text:
    UNITED STATES of America, Plaintiff-Appellee, v. Clifford GRIER, Defendant-Appellant.
    No. 74-2781.
    United States Court of Appeals, Fifth Circuit.
    March 28, 1975.

      John R. Myer, Atlanta, Ga., for defendant-appellant.
    John L. Briggs, U. S. Atty., Howard T. Snyder, Ernst D. Mueller, John Daley, Jr., Asst. U. S. Attys., Jacksonville, Fla., for plaintiff-appellee.
    Before TUTTLE, WISDOM and GOLDBERG, Circuit Judges.
   WISDOM, Circuit Judge:

This is an appeal in a selective service case from a conviction, in a trial before the court, without a jury, for the defendant’s failing to submit to induction. 50 U.S.C. App. § 462. Because of procedural defects in the local board’s handling of the reclassification of the defendant from II-S (student deferment) to I-A (available for induction), we reverse his conviction, and remand the case to the district court with instruction to dismiss the indictment.

Clifford Grier registered with Local Board 163 in Sylvester, Worth County, Georgia. The local board classified him II — S when he enrolled in Morehouse College sent SSS Form 109 to the local board, stating that Grier was a full-time student making satisfactory progress toward graduation in June 1971. In May 1970 he began working 40 hours a week at National Biscuit Company, while remaining a full-time student. In November 1970 Morehouse College sent another SSS Form 109, again certifying that Grier was a full-time student making satisfactory progress towards graduation. The projected date of his graduation, however, was moved back to June 1972. On November 16, 1970, the local board reclassified Grier I — A, giving no reasons, but apparently because of his having fallen behind in his studies. The next day the board sent Grier his notice of reclassification (SSS Form 110), along with SSS Form 217, Advice of Right to Personal Appearance and Appeal. Twenty days later, on December 7, 1970, Grier sent a letter to the board, requesting an appeal and an “appearance before the appeal board with jurisdiction over the Atlanta area”. The board never answered Grier’s letter. Instead it treated his letter only as a request for an appeal to the State Appeal Board. Although Grier had a right to a personal appearance before his local board in Sylvester, 32 C.F.R. § 1624, he had no such right before the State Appeal Board. 32 C.F.R. § 1626. The appeal board voted unanimously to affirm the classification, apparently without considering Grier’s muddled understanding of his rights.

Grier was married on January 23, 1971; he informed the local board of his changed marital status in February 1971; in June of that year his child was born. Grier received a notice and order to report for induction on March 24, 1971. He reported the next day, but refused to submit to induction. He was indicted on September 15, 1971 and was arraigned on March 1, 1972. Counsel was appointed to represent him. He entered a plea of not guilty. Later, Grier changed his plea to nolo contendere, and on October 16, 1972, he was sentenced to the custody of the Attorney General for 28 months. He surrendered and began serving the sentence.

On October 26, 1972, Grier, represented by a new attorney, filed a “Motion for a New Trial” asserting the ineffectiveness of his court-appointed counsel. On October 27, 1972, a hearing was held on this motion. At that hearing, Grier was allowed to file a motion to set aside the conviction, vacate the sentence, withdraw his plea, and request a new trial. The court treated this motion as a petition for writ of habeas corpus “in the light most beneficial to the defendant.” Under Fed.R.Crim.P. 32(d) the district court set aside the conviction and permitted Grier to withdraw his plea of nolo contendere. The court also ordered Grier’s release from custody.

A new trial was held on May 11, 1973. He was again found guilty in a non-jury trial, and sentenced this time to eighteen months in the custody of the Attorney General, with credit for the three and a half months previously served. The court allowed Grier to continue on bond pending this appeal.

I

The issues in this case arise out of Section 6(h)(1) of the Selective Service Act of 1967, 50 U.S.C. App. § 456(h)(1), providing for student deferments. The President promulgated 32 C.F.R. § 1622.-25(c) under that Section of the Act providing for a “parity requirement”; that is, if a student each year completes twenty-five percent of his work toward a four-year degree he shall be “[deemed to be] ‘satisfactorily pursuing a full time course of study instruction’ . . . ”.

Grier argues (1) that this regulation is invalid because it adds a factor not authorized by the Act and therefore his classification had no basis in fact; (2) that he was denied the important administrative and due process right to a hearing by the local board’s failure to correct his misunderstanding of his rights; and (3) that the appeal board denied him due process of law and his statutory right to de novo review by its summary proceeding.

The trial court held that the certificate from Morehouse College that he had fallen behind a year provided a basis in fact for his classification — applying “objective criteria” of the Regulations. The district court ruled that

“The text of the letter clearly indicates that defendant was seeking an appeal of his reclassification and a personal appearance before the Appeal Board. He had been advised by the SSS Form 217 on November 17, 1970 of the alternative of requesting a personal appearance before the local board or an appeal. There is nothing in defendant’s December 7 letter that would clearly suggest a misunderstanding of these alternatives. In a case such as this the failure of a registrant to request a local board appearance might well be expected. For here the registrant had clearly failed to meet the objective criteria necessary to qualify for a student deferment. This is not a conscientous objector case, where the registrant s sincerity and good faith are an issue and the local board might expect him to urge his position in person.”

The' court also concluded that evidence that the Appeal Board accorded de novo review to one hundred and nine cases in three hours was “an insufficient showing to rebut the presumption of regularity which attends such government functions . . .

Initially, we note that selective service registrants are accorded certain statutory and administrative rights. This Court has held that “all procedural requirements [must] be strictly and faithfully followed” for a draft evasion conviction to be upheld. Olvera v. United States, 5 Cir., 1955, 223 F.2d 880, 882. Strict judicial supervision of the Selective Service System’s procedures is necessary, because the Act and regulations come perilously close to the minimum requirements of due process. See Note, Judicial Review of Selective Service Classifications, 56 Va.L.Rev. 1288, 1312-13 (1973).

II

In Breen v. Selective Service Local Board No. 16, 1970, 396 U.S. 460, 464-65, 90 S.Ct. 661, 24 L.Ed.2d 653 the Supreme Court pointed out that “there is nothing of the language of the Act itself that indicates a congressional desire to allow the President to add to or subtract from the factors specified in this statute for determining when students would be deferred.” Breen invalidated a regulation, promulgated under Section 6(h)(1) of the Act, providing for punitive reclassification of deferred students. Grier asserts that the President has gone beyond the authority of Section 6(h)(1) by specifying a mechanical formula for the deferment of “persons satisfactorily pursuing a full-time course of instruction”. We agree with the view of the United States Attorney and that of the Court of Appeals for the Fourth Circuit that the regulation is valid because it is merely a working definition, and that “a convenient administrative presumption is established” by Section 1622.25(c). Coleman v. Tolson, 4th Cir., 1970, 435 F.2d 1062.

The Court in Coleman v. Tolson held that a student deferment depends on the facts in each case. The United States asserts that in Grier’s case the local board did not apply the regulation in the inflexible manner condemned in Coleman v. Tolson. We cannot say with certainty that it did; a basis in fact may well exist for Grier’s classification. Nonethéless, it is precisely because the determination of a student deferment must be made on a case-by-case basis that a hearing is so important. All registrants have the absolute right to a personal appearance. The Regulations state that “Every registrant after his classification is determined by the local board shall have an opportunity to appear in person before the local board”. 32 C.F.R. § 1624.1(a). At this hearing, “the registrant may present evidence, including witnesses, may discuss his classification, may point out the class or classes in which he thinks he should have been placed, and may direct attention to any information in his file to which he believes it has not given sufficient weight. The registrant may present such further information as he believes will assist the local board in determining his proper classification”. Id. § 1624.4(b). Grier never had this opportunity.

Ill

We have frequently stated that a personal appearance before the draft board is an important procedural right; its denial will invalidate a conviction under 50 U.S.C. App. § 462. United States v. Taylor, 5th Cir., 1974, 490 F.2d 442, 445; United States v. Bagley, 5th Cir., 1970, 436 F.2d 55, 57. See Mulloy v. United States, 1970, 398 U.S. 410, 416, 90 S.Ct. 1766, 26 L.Ed.2d 362. The right to an appeal does not cure local board errors in denying a personal appearance. Mugaro v. Cassidy, 5th Cir., 1970, 426 F.2d 137, 142.

The government argues that Grier failed to request an appearance before the local board. But it is clear that Grier requested some personal appearance. The questions, then, are whether Grier was confused as to his rights, whether that confusion was reasonable in the circumstances, and, if so, whether the local board had a duty to correct Grier’s misunderstanding.

A. We read Grier’s letter as showing that he misunderstood his rights. He asked for a personal appearance before the appeal board “having jurisdiction over the Atlanta area”. He was not then entitled to appear personally before the appeal board. But he did have the right to appear before the local board, while still retaining the right thereafter to appeal the local board’s decision. The local board’s action in referring his case to the State Appeal Board had the effect of depriving him of an appearance before his local board. Although Grier expressly requested a response to his letter, the next time he heard from Selective Service was when he was informed that he was drafted.

We consider that Grier’s confusion was not unreasonable in the circumstances. SSS Form 217 reads in bold print at the top, “ADVICE OF RIGHT TO PERSONAL APPEARANCE AND APPEAL”. Nowhere does the notice state that he may not appear personally before the Appeal Board; it merely states in the affirmative that he may appear personally before the local board. It is significant that a personal appearanee is now permitted before the State Appeal Board. 32 C.F.R. § 1626.4 (1974).

The letter is also ambiguous in that Grier apparently was asking that he be heard before the board in Atlanta, rather than the board in Sylvester, because of his attending college at Morehouse and his being employed by the National Biscuit Company, both in Atlanta. What he seemed to request was an appearance before an Atlanta board. Thus there was confusion not only as to his right to a hearing and appeal, but as to the proper location for that hearing.

We hold that the letter is ambiguous on its face and showed that Grier was manifestly bewildered as to his rights. Considering the form of notice, the regulation, and the facts peculiar to this case, it was reasonable for the confusion to have occurred.

B. We have held that when a local board gives erroneous and misleading information to a registrant a subsequent conviction cannot stand. Powers v. Powers, 5th Cir., 1968, 400 F.2d 438; See United States v. Cordova, 10th Cir., 1972, 454 F.2d 763. We agree with the Tenth Circuit that “the board has an affirmative duty not to mislead and to give correct information and advice. Cordova at 765.

In United States v. Turner, 3rd Cir., 1970, 421 F.2d 1251, 1255, the Court said, “when a registrant indicates, no matter how unclearly, a desire for a procedural right, it is the duty of the board to construe it in favor of the registrant and if need be, to obtain clarification from him.” We also agree with the reasoning in United States v. Timmins, 9th Cir., 1972, 464 F.2d 385, 387. The term “misleading information” is “also meant to refer to circumstances where the local board, knowing full well that a registrant holds an erroneous impression of his rights or obligations in the selective service system, nevertheless fails to make any effort to correct the registrant’s error or assist him in any way. The classification of registrants is not an adversary proceeding between the local board and the registrant. . . . The registrant is not an antagonist, but rather is a young man dealing with his own government without the aid of counsel and 'in an area of the law which can be extremely technical. He must be able to rely upon the local board to deal with him fairly and to offer him assistance when necessary.” We hold that the local board breached its affirmative obligation to assist Grier, whose letter demonstrated the registrant’s inability to advance his claim and maintain his rights.

C. The government distinguishes cases stressing the need for personal appearance by stating that they involve the claims of conscientious objectors whose sincerity must be assessed, an assessment better reached with a personal hearing than without one. We are not persuaded that this principle applies only to conscientous objector cases. Grier was substantially prejudiced by the denial of a hearing before the local board. He might have convinced the local board that he was still entitled to a student deferment because he planned to make up lost credit, perhaps by summer school, or by an accelerated program of studies. He might have been able to show the board that he was entitled to a hardship or dependence deferment in light of his marriage and the birth of his child. In view of the perfunctory treatment of his appeal to the State Appeal Board, a personal plea to his local board offered the more promising approach. Grier’s continuing to attend Morehouse College while working to support his wife and child show a serious, earnest young man entitled to full consideration. The local board should have answered his letter and informed him of his right to appear in person only in Sylvester, Georgia.

IV

Because Grier was deprived of his statutory and administrative rights by the local board, we need not consider whether the appeal board also violated his right to de novo review.

This decision should not be read broadly. The local board does not have the obligation to answer a registrant’s letter in every circumstance, nor must it grant a hearing, unless the letter, reasonably construed, requests a hearing. We merely hold that when a registrant’s letter evidences obvious confusion about his right to a hearing, the board has the affirmative duty to respond in such a way as to clear up the registrant’s misunderstanding.

We reverse Grier’s conviction and remand the case to the district court with instructions to dismiss the indictment.

Reversed and remanded.

      . The form is entitled Advice of Right to Personal Appearance and Appeal. It reads as follows:
      Enclosed is your Notice of Classification (SSS Form 110). Your right to ask for a personal appearance before your local board and your right to ask for an appeal to the State Appeal Board is prescribed on the reverse side of the Notice of Classification. Your request for either a personal appearance before your local board or an appeal to the State Appeal Board must be made in writing to this local board within 30 days from the date of mailing as shown above and as shown on the SSS Form 110. Your local board has available a Government Appeal Agent to advise you concerning your right to a personal appearance, your right of appeal, or any other procedural right or process. The Appeal Agent or the Associate Government Appeal Agent will give you advice only on Selective Service matters at no charge.
      If you should desire a meeting with him, this local board office will arrange a time and place for such meeting upon request,
      (signed) E.B. Almand
      Member, Executive Secretary,
      or Clerk of local board.

      . The letter read as follows:
      I recently received a notice of reclassification to I-A. I am writing this letter in order to ask for an appeal of the re-classification.
      I am, at present, a student at Morehouse College and also an employee of the National Biscuit Company, both in Atlanta, Georgia. Therefore, I would like, if possible, for my Notice of Appeal to be submitted to the appeal board having jurisdiction over this area. If an appearance before the appeal board, with jurisdiction over the Atlanta area, could be arranged, it would be greatly appreciated.
      Please notify me of your decision concerning my request of appeal, and possibly appearance before an appeal board at the following address:
      Clifford Grier
      66 Taliaferra Street, N.W.
      Atlanta, Georgia 30314
      Thank you.

      . Although the Act provides for de novo review, the appeals board considered 109 appeals in three hours (with the assistance of summaries prepared by secretaries), an average of one minute and thirty-nine seconds per appeal.

      . [T]he President shall, under such rules and regulations as he may prescribe, provide for the deferment from training and service in the Armed Forces of persons satisfactorily pursuing a full-time course of instruction at a college, university, or similar institution of learning and who request such deferment. A deferment granted to any person under authority of the preceding sentence shall continue until such person completes the requirements for his baccalaureate degree, fails to pursue satisfactorily a full-time course of instruction, or attains the twenty-fourth anniversary of the date of his birth, whichever first occurs. 50 U.S.C. App. § 456(h)(1).

      . A student shall be deemed to be “satisfactorily pursuing a full-time course of instruction” when during his academic year, he has earned, as a minimum, credits toward his degree which, when added to any credits earned during prior academic years, represent a proportion of the total number required to earn his degree at least equal to the proportion which the number of academic years completed bears to the normal number of years established by the school to obtain such a degree. For example, a student pursuing a four-year course should have earned 25% of the credits required for his baccalaureate degree at the end of his first academic year, 50% at the end of his second academic year, and 75% at the end of his third academic year. 32 C.F.R. § 1622.25(c) [emphasis added],

      . The standard of judicial review of Selective Service Board classifications is one of the narrowest in the law.
      The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of the jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant.
      Estep v. United States, 1946, 327 U.S. 114, 122-23, 66 S.Ct. 423, 427, 90 L.Ed. 567 (emphasis added). Employing this extremely limited standard, the district court ruled that a basis in fact existed for Grier’s classification. However, this case turns on defects in the local board’s procedures, not the propriety of Grier’s classification.

      . Coleman v. Tolson resembles this case. There a student had fallen seven credits behind in his progress, and was reclassified I-A even though the school certified that he was making satisfactory progress as a full-time student. His date of graduation, however, unlike Grier’s remained the same. The court held that student status is a question of fact in each case. Because the board applied a mechanical formula instead of making a finding of fact, the court held that the student’s reclassification was without a basis in fact.

      . The government argues that Grier deliberately by-passed the assistance of a Government Appeals Agent — the mechanism provided by Selective Service designed to assist him. SSS Form 217 notified Grier of the availability of the Appeals Agent at the local board in Sylvester. But Grier made it clear in his letter that a journey to Sylvester would have been a great hardship; he expressly requested transfer of his case to Atlanta. In oral argument, the government admitted that no such transfer was provided for in the Regulations. We do not think that Grier’s reluctance to leave school and full-time work to travel to Sylvester for a conference with the Appeals Agent can be considered unreasonable, or some kind of waiver of his rights with respect to the local board.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Tommy MINICHIELLO, Defendant-Appellant.
    No. 74-2603
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 31, 1975.
    Rehearing Denied April 23, 1975.

      William M. Moran, Miami, Fla. (Court-appointed), for defendant-appellant.
    Robert W. Rust, U. S. Atty., Michel P. Sullivan, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before WISDOM, BELL and CLARK, Circuit Judges.

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

   PER CURIAM:

The defendant-appellant, Tommy Minichiello, seeks reversal of his convictions on five counts of distribution of cocaine in violation of 21 U.S.C. § 841(a)(1). He alleges that the court erred in its instruction on entrapment, and that his motion for a new trial should have been granted. A review of these contentions reveals them to be without merit. We affirm.

Minichiello was convicted on five counts of distribution of cocaine. The acts took place in December 1973 and January 1974. At the trial the defendant admitted the sales of cocaine to undercover Drug Enforcement Administration (DEA) Agent Weed, but asserted the defense of entrapment. He alleged that the informant, Gould, supplied him with the cocaine he sold to Weed. If true, this would constitute the Bueno-Oquendo variant of the entrapment defense. See United States v. Bueno, 5 Cir. 1971, 447 F.2d 903; United States v. Oquendo, 5 Cir. 1974, 490 F.2d 161. Gould denied that he furnished the contraband. He stated after he was arrested for cocaine distribution, he cooperated with the DEA agents, and introduced them to the defendant. Gould testified that Minichiello’s source was one Armando Mirabal. DEA agents corroborated this testimony.

In this appeal the appellant’s counsel alleges that the court’s instruction on entrapment was plainly erroneous, under Rule 52b; trial counsel had not objected to the instruction. Minichiello moved for a new trial, alleging that the informant, Gould, had perjured himself when he answered that he was not a paid informant. At the hearing on the motion the government produced testimony to explain vouchers made out to Gould. The DEA agents testified that Gould was reimbursed for his expenses, but was not classified as a paid informant.

In the original instruction on entrapment, after the court had explained the various elements of the defense, the court said:

If you determine from all of the evidence beyond every reasonable doubt that before anything at all occurred respecting the alleged offenses involved in this case, the defendant was ready and willing to commit crimes such as charged herein, you may still find the defendant not guilty unless you are also satisfied from the evidence, beyond every reasonable doubt, that the defendant did obtain the contraband in question from the informer, Mr. Gould.

After the jury had deliberated for a while they requested a copy of the charge on the law on entrapment. The court gave them the same charge on entrapment, but inserted the word “not” and changed “must” to “may”. As changed the charge was, “you must still find the defendant not guilty unless you are also satisfied from the evidence beyond a reasonable doubt that the defendant did not obtain the contraband in question from the informer.”

The law on jury instructions relating to the entrapment defense was reviewed by us in United States v. Gomez-Rojas, 5 Cir. 1975, 507 F.2d 1213. The appellant here does not contest the intent or predisposition issue of entrapment, but alleges that the contraband was supplied to him by the government informant. The court’s first instruction was erroneous, but corrected later. When reviewing instructions, we must look at the charge as a whole. United States v. Waddell, 5 Cir. 1975, 507 F.2d 1226.

The evidence of appellant’s guilt was overwhelming, while the error was slight. We cannot say there was a manifest miscarriage of justice. See Kotteakos v. United States, 1946, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557.

The appellant also argues he should have been granted a new trial because the informant Gould perjured himself when he testified he was not a paid informant. A review of the testimony reveals there was some testimony as to what a paid informant and consideration were. Additionally, at the hearing on the motion for the new trial, DEA agent Brown testified that Gould received only expense money, and was cooperating with the government after his own cocaine arrest. The fact of Gould’s cooperation and arrest were brought out at trial. Those agents who were aware of the payments had been excluded from the courtroom at the time the testimony was given, and the prosecutor had not been informed of the payments. In other circumstances, a similar omission on the part of the Government might cast sufficient doubt on the credibility of the informer testifying so as to require the grant of a new trial. Here, however, the jury had adequate information that Gould was trying to save his own skin. The question whether he was paid, and for what, is not so material as to require a new trial. Giglio v. United States, 1972, 405 U.S. 150, 154, 92 S.Ct. 763, 33 L.Ed.2d 104; United States v. Johnson, 5 Cir. 1974, 487 F.2d 1318.

The judgment is affirmed.

      . The charge did not distinguish sharply between the standard entrapment defense and the Bueno-Oquendo defense. It should have. Fortuitously, the jury’s perceptive request for a copy of the instructions on entrapment enabled the court to correct his error and enabled the jury to focus on the Bueno-Oquendo defense. Taking the charge as a whole, therefore, in the circumstances of this case we cannot say that the instructions were so misleading as to constituted plain error under Fed.R.Crim.P. 52(b).


author: PER CURIAM.

text:
    John G. McKAY, Jr., et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
    No. 74-3169.
    United States Court of Appeals, Fifth Circuit.
    March 31, 1975.
    Kenneth F. Claussen, Miami, Fla., for plaintiffs-appellants.
    Robert W. Rust, U. S. Atty., Robert Reynolds, Lawrance B. Craig, III, Asst. U. S. Attys., Miami, Fla., Jay R. Weill, Tax Div., Scott P. Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Acting Chief, Appellate Sec., Leonard J. Henzke, Jr., William S. Estabrook, III, U. S. Dept, of Justice, Washington, D. C., for defendant-appellee.
    Before TUTTLE, COLEMAN and SIMPSON, Circuit Judges.
   PER CURIAM.

The taxpayers in this suit to recover income taxes paid on income derived from estate assets attributable to a widow’s dower portion of the estate collected after a deficiency assessment by the Commissioner of Internal Revenue appeal from a judgment against them by the district court.

We affirm on the basis of the district court’s opinion. In its Finding of Fact number eight the district court found that a prior suit by the widow to recover federal income taxes, in which a consent judgment was entered in favor of the widow and against the United States, constituted a determination that the mesne profits and capital gains distributed to her in 1967 were taxable to the estate in the years in which the income was earned. This determination that the estate, and not the widow, owed taxes on mesne profits and capital gains attributable to estate assets allotted to the -widow’s dower portion of the estate pri- or to distribution constituted an inconsistent determination within the meaning of Internal Revenue Code of 1954, §§ 1311-1315, thereby permitting the Commissioner to reopen the tax years of the estate which otherwise would be closed by the Code’s three year Statute of Limitations, IRC § 6501(a).

Affirmed.

APPENDIX

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

JOHN G. McKAY, JR., and THE FIRST NATIONAL BANK OF MIAMI, as Co-Executors of the Estate of H. H. WOODSMALL, deceased, I CIVIL NO. 73-1784-Plaintiffs Civ-JLK v. UNITED STATES OF AMERICA, Defendant

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This suit for refund of income taxes came on for trial before the Court without a jury. Now, upon consideration of the evidence and the arguments of counsel, the Court finds as follows:

FINDINGS OF FACT

1. The plaintiffs, John G. McKay, Jr., and the First National Bank of Miami (hereinafter referred to as the estate), are the duly appointed Co-Executors of the Estate of H. H. Woodsmall, deceased, who died on September 19, 1961. Lelia C. Woodsmall is the surviving widow of H. H. Woodsmall. The decedent’s probate estate was administered in the County Judges’ Court in and for Dade County, Florida. Within the time required by Florida law, Mrs. Woodsmall elected on July 12, 1962 to take her statutory right of dower in her husband’s estate.

2. On April 22, 1963, the County Judges’ Court in and for Dade County, Florida, ordered a partial distribution of dower to Mrs. Woodsmall in the amount of $312,500. The distribution was $250,-000 in cash and 125 shares of stock of Gulfstream Park Racing Association, Inc. On July 28, 1966, the County Judges’ Court ordered what was labeled to be the final distribution of dower from the probate assets of the Estate of H. H. Woodsmall. However, the Court retained jurisdiction to determine the amount of capital gains due Mrs. Woods-mall and the amount of income earned by the probate assets and collected by the Estate, from September 19, 1961 to and including July 28, 1966, which would be due Mrs. Woodsmall as mesne profits.

3. On May 26, 1967, the County Judge ordered the Executors to distribute, from the assets of the probate estate, the final amount due Mrs. Woods-mall as capital gains and a portion of estate income which was attributable pursuant to the Court’s order awarding dower. This distribution of capital gains and estate income was made during the estate’s fiscal year ended August 31, 1967. Pursuant to the court order, Mrs. Woodsmall received, during 1967 the following amounts:

As Capital Gains Distribution:

Cash $ 9,145.56

Property — Parking Lot 42,000.00

Total $51,145.56

Distribution of Mesne

Profits:

Cash $49,790.94

4. The plaintiffs as co-executors of the estate of H. H. Woodsmall filed fiduciary income tax returns for the taxable years ending August 31, 1962 through 1966. On the returns for the years ending in 1962 through 1965, the plaintiffs reported and paid tax on all the mesne profits and capital gains earned by the estate which were attributable to Mrs. Woodsmall’s dower rights. For the year ending August 31, 1966, the plaintiffs disclosed, but did not report as income the mesne profits or capital gains. For the years 1962 through 1966, Mrs. Woodsmall did not include in her tax returns any of the mesne profits or capital gains attributable to her dower interest in the decedent’s estate.

5. In 1966 the Internal Revenue Service audited the 1962 through 1964 income tax returns of Mrs. Woodsmall. On March 21, 1966, the Service notified Mrs. Woodsmall that it had determined that she should have included annually in her gross income her share of the mesne profits and her portion of the capital gains attributable to her vested right of dower in her husband’s estate. Since the estate had previously reported this same income on its returns for the years ending in 1962 through 1965, it filed protective claims for refund, pending the determination of the proper taxpayer to report the mesne profits and capital gains.

6. Subsequently, the Internal Revenue Service determined that the mesne profits attributable to the widow’s dower rights were not includible in her income prior to the year of distribution nor includible in the fiduciary returns filed by the estate. Accordingly, the Service did not make the assessments against Mrs. Woodsmall as proposed on March 21, 1966. Moreover, the Service allowed the claims for refund filed by the estate. The following refunds were made to the estate which represented the tax attributable to the mesne profit and capital gains previously reported by the estate.

DATE OF

YEAR TAX INTEREST TOTAL CHECK

8/31/62 $3,709.29 $1,095.46 $4,804.75 11/17/67

8/31/63 $13,647.16 $2,880.85 $16,528.01 11/17/67

8/31/64 $4,284.06 $749.71 $5,033.77 11/17/67

8/31/65 $5,627.57 $1,028.74 $6,656.31 11/27/68

There was no claim for refund filed by the estate for the year ending August 31, 1966 since the estate had never reported on its return the mesne profits or capital gains realized during that year.

7. On her 1967 return, Mrs. Woods-mall disclosed but did not include any of the mesne profits or capital gains she received from her husband’s estate on May 26, 1967. The Internal Revenue Service audited the return of Mrs. Woodsmall for the year 1967 and determined that she should have reported $48,075.05 of the mesne profits she received from her husband’s estate on May 26, 1967. She received a total of $49,790, but $1,715 was tax exempt interest from municipal bonds. The Service also determined that she should have reported the capital gains distribution of $51,145.56 she received from the estate on May 26, 1967. On March 10, 1969, the Service notified Mrs. Woodsmall of these adjustments.

8. Based on these adjustments, an assessment was made against Mrs. Woods-mall for the year 1967 in the amount of $34,975.48, plus interest. This assessment was paid by Mrs. Woodsmall and a claim for refund filed. Upon its disallowance, she filed suit in this Court for a refund of part of the taxes she had paid. (Civil No. 71-269-Civ — WM.) Mrs. Woodsmall contended in her complaint that the mesne profits and capital gains distributed to her were taxable to the estate in the years earned and thus taxable to her only under the provisions of Subchapter J of the Internal Revenue Code of 1954.

9. On September 14, 1971, the Court entered Judgment for Mrs. Woodsmall in her action against the United States. The Court, with Mrs. Woodsmall’s and the Government’s consent, held that the distribution made to Mrs. Woodsmall on May 23, 1967, from her husband’s estate was governed by the holding in Rev.Rul. 71-167, 1971-1 Cum.Bull. 163.

10. On June 26, 1972, the estate herein filed suit against the United States in this Court for a refund of taxes paid on, their return for the year ending August 31, 1967. (Civil No. 72-990-Civ-CA.) Previously, the estate had filed a protective claim for refund because of the claim for refund filed by Mrs. Woods-mall for the year 1967. The estate claimed that since the Court in Mrs. Woodsmall’s action had determined that the distribution was governed by the provisions of Subchapter J of the Code, the estate was entitled to a corresponding deduction for the taxable year ended August 31, 1967.

11. Since the holding in Rev.Rul. 71-167, supported the estate’s claim, the above-mentioned lawsuit was dismissed by the estate after the United States granted the plaintiffs’ claim for refund and refunded the amount claimed in the complaint.

12. On March 22, 1972, the Service determined that the mesne profits and capital gains earned by the estate for the years 1962 through 1966 were properly includible in the estate’s fiduciary returns for those years. These items of income and capital gains were the same ones as to which the Service allowed the estate’s claims for refund for the years 1962 through 1965, and which the plaintiffs did not report as income in the year 1966. Assessments were made against the plaintiffs for these years and subsequently paid by them. Claims for refund were filed and, upon their disallowance, the instant suit was filed.

13. During the years in issue the estate was not required nor did it distribute any mesne profits or capital gains to anyone. Therefore, under Rev.Rul. 71-167 and Section 641(a)(3) of the Internal Revenue Code of 1954, the mesne profits and capital gains attributable to Mrs. Woodsmall’s dower rights and earned or realized by the estate during the years 1962 through 1966 were properly includible in the tax returns of the estate for those years. The estate did not contend in its claims for refund that this was erroneous. Rather, the plaintiffs contended that the assessments herein were barred by the statute of limitations, and m the alternative, contended that the defendant abused its administrative discretion by determining that Rev.Rul. 71-167, supra, applied retroactively to the tax years involved.

CONCLUSIONS OF LAW

1. The Court has jurisdiction of the action and the parties under Title 28 U.S.C., Section 1346(a)(1).

2. Section 6501(a) of the Internal Revenue Code of 1954 requires that any assessment of tax must be made within three years after the return was filed. The Service is barred from making any assessment after that date except in certain circumstances which are not relevant to our inquiry here. The assessments against the instant estate for the taxable years ending August 31, 1962 through 1966 were made in 1972. Accordingly, they were barred by the statute of limitations unless the mitigation provisions of the Code are applicable.

3. Sections 1311 through 1315 of the Code, commonly referred to as the “mitigation provisions”, entitle the Government or a taxpayer to reopen taxable years otherwise barred by the relevant statutory period of limitations contained in Section 6501. These sections of the Code provide rules for the correction of certain errors under circumstances specified in Section 1312, when one or more provisions of law, such as the statute of limitations, would otherwise prevent such correction. In most situations falling within these code sections, the correction of the effect of the error on a closed year can be made only if either the Commissioner or the taxpayer has taken a position in another taxable year which is inconsistent with the erroneous treatment of the item in the closed years. In order to be applicable, the mitigation provisions require the following:

1) a determination

2) which adopts a position maintained by (in this case) the taxpayer (in the present case, since the taxpayer is beneficiary of the statutory bar, it is his maintenance of the inconsistent position which must be shown. Section 1311(b)(1)(B));

3) and that position is inconsistent with the prior treatment of the item in question;

4) which brings about an unfair result described in one of the paragraphs of Section 1312.

4. The Court holds that all the above-mentioned conditions have been met and, therefore, the provisions of Section 1311 allowed the Commissioner of Internal Revenue to make these assessments notwithstanding the bar of the statute of limitations.

5. As an alternative argument, the plaintiffs claim that Rev.Rul. 71-167, should not have been applied to them retroactively. Section 7805(b) of the Code provides that the Secretary or his delegate may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect. Accordingly, all revenue rulings are applied retroactively unless the Commissioner makes an affirmative act and declares that it will not be applied retroactively. Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957).

6. Since Rev.Rul. 71-167 was published in order to correct a mistake of law enunciated in a prior Revenue Ruling, the Commissioner is not barred from retroactively correcting that mistake.

7. Defendant is entitled to judgment in accordance with the foregoing Findings of Fact and Conclusions of Law.

Dated this 4. day of June, 1974.

(s) James Lawrence King

UNITED STATES DISTRICT JUDGE


author: OAKES, Circuit Judge:

text:
    UNITED STATES of America ex rel. Tyrone B. LARKINS, Appellee, v. Russell G. OSWALD, Commissioner of Corrections of New York State, et al., Appellants.
    No. 313, Docket 74-1885.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 24, 1974.
    Decided Jan. 24, 1975.

      Margery Evans Reifler, Deputy Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for appellants.
    E. Thomas Boyle (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for appellee.
    Before WATERMAN, OAKES and GURFEIN, Circuit Judges.
   OAKES, Circuit Judge:

This case is a nice example of the wisdom of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), holding that in prison disciplinary proceedings minimal due process requires advance written notice of the charges to the inmate no less than 24 hours before his appearance before the adjustment committee, together with a written statement by the factfinders as to the evidence relied upon and the reasons for the disciplinary action. It comes to us by way of appeal from the United States District Court for the Western District of New York, John T. Curtin, Judge, following a $1,000 award by a jury for damages in a civil rights action by an inmate arising out of his solitary confinement for 12 days at Attica Prison (more properly known as Attica Correctional Facility) for possession of “revolutionary” papers in his cell. Liability was determined by the court, upon cross motions for summary judgment, in the light of Sostre v. McGinnis, 442 F.2d 178, 202-203 (2d Cir. 1971) (en banc), cert. denied, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740; 405 U.S. 978, 92 S.Ct. 1190, 31 L.Ed.2d 254 (1972), which holds, inter alia, that a prisoner cannot be punished for possessing political papers. All of the defendant-appellants claim that there were material issues of fact in dispute so that summary judgment should not have been granted and that the jury award of $1,000 damages was grossly excessive. Commissioner Oswald and Warden Montanye each claim that they were not personally liable. We affirm the judgment.

The rule of law is, of course, that summary judgment can be granted only if there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Doehler Metal Furniture Co. v. United States, 149 F.2d 130, 135 (2d Cir. 1945). At the same time summary judgment as a useful procedural tool is not to be discarded on the the flimsiest of excuses; the issues of fact must be genuine, not sham. See Dressler v. MV Sandpiper, 331 F.2d 130, 132, 133 (2d Cir. 1964); 6 J. Moore, Federal Practice ¶ 56.15[1.-02] (Supp.1973) at 53 (2d ed. 1948).

Here it appears from the pleadings and the documentary material submitted by the appellants themselves that appellee, Larkins, a life inmate of Attica Correctional Facility, was on or about June 7, 1972, confined in isolation, Housing Block “Z” (HBZ), on a misbehavior report for having inflammatory and revolutionary papers in his possession on June 6, 1972. He was ordered to be confined for seven days by the “Attica Adjustment Committee,” the prison disciplinary committee, of which appellants Clor and Elmore were members. Appellee was actually confined for 12 days and no explanation has been given for the additional confinement.

The “Inmate Misbehavior Report to Superintendent” Montanye, which was signed by Correction Officer Amico and endorsed by Correction Officer Tiede, explains that at 3:00 p. m., June 6, 1972, “upon observing this man in the yard with a group of inmates Officer Tiede and myself frisked this man’s cell and found Black Pantor [sic] Party papers and revolutionary papers in his cell (copies are attached).” The Inmate Misbehavior Report went on to mention “Larry Tinsley 27825 10/27 in with group of known Black Panthers, cell was frisked, contraband found.”

The “Adjustment Committee Report” on Larkins signed by its chairman, Lt. Clor, says, under the heading “Inmate’s Explanation and Attitude,” “Inmate appears belligerant and uncooperative toward institutional policies — believes in revolution- — inmate admits affiliaties to Black Panter Party [sic].” There is no space provided on the Adjustment Committee Report for entering the charges or findings other than “Disposition . (specify) Confinement in HBZ for 7 days with loss of yard and recreation.”

The “Indeterminate — Punishment Record” indicates that on 6/6/72 Larkins’ punishment was “K.L. in HBZ 7 days w/no yd or rec” and his offense was that he “[h]ad in his poss. revolutionary papers, Black Panther Party Papers.” The undisputed facts further indicate that the two papers found in Larkins’ cell consisted of an undelivered handwritten letter to “Bro. Bob” reprinted in the footnote in its entirety and a somewhat lengthier handwritten document in two parts, the first entitled “Central — Revolutionary Format” and the second “Black Panther Party Ten Point Program — Platform.” The “Central — Revolutionary Format” describes a “gurrilla’s [sic]” organization including a “heavy weapons crew” and “rescue and recovery unit” and states that “this committee’s primary objective at this point is revolutionary-political education”; it sets forth the “revolutionary-educational curriculum” including political, social, cultural and economic indoctrination and “military-industrial complex,” all of which are said to constitute a “tactical intelligence combat unit.” The Black Panther Party Ten Point Program or Platform states some constructive, some not so constructive (or, indeed, destructive) objectives for black people to espouse. If all to be considered is the foregoing there is no genuine issue of fact.

The appellants contend, however, that certain facts alleged in supplementary affidavits filed by Lt. Clor and Correction Officers Amico and Tiede must be taken into account and that these affidavits show

that plaintiff was also charged with advocating the disruption of the institution to the inmates he had met in the yard; that the content of the material taken from his cell (especially the letter) indicated that it was meant to be disseminated to others; and that plaintiff’s attitude toward institutional policies was belligerent and uncooperative.

Appellants’ Brief at 7.

There is no doubt that the supplementary affidavits do to some extent support the three propositions advanced by appellants. Correction Officer Amico’s affidavit avers that he “was familiar with Larkin’s [sic] past at the institution” and “knew that he was an active leader in instigating dissent . . . constantly defied institutional rules and policies encouraged other inmates to be defiant . . . and . . . was pursuing a persistent course of disturbing the tranquility of the institution.” Officer Amico also said that with the memory of the Attica riot “vivid” in his mind he was fearful that the meeting among six inmates at which Larkins was speaking (prior to the search of his cell) “was a sign that some problems was [sic] in the stage of development.” Officer Amico’s affidavit, however, states nothing as to the charges or the findings except that “[i]n the disciplinary proceeding for Larkins’, he readily admitted that he was affiliated with the Black Panter [sic] and that he believed in Revolution.”

Correction Officer Tiede stated that he came upon six inmates in A yard with Larkins standing and five inmates sitting around a table, and that “[a]s I approached, the inmate [Larkins] stopped speaking.” He added that “realizing that it was unusual for six (6) inmates to be gathered in a group and one (1) of them appearing to be lecturing the other five (5) as if in a study group,” he joined Officer Amico and proceeded to the cells of Larkins and Tinsley. In Larkins’ cell “[w]e found certain inflamatory [sic] documents. . . . ” He also says nothing about the charges or findings.

Lt. Clor’s affidavit is the only one which refers to the charges, in language set forth in the footnote, but makes no reference to any findings of the Adjustment Committee (which consisted of appellant Elmore and Correction Officer Brimmer in addition to Clor himself), except to say that the Committee’s “discretion” was exercised “with the full realization of Larkins’ procedural due process rights” and that “everyone concerned acted within the scope of their lawful authority. . . . ”

Thus, if Wolff v. McDonnell, supra, were to be applied retroactively there would be no question whatsoever that summary judgment would be proper since nothing indicates that there was any written notice of the charges to Larkins or that there were any findings by the Adjustment Committee or reasons stated in connection therewith. While Wolff v. McDonnell is not to be applied retroactively, 418 U.S. at 573, 94 S.Ct. 2963, our own Sostre v. McGinnis, supra, indicates that Some elements of due process, including being “confronted with the accusation” and “informed of the evidence against him,” were applicable to the prison disciplinary proceedings that here took place. 442 F.2d at 196—199, especially at 198. We need not determine, however, whether due process under Sostre required either written findings by the Adjustment Committee as to what Larkins was being punished for or some written statement of charges. Nor do we need to determine the question of liability solely on the basis that Larkins was actually confined in segregation for 12 days when in fact his disciplinary proceedings called for confinement only for seven. The variety of possible charges, the erroneously long confinement are all part and parcel of an internal disciplinary system which doubtlessly contributed to the Attica riot in the first instance (see Attica: The Official Report of the New York State Special Commission on Attica (Bantam ed. 1972) 74 — 79), which have resulted in other litigation, but which in any event are now outmoded and, for the future at least, wholly unconstitutional under Wolff v. McDonnell, supra.

Rather, we think that to the extent the supplementary affidavits are inconsistent and in conflict with the written documentation and the admissions in pleadings, they must, as Judge Curtin held, be disregarded. The only documented reason for Larkins’ confinement appears in the Punishment Record. This mentions only possession of the described papers. Regardless whether other charges were made, there is no evidence that any other charges were supported by evidence. The prison officials cannot now retry Larkins, after his punishment, to justify that punishment which, as it appears on the prison records, was imposed for impermissible reasons under Sostre v. McGinnis, supra.

As Judge Curtin pointed out, moreover, there is a discrepancy between the written Adjustment Committee Report and Lt. Clor’s affidavit. Lt. Clor’s affidavit claims that Larkins was charged with advocating to the five inmates the overthrow of the institution but does not claim that such a charge was sustained. The Adjustment Committee Report does not indicate that anything was said in the Committee about Larkins’ remarks directed to the inmates in the yard. C. O. Tiede specifically said that Larkins stopped speaking when he approached. Thus, Lt. Clor’s affidavit as to the charge with the statement that “Larkins never denied that he had lectured to the group of the other five inmates on the advocacy of the overthrow of the institution” is irrelevant since none of the officers heard what Larkins said to the group.

As for the “Bro. Bob” letter, neither the Inmate Misbehavior Report nor any documents or affidavits submitted allege that Larkins intended to deliver this letter. Indeed, the Assistant Attorney General offered to return the confiscated materials, which must mean either that Larkins did not intend to circulate them or that in the Assistant Attorney General’s view they did not constitute a threat to the proper functioning of the institution. While the other papers, the “Central — Revolutionary Format” and “Black Panther Party Platform” contain considerable revolutionary or militant rhetoric, they admittedly have to be considered as in the nature of political materials.

As in Sostre, then, Larkins was punished “simply for putting his thoughts on paper, with no prior warning and no hint that he intended to spirit the writings outside his cell.” 442 F.2d at 202. It is clear that under Sostre, 442 F.2d at 202 — 203, possession of these documents in the cell cannot be made the subject of disciplinary proceedings. Indeed, appellants do not argue otherwise, nor apparently have they at any time. The only denial of the allegation in the amended complaint that Larkins was placed in isolation “for having inflammatory . . . papers in his possession” was a denial that the papers “were not being distributed or published.” That denial was flatly contradicted by the prison documents and affidavits later submitted and therefore must be ignored. Weyerhaeuser Co. v. Gershman, 324 F.2d 163 (2d Cir. 1963). See also Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944). Even Lt. Clor’s affidavit does not dispute that appellant was charged with possession of the revolutionary papers; it only says that he was “also charged” with advocating disruption of the institution. Even then Clor’s affidavit does not allege that that charge was sustained or that it served as the basis for Larkins’ confinement to segregation. As we have said, the overwhelming documentary evidence establishes that that additional charge was not sustained and did not serve as the basis for punishment, nor could properly do so since there was no evidence to support it. That he was “also charged” with advocating disruption is therefore irrelevant here.

If it is also appellants’ claim, as it seems to be (Brief at 7), that Larkins was confined to segregation for his “uncooperative” attitude toward the institution, we can only say that this would establish a violation of first and probably fifth amendment rights that would be more serious than the violation actually complained of. Even the correctional services regulations then in effect required a violation of “a rule or regulation” or “[refusal] to comply with an instruction” or “ [engaging] in some other unlawful conduct.” 7 N.Y.C.R.R. § 250.-1; United States ex rel. Haymes v. Montanye, 505 F.2d 977, 980 (2d Cir. 1974).

Appellants Oswald and Montanye argue that there was an issue of fact as to whether they knew or should have known of the unlawful confinement and nonetheless failed to act to release Larkins. The answer they filed neither denied nor admitted allegations as to their liability “for the reason that the defendants at all times acted lawfully and within the scope of their authority.” The record indicates that these two appellants did not deny in their answer that they knew or should have known of the confinement; they filed no affidavits asserting this. More important, they were afforded, as Judge Curtin observed, on “a number of occasions . . . before the trial, during the trial and after the trial was concluded and before judgment was entered” opportunity to assert separate defenses but did not do so. Again and again the judge asked whether there was any objection to the plaintiff’s proceeding against all the defendants, and he was again and again given assurances that “as far as judgment was concerned here it could be entered against all defendants. . . . ” As Judge Curtin pointed out, if at any stage the appellants Montanye and Oswald had asserted the defenses they now seek to make, Larkins “would have been on notice” and then could have'brought in additional evidence to show the relationship between these appellants and the correctional officers. Basista v. Weir, 340 F.2d 74, 85 (3d Cir. 1965); Fed.R. Civ.P. 16(3). The correctional services regulations, 7 N.Y.C.R.R. § 251.4(a), moreover, require that “every incident of misbehavior involving danger to life, health, security or property must be reported to the superintendent as soon as practicable.” That procedure was followed here because one of the documents submitted by the appellants, “Inmate Misbehavior Report to Superintendent,” along with the “Superintendent’s Action on Review of Adjustment Committee Report,” established that appellant Montanye confirmed the Adjustment Committee’s illegal action. He cannot avoid the responsibility on the basis of his deputy’s review because correctional service regulation 7 N.Y.C.R.R. § 250.4(a) provides that “instructions given by an employee designated [by the superintendent] to furnish same shall be deemed to be instructions given by the superintendent.” Commissioner Oswald is in the same position. See 7 N.Y.C.R.R. § 250.-4(b). New York Correction Law § 137(6)(d) effective during the time in question required each facility’s superintendent to make a “full report” to the Commissioner, at least every five days, of all inmates held in segregation. (With the amendments of 1974 the statute requires such a report only once a week.) See Wright v. McMann, 460 F.2d 126, 131 (2d Cir.), cert. denied, 409 U.S. 885, 93 S.Ct. 115, 34 L.Ed.2d 141 (1972). Oswald, therefore, is chargeable with knowledge of appellee’s confinement, especially since in view of his confinement for 12 days there should have been a report to Oswald on at least two separate occasions.

The jury verdict is not “so grossly excessive as to shock the judicial conscience.” Caskey v. Village of Wayland, 375 F.2d 1004, 1007 (2d Cir. 1967). There is no claim that the appellants were not furnished a fair trial by court before the jury. Appellants themselves had requested jury trial. Particularly in a civil rights case the amount of damages is a question for the jury’s determination. Basista v. Weir, 340 F.2d at 88, quoting from Wayne v. Venable, 260 F. 64, 66 (8th Cir. 1919). Even though appellee had two or three showers, one attorney visit and two visits to the prison hospital, he was locked in his cell 24 hours a day for a period of 12 days. Ordinarily he would have at least 4V2 hours in the prison yard and meals with other inmates. He was forced to submit to the humiliating “strip search” which included a probe of his rectum by prison guards. He was marched naked to the segregation cell where he waited an hour before being given clothing. Under the Department of Correctional Services regulations for segregation, 7 N.Y.C.R.R. § 301.5, he was entitled, unless there was “imminent danger that an inmate will do injury to himself or to another,” to a minimum of one hour of exercise out of doors, weather permitting, each day, after the fifth day of confinement, or to one hour of exercise in the exercise room, but he was given neither. Finally, the fact that he was kept five days longer than the Adjustment Committee had directed and five days longer than permitted under prison regulations, 7 N.Y.C. R.R. § 252.5(e)(3), undoubtedly must have created an anguish and anxiety or fear of indefinite confinement to segregation, matters for which he was entitled to be justly compensated. Probably it would be difficult for anyone, juror, lawyer or judge, properly to assess the psychological impact of solitary confinement for 12 days, five of which are spent without knowing when the confinement is going to end. Cf. Rhem v. Malcolm, 371 F.Supp. 594, 601-607 (S.D.N.Y.1974), aff’d in part and rev’d in part, 507 F.2d 333, 338 (2d Cir. 1974).

Judgment affirmed.

      . See also Oakes, J., dissenting in Nieves v. Oswald (II), 498 F.2d 802, 806, 812-813 and n. 17 (2d Cir. 1974).

      . It appears that in Tinsley’s cell was found the following description: “A plastic explosive compound used for military use. Comprised of Nitrathylamine (a volatile form of nitroglycerine). Potassium and chip form of Plastic Cordite with a form ? of synthetic Magnesium.” The Adjustment Committee report on Tinsley read “Inmate appears cooperative and respectful toward this committee” under the heading “Inmate’s Explanation and Attitude.” The disposition of Tinsley’s proceeding was “counseled & released.”

      . Bro. Bob:
      Dickie and Valentine will be the one’s that will inform the Party & masses of my whereabout and activity.
      Get in touch with Dickie in the yard — the brothers & comrades know about. But you must come around — the Brothers are waying for you. Take care yourself and keep on pushin!
      Prisoner Power/over
      Tyrany Power
      “All Power to the People"
      ¡Palante Hasta La Victoria!
      Venceremos.
      Ho Chi Minh — P.R.M.L.F.
      (Younglords Party)
      G.I.
      Jose Enrique Paris

      . The Committee stated the charges to Larkins, namely, that he had conducted a meeting in “A” Yard during which he improperly lectured to the other five (5) inmates in the group, wherein, he advocated the disruption and overthrow of the institution. The Committee further charged him with the possession of inflamatory [sic] written materials.
      Larkins admitted that he was affiliated with the Black Panther Party and that he believed in Revolution and that forceful overthrow of existing authority was the only way to achieve certain ends.
      Larkins never denied that he had lectured to the group of the other five (5) inmates on the advocacy of the overthrow of the institution.

      . The charges here, from the admissions and the pleadings, the supporting affidavits and the documentary evidence, could have included past misbehavior, lecturing a group of other inmates on the advocacy of overthrow of the institution, affiliation with the Black Panther Party, belief in revolution, possession of inflammatory materials, a charge (as appellants’ brief states) that the letter and the other materials were “Meant to be disseminated to others,” or that Larkins had a “belligerent and uncooperative attitude” toward institutional policies.

      . Inmates of Attica Correctional Facility v. Rockefeller, 453 F.2d 12 (2d Cir. 1971) (preliminary injunction against reprisals).

      . In this respect we note that after Larkins had filed his original pro se complaint and before counsel was appointed for him, an Assistant Attorney General filed an affidavit in opposition. This affidavit indicated that a reading of the material found in the cell “would appear to indicate that clandestine activity might be taking place within the prison walls,” and that after discussion with the Deputy Superintendent, despite the “Bro. Bob” letter, counsel had indicated that “it would be preferable not to get into materials and writings which can be characterized as political materials,” counsel reommending that the punishment record of confinement be expunged so that the incident would not have any unfavorable effect upon Larkins’ prison record.
      A supplementary affidavit filed after Judge Curtin appointed counsel for Larkins relied heavily upon the “Bro. Bob” letter and its closing “Prisoner Power/Over Tyrany [sic] Power.” Attached to the first of these affidavits, however, had been a letter from the Deputy Superintendent to the Assistant Attorney General stating that Larkins was “locked up on a misbehavior report for having inflammatory and revolutionary papers in his possession on June 6, 1972.”

      . Concededly, however, 7 N.Y.C.R.R. § 252.5 permits disciplinary action for almost any attitude, let alone conduct. Presumably it is being revised, at least in the light of Wolff v. McDonnell, supra, if not of Sostre.

      . This was not a “minor infraction” since Larkins was not merely counseled. 7 N.Y.C.R.R. § 251.5(a) provides:
      An employee should deal with minor infractions, or other violations of rules and policíes governing inmate behavior, that do not involve danger to life, health, security or property by counseling, warning, and/or reprimanding the inmate, and the employee need not report such minor incidents.


author: CLARK, Circuit Judge.

text:
    Betty LaBORDE, Plaintiff-Appellant, v. FRANKLIN PARISH SCHOOL BOARD et al., Defendants-Appellees.
    No. 74-3577
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 27, 1975.

      Stephen J. Katz, Monroe, La., George M. Strickler, Jr., New Orleans, La., for plaintiff-appellant.
    Donald K. Carroll, Dist. Atty., 5th Jud. District Crt., Oak Grove, La., S. E. Lee, Jr., Winnsboro, La., for defendants-appellees.
    Before WISDOM, BELL and CLARK, Circuit Judges.

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

   CLARK, Circuit Judge.

Mrs. Betty LaBorde sought relief for alleged violation of her Fifth and Fourteenth Amendment rights when the Franklin Parish School Board failed to give her a hearing prior to determining not to renew her teaching contract. The school board’s motion for summary judgment was granted. We affirm.

The uncontradicted facts in the record upon which summary judgment was based disclose that Mrs. LaBorde completed three years of teaching Home Economics at Winnsboro Junior High at the end of May 1973. On April 24, 1973 in a meeting with the assistant superintendent and her school principal, the assistant superintendent told Mrs. LaBorde that he felt he would be able to recommend her for tenure. On May 25, 1973, prior to the end of the school year, the superintendent of schools notified Mrs. LaBorde that she would not be recommended for tenure. Counsel thereupon requested a hearing before the school board, but this hearing was not granted. On June 5, 1973, after the end of the 1973 school year, the board formalized its decision not to renew her contract. The entry on the board’s minutes merely stated that upon the recommendation of the superintendent, Mrs. LaBorde’s contract was not to be renewed. The fact that her contract had not been renewed was mentioned in the course of an article published in the parish newspaper, along with its report of other school board actions taken at the same session. In a letter dated June 6, the superintendent notified Mrs. LaBorde of the board’s action and of the time and place of the next regular meeting of the school board.

On this appeal Mrs. LaBorde claims her right to a hearing finds four bases: (1) she had in fact acquired the third year of teaching necessary for tenure under Louisiana law before the board notified her of her termination, thus she was tenured in law and had a statutory right to notice and a hearing before termination; (2) the fact of her termination put her reputation and good name in danger and foreclosed other employment opportunities, thus giving her a right to a hearing under the principles of Roth; (3) the fact that she had taught three years and had been told by the assistant superintendent that she would be continued gave her an expectancy of reemployment and thus a right to a hearing under Sindermann; and (4) the superintendent’s notice of her nonrenewal indicated the date of the board’s next meeting and thus impliedly offered a hearing.

Mrs. LaBorde denies that she admitted a non-tenured status in the district court. She contends that she was in fact tenured under Louisiana law, because she received no notice from the school board prior to the end of her probationary period. While a literal reading of Louisiana’s statute might lend some credence to Mrs. LaBorde’s position, the Louisiana Supreme Court has interpreted the act to mean that the school board has a reasonable time within which to act after the expiration of a teacher’s probationary term. See State ex rel. Piper v. E. Baton Rouge Parish School Board, 213 La. 885, 35 So.2d 804 (1948). The time of notice here was much more prompt than that involved in Piper. Under Louisiana law, her claim to legal tenure is unfounded.

Mrs. LaBorde’s claim of right to a hearing because her termination damaged her reputation and good name and foreclosed other employment opportunities is similarly untenable. Her affidavit in support of her motion for summary judgment was devoted almost entirely to proof of her efficiency and proficiency as a teacher of Home Economics. In its concluding paragraph, she asserts that the unfounded reasons given for her dismissal have caused her great embarrassment in the community, and the nonrenewal of her contract has damaged her standing and reputation in the small parish in which she taught. She further avers that the people of the parish realize that the school board rarely fails to renew the contract of a teacher who has taught for three years, that she personally knows of no other case similar to hers, and that this action has cast aspersions upon her.

The board meets Mrs. LaBorde’s affidavit with sworn statements from the superintendent, the assistant superintendent and Mrs. LaBorde’s principal. The superintendent stated that all of his actions and those by the board were taken with maximum circumspection to Mrs. LaBorde’s rights of privacy. He communicated only to her and submitted his recommendations only to the board. No other school system was contacted or notified in any way. His office has received no inquiries pertaining to Mrs. LaBorde of either a personal or professional nature. The principal of the school in which Mrs. LaBorde taught asserts that while he was present in April when the assistant superintendent told Mrs. LaBorde he planned to recommend her for tenure, that he has never given her such advice and that he did, in fact, recommend in a written report to the superintendent that she not be retained for further teaching duties.

The underlying and uncontroverted facts disclose that the school board did not make any charge against Mrs. LaBorde of a nature calculated to damage her standing or reputation in the community. No “liberty” right she possessed was infringed. She was not charged with dishonesty or immorality, nor did the school board impose on her any stigma or disability that foreclosed her freedom to take advantage of other employment opportunities. She was a probationary teacher, and the reasons which the school board gave her for terminating her contract were no more than the reflection of dissatisfaction with her teaching methods and classroom conduct. None of the charges were made public by school officials. The brief mention in the local paper that her contract had not been renewed did not impugn Mrs. LaBorde’s good name, hon- or or integrity. Under Roth’s standards, her “liberty” claim was properly denied.

Mrs. LaBorde’s claim that she had acquired a protectable property interest in future employment is equally insubstantial. Her reliance upon the interim statement of the assistant superintendent is completely unfounded in view of the uncontradicted actions of his superior. An expectancy of reemployment, as that term is used in both Roth and Sindermann, connotes more than a personal feeling on the part of the teacher. The mere fact that the school board may not have exercised its prerogative to terminate other teachers at the end of their third teaching year does not negate their right under Louisiana law to follow that practice. Mrs. LaBorde’s proof was totally insufficient to establish a legal expectancy of reemployment that mandated a hearing.

Mrs. LaBorde’s claim that the superintendent’s notice, by indicating the date and place of the board’s next meeting, impliedly offered her a hearing which must be accorded, is frivolous.

In Robinson v. Jefferson County Board of Education, 485 F.2d 1381 (5th Cir. 1973), this court determined that summary judgment was proper in respect to a fact situation generally similar to the case at bar. After carefully examining the record and the appellant’s contentions here, we reach that same conclusion. The summary judgment appealed from is

Affirmed.

      . Mrs. LaBorde brought her action for declaratory relief, an injunction and other equitable relief under 28 U.S.C. §§ 2201-2202, 42 U.S.C. §§ 1981-1985 and the Fifth and Fourteenth Amendments to the Constitution of the United States.

      . The article contained only this one-sentence reference to Mrs. LaBorde: “The contract of Mrs. Betty LaBorde of Winnsboro Junior High School was not renewed.”

      . The reasons for Mrs. LaBorde’s nonretention were set out in the affidavit of the superintendent made in this litigation, as follows:
      1. Use of language unbecoming a teacher in the classrooms;
      2. Refusal or inability to [carry] out direct instructions of the Principal and the Superintendent;
      3. Reporting late for the beginning of the school day;
      4. Unsatisfactory control of students within her classes;
      5. Uncooperative attitude toward the Principal of the school;
      6. Improper supervision and planning for F.H.A. elections; and
      7. Use of harsh discipline against girls in the Junior High School.

      . Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

      . Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972).

      . The Louisiana State Tenure law is contained in LSA-R.S. 17:441-17:463, LSA-R.S. 17:442, and provides:
      Each teacher shall serve a probationary term of three years to be reckoned from the date of his first appointment in the parish or city in which the teacher is serving his probation. During the probationary term the parish or city school board, as the case may be, may dismiss or discharge any probationary teacher upon the written recommendation of the parish or city superintendent of schools, as the case may be, accompanied by valid reasons therefor. Any teacher found unsatisfactory by the parish or city school board, as the case may be, at the expiration of said probationary term, shall be notified in writing by the board that he has been discharged or dismissed; in the absence of such notification such probationary teacher shall automatically become a regular and permanent teacher in the employ of the school board of the parish or city, as the case may be, in which he has successfully served his three year probationary term; all teachers in the employ of any parish or city school board as of July 31, 1946 who hold proper certificates and who have served satisfactorily as teachers in that parish or city for more than three consecutive years, are declared to be regular and permanent teachers in the employ of the school board of that parish or city.


author: STEVENS, Circuit Judge. SWYGERT, Circuit Judge

text:
    Michael HORVATH et al., Plaintiffs-Appellants, v. CITY OF CHICAGO et al., Defendants-Appellees.

    No. 75-1181.
    United States Court of Appeals, Seventh Circuit.
    Argued April 18, 1975.
    Decided May 16, 1975.
    Rehearing and Rehearing En Banc Denied June 30, 1975.
    George C. Pontikes, Michael B. Cohen, Chicago, 111., for plaintiffs-appellants.
    William R. Quinlan, Acting Corp. Counsel, and Richard F. Friedman, Asst. Corp. Counsel, Chicago, 111., for defendants-appellees.
    Before SWYGERT, PELL and STEVENS, Circuit Judges.

       Editor’s Note: The opinion of the Court of Appeals, Ninth Circuit, in U. S. v. Sherwin, published in the advance sheets at this citation (510 F.2d 594), was withdrawn at request of the Court, on grant of an en banc hearing.

   STEVENS, Circuit Judge.

Plaintiffs are operators of massage parlors in which nude, or partially nude, female employees masturbate male patrons. Defendants have threatened to commence civil proceedings in the Illinois courts to enjoin these business practices as a nuisance prohibited by § 192.1 of the Municipal Code of the City of Chicago. Plaintiffs commenced this federal action seeking a declaratory judgment that § 192.1 is unconstitutionally “vague and overbroad,” and an injunction against its enforcement against them. This appeal is from the district court’s denial of a preliminary injunction. We affirm.

This is the second of two federal cases involving the application of § 192.1 to massage parlors. Relief was denied in the first case because state criminal proceedings had previously been commenced against the plaintiffs in that case; relying on Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, the district judge held that the federal issues should be decided in the pending state cases. In the second case, the district judge also refused to address the merits even though no state litigation was pending against most of the plaintiffs when their federal action was commenced. Plaintiffs correctly point out that neither Younger v. Harris, supra, nor Huffman v. Pursue, Ltd., - U.S. -, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975), is direct authority for that refusal, and that Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505, indicates that at least with respect to the prayer for declaratory relief on behalf of the plaintiffs who had not yet been made parties to the state litigation, the district court might have entertained the federal claim. Nevertheless, we are satisfied that he correctly refused to grant plaintiffs any federal relief.

Plaintiffs do not claim that they are engaged in any constitutionally protected activity. Nor do they assert any First Amendment objection to the validity of the ordinance. This, therefore, is not a case in which we need to consider the asserted overbreadth of the ordinance because of its possible application to persons or conduct not before the court. See Broadrick v. Oklahoma, 413 U.S. 601, 611-616, 93 S.Ct. 2908, 37 L.Ed.2d 830; United States v. Ramsey, 503 F.2d 524, 526-527 (7th Cir. 1974). Plaintiffs may only challenge the constitutionality of applying § 192.1 to their own conduct, and this they have not done.

Their attack on the ordinance may fairly be characterized as procedural rather than substantive in character. For they do not question the state’s power to regulate or prohibit their conduct. Their claim that § 192.1 is unconstitutionally vague rests on the due process requirement that a citizen must be given fair notice that his conduct is proscribed before it may provide a basis for punishment. In our opinion, this vagueness challenge does not provide a proper basis for federal interference with state civil litigation which, if it is allowed to run its course, presumably will eliminate whatever ambiguity now exists with respect to the application of the ordinance to plaintiffs’ commercial activities.

Historically, the “void for vagueness” doctrine was developed in criminal litigation. It may also be applicable in cases involving civil penalties, such as discharge or other discipline of government employees, at least when the vagueness claim is buttressed by a First Amendment overbreadth attack. Whether vagueness by itself may provide a sufficient basis for a federal challenge to a state’s regulation of commercial activities is by no means clear; but if such a challenge is available, surely it would succeed in only the most extreme case. For inevitably such regulation includes areas of ambiguity requiring clarification by judicial construction which must await the outcome of test litigation.

Therefore, even assuming that the vagueness objection is available to these plaintiffs, the language of § 192.1 surely gave them fair notice that the ordinance may well apply to their conduct. We do not believe § 192.1 is so utterly devoid of meaning as to contain no standard whatever by which a court may determine whether their businesses constitute a public nuisance. We may assume with plaintiffs that there is a legitimate basis for arguing that male customers who pay a fee to have plaintiffs’ female employees engage in the conduct described in the pleadings before us have not resorted to a house of assignation for the purpose of lewdness within the meaning of § 192.1. But surely the contrary argument is not so frivolous that a federal court should interfere with orderly state civil procedures which will clarify the matter.

Our resolution of this appeal is not dependent on our views about the probable outcome of the threatened state litigation. For however such litigation may be decided, we find no justification for federal involvement in these disputes. On the one hand, if Illinois ultimately decides that plaintiffs’ conduct is not “lewd” and that their business operations are therefore entirely lawful, they will, then have a completely adequate remedy in the Illinois courts. Any temporary interference with their business operations will merely be the consequence of a mistaken interpretation of Illinois law by an inferior Illinois court. Until such an error is corrected by the state’s appellate process, the federal court would have no business substituting its interpretation of state law for that of the lower state court. For it is not our office, as federal judges, to prevent state courts from misconstruing their own laws.

On the other hand, the state courts may ultimately hold that plaintiffs’ conduct is indeed lewd, and therefore proscribed. Since such a holding would eliminate the vagueness of which plaintiffs now complain, it would also remove the only arguable basis for federal involvement in this state matter. For clearly the federal Constitution does not require a state to allow its citizens to engage in constitutionally unprotected activities while civil litigation is in progress to determine the statutory legitimacy of such conduct.

The district court correctly denied plaintiffs’ motion for a preliminary injunction.

Affirmed.

SWYGERT, Circuit Judge

(concurring).

Although I agree that the district court’s denial of a preliminary injunction should be affirmed, regretfully I cannot agree with some of the reasoning advanced by Judge Stevens in support of the affirmance.

As the majority holds, there are in this case no First Amendment problems. The only constitutional claim that is colorable embraces procedural due process, namely, that section 192.1 of the Municipal Code is so imprecisely drawn that no standards for measuring the proscribed activity are discernible from the language of the ordinance. Moreover, as the majority holds, correctly I believe, the question of vagueness cannot be raised by the plaintiffs on a hypothetical basis. The question can be asserted only with respect to their own conduct; on that score the plaintiffs are not claiming that their conduct does not come within the definition of lewdness (regardless of what meaning the term may have in other factual contexts). It seems to me that these holdings are sufficient to warrant an affirmance.

Where I part company with the majority is primarily with the following statement in Judge Stevens’ opinion:

[Plaintiffs’] attack on the ordinance may fairly be characterized as procedural rather than substantive in character. For they do not question the state’s power to regulate or prohibit their conduct. Their claim that § 192.1 is unconstitutionally vague rests on the due process requirement that a citizen must be given fair notice that his conduct is proscribed before it may provide a basis for punishment. In our opinion, this vagueness challenge does not provide a proper basis for federal interference with state civil litigation which, if it is allowed to run its course, presumably will eliminate whatever ambiguity now exists with respect to the application of the ordinance to plaintiffs’ commercial activities.

In my opinion, the claim of vagueness of a statutory provision is a proper question for a federal court to decide in a civil ease given the fact that the plaintiff has standing (using that term broadly) to assert the challenge with respect to his own conduct. If one in attempting to protect a property interest from state interference can arguably assert that his conduct is not included within the prohibitory terms of a vague statute, he ought not have to await the finality of a state proceeding against him before asserting his constitutional right to procedural due process. To require him to do so is an impermissible form of abstention. Indeed, as I read the last paragraphs of Judge Stevens’ opinion, I discern a theme of abstention which I, for myself, wish to disavow.

      . “Every house of ill-fame or house of assignation where men and women resort for the purpose of fornication, prostitution, or lewdness is hereby declared to be a nuisance. . . . No person shall patronize, frequent, be found in, or be an inmate of any such house or place used for any of the purposes set forth in this section.”

      . See Memorandum Opinion and Order filed by Judge McGarr on January 17, 1975, in Adam v. Rochford, Case No. 75 C 81, pending in the United States District Court for the Northern District of Illinois, Eastern Division.

      . In response to the plaintiffs’ request for an immediate ruling, rather than an opportunity to submit the matter on written briefs, the district judge denied the motion for a temporary restraining order and a preliminary injunction “for the same reasons that I refused to do it in the other case. ... I take cognizance of the evidence I heard in the companion case, and assume that in accordance with the allegations there is a complaint for injunction which has been handed up to me, 74 C 65 in the Circuit Court of Cook County, that the factual situation will be approximately the same as it was in the other case and on that basis I reach the same conclusion reached in the other case, that it was appropriate for the Federal Court to abstain and therefore, the motion for a preliminary injunction is denied.” App. p. 30. A civil proceeding in the state court had been commenced against plaintiff Geraci with respect to another of his massage parlors, but no state litigation had been commenced against the other seven plaintiffs. Compare the facts stated in Steffel v. Thompson, 415 U.S. 452, 455-457, 94 S.Ct. 1209, 39 L.Ed.2d 505.
      The City of Chicago was dismissed as a defendant on the basis of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, and City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109. No appeal has been taken from this dismissal.

      . It is critically important to note that in Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439, both Mr. Justice Rehnquist, for the majority and Mr. Justice Stewart, in dissent, rejected the court of appeals’ conclusion that even if the defendant’s own conduct was clearly prohibited, the void for vagueness doctrine conferred standing upon him to challenge the imprecision of the language of Articles 133 and 134 of the Uniform Code of Military Justice as they may have applied to hypothetical situations outside the area in which their meaning was clear. 417 U.S. at 755, 94 S.Ct. 2547. In his dissent, after noting that facially vague statutes may, of course, be saved from unconstitutionality by narrowing judicial construction, 417 U.S. at 777, 94 S.Ct. 2547, Mr. Justice Stewart concluded that, even as construed, the relevant articles were so vague that Levy could not reasonably have been aware “that his conduct was violative of Art. 134 . . . .” Id. at 785, 94 S.Ct. at 2576. Thus, for both the majority and the .dissent the case turned on the adequacy of the notice with respect to the particular conduct of the defendant disclosed by the record. Since Mr. Justice Douglas’ dissent was predicated on the view that Levy’s utterances were protected by the First Amendment, his opinion did not reach this precise question.

      . “This Court has on more than one occasion invalidated statutes under the Due Process Clause of the Fifth or Fourteenth Amendment because they contained no standard whatever by which criminality could be ascertained, and the doctrine of these cases has subsequently acquired the shorthand description of ‘void for vagueness.’ Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939); . . ." 417 U.S. at 755, 94 S.Ct. at 2561.
      Speaking for the Court in United States v. Harriss, Chief Justice Warren explained:
      “The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute.” 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989.

      . See, e. g., the classic statement in Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888:
      “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.” (Emphasis added.)

        See also, e. g., the references to “criminal responsibility” in United States v. National Dairy Products Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 9 L.Ed.2d 561, and in Parker v. Levy, n. 5, supra.

      . See Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15; Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830; Herzbrun v. Milwaukee County, 504 F.2d 1189 (7th Cir. 1974).

      . Even criminal statutes regulating economic affairs need not satisfy as strict a test of vagueness as other criminal prohibitions. See Parker v. Levy, 417 U.S. at 756-757, 94 S.Ct. 2547.

      . See Parker v. Levy, 417 U.S. at 755, 94 S.Ct. 2547.

      . For the purposes of our decision plaintiffs acknowledge that we should assume the truth of the allegations contained in paragraphs 8 and 11 of the complaint for injunction in the case entitled City of Chicago v. Cecola, No. 75 CH 1055, pending in the Circuit Court of Cook County. That complaint was attached to plaintiffs’ emergency motion for injunction pending appeal in this court.

      . Miami Health Studios, Inc. v. City of Miami Beach, 353 F.Supp. 593 (S.D.Fla.1973), rev’d on other grounds, 491 F.2d 98 (5th Cir. 1974), on which plaintiffs rely, involved a criminal statute. The district court’s opinion does not specifically describe the precise character of the conduct for which the plaintiffs were being prosecuted. Since that opinion was written before the Supreme Court’s decision in Parker v. Levy, supra, it is not unlikely that the district court then shared the opinion of the Third Circuit that “the doctrine that an individual may not assert the vagueness of a statute unless it is vague as to him . . . is no longer in vogue.” Levy v. Parker, 478 F.2d 772, 794 (3rd Cir. 1973). See n. 4, supra.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alvaro GAMBOA-CANO, Defendant-Appellant.
    No. 74-2652.
    United States Court of Appeals, Fifth Circuit.
    March 31, 1975.
    Victor R. Arditti, El Paso, Tex. (Court-appointed), for defendant-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ronald Ederer, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   PER CURIAM:

We have considered the several assignments of error by appellant in this case relating to the insufficiency of the evidence to justify the jury’s verdict of guilty, to the asserted involuntariness of the defendant’s confession, to the conduct of the judge during the trial as having been prejudicial to the defendant, and to the alleged failure of the trial judge to comply with the principle of Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), relative to the necessity of an explicit finding that defendant would not benefit from sentencing under the Youth Corrections Act.

After a careful review of the record, we find the assignments of error to be without merit. We also hold that since the defendant herein is over the age of 22, a young adult offender, the sentencing judge was not required to make explicit findings that the defendant would not benefit from the Youth Corrections Act (18 U.S.C. § 4209).

Affirmed.