author: BUTZNER, Circuit Judge:

text:
    W. G. COSBY TRANSFER & STORAGE CORPORATION, Appellee, v. Robert F. FROEHLKE, Secretary of the Army, and Major General Clarence J. Lang, Military Traffic Management and Terminal Service, Appellants.
    No. 72-2465.
    United States Court of Appeals, Fourth Circuit.
    Argued April 3, 1973.
    Decided June 13, 1973.

      Joseph B. Scott, Atty., U. S. Dept, of Justice (Harlington Wood, Jr., Asst. Atty. Gen., of the U. S., Brian P. Get-tings, U. S. Atty., for the E. D. Virginia, and Walter H. Fleischer, Atty., Dept, of Justice, on brief), for appellants.
    Alan F. Wohlstetter, Washington, D. C. (Stanley I. Goldman, Denning & Wohlstetter, Washington, D. C., W. Kendall Lipscomb, Jr., Taylor, Hazen, Bryant & Kauffman, Richmond, Va., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and BUTZNER and FIELD, Circuit Judges.
   BUTZNER, Circuit Judge:

The Secretary of the Army and the Commander of the Military Traffic Management and Terminal Service (the Service) appeal from an order of the district court that enjoins them from enforcing the Service’s “four-carrier” regulation against W. G. Cosby Transfer and Storage Corporation without first holding a hearing to determine whether Cosby is entitled to an exemption from the regulation. We affirm.

The Service is the defense agency in charge of moving furniture and other personal property for members of the uniformed services. To carry out its responsibilities, it has adopted a comprehensive set of regulations that govern all aspects of packing, storing, and shipping household goods, both here and abroad. For international shipments, the regulations authorize a single contract between the government and an international carrier that has been approved by the Service. The carriers generally subcontract with one or more local moving companies which act as their agents for packing and storage at the point of origin or destination.

Formerly, a local moving company could represent any number of carriers, but in 1971 the service amended its regulations to restrict a local agent’s representation to four carriers. The regulation authorizes the commander to exempt agents from the four carrier restriction in certain situations:

“The Commander . ,. . may . grant an exception . when such an exemption would not be inconsistent with the Program’s effective management and when the agent has the capability to represent a greater number of carriers during all periods. . . . Requests for exception to carrier limitations will be initiated by an [installation transportation officer] and only when the restrictions on carrier representation result in inadequate service to his installation.”

In recent years, a major portion of Cosby’s business has involved local representation of carriers that are making international shipments of household goods for the Service. Since initially qualifying as an approved agent for international carriers in 1962, Cosby has represented as many as 15 carriers at one time, and the company represented 11 when the Service announced the four-carrier limitation. Over 'the years, Cosby has upgraded its facilities to accommodate its carriers and the Service. Its present investment totals approximately $200,000 and includes five pieces of motor vehicle equipment that were specially purchased for international shipments to and from Fort Lee, Virginia.

Shortly after the Service announced the four-carrier rule, Cosby applied for an exemption. Although the company had met all of its inspection standards and had transacted its business satisfactorily while representing more than four carriers, the commander summarily denied the request for an exemption. The only reason given for the rejection was that carrier service at Fort Lee was adequate. When Cosby failed to designate the four carriers it wanted to represent, the Service threatened to stop all tenders of international shipments to the company. Cosby then filed suit in the district court and obtained the injunction which the government attacks on this appeal.

I

The district court found that limiting Cosby’s representation to four carriers would cause the company economic harm. Accepting this finding, the government does not contest Cosby’s standing to sue. Cf. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L. Ed.2d 184 (1970). The government, however, contends that the restriction placed on Cosby is not subject to judicial review because the imposition of the four-carrier limitation was a management decision. While it concedes denial of Cosby’s request for an exemption was final agency action within the meaning of the Administrative Procedure Act, it asserts that the denial cannot be reviewed because it constituted a decision that was “committed to agency discretion by law.”

The Supreme Court has recently emphasized that the statutory exception from judicial review of administrative action that is committed to agency discretion should be narrowly applied. It is appropriate only “in those rare instances where ‘statutes are drawn in such broad terms that in a given case there is no law to apply’.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 821, 28 L.Ed.2d 136 (1971). The commander’s decision to deny Cosby’s request for an exemption does not fall within this limited exception. The Service, like any other government agency, is required to follow its own regulations. Brooks v. Clifford, 409 F.2d 700, 706 (4th Cir. 1969). The Service’s regulation itself provides the applicable law for judicial review of the agency action because it carefully defines the limits of the commander’s discretion in ruling on requests for exemption.

The government contends that the regulation allows only a transportation officer to initiate the request for an exemption and that it permits him to act only when the restriction results in inadequate service. This interpretation, however, is contrary to the Service’s procedure for processing requests. The record discloses that Cosby and some two hundred other agents sought exemptions. All were denied, but in no instance was the denial based on the failure of the transportation officer to initiate the request. Therefore, in accordance with the administrative practice, we interpret the regulation to allow agents to initiate requests for exemptions.

We construe the regulation to provide that the commander should grant an agent’s application when (1) the exemption is consistent with the program’s effective management and (2) the agent is able to represent more than four carriers satisfactorily. The regulation does not allow the commander unfettered discretion to grant or withhold an exemption even though it provides that he “may . . . grant” an exemption. The use of the verb “may” does not permit the commander to act arbitrarily. Cf. Mulloy v. United States, 398 U.S. 410, 415, 90 S.Ct. 1766, 26 L.Ed.2d 362 (1970); Thompson v. Clifford, 132 U.S.App.D.C. 351, 408 F.2d 154, 158 (1968). His decision must accord with the criteria set forth in the regulation. Brooks v. Clifford, 409 F.2d 700, 706 (4th Cir. 1969).

The regulation also authorizes transportation officers to initiate requests for exemptions. But this can be done only when the four-carrier restriction results in inadequate service at the officer’s installation. This severe limitation on a transportation officer’s discretion does not limit the commander’s authority to grant an agent’s application when the agent satisfies the regulation’s criteria for an exemption. Instead, the limitation prohibits a transportation officer from favoring local agents when there is already adequate service at his installation.

We conclude, therefore, that (1) an agent may apply for an exemption; (2) the commander may not arbitrarily grant or deny the request; (3) although service at an installation is adequate, the commander should grant an agent’s application when the exemption is consistent with the program’s effective management and the agent has the facilities to represent more than four carriers satisfactorily; and (4) the commander’s decision is subject to judicial review. Cf. Littell v. Morton, 445 F.2d 1207, 1210 (4th Cir. 1971).

II

The officer charged with administering the program testified that the Service imposed the carrier restrictions because it found that overcommitted agents often had to refuse tendered shipments and that agents would select from a number of tenders only those shipments they desired to handle. He explained that limiting the number of carriers an agent can represent reduces the incentive to refuse shipments. Abuses of this type, of course, would afford grounds for denying an exemption. But the record does not disclose that Cosby has ever engaged in the practices that the regulation is designed to prevent. Therefore, the commander did not attempt to justify his denial of Cosby’s request on either of the grounds recognized by the regulation — inconsistency with effective management or inability to represent more than four carriers.

Cosby is not barred from relief because it contracted with the carriers it represents and not directly with the government. The regulations require the Service’s approval before an agency may represent a carrier. Moreover, though representing a carrier, the local agent performs an indispensable part of the Service’s mission. As a practical matter, the agent does business with the government and should receive the procedural protection afforded government contractors. One performing government work need not always show a contractual relationship with the government to secure freedom from arbitrary official action. Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959).

Before debarring a contractor from future government contracts, a federal agency must comply with § 3(a) of the Administrative Procedure Act by stating and publishing its rules of procedure. Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570, 577 (1964); cf. Overseas Media Corp. v. McNamara,-128 U.S.App.D.C. 48, 385 F. 2d 308 (1967). Both debarment and exemption proceedings involve examining the qualifications of a business to perform work for the government satisfactorily. In both instances the issues are essentially factual. No broad policy or management questions are now at stake. The Service resolved them by adopting the regulation restricting the number of carriers an agent can represent and by making provision for exemptions. The issues before the commander are limited. He must determine whether Cosby is able to perform its duties competently while representing more than four carriers and whether granting Cosby an exemption would prejudice the efficient management of the program.

Section 3(a) of the Administrative Procedure Act requires the commander to follow published procedures in making his decision. Establishment of these procedures is the Service’s responsibility, and the district court properly refrained from promulgating them. The procedures should at least include a method for filing exemption requests, an opportunity to present evidence in support of the request and to rebut evidence against it, and, finally, a decision that is based on the administrative record. Because the Service’s regulations and the Administrative Procedure Act afford Cosby adequate relief, we need not consider its constitutional claims.

The district court properly declined to adjudicate the merits of Cosby’s application. Instead, the court enjoined enforcement of the four-carrier restriction against Cosby until the Service granted the company a hearing at which it could prove that it merited an exemption. Determination of Cosby’s entitlement to an exemption under the regulation should be made in the first instance by the Service in accordance with the Administrative Procedure Act. The Service’s failure to state and publish its procedures justified the district court’s conditional injunctive relief. Cf. Gonzalez v. Freeman, 118 U.S.App.D.C. 180, 334 F.2d 570, 579 (1964).

Affirmed.

      . Federal law entitles a transferred member of a uniformed service “to transportation (including packing, crating, drayage, temporary storage, and unpacking) of baggage and household effects” at government expense. 87 U.S.C. § 406(b) (1970). Defense department regulations designate the Service, an Army command, as “[t]he single manager operating agency for military traffic, land transportation, and common-user ocean terminals” for all of the military services. 82 C.F.R. § 173.8(f) (1972).

      . The regulation provides :
      “For household goods, including unaccompanied baggage, or originating in the U.S. and destined overseas, only four carriers may be represented in an origin area by the same local agent. If an agent represents himself as a carrier, such agent may only represent three other carriers.” Department of Defense, Personal Property Traffic Management Regulation § 6002(d) (8) (b) [32 C.F.R. §§ 173.4(b) (5) (ii) ].

      . Department of Defense, Personal Property Traffic Management Regulation § 6002(d)(8)(f) [32 C.F.R. § 173.4(b)(5) (vi) (1972)].

      . In its opinion from the bench, the district court said “unless and until the plaintiff gets a hearing regarding his exception, the defendants are enjoined” from enforcing the four-carrier restriction against him, and the docket sheet records that an injunction was entered as of 2:50p. m. However, no separate document, except for the unsigned transcription of the court’s oral opinion, sets forth the judgment. Under other circumstances, this deviation from Rule 58 of the Federal Rules of Civil Procedure might cause serious problems. See e. g., Superior Life Insurance Co. v. United States, 462 F.2d 945 (4th Cir. 1972). But since both parties have treated the order as validily entered, we have considered the merits of the appeal.

      . Section 10(c) of the Administrative Procedure Act [5 U.S.O. § 704 (1970)] provides, “ . . . final agency action tor which there is no other adequate remedy in a court [is] subject to judicial review.” Agency action is defined by § 2(13) of the Act [5 U.S.O. § 551(13) (1970)] as including “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.”

      . Section 10 of the Administrative Procedure Act [5 U.S.O. § 701 (1970)] provides that judicial review is not available when “(1) statutes preclude judicial review ; or (2) agency action is committed to agency discretion by law.” The government does not suggest that any statute precludes judicial review.

      . Department of Defense, Personal Property Traffic Management Regulation §§ 6001(d) (2) — (6).

      . Section 3(a) of the Administrative Procedure Act [5 U.S.C. § 552(a) (1970)1 provides:
      “(a) Each agency shall make available to the public information as follows :
      (1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public—
      (B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
      (C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations.

      . Lack of policy and management questions distinguish this case from Panama Canal Co. v. Grace Lines, Inc., 356 U.S. 309, 78 S.Ct. 752, 2 L.Ed.2d 788 (1958) and Curran v. Laird, 136 U.S.App.D.C. 280, 420 F.2d 122 (1969), on which the government relies. In both of those cases the courts held that the administrative decisions were immune from judicial review because they had been committed to agency discretion. However, in both, broad public policies were challenged — not an individual’s entitlement to a regulatory exemption from the general policy. In Panama Canal, the litigants questioned the computation of tolls for the Panama Canal. Similarly, Curran sought review of the Secretary of Defense’s policy to use foreign flag ships rather than mothballed American vessels.


source: Caselaw Access Project

author: PHILLIPS, Chief Judge. DON J. YOUNG, District Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Peter BLACK, Defendant-Appellant.
    No. 72-1906.
    United. States Court of Appeals, Sixth Circuit.
    Argued Feb. 6, 1973.
    Decided June 15, 1973.
    Dan J. Young, District Judge, filed a concurring opinion.

      George B. Fleshman (Court Appointed), Ashland, Ky., for defendant-appellant.
    Eldon L. Webb, Lexington, Ky., for plaintiff-appellee; Eugene E. Siler, Jr., U. S. Atty., James F. Cook, Asst. U. S. Atty., Lexington, Ky., on brief.
    Before PHILLIPS, Chief Judge, LIVELY, Circuit Judge, and YOUNG, District Judge

       Honorable Don J. Young, Judge, United States District Court for the Northern District of Ohio, sitting by designation.

   PHILLIPS, Chief Judge.

Appellant seeks reversal of his conviction under a two-count indictment for falsifying information in connection with the acquisition of a firearm and illegal possession of a firearm. 18 U.S.C. § 922(a)(6), 18 U.S.C.App. § 1202(a) (1).

The District Court, after receiving the appellant’s not guilty plea to both counts, set the trial date for May 10, 1972. The United States Attorney, on that date, moved for a continuance of the trial until June 5 because of the illness and hospitalization of one of the Government witnesses. Trial to a jury was held on June 5 and 6 and a guilty verdict on both counts was returned. The District Court sentenced the appellant to four years’ imprisonment on the false information count and two years on the possession count, the sentences to run concurrently.

On February 21, 1972, the appellant, in the company of two other persons, entered a Morehead, Kentucky, discount store and purchased a gun. In connection with this sale, the appellant was asked certain questions by the store clerk, who was barred by law from selling a gun to a person he knew as a convicted felon. 18 U.S.C. § 922(d)(1). One of the questions on Form 4473 of the Alcohol, Tobacco and Firearms Division of the Treasury Department, see 18 U.S.C. § 923(g), was “Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year?” At trial, the clerk testified that the appellant answered this question, “No,” when asked before the purchase of the gun. It is uncontroverted that the defendant had been convicted in a Kentucky state court of uttering a forgery and was sentenced to 2 years’ imprisonment.

Four separate grounds for reversal are urged by the appellant. He claims that he was deprived of his right to a speedy trial, that certain remarks in the prosecutor’s closing argument were prejudicial reversible error, that he was subjected to cruel and unusual punishment and that his privilege against self-incrimination was violated by the trial judge’s requiring him to testify first, if at all, in his own defense. We examine these assertions in order.

The appellant’s initial contention is that the delay from May 10, when the trial was originally scheduled, to June 5, when it actually was held, deprived him of his Sixth Amendment right to a speedy trial. The relevance of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to this case is uncertain. The Barker case was handed down June 22, 1972, more than two weeks after the trial of this case. Under the Barker test, if there is a “presumptively prejudicial delay,” 407 U.S. at 530, 92 S.Ct. 2182, then a four-factor balancing test must be used to determine if the right to a speedy trial has been impaired. Because the three week delay in this case was not presumptively prejudicial, there is “no necessity for inquiry into the other factors that go into the balance.” 407 U.S. at 530, 92 S.Ct. at 2192. Because the Barker test is not applicable to this situation, we do not rule on the issue of whether it is to be applied retrospectively.

The appellant’s next assertion is that certain remarks of the prosecutor were prejudicial to him. In his closing argument the prosecutor referred to the importance of the gun laws and their enforcement. During the argument, the Assistant United States Attorney made reference to the shootings of President John F. Kennedy, Senator Robert F. Kennedy, Dr. Martin Luther King and Governor George Wallace. Appellant asserts error in the failure of the District Judge to strike the references and instruct the jury to disregard them.

No objection was made during the trial at the time these remarks were made. It is a long-standing rule of trial practice that a defendant must object to improper statements made by opposing counsel during closing argument to preserve these objections for appeal. Crumpton v. United States, 138 U.S. 361, 364, 11 S.Ct. 355, 34 L.Ed. 958 (1891); Holden v. United States, 388 F.2d 240, 242-243 (1st Cir.) cert. denied, 393 U.S. 864, 89 S.Ct. 146, 21 L.Ed. 2d 132 (1968). The purpose of this rule is to allow the trial judge to attempt to correct the error, if any was committed. Where no objection is made then the court on appeal should intercede only where the error would “seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936); Cf. Silber v. United States, 370 U.S. 717, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962).

A review of the record in this case convinces this Court that the error, if any, in the closing argument of the prosecutor was not reversible. United States v. Benson, 389 F.2d 376 (6th Cir.) cert. denied, 391 U.S. 903, 88 S.Ct. 1652, 20 L.Ed.2d 418 (1968).

The third assertion of the appellant is without merit and can be disposed of easily. Appellant contends that the sentence imposed by the District Court is a violation of his Eighth Amendment protection against cruel and unusual punishment. The sentences were both well within the limits set by Congress. The maximum punishment for the falsification count was five years’ imprisonment or a $5,000 fine or both. 18 U.S.C. § 924. The maximum penalty for the possession count was imprisonment for two years or a $10,000 fine or both. 18 U.S.C.App. § 1202(a). The wide discretion in sentencing vested in the District Court was not abused. United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).

Appellant’s fourth assertion of error revolves around the propriety of the practice of requiring a defendant, who desires to testify on his own behalf, to testify first, if at all. This practice is based on the theory that the defendant, who is entitled to be present during his trial, should not be allowed to hear his witnesses first and then tailor his own testimony to match theirs. As Professor Wigmore stated it, “the reason for this rule is the occasional readiness of the interested person to adapt his testimony, when offered later, to victory rather than to veracity, so as to meet the necessities as laid open by prior witnesses. . . .” Wigmore, Evidence, § 1869 at 502 (3rd ed. 1940).

At the time of appellant’s trial and conviction, this practice was part of the law of two of the states in this Circuit, Kentucky and Tennessee. It also had been expressly approved by this Court. United States v. Shipp, 359 F.2d 185, 190 (6th Cir.), cert. denied, 385 U.S. 903, 87 S.Ct. 213, 17 L.Ed.2d 134 (1966). This same procedure was also practiced in at least one district court in this Circuit, the instant trial court, and probably in another, the Western District of Tennessee. See, Shipp, supra. Consequently, the defendant’s counsel in the instant case was told by the District Judge before the defense was begun that “If the Defendant is going to testify, he has got to testify first.”

On June 7, 1972, one day following the jury verdict in this case, the United States Supreme Court struck down the Tennessee statute which mandated that a criminal defendant testify first, if at all, in his own defense. Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972). Speaking through Mr. Justice Brennan, the Court wrote:

“ . . . a defendant may not know at the close of the State’s case whether his own testimony will be necessary or even helpful to his cause. Rather than risk the dangers of taking the stand, he might prefer to remain silent at that point, putting off his testimony until its value can be realistically assessed. Yet, under the Tennessee rule, he cannot make that choice ‘in the unfettered exercise of his own will.’ Section 40-2403 exacts a price for his silence by keeping him off the stand entirely unless he chooses to testify first. This, we think, casts a heavy burden on a defendant’s otherwise unconditional right not to take the stand. The rule, in other words, ‘cuts down on the privilege [to remain silent] by making its assertion costly.’ Griffin v. California, 380 U. S. 609, 614, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965).” (footnotes omitted) 406 U.S. at 610-611, 92 S.Ct. at 1894.

An alternative holding offered by Mr. Justice Brennan was that the procedure violated the defendant’s due process rights.

There can be no doubt that, if the Brooks decision is to be applied to the instant case, the defendant’s privilege against self-incrimination has been violated. Our inquiry, thus, must turn to the issue of retroactivity. Should the Brooks decision, handed down on June 7, be applied to the instant trial, which was conducted on June 5 and 6 ?

The problem of retroactive application of Supreme Court constitutional adjudications in the criminal rights area is a difficult and complex one. We note at the outset of this analysis that the Constitution neither requires nor prohibits the retrospective application of a decision of the United States Supreme Court. Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). As Mr. Justice Cardozo stated it, “the Federal Constitution has no voice on the subject.” Great Northern Ry. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932). Each case must proceed on an ad hoe basis, with the tests enunciated by the Supreme Court as the guidelines.

The retroactivity doctrine in constitutional adjudication was born in Linkletter, supra. The Court in that decision for the first time refused to apply a decision announcing a new principle of constitutional criminal procedure to a defendant whose conviction pre-dated the decision. In Linkletter, the Court refused retroactive application of the decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), which made the Fourth Amendment exclusionary rule applicable to the states.

Mr. Justice Clark, writing for the Court, noted that prospective decisions, that is, decisions limited to future application, were unknown at the common law. This was in keeping with the traditional Blackstonian view of the role of judges. According to this theory, judges do not create or fashion new law, but rather merely discover what the law has always been. Therefore, under this theory, a decision determinative of a constitutional issue or any other issue merely states what the law has always been, regardless of what interpretation had been placed on the question earlier. The Linkletter Court then outlined how, through the years, the legal realist school of jurisprudence had gained support in Court decisions. The legal realists concede that the judge often makes law and recognizes the prior decision, later overruled, as an “existing juridicial fact.” Under this theory, then, prospective decisions are permissible. The Linkletter opinion concedes that while all prior cases announcing prospective rules of law dealt with invalid statutes or the effect of a decision overturning common law precepts, “there seems to be no impediment — constitutional or philosophical — to the use of the same rule in the constitutional area where the exigencies of the situation require such an application.” 381 U.S. at 628, 85 S.Ct. at 1737.

A three-factor analysis was adopted by Linkletter to determine whether retroactive application should be given to a new. decision. “In short, we must look to the purpose of the Mapp rule; the reliance placed upon the Wolf doctrine; and the effect on the administration of justice of a retrospective application of Mapp.” 381 U.S. at 636, 85 S.Ct. at 1741. See also Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The Wolf doctrine which Mapp overruled had held that even though the concept of privacy, the hallmark of the Fourth Amendment, was implicit in the Fourteenth Amendment’s protection of “the concept of ordered liberty,” the exclusionary rule of evidence, barring the fruits of searches and seizures violative of the Fourth Amendment, was not mandated on the states by the Constitution. Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949).

The three-factor, purpose-reliance-effect test delineated in Linkletter remains the Supreme Court’s framework for the determination of retroactivity. Last term, the Court reaffirmed the continuing vitality of the three-factor analysis. Adams v. Illinois, 405 U.S. 278, 280, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972). Although Linkletter itself gave no indication as to the relative weight to be given the factors in the analysis, later decisions have revealed that the most important factor to be considered is the purpose to be served by the new rule. Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Roberts v. Russell, 392 U.S. 293, 295, 88 S.Ct. 1921, 20 L.Ed.2d 1100, rehearing denied, 393 U.S. 899, 89 S.Ct. 73, 21 L.Ed.2d 191 (1968).

The most recent pronouncement of the Court on the importance of the purpose factor was in Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971), where the Court stated:

“Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past .trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.” (footnote omitted)

See, also Ivan v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972). It is obvious, therefore, that the crucial examination in the application of the Linkletter test is the discovery of the new rule’s purpose. If its purpose is to enhance the truth-finding mechanism it will be applied retrospectively. If there is another purpose, the entire three-factor analysis must be applied.

What then is the purpose of the new rule announced by the Supreme Court in Brooks that the defendant cannot be forced to testify first in his criminal trial defense? The Court stated that the old rule cut down on the defendant’s privilege against self-incrimination, making its exercise costly. Thus, the new rule is aimed at the protection of the defendant’s privilege against self-incrimination. The privilege is not aimed at the enhancement of the fact-finding process at trial. Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, rehearing denied, 383 U.S. 931, 86 S.Ct. 925, 15 L.Ed.2d 850 (1966). The classic enunciation of the policies behind the privilege against self-incrimination was set forth by Mr. Justice Goldberg, in Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594,12 L.Ed.2d 678 (1964):

“[The privilege] reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates ‘a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load,’ 8 Wigmore, Evidence (McNaughton rev., 1961), 317; our respect for the inviolability of the human personality and of the right of each individual ‘to a private enclave where he may lead a private life,’ United States v. Grünewald, 2 Cir., 233 F.2d 556, 581-582 (Frank, J., dissenting), rev’d 353 U.S. 391, 77 S.Ct. 693, 1 L.Ed.2d 931; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes ‘a shelter to the guilty’, is often ‘a protection to the innocent.’ Quinn v. United States, 349 U.S. 155, 162, 75 S.Ct. 668, 99 L.Ed. 964.” 378 U.S. at 55, 84 S.Ct. at 1596.

Far from being designed to enhance the fact-finding process at trial, the privilege against self-incrimination, by allowing a defendant to remain silent at his trial when he is the witness most informed about the facts of his case, actually retards the fact-finding process. Cf. Schwartz, Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin, 33 U.Chicago L.Rev. 719, 729 (1966).

The inquiry does not cease, however, with the determination of what constitutional right is involved. We are mindful of the Supreme Court’s warning that “the retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based.” Johnson v. New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882, rehearing denied, 385 U.S. 890, 87 S.Ct. 12, 17 L. Ed.2d 121 (1966). Each rule must be examined carefully to determine its purpose. The specific rule in the Brooks case, permitting a defendant to testify after his other witnesses, does not enhance the fact-finding process at trial. The old rule, by the same token, did not significantly impair the fact-finding process. For example, in the instant case, the District Judge’s imposition of the impermissible procedure, at most, kept one witness, the defendant, off the stand. His defense was presented by his two companions on the day of the purchase of the gun. If the defendant himself had testified, his testimony would have been open to impeachment by his prior felony conviction. The con-' cern of the Linkletter Court was to assure that innocent men convicted under later overruled law would not remain imprisoned. We do not think that this danger is present in this case. We emphasize that we are not denigrating the value or importance of the privilege against self-incrimination. We merely examine what the purpose of the Brooks rule is in order to apply the Linkletter test. The purpose of the Brooks rule, we hold, was not to enhance the fact-finding process but rather to protect the traditional right of the defendant to exercise his privilege against self-incrimination without penalty.

We now address the second factor in the Linkletter test, reliance. Before Brooks, two of the four states in this Circuit, Tennessee and Kentucky, provided for the “first, if at all” rule by statute. See note 4, supra. The Tennessee statute has been law since 1887. See Clemons v. State, 92 Tenn. 282, 21 S.W. 525 (1892). The earliest reference in Kentucky statutes was in 1915, § 1646. It should be noted also that this Circuit had expressly approved the practice for use in the federal district courts. See, Shipp, supra. Judges, both state and federal, in this Circuit were fully justified in relying on the long existence and approval of such a rule.

A retrospective application of Brooks would have a considerable effect on the administration of justice. A blanket retroactive application of the new rule would put into question the convictions of all defendants in Tennessee and Kentucky state courts and the convictions of all defendants in at least some of the federal district courts in these two states. At the minimum, every prisoner would have the right to a hearing as to whether the error had been prejudicial. Whether the defendant had testified or not at his original trial, under Brooks his privilege against self-incrimination would have been narrowed. It should be noted that the Brooks defendant did not testify at all. Even if we were to adopt the contention that the retroactivity be applied only to those cases on direct appeal when Brooks was decided, there would be a significant effect on the administration of justice. Retrial or a hearing would be mandated for all those convictions obtained within, perhaps six months to a year prior to Brooks in two States and some district courts. This is particularly troublesome when it is realized that the pre-Brooks procedure had not significantly distorted the fact-finding process.

It is contended that this court is bound, because of the treatment of those cases on direct appeal at the time Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), was decided, to apply the Brooks holding to this defendant whose case was in the direct appeal process at the time Brooks was handed down. This contention proceeds on two basic assumptions: 1) that Brooks was merely an extension of Griffin and because of that it is controlled by the same retroactivity decision as Griffin and 2) there is a distinction, for purposes of retroactivity, between cases pending in courts on post-conviction relief petitions and those in court on direct appeal. We feel that both of these assumptions are incorrect.

We do not read Brooks as a mere extension of Griffin, which barred comment on the defendant’s failure to testify in the trial. While both cases do rely on the privilege against self-incrimination, there are different practices involved in each of the cases. Brooks is not an extension of Griffin any more than all decisions turning on a violation of due process are extensions of any particular due process decision. At any rate, there have been other decisions founded on the privilege against self-incrimination which have not been retroactively applied, either to those on appeal or those whose convictions had become final. Miranda v. Arizona, 384 U. S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was founded on the privilege against self-incrimination and was held to be purely prospective. Johnson, supra. The determination of the retroactivity of Brooks should not hinge on whether the Supreme Court in Brooks cited Miranda or Griffin.

Implicit in the contention that Brooks must be applied to the instant case is the assumption that cases on direct appeal are different than cases before the Court on petition for post-conviction relief. While it is true that such a distinction was made in the application of Griffin, compare Tehan, supra, with O’Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189 (1966), such a distinction is no longer valid in light of more recent Supreme Court decisions. Mr. Justice Harlan, in two strongly worded dissents, raised the same contentions. Mackey v. United States, 401 U. S. 667, 675, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971); Desist v. United States, 394 U.S. 244, 256, 258-259, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969). The Supreme Court rejected the distinction both times, reiterating its rejection in Adams, supra, where it stated that “we do not regard petitioner’s case as calling for a contrary conclusion merely because his conviction is before us on direct review.” 405 U.S. at 285, 92 S. Ct. at 920.

Since Griffin was applied to those cases on direct appeal at the time of its decision, O’Connor, supra, the Supreme Court at least four times has denied retroactive application of a new constitutional rule to a defendant on direct appeal. Adams, supra; Williams, supra; Desist, supra; Stovall, supra.

We reemphasize that the purpose of Brooks was not the enhancement of the fact-finding process. There was a continued justified reliance on the pre-Brooks law in two of the four States in this Circuit. The effect of a retroactive application of Brooks would be major. We hold that Brooks is not to be applied retrospectively to trials conducted before its date of decision. We note that “we do not disparage a constitutional guarantee in any manner by declining to apply it retroactively.” Johnson, supra, 384 U.S. at 728, 86 S.Ct. at 1778.

The task of determining retroactivity of a Supreme Court decision presents a difficult problem for a Court of Appeals. This Court has undertaken this task a number of times. Sometimes we have been right. See, e. g., Turner v. United States, 426 F.2d 480 (6th Cir. 1970) cert. denied, 402 U.S. 982, 91 S.Ct. 1646, 29 L.Ed.2d 148 (1971), accord., Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971); In re Autorama Tool & Die Co., 412 F.2d 369 (6th Cir. 1969), cert. denied, 397 U.S. 1043, 90 S.Ct. 1349, 25 L.Ed.2d 654 (1971). Sometimes we have been wrong. See, e. g., Robinson v. Neil, 452 F.2d 370 (6th Cir. 1971) rev’d, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973) ; Miller v. United States, 437 F.2d 1199 (6th Cir.) vacated 402 U.S. 939, 91 S.Ct. 1637, 29 L.Ed.2d 107 (1971); Graham v. United States, 407 F.2d 1313 (6th Cir. 1969) vacated 402 U.S. 938, 91 S.Ct. 1623, 29 L.Ed.2d 107 (1971); United States ex rel. Shott v. Tehan, 337 F.2d 990 (6th Cir. 1964), vacated, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453, rehearing denied, 383 U.S. 931, 86 S.Ct. 925, 15 L.Ed.2d 850 (1966).

The issue of whether Brooks is to be applied retroactively, or only prospectively, already would have been settled with finality if the Supreme Court, at the time that opinion was announced, had made a determination as to whether that decision would be applied retroactively. See Mishkin, The Supreme Court 1964 Term, Forward: — The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv.L. Rev. 56, 64 (1965). It is noted that the Supreme Court at least once has addressed the retroactivity issue in the same case as the announcement of a new rule. Witherspoon v. Illinois, 391 U.S. 510, 523, n. 22, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

In conclusion this court recognizes the doctrine of harmless constitutional error outlined in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed.2d 705, rehearing denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), should not be used with a broad brush to justify any error by the District Court. However, we find this case particularly to be appropriate for the application of that doctrine. Even if Brooks is to be construed as fully retroactive, we conclude that the error in this trial was clearly harmless. The trial transcript reveals that the possession of the gun was admitted and the defense of the defendant, that he was not asked any questions by the clerk, was contradicted emphatically by the two defense witnesses, his companions at the store. Even if it should be determined that Brooks should be applied retroactively, we hold that the conviction in the present case must be affirmed under Chapman.

Affirmed.

DON J. YOUNG, District Judge

(concurring).

I concur with the reasoning and the result of the majority opinion on the first three grounds and reach the same result on the fourth ground for the following reasons.

In Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L.Ed.2d 653 (1964), the United States Supreme Court held that the Fifth Amendment safeguards against self-incrimination are applicable to the states through the Fourteenth Amendment. Subsequently, in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), the Supreme Court reviewed whether comment by the prosecuting attorney on the defendant’s failure to take the witness stand was within the defendant’s Fifth Amendment protections. The Supreme Court, after recognizing that the decision whether the defendant should take the witness stand is one of gravest importance, determined that a prosecutor’s comments on the defendant’s refusal to testify cannot stand in the face of the Fifth Amendment protections. Comment acts as a “penalty imposed by [the] courts for exercising a constitutional privilege [and it therefore] cuts down on the privilege [to remain silent] by making assertion costly.” Id. at 614, 85 S.Ct. at 1233. More recently, the Supreme Court was faced once again with insuring that the Fifth Amendment protections are meaningful. In Brooks v. Tennessee, 406 U.S. 605, 92 S. Ct. 1891, 32 L.Ed.2d 358 (1972), the Supreme Court reviewed, as the majority opinion correctly points out, Tennessee statutes of identical import to the Kentucky statute which the District Judge relied upon in making its “first, if at all” ruling in the present case. The Supreme Court, reaffirming its belief that the defendant’s quandary whether to take the witness stand cannot be taken lightly, struck down the Tennessee statutes as unconstitutional, referring to Malloy and Griffin. This reference was not happenstance. The Court, in developing its reasoning for the Brooks decision, began by stating that the defendant has an absolute right “to remain silent unless he chooses to speak, in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence.” Brooks, supra, 406 U.S. at 609, 92 S.Ct. at 1893 citing from Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). But although the defendant has this right, the choice to exercise it may pose serious dangers to the success of an accused’s defense. For this reason, an enlightened judicial system must allow the defendant to weigh the pros and cons in deciding whether to testify. McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 1894, 28 L.Ed.2d 711 (1973). That decision, the Supreme Court continued, cannot be properly made at the close of the prosecutor’s case, since:

a defendant may not know at the close of the State’s case whether his own testimony will be necessary or even helpful to his cause. Rather than risk the dangers of taking the stand, he might prefer to remain silent at that point, putting off his testimony until its value can be realistically assessed. Yet, under the Tennessee rule, he cannot make that choice “in the unfettered exercise of his own will.” Section 40-2403 exacts a price for his silence by keeping him off the stand entirely unless he chooses to testify first. This, we think, easts a heavy burden on a defendant’s otherwise unconditional right not to take the stand. The rule, in other words, “cuts down on the privilege [to remain silent] by making its assertion costly.” Griffin v. California, 380 U. S. 609, 614, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965).

On the basis of this reasoning, I believe that Griffin and Brooks deal with the Supreme Court’s assurance, originally established in Malloy, that a defendant’s Fifth Amendment protection against self-incrimination shall not be abridged during a trial, and not with the Supreme Court’s exercise of its supervisory powers to establish the criteria so that an accused will be informed of his constitutional rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Since Brooks is a logical extension of Griffin, its prospectivity must be governed by Griffin.

The Supreme Court in determining the application of Griffin decided that it must be applied prospectively. Tehan v. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L. Ed.2d 453 (1966). At this juncture, the Supreme Court defined prospectivity as being applicable to all cases not yet final and clearly dictated that Griffin was to be applied to all cases on direct appeal. O’Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 252, 17 L.Ed.2d 189 (1966). Between 1966 to the present time the definition of prospectivity has evolved metamorphically. Though all of the cases were found to be prospective, the time of application varies: Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), applied Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), to all cases whose trials commenced after the date of the Escobedo decision; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), applied the rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), to line-ups conducted after the dates Wade and Gilbert were decided; Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968), applied Lee v. Florida, 392 U.S. 378, 88 S.Ct. 2096, 20 L.Ed.2d 1166 (1968), to evidence not yet introduced at trial when Lee was decided; Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), applied Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), to all searches subsequent to the date Chimel was decided; and in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed. 2d 484 (1972), the Supreme Court decided that its ruling should be applied in future revocations of parole. Id. at 490, 92 S.Ct. 2593. Prospectivity has now evolved to mean that the “rule” enunciated by the Supreme Court shall be applied henceforth to the critical stage involving the protected constitutional right.

The majority has carefully examined the application of Brooks under the three-pronged test enunciated in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). This test was also carefully examined by the Supreme Court in Tehan when determining the retroactivity of Griffin. If one accepts that Brooks is a logical extension of Griffin, one cannot come to a result inapposite to Tehan. Since Tehan applied Griffin prospectively then Brooks must be applied prospectively. But since the definition of prospectivity has evolved from “cases not yet final” at the time Tehan was decided to “from this day forward” when Morrissey was decided, the ultimate application of Brooks must be different from Griffin.

In attempting to avoid what it considers to be the ruling in Tehan, it seems to me that the majority opinion strains unnecessarily to disassociate Brooks from Griffin, for the result in Tehan is in complete accord with the remainder of the majority’s opinion. Tehan found Griffin to be prospective. The majority does the same with Brooks. The dispute involved here is not with the application of the tests to determine retrospectivity or prospectivity but solely with the definition of prospectivity. As stated above, this definition has been altered over the past several years so that today prospectivity means something different than it meant when Tehan was decided. This, however, does not impair the determination made in Tehan. It only affects the point at which the determination is implemented. For these reasons I agree with the conclusion of the majority but eschew the extreme methods that they have chosen to arrive at it.

      . 18 U.S.C. § 922(a)(6) reads as follows: “922. Unlawful acts. — It shall be unlawful—
      “ (6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter [§§ 921-928 of this title].”

      . 18 U.S.C. App. § 1202(a) (1) reads as follows :

        “1202. Receiving, possession, or transportation of firearms — Persons liable; penalties for violations. — (a) Any person who—
      (1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, . and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act [June 19, 1968], any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.”

      . The Supreme Court, this term, has given strong indications that the traditional Linhletter test for retroactivity, see discussion infra, may be inapplicable to the determination of the retroactivity of non-procedural decisions. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973). In Robinson, a unanimous Court found Linhletter inapposite in determination of the retroactivity of Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, rehearing denied, 398 U.S. 914, 90 S.Ct. 1684, 26 L.Ed.2d 79 (1970), which announced new law on double jeopardy. The Court noted that the decision banning certain uses of the death penalty, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), had been applied retrospectively, Walker v. Georgia and others, 408 U.S. 936, 92 S.Ct. 2845, 33 L.Ed.2d 753 (1972), without regard to Linhletter. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707, (1969) which held the double jeopardy clause binding on the states, similarly was retroactively applied in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), without reference to the Linhletter analysis. This court is aware that the Seventh Circuit has already held Bwher retroactive. United States v. Strunk, 467 F.2d 969, 971 (7 Cir. 1972), rev’d on other grounds, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973). It should also be noted that the Supreme Court has remanded two cases for reconsideration in light of Bwher. Campopiano v. United States, 408 U.S. 915, 92 S.Ct. 2487, 33 L.Ed.2d 328 (1972) ; Saglimbene v. United States, 408 U.S. 916, 92 S.Ct. 2488, 33 L.Ed.2d 328 (1972).

      . The relevant Tennessee statutes read as follows:

        “40-2402. Competency of defendant.

      ■ — In the trial of all indictments, presentments, and other criminal proceedings, the party defendant thereto may, at Ms own request, but not otherwise, be a competent witness to testify therein.

        “40-2403. Failure of defendant to testify. — Order of testimony. — The failure of the party defendant to make such request and to testify in his own behalf, shall not create any presumption against him. But the defendant desiring to testify shall do so before any other testimony for the defense is heard by the court trying the case.”
      The relevant Kentucky statute reads as follows:

        “421.225 — Testimony of defendant.

      (1) In any criminal or penal prosecution the defendant, on his own request, shall be allowed to testify in his own behalf, but his failure to do so shall not be commented upon or create any presumption against him.
      (2) A defendant so requesting to be allowed to testify for himself shall not be allowed to testify in chief after any other witness has testified for the defense.”
      Apparently, Tennessee and Kentucky are the only two states in the country which had such statutes before the decision in Brooks v. Tennessee, 406 U.S. 605, 92 S. Ct. 1891, 32 L.Ed.2d 358 (1972). See 406 U.S. 613, 616, 92 S.Ct. 1891 (Burger, C. J., dissenting).

      . Mr. Justice Holmes once wrote, “Judicial decisions have had retrospective operation for near a thousand years.” Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372, 30 S.Ct. 140, 148, 54 L.Ed. 228 (1910) (dissent) .

      . It is interesting to compare the rejection of the distinction in the later cases -with the flat statement in Linkletter that “a change in law will he given effect while a case is on direct review.” 381 U.S. at 627, 85 S.Ct. at 1736. The source of that principle of law was an 1801 Supreme Court case. United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L.Ed. 49. In that case, there was an intervening treaty.

      . See Wilson v. United States, 149 U.S. 60, 65-68, 13 S.Ct. 765, 37 L.Ed. 650 (1893) ; United States v. Shipp, 359 F. 2d 185, 190 (6th Cir. 1966) (dissenting opinion) ; and Bell v. State, 66 Miss. 192, 5 So. 389 (1889), for a discussion of this point.

      . For example, the Supreme Court in Escobedo sought to prevent certain types of in-custody interrogation by not allowing statements obtained at the interrogation into evidence at the trial. The critical stage of this protection was the trial and Johnson applied the rule of Escobedo to all trials commenced after Escobedo was announced. Whereas in Wade and Gilbert, the critical time was the line-up and Stovall applied the rule of Wade and Gilbert to all line-ups conducted after Wade and Gilbert were announced. The critical stage that Brooks seeks to protect is when the state rests and the defense decides its order of witnesses. Brooks should apply to this “critical stage” occurring after the decision of Brooks was announced. Since petitioner’s trial was over on the day preceding the decision of Brooks, the critical stage had passed and Brooks cannot apply to his case.


author: CELEBREZZE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert E. HARLAN, Defendant-Appellant.
    No. 72-1802.
    United States Court of Appeals, Sixth Circuit.
    Argued April 20, 1973.
    Decided June 20, 1973.
    H. Fred Hoefle, Cincinnati, Ohio (Court appointed), for defendant-appellant.

      John Patrick Conley, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee; Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief.
    Before CELEBREZZE, PECK and KENT, Circuit Judges.

       This case was argued to a panel consisting of Judges Celebrezze, Peck and Kent. Judge Kent died before a decision was reached and an opinion prepared.

   CELEBREZZE, Circuit Judge.

This is an appeal from Appellant’s conviction, after a plea of guilty, for armed bank robbery, for which Appellant was sentenced to 15 years imprisonment with discretionary parole pursuant to 18 U.S.C. § 4208(a)(2).

At his arraignment Appellant entered a plea of not guilty and thereafter the United States Attorney filed a motion requesting a mental examination of Appellant pursuant to 18 U.S.C. § 4244. The motion alleged, inter alia, that Appellant had a history of mental illness and had been confined to a mental institution in Michigan. This motion was granted by the District Court and a mental examination was ordered on January 11, 1972.

Appellant was examined by medical doctors specializing in psychiatry at the Federal Mental Institution at Springfield, Missouri. As a result of these examinations, two reports dated February 2, 1972, and February 28, 1972, were submitted to the District Court. In the first report psychiatric diagnosis was deferred, while the second report recommended a finding that Appellant was competent to stand trial.

On March 30, 1972, the District Court conducted a competency hearing, at which it was stipulated by counsel and Appellant that the examining doctors would testify pursuant to their reports, and Appellant personally concurred in the findings of the psychiatrists, as they appeared in the reports. The Court thereupon found Appellant competent to stand trial.

On April 20, 1972, Appellant entered a plea of guilty to a charge of armed bank robbery. After a presentence report was prepared by the probation authorities, Appellant appeared before the Court for sentencing on July 29, 1972. The Court engaged in a dialogue with Appellant and acknowledged that he had “some mental problem.” Nonetheless, relying on the fact that neither of the psychiatric reports indicated that Appellant was suffering from a psychosis, the Court sentenced Appellant to 15 years imprisonment under 18 U.S.C. § 4208(a)(2), making eligibility for parole discretionary with the parole authorities.

On appeal, Appellant asserts that the District Court erred in failing to further inquire into his competency at the time his guilty plea was received and at the time he was sentenced. In support of this claim, Appellant relies on this Court’s decision in United States v. Davis, 365 F.2d 251 (6th Cir. 1966), holding that the District Court in that case did not err in conducting, sua sponte, an additional hearing on the competency of the accused where his conduct before the court indicated that something might be “amiss.”

It is true that in its opinion in United States v. Davis, supra, this Court stated that under the facts of that case the District Court had an obligation to hold another hearing, 365 F.2d at 255. That opinion, however, also recognized the rule of Beltran v. United States, 302 F.2d 48, 50 (1st Cir. 1962), that a trial judge has no affirmative duty to conduct, sua sponte, a second inquiry into an accused’s competency “unless the court is on notice that something is amiss.” See Id.

Appellant contends that the District Judge had sufficient notice at the plea hearing and/or at the sentencing hearing to alert him to the asserted fact that something was “amiss,” or, more accurately, that Appellant’s level of competency may have changed since the competency hearing. Specifically, Appellant argues that the District Judge should have been put on notice by the following: (1) the psychiatric reports which acknowledged Appellant’s past history of mental illness and violence with firearms and his paranoid-schizophrenic personality, with aggressive and dangerous tendencies, notwithstanding the fact that neither report recommended a finding of incompetency; (2) Appellant’s rejection, prior to his guilty plea to the charge of armed robbery, of an opportunity to plead guilty to the lesser, included offense of unarmed robbery; (3) the request of Appellant’s trial counsel, after Appellant had entered his guilty plea, that Appellant' be committed for psychiatric treatment rather than sentenced as a normal offender; (4) the statements by Appellant at the sentencing hearing that he then felt that he had a mission to save the world and a right to destroy people in authority and that he had undergone two “seizures” since his psychiatric examinations; and (5) the District Judge’s acknowledgment at the sentencing hearing that Appellant had “some mental problem” and the Judge’s dismay that he did not know how to help Appellant since the psychiatric reports indicated no psychosis.

Significantly, most of the above factors merely relate to Appellant’s past and apparently persisting personality disorders, of which the District Court was made fully aware at the competency hearing through the psychiatric reports. Although these reports certainly did not give Appellant a clean bill of mental health, the one nonetheless recommended a finding of competency and the other deferred psychiatric diagnosis, and no contradictory evidence was presented to the Court at the competency hearing. With this competent and uncontradicted evidence supporting the District Court’s finding of competency, we find no basis for upsetting that determination. See Wolcott v. United States, 407 F.2d 1149 (10th Cir.), cert. denied, 396 U.S. 879, 90 S.Ct. 156, 24 L.Ed.2d 137 (1969).

Beyond the factors of which the District Court was thus fully aware at the competency hearing, it appears that only two episodes — the rejection by Appellant of an opportunity to plead guilty to the lesser offense of unarmed robbery and his statement at the sentencing hearing that he had experienced two “seizures” since he underwent, psychiatric examination — might be said to have given the Court notice of a possible change in Appellant’s condition subsequent to the competency hearing. We are unable to say that these episodes gave rise to an affirmative duty on the part of the Court to conduct, sua sponte, an additional inquiry into Appellant’s competency and that the Court’s failure to do so constituted prejudicial error, requiring that Appellant’s guilty plea be set aside.

We therefore hold that the District Court did not commit prejudicial error in failing to conduct an additional inquiry into Appellant’s competency. Our decision of course, might well be different had the Court failed to conduct any hearing whatsoever under the facts before it. See Pate v. Robinson, 383 U. S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).

We find no merit in Appellant’s further claim that he was denied effective assistance of counsel due to the failure of Appellant’s trial counsel to move for additional psychiatric examinations. See Hayes v. Russell, 405 F. 2d 859, 860 (6th Cir. 1969). Nor do we accept Appellant’s argument that the test for competency to plead guilty should be more stringent than the test for competency to stand trial. See United States v. Valentino, 283 F.2d 634 (2d Cir. 1960).

The judgment of the District Court is therefore affirmed.


author:
PER CURIAM:
      COLEMAN, Circuit Judge GOLDBERG, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, and WISDOM, GODBOLD, INGRAHAM and RONEY, Circuit Judges,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Darwin Clark BAILEY, Defendant-Appellant.
    No. 72-1799.
    United States Court of Appeals, Fifth Circuit.
    June 13, 1973.
    Coleman, Circuit Judge, concurred specially and filed opinion.
    Goldberg, Circuit Judge, concurred in part and dissented in part and filed opinion in which John R. Brown, Chief Judge, Wisdom, Godbold, Ingraham and Roney, Circuit Judges, joined.
    John B. Farese, Ashland, Miss., for defendant-appellant.
    H. M. Ray, U. S. Atty., Alfred E. Moreton, III, Asst. U. S. Atty., Oxford, Miss., for plaintiff-appellee.
    Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.
   PER CURIAM:

The court convened en banc to consider the propriety of the Allen charge. The facts of the case and the charge in question are set out in the panel opinion. United States v. Bailey, 5 Cir., 1972, 468 F.2d 652. We adhere to our decisions approving the Allen charge within the limitations therein delineated. See, e. g., United States v. Sutherland, 5 Cir., 1972, 463 F.2d 641, 647-648; United States v. Williams, 5 Cir., 1971, 447 F.2d 894, 898-900; Posey v. United States, 5 Cir., 1969, 416 F.2d 545, 551-552; Sanders v. United States, 5 Cir., 1969, 415 F.2d 621, 629-632; Thaggard v. United States, 5 Cir., 1965, 354 F.2d 735, 738-739. Cf. Green v. United States, 5 Cir., 1962, 309 F.2d 852, 854-856; Powell v. United States, 5 Cir., 1961, 297 F.2d 318, 319-322, for supplemental charges which went beyond the pale.

The judgment of conviction is affirmed.

COLEMAN, Circuit Judge

(concurring specially):

For the reasons stated in my opinion in Thaggard v. United States, 5 Cir., 1965, 354 F.2d 735, 739, I would, if it were within my power, do away with the Allen charge. Since, however, the Supreme Court of the United States has approved it and after seventy six years has never seen fit to withdraw that approval I consider myself bound by the unchanged views of the High Court.

GOLDBERG, Circuit Judge, with whom JOHN R. BROWN, Chief Judge, and WISDOM, GODBOLD, INGRAHAM and RONEY, Circuit Judges,

join (concurring in part and dissenting in part) :

I concur in the en banc Court’s affirmance of this conviction, but for the reasons stated in the panel opinion, 468 F.2d 652, I must respectfully dissent from the Court’s refusal to prohibit further use of the “dynamite charge” in this Circuit. The instant conviction was obtained after the trial judge delivered an Allen charge that the original panel held was in compliance with all requirements heretofore laid down in this Circuit. The panel was nevertheless troubled by the use of the charge, and we expressed a. desire to reverse the case. Being bound by precedent, however, we were compelled to affirm the conviction, as we can overrule prior Fifth Circuit cases only when we sit en banc. We have now considered the issue while sitting en banc, and the majority of the Court has refused to put an end to any further use of “this abusable relic.” 468 F.2d at 669.

My view of the developing law, which has been greatly aided by the excellent briefs supplied by all parties to this appeal, convinces me that this Court should overrule our prior decisions allowing use of the Allen charge and thereby join the jurisdictions that have abolished this type of jury instruction. E. g., United States v. Thomas, 1971, 146 U.S.App.D.C. 101, 449 F.2d 1177 (en banc); United States v. Fioravanti, 3 Cir. 1969, 412 F.2d 407, cert. denied sub nom. Panaccione v. United States, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88; United States v. Brown, 7 Cir. 1969, 411 F. 2d 930, cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508. In so doing, I would adopt the persuasive words of Judge Aldisert, who speaking for the Third Circuit in United States v. Fioravanti, supra, wrote:

“After the most careful consideration of the Allen Charge and the context in which it was presented in this case, we have concluded that its use here was not so prejudicial as to deprive appellant of a fair trial and a unanimous verdict based on proof beyond a reasonable doubt.
“Our refusal to reverse this conviction should not be taken to mean that we have tacitly approved of the Charge or that we intend, in the future, to ponder each ease on its peculiar facts. On the contrary, we know from the experience in this circuit and from an examination of the experience in others that the use of the Allen Charge is an invitation for perennial appellate review. As the Arizona Supreme Court said when it abolished it in 1959:
‘When and wherever its use is called into question it must stand or fall upon the facts and circumstances of each particular case. It has given, and we believe each use will give us, harassment and distress in the administration of justice. No rule of thumb can circumscribe definite bounds of when and where, or under what circumstances it should be given or refused.
-» •» -x- * *
‘We are convinced that the evils far outweigh the benefits, and decree that its use shall no longer be tolerated and approved by this court.’ State v. Thomas, 86 Ariz. 161, 342 P.2d 197, 200 (1959).
“Hereafter, in this circuit, trial judges are not to give instructions either in the main body of the charge or in the form of a supplement that direct a juror to distrust his own judgment if he finds a large majority of the jurors taking a view different from his. Such an instruction will be deemed error, normally reversible error. Conceivably, in very extraordinary circumstances the error may be found so inconsequential as to avoid the necessity of reversal on appeal. But hereafter this court will not let a verdict stand which may have been influenced in any way by an Allen Charge.
“We predicate our decision on the basis of the potential for prejudice its future use may generate and the profound difficulty in confining its use within just and equitable bounds. Its peccancy comes from its tendency to hurt, from its tendency to erode the jurors’ capacity for meaningful group deliberation with its concomitant arguing, influencing, and exchange of views. As a prophylactic device to eliminate future vexation, our prohibition shall have prospective application only in those jury trials which shall be conducted hereafter.
“The judgment of conviction will be affirmed.”

412 F.2d at 419-420 (footnotes omitted).

It is settled that use of the Allen charge does not per se offend the Constitution, but it is also clear that we have the supervisory power to end its use. Our custodial responsibility over the District Courts is not acquitted merely by the interpretation and application of relevant principles of existing law. As the stewards of justice in this Circuit, we are charged with an additional duty to establish and maintain civilized standards of procedure governing the conduct of trials. As the Ninth Circuit has recently pointed out, a springtide of authority bears witness to the irrefutable existence of this supervisory power:

“. . . That this court has such supervisory power is hardly deniable. In La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957), the United States Supreme Court held that ‘.- . . supervisory control of the District Courts by the Courts of Appeals is necessary to proper judicial administration in the federal system.’ Id. at 259-260, 77 S. Ct. 309. Moreover, this pronouncement by the Nation’s supreme judicial authority has been reaffirmed by every Court of Appeals, including our own, that has confronted the issue. In a very recent opinion of this court, Guam v. Camacho, 470 F.2d 919 (9th Cir. 1972), Chief Judge Chambers acknowledged the existence of the ‘supervisory power’ of this court. See also United States v. Thomas, 146 U. S.App.D.C. 101, 449 F.2d 1177 (1971) (en banc); United States v. Daniels, 446 F.2d 967 (6th Cir. 1971) ; In re Ellsberg, 446 F.2d 954 (1st Cir. 1971); United States v. Jones, 140 U.S.App.D.C. 70, 433 F.2d 1176 (1970), cert. denied 402 U.S. 950, 91 S.Ct. 1613, 29 L.Ed.2d 120 (1971); Dellinger v. Mitchell, 143 U.S.App.D. C. 60, 442 F.2d 782 (1971); Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970), cert. denied, 408 U.S. 942, 92 S.Ct. 2869, 33 L.Ed.2d 766 (1972); United States v. Butera, 420 F.2d 564 (1st Cir. 1970); United States v. Fioravanti, 412 F.2d 407 (3d Cir.), cert. denied, 396 U.S. 837, 90 S.Ct. 97, 24 L.Ed.2d 88 (1969); United States v. Brown, 411 F.2d 930 (7th Cir. 1969), cert. denied, 396 U.S. 1017, 90 S.Ct. 578, 24 L.Ed.2d 508 (1970); Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc); United States v. Dooling, 406 F.2d 192 (2d Cir. 1969), cert. denied, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969); Sanders v. Russell, 401 F.2d 241 (5th Cir. 1968); Pea v. United States, 130 U.S.App.D.C. 66, 397 F.2d 627, 631 (1968) (rehearing en banc); ACF Industries, Inc. v. Guinn, 384 F.2d 15 (5th Cir. 1967), cert. denied, 390 U.S. 949, 88 S.Ct. 1039, 19 L.Ed.2d 1140 (1968); Government of Virgin Islands v. Lovell, 378 F.2d 799 (3d Cir. 1967); Thomas v. United States, 368 F.2d 941 (5th Cir. 1966); Tate v. United States, 123 U.S.App.D.C. 261, 359 F.2d 245 (1966); United States v. Freeman, 357 F.2d 606 (2d Cir. 1966); Black v. United States, 122 U.S.App.D.C. 393, 355 F.2d 104 (1965); United States v. Inman, 352 F.2d 954 (4th Cir. 1965); Ford v. United States, 122 U.S.App.D.C. 259, 352 F.2d 927 (1965) (en banc); Smith v. Katzenbach, 122 U.S.App.D. C. 113, 351 F.2d 810 (1965); Natural Resources, Inc. v. Wineberg, 349 F.2d 685 (9th Cir. 1965), cert. denied, 382 U.S. 1010, 86 S.Ct. 617, 15 L.Ed.2d 525 (1966); Jones v. United States, 342 F.2d 863, 119 U.S.App.D.C. 284 (1964) (en banc); United States v. D’Angiolillo, 340 F.2d 453 (2d Cir.), cert. denied, 380 U.S. 955, 85 S.Ct. 1090, 13 L.Ed.2d 972 (1965); United States ex rel. Sturdivant v. New Jersey, 289 F.2d 846 (3d Cir.), cert. denied, 368 U.S. 864, 82 S.Ct. 109, 7 L. Ed.2d 61 (1961); Wildeblood v. United States, 106 U.S.App.D.C. 338, 273 F.2d 73 (1959) (Burger, J.); Delaney v. United States, 199 F.2d 107 (1st Cir. 1952); Helwig v. United States, 162 F.2d 837 (6th Cir. 1947).”

Burton v. United States, 9 Cir. 1973, 483 F.2d 1182 (footnotes omitted). See also Lego v. Twomey, 1972, 404 U.S. 477, 479 n.1, 92 S.Ct. 619, 30 L.Ed.2d 618. I believe we err in not exercising that supervisory jurisdiction in this instance, and I note in passing that in both Fioravanti, supra, and Brown, supra, the Supreme Court denied writs and let similar supervisory changes stand.

In the dual interests of promoting justice and eliminating an overly fertile source of appeals, I would have the en banc Court exercise its supervisory power and abolish the use of the Allen charge in all its many shades and phases. I would permit no criminal conviction to stand in any future federal trial in this Circuit that does not strictly comply with the Standards recommended by the American Bar Association:

“5.4 Length of deliberations; deadlocked jury.
“(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
(i) that in order to return a verdict, each juror must agree thereto;
(ii) that- jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
“(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
“(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.”

American Bar Association, Standards Relating to Trial by Jury § 5.4 (Approved Draft 1968).

I regret that the en banc Court declines to take this remedial and prophylactic action, yet I trust that many of the District Judges of this Circuit will on their own initiative discontinue using Allen and instead will adhere to the ABA Standards. The Allen charge ought not to be used, for as we discussed at length in the original panel opinion, the trouble it causes far outweighs any proper purpose it serves.

      . Allen v. United States, 1896, 164 U.S. 492, 501-502, 17 S.Ct. 154, 41 L.Ed. 528.

      . Appellant, a Mississippi highway patrolman, was charged with bank robbery. The evidence against him, inter alia, included an eye witness who saw appellant leaving the bank when the robbery alarm sounded, “bait money” in his possession, and his detailed confession.
      An example of the advocacy which is calculated to cause a deadlocked jury, thereby making some form of supplemental charge necessary is seen in this record. Notwithstanding an inquiry from the district court to the prospective jurors whether each of them would vote not guilty unless convinced of guilt beyond a reasonable doubt, defense counsel, on voir dire, inquired as follows:
      “Now, please listen carefully to this because this is very important and vital to the defense of this case. If there is a single juror who is seated in this jury box who is not convinced beyond all reasonable doubt as to this man’s guilt, they are not convinced that the Government has proven his guilt in the manner prescribed by law, if that doubt continues to exist in your mind and you should be the only one of those twelve jurors, and after re-consultation with your fellow jurors if you are still convinced that his guilt has not been proven beyond all reasonable doubt, do you tell me here and now under your solemn sworn oath as jurors that you will have the courage and the fortitude, if necessary, as long as you believe that, to stand alone and to face those other eleven jurors and continue to vote not guilty so long as you have that reasonable doubt in your mind? Do you tell me that you have that courage and that fortitude? Will you nod your head each and every one? You tell me that you will not be swayed by the majority rule but as long as you have that reasonable doubt in your mind you can stand tall and straight and say, ‘No, I am not convinced of his guilt and I will continue to vote not guilty if it takes staying here till doom’s day’?”