one- of those persons Paul Lowthers, a law enforcement officer assaulted after the occurrence at the bank, during the flight. Pietras argues that § 2113(d) was not intended to cover such assaults; that the only post-bank-transaction conduct that is proscribed is set forth in § 2113(e) ; and that § 2113(e) contains no provision for assaults short of actual killing or kidnapping.

To support his position, Pietras refers to the court’s discussion in United States v. Bamberger, 460 F.2d 1277 (3d Cir. 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3067, 37 L.Ed.2d 1040 (1973), where a similar argument was urged by the defendant that the shooting of an officer during the flight was not a part of the robbery but was a separate, uncharged crime. The court ultimately held that the shooting was sufficiently related in time and circumstances to the actual robbery to be encompassed within § 2113(d). Yet, in reaching that conclusion, the court said:

While there must of course come a point when the statute no longer covers the activities of a bank robber, we think that point was not reached here.

Id. at 1278-1279. To date, Bamberger is the only decision to discuss such a limitation on § 2113(d).

While the interpretation urged by Pietras might be placed upon the language of the statute, there is nothing in the legislative history of the original Bank Robbery Act to suggest that the two sections were to receive diverse treatment. S.Rep.No. 537, 73d Cong., 2d Sess. (1934); H.Rep.No. 1461, 73d Cong., 2d Sess. (1934); H.Rep.No. 1598, 73d Cong., 2d Sess. (1934); 78 Cong.Rec. passim (1934). Indeed the letter of explanation by the then Attorney General who recommended the bill suggests that the two sections were nearly coterminous. However, lest no effect be given to § 2113(e)’s additional reference to “avoiding . . . apprehension” and “freeing himself . from confinement” contingencies, we hold that “committing any [robbery]” as used in both § 2113(d) and § 2113(e) extends at least to a hot pursuit that follows the physical departure from the bank building. In this respect we affirm the reasoning of the district court in denying Pietras’ motion for a mistrial:

[Y]ou cannot complete your taking until you have terminated the possibility of the item being recovered, it would appear to me an escape effort immediately following . . . the taking is a part of the taking process.

Sentence Pyramiding

Finally Pietras challenges the imposition of sentence received on Counts I, II, and III. Those sentences were:

Count I [bank robbery in violation of 18 U.S.C. § 2113(a) and 18 U.S.C. § 924(c)]: fifteen years for bank robbery and 10 years for recidivist offender under § 924(c), to be served consecutively.
Count II [putting lives in jeopardy during the commission of robbery in violation of 18 U.S.C. § 2113(d)]: fifteen years to be served concurrent with that imposed under Count I.
Count III [kidnapping in an attempt to avoid apprehension in violation of 18 U.S.C. § 2113(e)]: twenty-five years to be served concurrent with that imposed under Count I and Count II.

Green v. United States, 365 U.S. 301, 305-306, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961), teaches that Count II must be considered merely an aggravated version of the same offense charged in Count I, and it cannot itself support a separate sentence. See also Holiday v. Johnston, 313 U.S. 342, 349, 550, 61 S.Ct. 1015, 85 L.Ed. 1392 (1941). The government has confessed error in the imposition of sentence under Count II.

The trilogy of Supreme Court cases dealing with the imposition of sentence under 18 U.S.C. § 2113 have not dealt with the ability of a § 2113(e) violation to support a separate sentence. Green v. United States, supra; Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959); Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957). Nevertheless, in reliance upon the underlying logic in those decisions, our Court has held that 18 U.S.C. § 2113 prohibits the imposition of more than one sentence for violations of its several provisions, including subsection (e). United States v. Delay, 500 F.2d 1360 (8th Cir. 1974); Jones v. United States, 396 F.2d 66, 69 (8th Cir. 1968), cert. denied, 393 U.S. 1057, 89 S.Ct. 695, 21 L.Ed.2d 697 (1969). See also Sawyer v. United States, 312 F.2d 24, 28 (8th Cir. 1963); Hewitt v. United States, 110 F.2d 1, 11 (8th Cir.), cert. denied, 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409 (1940). Since it was obviously the trial court’s intent that Pietras receive a sentence of at least twenty-five years on these counts, the sentence under Count III will be permitted to stand.

For the reasons hereinbefore expressed, the judgment of conviction is affirmed. The sentences under Counts I and II are vacated.

      . It is notable that the court did feel that prejudice could arise from joinder of Count IV, relating to interstate transportation of a firearm by a convicted felon, with the other counts for trial. Proof of that firearm count would have brought before the jury evidence of Pietras’ unrelated past criminal record in violation of his privilege against self-incrimination. Such evidence could certainly have influenced the jury’s assessment of guilt on the offenses tried before them. Accordingly, that count was severed for a separate trial.

      . 18 U.S.C. § 2113(d) provides:
      Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.

      . 18 U.S.C. § 2113(e) provides :
      Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct.

      . Section 2113 was originally adopted in 1934 against a background of national concern with interstate operations of bank bandits. It was designed to make it a federal offense to rob federal banks or federally insured banks.

      . The Attorney General’s correspondence, incorporated into H.Rep.No. 1461, 73d Cong., 2d Sess. (1934) states:
      The bill provides punishment for those who rob, burglarize, or steal from such institutions, or attempt so to do. A heavier penalty is imposed, if in an attempt to commit any such offense any person is assaulted, or his life is put in jeopardy by use of a dangerous weapon. A maximum penalty is imposed on anyone who commits a homicide or kidnaping in the course of such unlawful act.


text:
    Anthony Chester CUNDIFF, Appellant, v. UNITED STATES of America, Appellee.
    No. 74-1037.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 12, 1974.
    Decided July 23, 1974.

      Josef V. Hobson, Fort Smith, Ark., for appellant.
    James A. Gutensohn, Asst. U. S. Atty., Fort Smith, Ark., for appellee.
    Before GIBSON, BRIGHT, and WEBSTER, Circuit Judges.
   PER CURIAM.

Anthony Chester Cundiff appeals his jury conviction of bank robbery for which he was sentenced to 10 years imprisonment. He questions the validity of the search warrant used to secure evidence admitted against him at trial and claims error in the forms of verdict the District Court submitted to the jury. For the reasons hereafter expressed, we affirm the judgment of conviction.

I. The Search Warrant

Defendant was arrested at the Sands Motel in Fort Smith, Arkansas, approximately 20 minutes after the robbery of the Merchants National Bank in Fort Smith. He makes no claim that his arrest was not based on • probable cause. The facts which led to defendant’s arrest and which ultimately were presented to the magistrate by affidavit of Detective Bob Hatfield of the Fort Smith Police Department to secure issuance of a search warrant are listed below.

The bank was robbed by a man described by the teller as a white male wearing a rust-colored jumpsuit, sunglasses and a handkerchief over his face, and carrying a black or dark blue pistol. After receiving the money from the teller, the robber left the bank on foot going .towards Coleman Drug Store. Another eyewitness, Martine Belcher, saw a man in a rust-colored jumpsuit leave the area of the bank and go into the yard of a house behind the drug store. The man started running. As Belcher circled the drug store he saw a green car leaving the area but did not see the man running across Tilles Park as he had expected.

Two boys cutting grass in the park reported seeing a man in a rust-colored jumpsuit come through the yard behind Coleman Drug Store and enter a green Mercury automobile with a damaged rear quarter panel.

At approximately the time of the robbery, Jimmy McGee was in his front yard, approximately a block from the bank. He reported seeing a green 1972 or 1973 Mercury, with damage to the left rear quarter panel and the dustpan hanging down in the rear, at the intersection of 36th and Alabama, one block south of the bank. He said he saw the driver look toward the bank and then drive eastward on Alabama toward the area of Tilles Park.

Within 20 minutes of the robbery, Fort Smith police officers checking motels found a green 1973 Mercury Cougar with damage to the left rear quarter panel parked on the lot of the Sands Motel. They determined from the motel registration that the car’s owner occupied Room 152. They proceeded to Room 152 and arrested the defendant and his co-defendant in this case. Upon checking the identification on their persons, it was found they had registered at the motel under assumed names. The above were the facts presented to the magistrate to support the issuance of a search warrant for Room 152 and the green Mercury Cougar. The co-defendant later pled guilty.

Defendant contends here that these facts, disclosed in the affidavit for search warrant executed by Detective Hatfield, failed to meet the requirements set out in Spinelli More particularly he protests the “failure” to set forth underlying information so that the magistrate could determine the credibility of the “hearsay” information given by the informers. Defendant fails to note the important distinction between an informant who divulges evidence of a crime obtained from sources unknown to the affiant or magistrate and an individual who is an “eyewitness” and only relates matters gathered from his own observation. As we stated in McCreary v. Sigler, 406 F.2d 1264, 1269 (8th Cir.), cert. denied, 395 U.S. 984, 89 S.Ct. 2149, 23 L.Ed.2d 773 (1969) :

The essence of reliability may be found in ary informant’s statement of facts rather than an allegation of mere conclusory suspicion. An informant who alleges he is an “eyewitness” to an actual crime perpetrated demonstrates sufficient reliability of the person.

The personal and recent knowledge of an unidentified informant may establish sufficient probable cause to support the issuance of a search warrant. United States v. Harris, 403 U.S. 573, 579, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). Here we have a series of identifiable eyewitnesses to the holdup operation and the getaway attempt, which was aborted within minutes in a motel room by a commendably efficient police operation. We are sure that the personal and recent knowledge of identified eyewitnesses establishes sufficient probable cause in the instant case. No error is shown in refusing to order suppression.

II. Form of Verdict

The indictment charged defendant with robbery of a bank accompanied by assault or putting in jeopardy the life of another by use of a dangerous weapon or device in violation of 18 U.S.C. § 2113(a), (d). At the close of trial, the trial court also instructed the jury regarding the lesser-included offense of robbery of a bank. The jury was given two verdict forms. It is the instructions on the use of these forms that defendant challenges, claiming they left the jury no alternative but to find defendant guilty of the lesser-included charge after it determined defendant was not guilty of the crime charged in the indictment. Defendant was found guilty of the lesser-included offense.

Although we think it preferable to submit forms of verdict in a neutral form, leaving it to the jury to fill in its determination of guilt, we are convinced no prejudice to defendant occurred in this case. Considering the instructions as a whole, as we must, Bengimina v. United States, 499 F.2d 117 (8th Cir. 1974), we find they fully and accurately charged the jury regarding both the indicted and lesser-included offenses. In addition the trial court fully explained the use of the forms to the jury. Upon objection by defense counsel the court called the jury back and again explained the use of the forms. We are satisfied the jury understood its alternatives and that the court’s instructions cannot reasonably be interpreted as directing a verdict of guilty on the lesser-included offense. After the jury returned its verdict, the jury was polled and each juror agreed that the verdict was his separate and individual verdict. Upon this record defendant’s claim of error regarding the form of verdict lacks substantial merit.

Judgment of conviction affirmed.

      . The search under the warrant disclosed the paraphernalia utilized by the co-defendant in robbing the bank, namely the brownish-orange jumpsuit, reddish mask, long black haired wig, a small caliber gun and a brown paper bag, together with the loot of some $21,333, which also included bait money.

      . Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

      . The verdict form used for the indicted offense was:
      We, the jury find the defendant, Anthony Chester Cundiff, _ as (guilty, not guilty) charged in the indictment.
      The form for the lesser-included offense provided:
      We, the jury, find the defendant, Anthony Chester Cundiff, guilty of the crime of robbery of a bank but not guilty on the charge of assaulting and putting in jeopardy the lives of bank employees.


author: SWYGERT, Chief Judge. FAIRCHILD, Circuit Judge

text:
    Catalina Montano De FIGUEROA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
    No. 73-1830.
    United States Court of Appeals, Seventh Circuit.
    Argued April 17, 1974.
    Decided Aug. 8, 1974.
    Joseph B. Gilbert, Chicago, 111., for petitioner.
    John L. Murphy, Chief, Crim. Div., Mary Jo Grotenrath, Atty., U. S. Dept, of Justice, Washington, D. C., James R. Thompson, U. S. Atty., Chicago, 111., for respondent.
    Before SWYGERT, Chief Judge, FAIRCHILD and CUMMINGS, Circuit Judges.
   SWYGERT, Chief Judge.

This is a review of an order of deportation.

Pursuant to a petition filed under provisions of section 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a), we review an order of deportation issued against the petitioner by the Immigration and Naturalization Service.

Petitioner Catalina Montano De Figueroa, a native and citizen of Mexico, entered the United States in March 1970 at Chicago as a visitor for pleasure and was authorized to remain in the United States until September 21, 1970. Having remained in the United States beyond that date, she was served with an order to show cause in a deportation proceeding and given notice of a hearing scheduled for February 25, 1972. The hearing did not occur. After posting bond petitioner was given a voluntary departure letter requiring her to depart the United States on March 22, 1972.

On March 10, 1972 petitioner married Jose Ramon Figueroa, a United States citizen. Thereafter, on March 29 Jose Figueroa as petitioner’s spouse filed a petition with the Immigration Service to accord her the status of a nonquota immigrant under section 204 of the Immigration and Nationality Act, 8 U.S.C. § 1154, and thereby qualify her for an immigrant visa under the provision of 8 U.S.C. § 1101 (a)(27)(A). The Attorney General through the Immigration Service approved the petition and sent it to the American Consulate in Toronto, Canada, the port of entry where petitioner indicated she intended to apply for an immigrant visa.

On May 11, 1972 two Immigration Service investigators arrested Jose Figueroa in Chicago and obtained his signed statement in which he made the following representations. After telling him she had no immigration papers, petitioner offered him $500 if he would marry her “so she could obtain a visa.” He accepted the offer and received $500. He was paid an additional $500, but, after petitioner explained that “the Immigration was looking for her,” he returned the second sum because it was to be used “in case of a bond.” Thereafter, on March 10, 1972 they wére married, but never lived together “as man and wife.”

On June 8, 1972 the surety on the bond was notified to surrender petitioner at the Immigration office in Chicago on August 1. On that date a hearing was conducted by a special inquiry officer. Shortly thereafter the special inquiry officer rendered his decision. He found from “believable testimony” that petitioner’s marriage had been entered into “merely for the purpose of circumventing the immigration laws” and that she had given false testimony at the hearing about her marital relationship with Jose Figueroa. The officer decided that petitioner, having failed to establish a good moral character as required by statute, did not qualify for the privilege of voluntary departure in lieu of deportation. The petitioner was ordered deported from the United States to Mexico. The Bureau of Immigration Appeals affirmed and this petition to' review followed.

I

The show cause order issued in February 1972 charged the petitioner as de-portable pursuant to section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2), in that after admission as a nonimmigrant under section 101(a) (15) of the Act, 8 U.S.C. § 1101(a) (15), she remained in the United States for a longer time than permitted. At the deportation hearing, counsel for petitioner admitted “for the sake of the record” her deportability on the “charges specified,” and then asked that she be given the privilege of voluntary departure at her own expense in lieu of deportation. Although this was the apparent issue, the real issue, as stated by the special inquiry officer, was whether petitioner was subject to deportation under the laws of the United States.

Petitioner contends it was error to decide she was deportable since a petition to accord her the status of a non-quota immigrant under section 205 had been approved by the Attorney General. Although this circuit has not previously spoken on the question, we are persuaded to hold that an approval of a petition under this statutory provision does not alone give the beneficiary of the petition an immediate right to an immigrant visa. See Amarante v. Rosenberg, 326 F.2d 58 (9th Cir. 1964) and Scalzo v. Hurney, 225 F.Supp. 560 (E.D.Pa.1963). The beneficiary is required if out of the country to request an immigrant visa from a United States consular officer at the port of entry. The approved petition is merely prima facie evidence of qualification for issuance of the visa. The visa may be issued only if the consular officer concludes that the alien is fully qualified under the immigration laws for the visa. The immigration officer who inspects the alien upon his arrival must be satisfied that the alien is admissible for permanent residence. If the alien is already living in the United States, he may under certain circumstances, apply under section 245 of the Act, 8 U.S.C. § 1255, for adjustment of his status to that of a permanent resident and avoid the necessity of leaving the country to apply for a visa. Such adjustment, however, also requires an inspection process before the application may be approved. Since no immigrant visa had been issued to petitioner at the time of her hearing, it is clear that the mere petition for a visa in her behalf did not affect her deportability.

II

Petitioner attempts to avoid the foregoing conclusion by contending that even though no immigrant visa had been issued, her husband’s petition under section 205 mooted the charge contained in the order to show cause. An additional fact must be noted in order to consider this contention. On August 1, 1972, while being held by the Immigration Service agents, Jose Figueroa signed a withdrawal of the petition he had filed on March 29, 1972. Accordingly, at the time of the deportation hearing the order to show cause had not been superseded, as petitioner argues, by an approved petition to accord her the status of a nonquota immigrant.

Petitioner argues, however, that the withdrawal of the petition was accomplished by the agents after subjecting her husband to duress by virtue of his arrest and that in any event, the provisions of the immigration regulations were not followed with respect to the withdrawal of the petition.

The circumstances underlying the withdrawal of the petition are not properly before us for consideration. Those circumstances raised a collateral issue which is not subject to our review of the order of deportation. We say collateral because the matter relating to the approval and withdrawal of visa petitions is not within the scope of a deportation proceeding under section 242(b) of the Act, 8 U.S.C. § 1252(b), and therefore not reviewable by a court of appeals under section 106(a) of the Act, 8 U.S.C. § 1105a(a). See Cheng Fan Kwok v. INS, 392 U.S. 206, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968). On this aspect of the case, we agree with the Government’s statement in its brief: “The withdrawal of the visa petition is pertinent to this proceeding only in that, under the circumstances . . , it is additional evidence that the marriage was not bona fide.”

With respect to petitioner’s argument that the withdrawal did not comport with the regulations, a more troublesome question would be presented if we were ‘free to consider it. The Government says that the notice of withdrawal was “duly” signed by Jose Figueroa before an officer of the Immigration Service at the same office which had approved the petition and that this “obviously” meets the requirements of 8 C.F.R. 205.-1(a)(1). We are not as sanguine as Government counsel. The regulation requires that a formal notice of withdrawal be filed with the officer “who approved the petition.” A reading of the regulation indicates that the action here taken did not literally comport with the provision. However, we do not think this case should turn on the point in light of what we have said about its re-viewability.

Ill

Finally, petitioner contends that her marriage is valid under the laws of Illinois and that the marriage, in some unspecified manner, bars her deportation. The contention is not relevant since a valid marriage to a United States citizen does not of itself exempt an alien from deportation. Silverman v. Rogers, 437 F.2d 102 (1st Cir. 1970), cert. denied, 402 U.S. 983, 91 S.Ct. 1667, 29 L.Ed.2d 149 (1971). Swartz v. Rogers, 103 U.S.App.D.C. 1, 254 F.2d 338 cert. denied, 357 U.S. 982, 78 S.Ct. 1373, 2 L.Ed.2d 1372 (1958).

In summary, we think that the contentions advanced by petitioner to vacate the order of deportation are legalisms which blink the real issue, whether her marriage was in bad faith and undertaken solely to circumvent the immigration laws of the United States. On that issue we hold that subtantial evidence supports the finding of the special inquiry officer and that the Board of Immigration Appeals was correct in ruling that the marriage was a subterfuge designed to prevent deportation.

The petition for review is denied.

FAIRCHILD, Circuit Judge

(dissenting).

The majority may well be correct in holding that approval of Mr. Figueroa’s petition under 8 U.S.C. § 1154(a) neither vested in Mrs. Figueroa the right to a nonquota immigrant visa, nor mooted (under the circumstances here) the charge of deportability in the February 17 order to show cause. I believe, however, that due process required a fuller notice of the matters to be considered at the hearing on August 1, and therefore respectfully dissent from denial of the petition to review.

In view of the severity of the remedy, procedural fairness is essential at a hearing culminating in a deportation order. Once an alien has been lawfully admitted to the United States, “ ‘not even Congress may expel him without allowing him a fair opportunity to be heard.’ Kwong Hai Chew v. Colding [344 U.S. 590, 597-598, 73 S.Ct. 472, 97 L.Ed. 576 (1953)] (Emphasis added). It is likewise axiomatic that adequate notice is the first and foremost prerequisite of a fair hearing.” Aalund v. Marshall, 461 F.2d 710, 712 (5th Cir., 1972).

Petitioner and her surety received a written demand that the surety produce petitioner “for hearing” August 1, before a special inquiry officer. This document was silent as to the purpose of the hearing. At the hearing it developed that the allegations of deportability set forth in the February 17 order and the question of permitting voluntary departure would be considered and determined; that the Service regarded petitioner’s marriage as a subterfuge to circumvent the immigration laws; that the Service had, on the morning of the hearing, obtained from Mr. Figueroa a revocation of the visa petition earlier filed and approved; and that Mr. Figueroa testified as a witness for the Service on the matter of the purpose of the marriage. The basis for the denial of voluntary departure is the finding that petitioner’s testimony at the hearing concerning the bona fides of the marriage constituted false testimony for the purpose of obtaining benefits under the immigration laws.

Perhaps it can be parsed out that (1) the demand to the surety reasonably implied that the August 1 hearing would constitute a delayed hearing on the February 17 order to show cause; (2) that since it is now held that the approval of the visa petition is not relevant to petitioner’s deportability, petitioner was not entitled to advance notice that the Service would so contend; (3) that in testifying in support of voluntary departure, petitioner assumed the risk that the special inquiry officer could be convinced that her testimony was false; and (4) that she was not entitled to advance notice of the proof the Service would use to challenge her testimony in support of voluntary departure.

In practical terms, however, the position of the Service concerning the marriage and the visa petition probably brought about the holding of the August 1 hearing, and dominated, if not controlled, the result. It seems to me that fundamental fairness required that petitioner be given advance notice of the position the Service would take on those matters.

      . The pertinent regulations read:
      PART 205 — REVOCATION OF APPROVAL OF PETITIONS
      See.
      205.1 Automatic revocation.
      205.2 Revocation on notice.
      205.3 Procedure.
      Authority: The provisions of this Part 205 issued under secs. 101, 103, 201, 203, 204, 205, 212, 66 Stat. 166, 173, 175, 178, 179, 180, 182 ; 8 U.S.C. 1101, 1103, 1151, 1153, 1154, 1155,1182.
      § 205.1 Automatic revocation.
      The approval of a petition made under section 204 of the Act and in accordance with Part 204 of this chapter is revoked as of the date of approval if any of the following circumstances occur before the beneficiary’s journey to the U. S. commences or, if the beneficiary is an applicant for adjustment of status to that of permanent resident, before the decision on his application becomes final:
      (a) Relative petitions. (1) Upon formal notice of withdrawal filed by the petitioner with the officer who approved the petition.
      (2) Upon the death of the petitioner or beneficiary.
      (3) Upon the legal termination of the relationship of husband and wife when a petition has accorded status as the spouse of a citizen or lawful resident alien, respectively, under section 201(b), or section 203(a)(2) of the Act.
      (4) Upon a child beneficiary reaching the age of 21, when he has been accorded immediate relative status under section 201(b) ; however, except for a native of an independent country of the Western Hemisphere or the Canal Zone, such petition is valid to accord status under section 203(a)(1) of the Act if the beneficiary remains unmarried or if he marries, such petition is valid to accord status under section 203(a) (4) of the Act for the duration of the relationship.
      (5) Upon the marriage of a beneficiary accorded status as the child of a U. S. citizen under section 201(b) of the Act or status as a son or daughter of a U. S. citizen under section 203(a)(1) of the Act; however, except for a native of an independent country of the Western Hemisphere or the Canal Zone who had been accorded status under section 201(b), the petition is valid to accord status under section 203(a) (4) of the Act for the duration of the relationship.
      (6) Upon the marriage of a beneficiary accorded a status as a son or daughter of a lawful resident alien under section 203(a) (2) of the Act.
      (b) Petitions under section 203(a)(3)- or (6). (1) Upon expiration pursuant to 29 CFR Part 60 of the labor certification in support of the petition unless the certification is thereafter revalidated.
      (2) Upon the death of the petitioner or beneficiary.
      (3) Upon formal notice of withdrawal filed by the beneficiary with the officer who approved the petition in a third-preference case.
      (4) Upon formal notice of withdrawal filed by the petitioner with the officer' who approved the petition in a sixth-preference case.
      (5) Upon termination of the employer’s business in a sixth-preference case.
      (c) [Reserved]
      (d) Notice. When it shall appear to a district director that the approval of a petition has been automatically revoked, he shall cause a notice of such revocation to be sent promptly to the consular office having jurisdiction over the visa application and a copy of such notice to be mailed to the petitioner’s last known address.
      [30 F.R. 14775, Nov. 30, 1965, as amended at 32 F.R. 6260, Apr. 21, 1967; 35 F.R. 7285, May 9, 1970 ; 36 F.R. 2861, Feb. 11, 1971; 36 F.R. 5836, Mar. 30, 1971]
      § 205.2 Revocation on notice.
      The approval of a petition made under section 204 of the Act and in accordance with Part 204 of this chapter may be revoked on any ground other than those specified in § 205.1 by any officer authorized to approve such petition when the propriety of such revocation is brought to the attention of the Service, including requests for revocation or reconsideration made by consular officers. § 205.3 Procedure.
      Revocation of approval of a petition under § 205.2 shall be made only upon notice to the petitioner who shall be given an opportunity to offer evidence in support of the petition and in opposition to the grounds alleged for revocation of the approval. If upon reconsideration the approval previously granted is revoked, the petitioner shall be informed of the decision with the reasons therefor and shall have 15 days after the service of the notification of decision within which to appeal as provided in Part 3 of this chapter, if the petition was filed for a preference under paragraph (1), (2), (4), or (5) of section 203(a) of the Act, or for an immediate relative as defined in section 201(b) of the Act other than a child as defined in section 101(b)(1)(F) of the Act, or as provided in Part 103 of this chapter, if the petition was filed for a preference under paragraph (3) or (6) of section 203(a) of the Act, or for a child as defined in section 101 (b) (1) (F) of the Act, and the consular office having jurisdiction over the visa application shall be notified of the revocation.
      [37 F.R. 11470, June 8, 1972]

      . Cf. Aalund, supra, 461 F.2d at 713.