author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harold Dean AUDSLEY, Defendant-Appellant.
    No. 73-1360.
    United States Court of Appeals, Fifth Circuit.
    Oct. 25, 1973.

      Max P. Engel, David B. Javits, Miami, Fla., for defendant-appellant.
    John L. Briggs, Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and MORGAN, Circuit Judges.
   PER CURIAM:

Appellant Audsley was found guilty by a jury of aiding and abetting the interstate transportation and pledging of stolen securities in violation of 18 U.S.C. §§ 2, 2314, 2315. He attacks the judgment of conviction on five grounds: (1) the admission of evidence of similar prior transactions between the appellant and one Jones with whom the present transaction took place; (2) insufficient evidence to prove the required elements of the offense; (3) the propriety of a charge to the jury regarding permissible inferences to be drawn from possession of recently stolen property; (4) the indictment was misread to the jury; and (5) curtailment of cross-examination.

Audsley is correct in contending that as a general rule the evidence introduced in a criminal trial should relate only to the specific offense charged in the indictment. It is also well recognized, however, that prior transactions may be introduced to establish that the defendant possessed the requisite knowledge or intent, or that there is a consistent pattern, scheme of operation, or similarity of method. United States v. Alston, 460 F.2d 48, 55 (5th Cir. 1972). A principal issue at the trial was Audsley’s knowledge of the stolen character of the securities. We find that the evidence of prior transactions was substantially relevant to this issue.

The appellant’s argument concerning the insufficiency of the evidence has no merit. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, 704 (1942). The challenged jury charge was appropriate in view of United States v. Barnes, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). See also United States v. Roberts, 483 F. 2d 226 (5th Cir. 1973); United States v. Howard, 483 F.2d 229 (5th Cir. 1973).

After a complete review of the record and the contentions presented in appellant’s brief and at oral argument, we discern no merit in appellant’s other specifications of error. The judgment of conviction is affirmed.

      . The trial judge gave limiting instructions on the use of this evidence.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Claude E. BRODY, Appellant. UNITED STATES of America, Appellee, v. Leonard B. BRODY, Jr., Appellant.
    Nos. 73-1189, 73-1190.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 13, 1973.
    Decided Oct. 11, 1973.
    Rehearing and Rehearing En Banc Denied Nov. 27, 1973.
    See also, D.C., 357 F.Supp. 910.
    Gary Eldredge, and William C. Hopkins, II, Kansas City, Mo., for appellants.
    Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee.
    Before GIBSON and BRIGHT, Circuit Judges, and SMITH, Senior District Judge.

       The Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

   PER CURIAM.

The defendants, Claude E. Brody and Leonard B. Brody, Jr., brothers, were charged in a two-count indictment with willfully possessing an unregistered shotgun in violation of 26 U.S.C. § 5861 (d) and with transportation of two sawed-off shotguns in interstate commerce for the purpose of committing a bank robbery, in violation of 18 U.S.C. § 924(b). The jury returned a guilty verdict on the “possession” count, [§ 5861(d)] and a not guilty verdict on the “transportation” count for both defendants. The District Court sentenced each defendant to ten years imprisonment on the first count.

On appeal, the defendants filed identical briefs, contending that there was insufficient evidence to support the jury’s verdict, that an instruction given by the District Court in response to a question by the jury concerning the time of the offense was prejudicial, and that the District Court erred in denying a motion to suppress the sawed-off shotgun found in Claude Brody’s automobile.

The defendants’ three arguments merit brief discussion. First, the “sufficiency of the evidence” contention rests on a claim that two Government witnesses testified unreliably concerning defendants’ possession of the shotgun on dates other than July 7, 1972 (the day of defendants’ arrests). One of these two witnesses informed the police that the shotgun could be found in Claude Brody’s car. The defendants do not contend that the shotgun was not found in Claude Brody’s car. Viewing the evidence in the light most favorable to supporting the jury’s verdict, we conclude that there was ample evidence to support the convictions. United States v. Holt, 427 F.2d 1114, 1116 (8th Cir. 1970); Hanger v. United States, 398 F.2d 91, 108 (8th Cir. 1968), cert, denied, 393 U.S. 1119, 89 S. Ct. 995, 22 L.Ed.2d 124 (1969).

The defendants also argue that the District Court gave an improper instruction to the jury. During the jury’s deliberations, the jury gave the bailiff an envelope containing the following question:

“Does Count One of the Indictment mean at the time of the arrest or possession of the gun at any previous time covered by the evidence at trial ?”

The District Court and all counsel agreed that the court should respond to the question with a written instruction, which was given as follows:

“Count One of the indictment in this case charges that the offense charged therein was committed ‘on or about the 7th day of July, 1972.’ The proof need not establish with certainty the exact date of the alleged offense. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged.”

The defendants objected to this instruction, contending it purportedly interjected prejudicial new issues into the case, for it allowed the jury to convict based upon evidence of possession of the shotgun by defendants on days other than July 7, 1972, the day of defendants’ arrests. The Government responds that the grand jury indictment “charged not simply ‘on July 7’ but ‘on or about’ July 7,” and that such a charge encompasses possession on days other than the actual arrests. We agree with the Government’s position and further note that this instruction is commonly approved. Bradford v. United States, 413 F.2d 467, 470-471 (5th Cir. 1969); Yaw v. United States, 228 F.2d 382, 383 (9th Cir. 1955); Devitt and Blackmar, Federal Jury Practice and Instructions § 14.02 (2d ed. 1970).

Last, defendants contend that the District Court should have suppressed the evidence of the shotgun due to an illegal search and seizure of Claude Brody’s automobile. The defendants claim that the police officers did not have probable cause to arrest defendants or search the automobile. We have reviewed the record and think that there was adequate probable cause to support the warrantless search of the automobile. Husty v. United States, 282 U.S. 694, 700-701, 51 S.Ct. 240, 75 L.Ed. 629 (1931); Brinegar v. United States, 338 U.S. 160, 174-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

Judgment of convictions affirmed.


author: GIBBONS, Circuit Judge.

text:
    Brad S. BEIGHTOL, a minor, by his guardian, Arlene L. Beightol, Appellant, v. Joseph KUNOWSKI et al., Appellees.
    No. 72-1619.
    United States Court of Appeals, Third Circuit.
    Submitted July 2, 1973.
    Resubmitted Sept. 4, 1973.
    Decided Sept. 19, 1973.
    Ambrose R. Campana, Campana & Campana, Williamsport, Pa., for appellant.
    Curtis M. Pontz, Asst. Atty. Gen., Pa. Dept, of Justice, J. Shane Creamer, Atty. Gen., Harrisburg, Pa., for appellee.
    Submitted Under Third Circuit Rule 12(6) July 2, 1973
    Before GIBBONS and HUNTER, Circuit Judges.
    Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973
    Before SEITZ, Chief Judge, and GIBBONS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal from an order dismissing a complaint for failure to state a claim upon which relief may be granted. The appellant Beightol, a minor suing by his guardian, in the complaint seeks money damages from defendants Kunowski, Strosahl, Gomb and Pontz, members of the Pennsylvania State Police, for depriving him of civil rights. Jurisdiction is predicated upon 28 U.S.C. § 1343 and 42 U.S.C. § 1983. On January 24, 1972, Beightol was arraigned in Lycoming County, Pennsylvania, on charges of use, possession and giving away hashish. He was released on bail. On January 31, 1972, while he was still free on bail, he appeared at the office of a judicial officer in Lycoming County to attend a preliminary hearing. The complaint alleges that the defendants, acting under color of state law, while he was not in custody, on January 31, 1972, seized him and forced him against his will to submit to fingerprinting and photographing. The district court, 340 F.Supp. 1134, held that these allegations did not demonstrate the “deprivation of any rights, privileges, or immunities secured by the Constitution and [federal] laws.” 42 U.S.C. § 1983. We reverse.

In Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), the Supreme Court held that the seizure of fingerprints was subject to the requirements of the fourth amendment. It held inadmissible fingerprints taken from a defendant without a warrant or other judicial process. The Court did suggest that a lesser showing of probable cause for detention for fingerprinting might be appropriate when compared with other seizures, since the resulting intrusion is somewhat less. But because fingerprints are indestructible, said the Court:

“. . . the limited detention need not come unexpectedly or at an inconvenient time. For this same reason, the general requirement that the authorization of a judicial officer be obtained in advance of detention would seem not to admit of any exception in the fingerprinting context.” Id. at 727-728, 89 S.Ct. at 1398.

United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), does not overrule Davis v. Mississippi, supra. It explains that while the obtaining of fingerprints does not violate the privilege against self incrimination, and while the issuance of a grand jury subpoena does not under the fourth amendment require a showing of probable cause, the unlawful detention of a person for the purpose of obtaining fingerprints still is prohibited. While neither Dionisio or the companion case of United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (voice exemplars), dealt with mug shots, we believe the Court would make essentially the same analysis as with respect to fingerprints and voice exemplars. See United States v. Johnson, 147 U.S.App.D.C. 31, 452 F.2d 1363, 1372 & n. 37 (1971).

The issue, then, is whether the detention on January 31, 1972, was lawful. To put it another way, the issue is whether the Pennsylvania State Police have the power to arrest a person free on bail, without a warrant, for the sole purpose of obtaining fingerprints and a mug shot. The Pennsylvania State Police have no such powers of arrest. Indeed, the power of police officers to subject persons to fingerprinting is carefully circumscribed. Pa.Stat.Ann. tit. 19, § 1403 authorizes the fingerprinting for identification purposes of persons in custody, and possibly also of persons not in custody who have been charged with a felony. Beightol was neither in custody nor charged with a felony. He was free on bail on misdemeanor charges. Pa.Stat.Ann. tit. 35, § 780-113 (b).

The district court, admitting that the complaint alleges a detention of the defendant while he was not in custody, analogized to the taking of fingerprints and photographs of persons in custody following a lawful arrest. E. g., United States v. Krapf, 285 F.2d 647 (3d Cir. 1960); United States v. Laub Baking Co., 283 F.Supp. 217 (N.D.Ohio 1968). But what Beightol complains about is an unlawful arrest. It is one thing to say that a lawful arrest can justify identification procedures. It is quite another to say that the desire to subject a person to identification procedures can justify an otherwise unauthorized arrest. The cases on identification procedures of persons lawfully in custody do not justify the dismissal of the instant complaint unless for purposes of detention one equates bail with custody. To do so would be a distortion of the purpose of the right to bail. That purpose is to secure the defendant’s presence at his trial while at the same time affording him freedom from harassment and confinement before he has been proven guilty of the offense charged. See, e. g., United States v. Smith, 444 F.2d 61, 62 (8th Cir. 1971); Smith v. United States, 357 F.2d 486, 490 (5th Cir. 1966). It would be anomalous, indeed, to hold that a person long freed on bail remained subject to the control of the police, subject to warrantless seizure at any time to meet their administrative convenience. Cf. Napolitano v. United States, 340 F.2d 313, 314 n. 3 (1st Cir. 1965).

The complaint sufficiently charges that acting under color of state law the defendants illegally detained Beightol and forcibly and unlawfully obtained fingerprints and a mug shot. These allegations state a cause of action for damages under 42 U.S.C. § 1983. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). We do not here consider, however, whether there exist any possible defenses to this claim. Cf. Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

The judgment of the district court will be reversed and the case remanded for further proceedings consistent with this opinion.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles CASH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Mildred RODRIGUEZ, Defendant-Appellant.
    Nos. 73-2297, 73-2364.
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 5, 1973.
    Jack V. Eskenazi, Federal Public Defender (Court-appointed not Under Act), Charlene H. Sorrentino, Asst. Federal Public Defender, Miami, Fla., for defendants-appellants.
    Robert W. Rust, U. S. Atty., William R. Northeutt, Joel C. Fanning, Asst. U. S. Attys., Miami, Fla., for plaintiff-ap-pellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

Appeal is taken in these cases, tried separately below but consolidated here, from denial in the District Court of motions for dismissal of the respective in-formations for failure to allege, facts which constituted a violation of the Food Stamp Act of 1964, 7 U.S.C.A. § 2028(b). Subsequent to denial of these pretrial motions, each defendant entered a plea of nolo contendere expressly stating in open court his/her intention to preserve the jurisdictional defect for appeal. Conviction and sentencing followed.

Whatever doubts there may be as to the situations in which errors can be urged by an appeal after a plea of nolo contendere, it is well settled that a plea of guilty or, as here, nolo contend-ere does not foreclose appellate review of whether the indictment (or information) charged a crime against the United States. United States v. Ury, 2 Cir., 1939, 106 F.2d 28; United States v. Cox, 6 Cir., 1972, 464 F.2d 937; Rice v. United States, 5 Cir., 1929, 30 F.2d 681; Haynes v. United States, 5 Cir., 1967, 372 F.2d 651, reversed on other grounds, 1968, 390 U.S. 85, 88 S.Ct. 722, 19 L. Ed.2d 923.

Despite the clear appealability of the issues raised, we find them to be without merit. We conclude that the plain language of 7 U.S.C.A. § 2023(b) (note 1, supra) is supportive of the lower court’s determination that the acts committed by the appellants fell within its proscription. Count VI of each information charged appellants with acceptance of food coupons in payment for ineligible retail merchandise.

A careful reading of § 2023(b) indicates that the undenied facts charged in count VI of the information constituted a violation. The statute prohibits anyone from acquiring or possessing coupons “in any manner not authorized by * * * the regulations issued pursuant to * * * [the act]. (See note, 1, supra). Title 7, C.F.R. § 272.2(b) provides in part:

“Coupons shall be accepted by an authorized retail food store only in exchange for eligible food as defined in § 270.2 (s) of this subchapter * * *”

Thus the acquisition by an authorized retailer or agent of a coupon issued under the Act for any ineligible item is clearly chargeable as a violation of 7 U. S.C.A. § 2023(b).

We conclude that the District Court was correct when it denied appellants’ motions to dismiss the information for failure to state an offense and proceeded with the trials. The nolo plea admitted the acts and all of the elements of the crime. There it ends.

Affirmed.

      . 7 U.S.C.A. § 2023(b) provides :
      “Whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization to purchase cards in any manner not authorized by this chapter or the regulations issued pursuant to this chapter shall, if such coupons or authorization to purchase cards are of the value of $100 or more, be guilty of a felony and shall, upon conviction thereof, be fined not more than $10,000 or imprisoned for not more than five years or both, or, if such coupons or authorization to purchase cards are of a value of less than $100, shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not more than $5,000 or imprisoned for not more than one year, or both.”

      . Undisputed evidence established that, on separate occasions, Cash, at that time the co-owner of a small grocery store in Miami, and Rodriguez, then employed as a cashier in another small grocery store in Hialeah, Florida, received food stamp coupons as payment for unauthorized items of retail merchandise.

      . The remaining five counts of each information were dismissed by the government.

      . We fully reject appellants’ artfully framed argument that their action fell within the proscription of 7 U.S.C.A. § 2023(c) instead of § 2023(b). Again, referring to the plain language of the statute, § 2023(c) clearly covers a situation where food coupons are presented for payment or redemption. Such a transaction was absent in the instant fact situation.


author: ALDRICH, Senior Circuit Judge.

text:
    In the Matter of IMPERIAL “400” NATIONAL, INC., Debtor. Appeal of Joseph M. NOLAN. Judicial Council of the Third Circuit, Intervenor.
    No. 72-1566.
    United States Court of Appeals, Third Circuit.
    May 23, 1973.
   Memorandum and Order on Petitions for Rehearing

ALDRICH, Senior Circuit Judge.

The petition for rehearing filed on behalf of the Circuit Council appears to misunderstand fundamentally the narrow scope of our decision. In the first place, it neglects that, as we pointed out, and as Judge Lumbard in his dissent recognized, the Council’s rule, regardless of its form, was designed for Nolan. Nor did we say that we wished to substitute our view of the proper decision for that of the Council. Quite the contrary, our disagreement was basically with procedure; adding, to show that the issue was not moot, that there was another legally possible solution. It is not helpful to have a petition that does not direct itself to what we decided.

Secondly, we do not feel it appropriate, or helpful, to go off the record by referring to alleged ill-health of the district judge (which would in no way eliminate the alternative expressly before the Council, as pointed out by us, of referring the matter to the chief district judge for a hearing); or, more important, by stating that the Council members would aver they were not, in fact, influenced by the charges made against Nolan, and that some did not know all of them. Again, counsel misunderstands our opinion. We thought we made it clear that what troubled us was that serious charges had been stated to at least two members of the Council, who, for. all that was known, might be expected by Nolan to repeat them, (even the understandably abbreviated record of the Council meeting refers to the “friction between counsel •. . . and certain creditors”), and who publicly “had expressed by no means insignificant criticisms of appellant,” of substance, not appearance.

We have no doubt that all members of the Council, in utmost good faith, sought to disregard whatever charges they knew or believed, and to address themselves to the issue. But we can only repeat, what counsel conspicuously ignores, that on this record, for a directive needed by no one except perhaps Nolan, Nolan was “unheard by a body whose very excuse for acting was the necessity of maintaining public confidence in the courts.” The harm to Nolan was serious; any offsetting advantages, minimal. We spoke in terms of fairness and due process, and we adhere to that position.

With regard to the Council’s present assertion that Chandler v. Judicial Council, 1970, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100, indicates that we lack jurisdiction, the Council took the opposite position before the District Court in the mandamus proceeding, 346 P.Supp. 500, 511, before the Supreme Court in the brief which led to the denial of appellant’s motion for leave to file a petition for mandamus, 409 U.S. 822, 93 S.Ct. 111, 34 L.Ed.2d 154, and again in its original brief before us. Chandler was decided long before all of those occasions. Perhaps the Council’s present position is correct, but we have already considered it fully, and will not again.

We will deal briefly with the suggestion, also made for the first time, that remand for a hearing should be made to the Council, not to the district court. We respectfully wonder whether the Council really wishes that disposition, in the light of the truly district court nature, as well as the extent, of the matters we believe are to be heard, and of the fact that the Council, unlike the district court, is not au courant with the affairs of the case. In any event, we cannot feel, again with the greatest of respect, that, where there are two possible bodies, the Council is at this point the appropriate one. This is not to suggest that the regular members of the Court of Appeals may not properly review the district court’s decision once there is a full record.

The petition for rehearing filed on behalf of the Union Bank calls for no separate comment. We made the charge of taxable costs to that party because of its extraordinary and persistent disregard of the record and of the limited issue that was before us.

The petitions for rehearing are denied.

LUMBARD, Circuit Judge, dissents and votes to grant the petitions for rehearing for the reasons stated in his dissenting opinion.


text:
    W. H. NALL, Plaintiff-Appellant, v. AMERICAN HOME ASSURANCE COMPANY, Defendant-Appellee.
    No. 73-2281
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 6, 1973.

      D. Wayne Childress, W. Borden Strickland, Mobile, Ala., for plaintiff-appellant.
    Broox G. Holmes, Norman E. Waldrop, Jr., Mobile, Ala., for defendant-appellee.
    Before WISDOM, AINSWORTH 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:

An Alabama statute provides that misrepresentation by the insured on an application for an insurance policy may serve as a reason to void the policy only if the misrepresentation is made “with actual intent to deceive” or if “the matter misrepresented increased the risk of loss”. The sole issue on appeal in this diversity case is whether the district court properly granted the defendant insurance company’s motion for a judgment notwithstanding the verdict on the ground that the defendant had voided the plaintiff’s insurance policy within the constrictions of the above Alabama statute. The plaintiff failed to indicate in his application for disability insurance that he suffered from “chronic brain syndrome”. Because we hold that the evidence clearly established that the plaintiff’s illness increased the risk that he would become disabled, we affirm.

The plaintiff-appellant, W. H. Nall, suffered from a nervous disorder known as “chronic brain syndrome”, apparently stemming from severe brain injuries sustained in an automobile accident in 1951. His condition became so pronounced that in September 1964 he was discharged from the Air Force and given a 100-percent disability allowance. During the next four years he spent twenty-six months in hospitals due to his chronic brain syndrome. From October 1968 until the time of trial in January 1973, Nall was under daily medication for his nervous condition. His doctor, in the sole medical testimony at trial, testified that chronic brain syndrome is incurable and debilitating.

In April 1970 Nall purchased a home and mortgaged it through Cobbs, Allen and Hall Mortgage Company. The mortgage company mailed to Nall an application for coverage under a group mortgage protection plan underwritten by American Home Assurance Company, the defendant-appellee. Under the plan Nall’s mortgage payments would be paid by American in the event that he became disabled due to illness or injury. Nall completed the application, checking a block to indicate, “No, I have not been treated for Heart Disease, Diabetes, Lung Disease, or Nervous Disorders”. He also indicated that he was in good health and was employed actively at least twenty-five hours a week. Nall signed the application and mailed it to the mortgage company, which after examining the application sent Nall a certificate of insurance. American, the actual insurer, never examined Nall’s application.

Nall ceased work in February 1972 and made claim to American under the disability policy. American refused to pay the claim, and Nall sought to have American’s liability established by a declaratory judgment in federal court. The district court found as a matter of law that Nall misrepresented his health in the application. This finding is not contested here. The court submitted two questions to the jury: was the misrepresentation made with the intent to deceive, and did it increase the risk of loss to American? After the jury answered both in the negative, the court granted the defendant’s motion for a judgment n.o.v. Nall contends on appeal that his illness did not increase the risk of loss and that, in any event, the defendant issued the insurance policy in question without relying on the misrepresentation in the application.

Neither of these contentions has merit. The evidence at trial was uncontradicted that Nall’s illness was permanent and debilitating. Because of it, Nall was given a medical discharge from the Air Force and a permanent and total disability allowance. When he completed his application for disability insurance in April 1970, he had worked no more than thirteen months since 1963; he had spent twice that amount of time in hospitals. We find that the evidence established beyond serious dispute that Nall’s disease increased substantially the possibility that serious illness would prevent him from maintaining gainful employment during the term of the policy. Turning to Nall’s second contention, the evidence established that when Cobbs, Allen and Hall received a “clean” application — one without any indication of illness or unemployment— that company issued a certificate of insurance, underwritten by American. Applications noting medical problems were forwarded to American where, without further inquiry, applications reflecting a history of nervous disorders, diabetes, or heart or lung disease were rejected. American, therefore, not only relied on the truthfulness of the information provided by an applicant, its entire system depended upon it. The evidence was uncontroverted that had Nall completed the application accurately, it would have been forwarded to American and summarily rejected.

We fail to find any conflict in “substantial evidence”, Boeing Co. v. Shipman, 5 Cir., 1969, 411 F.2d 365, 375 (en banc), that Nall suffered from chronic brain syndrome at the time he applied for insurance from American, that this illness increased the risk that he would become disabled during the term of the policy, and that had he not misrepresented his health his application for insurance would have been denied. See Metropolitan Life Ins. Co. v. Dixon, 1933, 226 Ala. 603, 148 So. 121, 122. See also New York Life Ins. Co. v. Ziv-itz, 1942, 243 Ala. 379, 10 So.2d 276; New York Life Ins. Co. v. Horton, 1938, 235 Ala. 626, 180 So. 277. The judgment is

Affirmed.

      . Ala.Code title 28, § 6 (1958). The provision reads in full:
      “No written or oral misrepresentation, or warranty therein made, in the negotiation of a contract or policy of insurance, or in the application therefore, or proof of loss thereunder, shall defeat or void the policy, or prevent its attaching, unless such misrepresentation is made with actual intent to deceive, or unless the matter misrepresented increased the risk of loss.”
      Since the events relevant to this case, the Section has been updated. See Ala.Code title 28A, § 320 (Supp.1971) [effective January 1, 1972]. Section 6 is in the alternative. The insurer may prove either deceit or increase in risk; he need not prove both. Liberty National Life Ins. Co. v. Trammell, 1949, 255 Ala, 1, 236, 51 So.2d 174, 176.


text:
    John Henry PERNELL, Petitioner-Appellant, v. James H. ROSE, Warden and State of Tennessee, Respondents-Appellees.
    No. 73-1141.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 9, 1973.
    Decided Oct. 31, 1973.
    David S. Field (Court Appointed), Nashville, Tenn., for petitioner-appellant.
    William B. Hubbard, Asst. Atty. Gen., Nashville, Tenn., for respondents-appel-lees; David M. Pack, Atty. Gen. of Tenn., of counsel.
    Before WEICK, EDWARDS and LIVELY, Circuit Judges.
   PER CURIAM.

John Henry Pernell was arrested in Ohio after having been charged with murder in Tennessee. He was not entitled to bail under Ohio law and spent approximately six months in jail in Ohio while resisting extradition to Tennessee. He was ultimately tried in Tennessee, found guilty of second degree murder and sentenced by the jury to serve ten years in prison, the maximum statutory sentence for the offense being twenty years. The State of Tennessee refused to give him credit on the ten-year sentence for time spent in custody in Ohio while awaiting extradition.

After exhausting his state remedies, petitioner sought relief by way of ha-beas corpus in the United States District Court. The District Court held that the refusal of Tennessee to give credit on a subsequent sentence imposed by a jury in a Tennessee court for time spent in Ohio while awaiting extradition prior to trial in Tennessee did not deprive petitioner of a right guaranteed to him by the Constitution of the United States.

Upon consideration of the record, briefs and oral arguments, this Court concludes that the decision of the District Court is correct.

Therefore it i§ ordered that the judgment of the District Court be, and it is hereby affirmed.


text:
    Gussie JOHNSON, Plaintiff-Appellant, v. The TOWN OF JONESBORO et al., Defendants-Appellees.
    No. 73-2571
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 25, 1973.
    Jesse J. Marks, John L. Dorsey, New Orleans, La., for plaintiff-appellant.
    W. Jackson Emmons, Jonesboro, La., for Town of Jonesboro and others.
    R. L. Davis; Jr., Monroe, La., for American Employers Ins. Co.
    Before BELL, GODBOLD and GEE, 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.

   PER CURIAM:

The entry of judgment in the within matter adjudicated the liabilities of fewer than all of the parties in and to the litigation. There has been no entry of final judgment by the district court upon an express determination that there is no just reason for delay as is required by Rule 54(b), F.R.Civ. Procedure. Hence, the judgment lacks the requisite finality to be appealable within the meaning of 28 U.S.C.A. § 1291. International Harvester Credit Corporation v. Belding, 5 Cir., 1972, 462 F.2d 624; Bailey v. Rowan Drilling Company, 5 Cir. 1971, 441 F.2d 57; Cook v. Eizen-man, 5 Cir. 1963, 312 F.2d 134.

Dismissed.


author: BARRETT, Circuit Judge.

text:
    Jack S. BURDEN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    No. 72-1844.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted May 25,1973.
    Decided July 12, 1973.
    Rehearing Denied Dec. 3,1973.

      John M. Imel, Tulsa, Okl. (Donald P. Moyers, and John H. Conway, Jr., Tulsa, Okl., of counsel), for plaintiff-appellant.
    Carleton D. Powell, Tax Div., Dept, of Justice, Washington, D. C. (Myron C. Baum, Acting Asst. Atty. Gen., Meyer Rothwaeks, Elmer J. Kelsey, and Wesley J. Filer, Tax Div., Dept, of Justice, Washington, D. C.; Nathan G. Graham, U. S. Atty., of counsel, on the brief), for defendant-appellee.
    Before LEWIS, PHILLIPS and BARRETT, Circuit Judges.
   BARRETT, Circuit Judge.

Jack S. Burden appeals from a judgment denying his claim for refund of employee withholding taxes in the amount of $310.99 which he paid following a Government penalty assessment and the Court’s judgment allowing the Government’s counterclaim for $156,-016.28. The Court found that Burden was a responsible officer of CPM Constructors, Inc., (CPM), charged with a duty to remit withholding and social security taxes withheld from employees for the first and second quarters of 1967, and that he willfully failed to pay them in violation of 26 U.S.C.A. § 6672. Jurisdiction in this court rests on 28 U.S.C.A. § 1291.

CPM, an Oklahoma corporation, was formed in 1965 to carry on non-union construction work as a subsidiary of Universal Engineers and Constructors; Universal is principally owned by the O. R. Burden Construction Corporation. CPM entered into two construction contracts with Transwestern Pipeline Company of Texas (TPC) in 1966 to construct three compressor stations and to enlarge a fourth station in Arizona. Burden was Chairman of CPM’s Boárd of Directors when the work began on the contracts with TPC. He was also President and Chairman of the Board of Directors of O. R. Burden Construction Corporation, and Chairman of the Board of Directors of Universal Engineers and Constructors.

CPM submitted its bid to TPC on a non-union basis. Later TPC persuaded CPM to operate with union labor without any adjustment in the contract price. Problems developed with respect to the performance under the contracts with TPC including labor union troubles with employees, erroneous and incorrect engineering and designing by TPC and numerous revisions of drawings by TPC. CPM began experiencing financial difficulties in November of 1966. CPM’s president was terminated on March 8, 1967, at which time Burden assumed those duties. Prior to that time Burden met with TPC officials. TPC paid CPM $188,000 on March 6, 1967, as compensation for overtime wages. TPC also paid CPM $2,541,013.75 for work on the compressor stations. In addition, O. R. Burden Construction advanced CPM $200,000. CPM used these monies to meet net payroll expenses, to pay subcontractors and material suppliers, and to pay off a bank loan.

On April 21, 1967, TPC relieved CPM from performance under the contracts. TPC owed CPM about $400,000 and paid about $359,000 directly to CPM’s creditors.' CPM failed to pay employment taxes to the IRS for the first and second quarters of 1967.

Burden alleges that: (1) his actions were not “willful” under Section 6672; (2) CPM became the agent of TPC; (3) he lost control over the funds of CPM to TPC; and (4) under these circumstances he was unable to pay the subject taxes. Once TPC started paying CPM’s bills, Burden argues that it was reasonable for him to assume that it would also pay the subject taxes. He also asserts that all job proceeds from TPC were assigned to the bank as security for its loans.

There is no argument that under Section 6672 Burden was a “person” under the duty to collect and pay the taxes withheld on the wages of CPM’s employees. The issue is whether he “willfully” failed to discharge this duty.

We review the evidence in the light most favorable to the Government and we will not overturn the findings of the District Court unless they are clearly erroneous. House Beautiful Homes, Inc. v. Commissioner of Internal Revenue, 405 F.2d 61 (10th Cir. 1968); Coffey v. United States, 333 F.2d 945 (10th Cir. 1964).

“Willfully” as used in Section 6672, supra, means a voluntary, conscious and intentional decision to prefer other creditors over the Government. Newsome v. United States, 431 F.2d 742 (5th Cir. 1970); Pacific National Insurance Company v. United States, 422 F.2d 26 (9th Cir. 1970), cert, denied, 398 U.S. 937, 90 S.Ct. 1838, 26 L.Ed.2d 269 (1970); Monday v. United States, 421 F.2d 1210 (7th Cir. 1970), cert, denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970); Dillard v. Patterson, 326 F.2d 302 (5th Cir. 1963). It does not require bad motive as in a criminal case. The “person” required to collect and pay over withholding and social security taxes imposed upon the wages of employees is their employer. 26 U.S. C.A. §§ 3101, 3102, 3402, 3403. 26 U.S. C.A. § 6671(b) defines “person” as used in § 6672, supra, as an officer of a corporation whose function it is to perform the acts in respect to which the violation occurs. Burden was fully aware of CPM’s financial difficulties and defaulted tax obligations. Notwithstanding, he chose to prefer and pay creditors other than the Government. Burden’s argument that TPC controlled CPM’s funds does not render him less “willful”; TPC did not agree to pay the taxes, and Burden disbursed over $2,000,000 to various creditors other than the Government after he knew that CPM’s employees’ taxes had not been remitted to the United States.

Affirmed.

      . Any person required to collect, truthfully account for, and pay over any tax imposed by this title who willfully fails to collect such tax, or truthfully account for and pay over such tax, or willfully attempts in any manner to evade or defeat any such tax or the payment thereof, shall, in addition to other penalties provided by law, be liable to a penalty equal to the total amount of the tax evaded, or not collected, or not accounted for and paid over.


text:
    Stanley S. X. WARD, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2049
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 18, 1973.
    Stanley S. X. Ward, pro se.
    John W. Stokes, Jr., U. S. Atty., P. Bruce Kirwan, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.
    Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

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

   PER CURIAM:

This is an appeal from a denial of a § 2255 motion to vacate judgment of conviction under 18 U.S.C.A. § 1792 for conveying within a United States penitentiary a destructive device designed to kill. United States v. Matthews, 5 Cir., 1972, 460 F.2d 275.

The District Court properly-concluded that appellant waived his right to challenge the racial composition of the grand jury which indicted him in accordance with F.R.Civ.P. 12(b) by failing to raise the issue by motion before trial. See, Jury Selection and Service Act of 1968, 28 U.S.C.A. § 1867. The District Court also properly determined that appellant was not entitled to relief based on his allegations that blacks were excluded from the petit jury which convicted him since appellant failed to set forth specific facts in support of these eonclusory claims. See Aeby v. United States, 5 Cir., 1969, 409 F.2d 1.

Nor is there merit in appellant’s contention that he was denied his right to compulsory process and hence a fair trial because he was segregated from other prisoners for six months preceding the trial. As the District Court found, the crime with which appellant was charged and convicted bears ample witness to the fact that prison officials could reasonably conclude that appellant presented a “security” risk to the prison and had to be separated from other prisoners. The very fact that eight of the nine witnesses called by appellant during the trial were his fellow prisoners belies the merit of this claim. Furthermore, appellant was not denied Fourth, Fifth, or Sixth Amendment rights because his fingerprints were taken in the absence of counsel, in view of the fact that there was probable cause for his arrest. United States v. Sanders, 5 Cir., 1973, 477 F.2d 112; United States v. Love, 5 Cir., 1973, 482 F.2d 213.

The District Court was also correct in concluding that on the record appellant’s appointed counsel was not ineffective in presenting appellant’s defense at trial. The District Court did determine, however, that counsel failed to advise appellant of his right to seek certiorari in the Supreme Court of the Fifth Circuit’s affirmance of his conviction, in violation of Local Rule 7(III)(4). In order to remedy this failure the Court recalls the mandate in our affirmance of appellant’s direct criminal appeal and issues a new mandate reaffirming the conviction. Lacaze v. United States, 5 Cir., 1972, 457 F.2d 1075, cert, denied, 1972, 409 U.S. 921, 93 S.Ct. 251, 34 L. Ed.2d 180; Savage v. United States, 5 Cir., 1973, 483 F.2d 67. Appellant is advised of his renewed right to petition the Supreme Court for certiorari to review this Court’s affirmance of his direct criminal appeal.

The order denying appellant’s motion to vacate his sentence is affirmed. The original judgment of this Court on direct appeal is vacated and a new judgment is entered reaffirming the judgment of conviction.

Affirmed.


text:
    Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Petitioner-Appellant, v. Ronald Eugene REWIS, Respondent-Appellee.
    No. 73-1829
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Oct. 23, 1973.

      Robert L. Shevin, Atty. Gen., Daniel S. D earing, Asst. Atty. Gen., Tallahassee, Fla., for petitioner-appellant.
    Brent Michael Turbow, Jacksonville, Fla. (Court-appointed), for respondent-appellee.
    Before BELL, GODBOLD and GEE, 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.

   PER CURIAM:

Ronald Eugene Rewis, a Florida State Prison inmate, initiated this petition for habeas corpus, seeking release from incarceration on the theory that he had been improperly deprived of gain time. After appropriate proceedings, the court below issued its order on February 2, 1973, 354 F.Supp. 334, directing Rewis’ immediate release. Unknown to the court and (we trust) to all other participants in the proceeding, Rewis had been set free on February 1, 1973, under an early release program.

For reasons unnecessary to relate, this appeal followed. Rewis’ petition sought only release, nothing more. This he already had when the order appealed was entered. The order was, therefore, moot ab initio. It is vacated and remanded, with instructions to dismiss the cause as moot.

Vacated and remanded, with instructions.


text:
    Richard D. SMITH, Petitioner-Appellee, v. Melvin LAIRD, the Secretary of Defense, et al., Respondents-Appellants,
    Nos. 73-1198, 73-1199.
    United States Court of Appeals, Tenth Circuit.
    Submitted Oct. 2, 1973.
    Decided Oct. 19, 1973.

      William A. Norris, Cummington, Mass., for petitioner-appellee.
    Victor R. Ortega, U. S. Atty., for respondents-appellants.
    Before LEWIS, Chief Judge, and SETH and McWILLIAMS, Circuit Judges.
   PER CURIAM.

This appeal is taken by the United States from an order of the United States District Court for the District of New Mexico, 353 F.Supp. 446, granting Captain Richard D. Smith’s petition for a writ of habeas corpus and discharging him from the Air Force as a conscientious objector. The writ was granted upon the express condition that Doctor Smith perform alternative service under the civilian work program administered by the Selective Service System for the duration of his active duty obligation. Doctor Smith appeals from that portion of the order making his discharge conditional. His discharge has been stayed pending appeal.

Captain Smith voluntarily entered the Air Force in June 1967 upon graduation from the University of Massachusetts. He began active duty the following September at the Georgetown University School of Medicine under a program administered by the Air Force Institute of Technology (hereinafter AFIT). He was graduated from medical school in May, 1971 and in July, 1971 he began a one year Air Force sponsored internship in pediatrics at the University of Connecticut Affiliated Hospitals.

On April 27, 1971 Captain Smith was notified by letter that he was ineligible for an Air Force sponsored civilian or military residency, and that, accordingly, he should anticipate assignment to an Air Force medical facility upon completion of his internship in July of 1972. He was informed that he would be contacted in the fall of 1971 as to the geographical assignment he preferred, and as to his preference for assignment as either a Flight Medical Officer or a General Medical Officer.

In August, 1971 Captain Smith wrote to the Directorate of Professional Services, Office of the Surgeon General, USAF and stated that he had had previous correspondence with that Office and that he understood he would probably be assigned as a General Medical Officer following his internship. He requested information on whether , he might possibly be able to continue in pediatrics. He received a response on August 17, 1971 in which was enclosed a copy of the letter of April 27, 1971, and which quoted the paragraphs in that letter informing him that he was ineligible for a sponsored residency. He was told that if there were any changes in his status, he would be contacted by AFIT.

On October 1, 1971 Captain Smith took his oath of office and was sworn in as a member of the Air Force Medical Corps. He took the oath on the advice of counsel. On the same day he notified the Air Force by letter of his intention to seek classification as a conscientious objector pursuant to Air Force Regulation 35-24 (hereinafter AFR 35-24). AFR 35-24 implements for Air Force personnel the procedures set forth in Department of Defense Directive 1300.6 (hereinafter DoD 1300.6) for classification of in-service applicants as conscientious objectors.

Pursuant to the requirements of AFR 35-24, Captain Smith was interviewed by a psychiatrist, a chaplain, and an investigating officer.

The investigating officer held a three-hour interview during the course of which he delved extensively into the underlying basis for Captain Smith’s claim that he was entitled to classification as a conscientious objector. On March 6, 1972 the investigating officer recommended that Captain Smith’s application be denied. His recommendation was adopted up through the chain of review, and on August 22, 1972 the Secretary of the Air Force disapproved the application. Thereafter, Captain Smith sought and was granted by the district court on January 3, 1973 a writ of habeas corpus securing his discharge from the Air Force.

Two issues are presented for our review : Whether there exists in the record a basis in fact for the Secretary’s denial of Captain Smith’s application for classification as a conscientious objector, and, if not, whether the district court could properly grant the writ on the express condition that Captain Smith serve the remainder of his active duty obligation under a civilian work program administered by the Selective Service System.

BASIS IN FACT

. The scope of review in a case such as this is the narrow one of whether there exists in the record a basis in fact for the denial of an in service applicant’s application for classification as a conscientious objector. United States ex rel. Robinson v. Laird, 457 F.2d 741 (7th Cir. 1972); Polsky v. Wetherill, 455 F.2d 960 (10th Cir. 1972); Rothfuss v. Resor, 443 F.2d 554 (5th Cir. 1971); United States ex rel. Donham v. Resor, 436 F.2d 751 (2nd Cir. 1971).

To qualify for discharge from the armed forces as a conscientious objector, an applicant must establish that;

1. He is opposed to war in any form, Gillette v. United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971);

2. His objection is grounded upon religious principles as enunciated in Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970) and United States v. See-ger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); and

3. His beliefs are sincerely held, Wit-mer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955).

See also Clay v. United States, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971).

Captain Smith’s application for classification as a conscientious objector was ostensibly denied on the ground that he failed to establish that his beliefs were sincerely held.

The government concedes that Captain Smith established a prima facie case for classification as a conscientious objector. Accordingly, it is incumbent upon the government to show a basis in fact in the record for the denial of his application. A basis in fact will not find support in mere disbelief or surmise as to the applicant’s motivation. Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953); Helwick v. Laird, 438 F.2d 959 (5th Cir. 1971); Bates v. Commander, First Coast Guard District, 413 F.2d 475 (1st Cir. 1969). Rather, the government must show some hard, reliable, provable facts which would provide a basis for disbelieving the applicant’s sincerity, or it must show something concrete in the record which substantially blurs the picture painted by the applicant. United States ex rel. Checkman v. Laird, 469 F.2d 773 (2nd Cir. 1972); Lovallo v. Resor, 443 F.2d 1262 (2nd Cir. 1971); Helwick v. Laird, supra.

Sincerity is, of course, a subjective state of mind, and as such it does not easily lend itself to proof or disproof. The basis in fact test is, therefore, much easier to state than it is to apply to a given set of facts. Nevertheless, we have carefully reviewed the record and agree with the district court that there exists no basis in fact in the record to support the Secretary’s denial of Captain Smith’s application.

Preliminary to a discussion of the investigating officer’s report and the reasons upon which he questioned Captain Smith’s sincerity, it is pertinent to quote from the findings of the psychiatrist and the chaplain who personally interviewed Captain Smith.

The psychiatrist stated:

“ . . . .1 find the patient to be completely free of any psychiatric disease.
“2. In addition, after a lengthy interview, I feel the patient’s beliefs are sincere and well-founded, and I have no reason to believe it could be questioned from a psychiatric standpoint.”
The chaplain’s report read in part:
“In my opinion, Captain Smith is sincerely concerned about his role in society and honestly feels that he could not serve in any military capacity. While I feel that the reasons outlined above motivating him to become a conscientious objector are impressive and honestly portrayed, I also feel that his overall outlook lacks refinement in presentation and in content. In some measure, Captain Smith’s demanding schedule can account for this shortcoming. I believe that there is no duplicity in Captain Smith’s intent. On the basis of one interview, however, I cannot make any statements regarding the depth of Captain Smith’s convictions. I am favorably impressed, however, by his willingness to serve in public medicine or repay his educational costs. Could such an arrangement be made, I would have no reason to doubt Captain Smith’s sincerity or depth of conviction.”

To support his recommendation that Captain Smith’s application be denied, the investigating officer essentially relied on two factors. The first factor was Captain Smith’s taking his oath of office on the same day he notified the Air Force of his intention to seek classification as a conscientious objector. The second factor was the timing of the application in view of the April 27, 1971 letter.

The investigating officer stated as to the first factor:

“ . . . It is difficult for me to understand how an individual can take an oath, freely and without mental reservation, to defend the Constitution of the United States against all enemies, the same day he seeks status as a conscientious objector.”

As noted previously, however, Captain Smith took the oath of office on the advice of counsel and in his rebuttal letter to the report of the investigating officer, Captain Smith explained such superficially inconsistent actions as follows:

“ . . . As I stated in the 0-3 hearing, during the first several weeks to as late as two months following my realization as a Conscientious Objector, I was very much torn between my need to live in accordance with those beliefs which formed the basis of my conscientious objection and my feelings of obligation to the Air Force for having sponsored my education through, medical school. For a time I had resolved this dilemma by deciding that while I had to apply for status as a conscientious objector to satisfy the dictates of my conscience, I would not apply for discharge, that is, 1-0 status, but rather would apply for noncombatant status, that is, 1-A-O status. I discussed this course of action with several friends at that time and am including statements of two of these people .... Thus it was no accident that my Oath of Office and letter stating my intention to apply for conscientious objection status were completed and mailed on the same day, for in following this course I was stating that, although I recognized my obligation to the Air Force and wished to fulfill that obligation, I was nevertheless a conscientious objector and had to stand up for my beliefs.”

We think this explanation negates any inference of insincerity, and rather indicates that it was during the fall of 1971 that Captain Smith’s beliefs began to assume concrete form.

The investigating officer stated in respect to the second factor:

“ . . .In addition, the crystallization of his beliefs was stated to have occurred in connection with a letter informing him that he would probably not be serving in the Air Force as a pediatrician. Captain Smith’s educational records indicate that he was aware of this fact even before he finished medical school. These facts cause me to seriously question the applicant’s sincerity.”

It is well settled, however, that the question is not how or when an applicant’s beliefs crystallized, but rather is whether such beliefs are sincerely held, and in this regard the timing of an application is only a factor to be considered in testing those beliefs.

Again, we think Captain Smith adequately negated any inference of insincerity in his rebuttal letter. He explained that he did not seek classification as a conscientious objector earlier because:

“. . . Upon reviewing the letter I received from Col. Green dated 27 April 1971, a copy of which was included in the file I received from AFIT-DPMQ, I realized that this perhaps should have been the case, [i. e. he should have realized that he would be assigned as a Flight Medical Officer or a General Medical Officer upon completion of his internship] although this was never directly stated. However, at the time I received this letter my mind and my life were very much preoccupied with events such as the state of my marital relationship [and the difficulties] I was encountering in trying to find living accomodations in Connecticut. Thus, while the beliefs leading to my later realization as a Conscientious Objector were certainly developing I, at that time, did not perceive myself as a Conscientious Objector. In addition shortly after having received this letter, and having read it no more than once, I misplaced it and, until noticing a copy of it in my file at AFIT on the day of the 0-3 hearing, never saw it again. As a result, while I was aware of having received a letter from the Air Force indicating the possibility of my being utilized as a General Medical Officer I was certainly not aware of its explicit nature, as is indicated not only by the nature of my letter of 10 Aug. 1971, but by the very fact that this letter had to be written, and until receiving Col. Anderson’s letter of 17 Aug. 1971, still considered that the Air Force intended to utilize me as a Pediatrician.
'In part this was due to my unawareness of the explicitness of Col. Green’s letter of 27 April 1971, but also it was due to the fact that I believed that a mistake had been made, that Col. Green’s office was unaware that my internship was in straight pediatrics and that I was committed to serve 10 years Active Duty Service Commitment, for it did not seem logical that the Air Force would allow me to be trained in pediatrics exclusively and then utilize me in an entirely different capacity. Col. Gordon strongly suggests that the primary motivation behind my application for status as a Conscientious Objector was simply dissatisfieation with my proposed assignment as a Flight Surgeon or General Medical
Officer rather than my belief in the sacredness of the Human Spirit. Here again I must take exception with his conclusion for, although I was profoundly disturbed by the knowledge that I am scheduled to be utilized as a Flight Surgeon or a General Medical Officer, it had nothing to do with a simple preference of assignment. (Indeed, after having spent the last year to a year and a half working long hours with frequent night calls, the prospect of working something approximating a 40 hour week would hardly be unattractive.) Rather the motivating force behind my application for Conscientious Objector status was a direct result of my belief in the sacredness of the Human Spirit for as I stated in both the application and during the 0-3 hearing I had to a great degree dealt with my beliefs and their consequences by denying their meaning, rationalizing that as a pediatrician, who works only with children, I would not really be fulfilling a military role or contributing to the violation of the Human Spirit and would thus be able to serve out my obligation to the Air 'Force. Upon hearing that I am scheduled to be utilized as a Flight Surgeon or General Medical Officer, I could no longer deny my beliefs and their meaning to my life for, I fully realized that by' fulfilling the role of either of these members of the Medical Corps I would clearly be performing a military function for the whole purpose of my work would be to help maintain the health and morale of the officers and enlisted members of the Air Force in order to insure their maximum fighting preparedness and efficiency; thus I would be playing a definite part in supporting the violation of the Human Spirit.”

We find nothing in the record which would support a finding of a basis in fact for denying Captain Smith’s sincerity, and in this respect we note that the investigating officer was over-all favorably impressed with Captain Smith’s conduct during the hearing. He stated:

“Captain Smith’s conduct, statements, and responses during the hearing indicated that he had spent a great deal of time developing his beliefs. These beliefs do not appear to be founded on conventional religious grounds but rather on his deep personal feeling about the welfare of all human beings. “He does not advocate the use of violent actions for any situation; in fact, he appears to be a complete pacifist. His beliefs do not appear to be politically oriented. He apparently feels he has a duty as a citizen to try to make constructive changes in our society. He indicated that he believes his vote can produce these changes but because of his rigorous medical training has not had time to study the recent issues or to vote. He apparently feels that our government is not doing as much as is needed in our internal programs.
“However, he indicated that in his opinion our present form of government is the best available in the world today.
“Captain Smith did present a convincing case at his hearing and I believe that he in fact does strongly believe in the nonviolation of the “human spirit”. I further believe that he is a dedicated medical doctor and his utmost goal, at this time, is to become a fully qualified pediatrician as soon as possible. In my estimation, it is the pursuit of this goal which has provided the primary motivation for him to seek release from the Air Force as a conscientious objector. Obvious inconsistencies in his case cause me to strongly question the sincerity of his beliefs. I recommend that Captain Smith not be classified at a 1-0 conscientious objector.”

The investigating officer based his recommendation upon his disbelief as to Captain Smith’s sincerity and his surmise as to the primary motivation for the application. Such is insufficient to support a finding of a basis in fact.

We think the record reflects the throes of a young man struggling to reconcile his growing belief that he no longer in good conscience could actively participate in the military mission in either a combat or non-combat role with the moral obligation he felt toward the Air Force for sponsoring his medical education. The conflict was brought to a head in the fall of 1971 and was resolved in favor of the conscience and the belief in the non-violation of the Human Spirit.

The government asserts that in reviewing the record, due weight must be given to the fact that eight Air Force Officers who reviewed Captain Smith’s application all recommended that the application be denied. We deem of more importance, however, the reports of those who actually interviewed Captain Smith and had an opportunity to observe his demeanor. Of the three officers who interviewed Captain Smith, only the investigating officer seriously questioned his sincerity and even he felt that Captain Smith had presented a “convincing case” and was a “complete pacifist”.

We feel that a key factor in denying Captain Smith’s application was not his insincerity, but rather the apparent unfairness in discharging him from the Air Force after having invested substantial sums in his medical education in anticipation of utilizing his medical abilities in the Air Force Medical Corps.

This requires that we turn our attention to the condition imposed upon his discharge.

ALTERNATIVE SERVICE

The district court conditioned Captain Smith’s discharge upon the express condition that he serve his remaining active duty obligation in a civilian work program administered by the Selective Service System.

The condition imposed was not requested by the government nor suggested by Captain Smith in his petition filed in the district court. It was imposed sua sponte by the district court in a sincere effort to balance the equities involved.

The issue is admittedly a hard one: Initially, it seems patently unfair to discharge without obligation an active member of the armed forces whose professional education has been paid for by the government in anticipation of receiving the benefits of such education. Yet, it is recognized that there are members of the armed forces who develop during the course of their military experience a sincere objection based upon religious beliefs to participation in the military mission in any role, and specific regulations have been formulated for recognizing the integrity of those beliefs.

Currently, there exists no statutory authority for imposing a condition upon the release of an in-service conscientious objector who has served more than 180 days active duty. Nevertheless, such judicially originated conditions have been recognized in the Fourth, Eighth and Ninth Circuits. The Eighth Circuit, however, has more recently disapproved such conditions, Mosley v. Commanding Officer, 480 F.2d 1107 (8th Cir. 1973), and the Ninth Circuit has on other occasions viewed conditional discharges with disfavor. Miller v. Chafee, 462 F.2d 335 (9th Cir. 1972) ; McCullough v. Seamans, 348 F.Supp. 511 (E.D.Cal.1972).

We feel that the decision to impose conditions, if any, on the discharge of in-service conscientious objectors, including those who have had a portion or all of their education paid for by the armed forces, is a question which should be resolved in the Congress and not in the federal courts on a case by case basis. We feel Judge MacBride’s comments in McCullough v. Seamans, supra, are instructive on this point:

“ . . . Whether or not the United States should forgive or recoup its loss, however, is essentially a question of fiscal policy far too involved for simple contract principles to settle. The type and the extent of the obligation which conscientious objectors like McCullough and Joy might owe their country, therefore, is a matter best left to the political processes of Congress, the branch of government traditionally charged with the duty to guard the federal purse.
“The considerations which would interest Congress and perhaps be critical to its decision are generally apparent. Caught between pleas from distressed taxpayers and increasing demands for new social programs, Congress perhaps would simply conclude that the budget comes first. Proponents of some form of liability could surely muster a good deal of support among both Congressmen and the populace. Many people with much justification no doubt agree with the Air Force that it is fundamentally unfair for cadets to accept expensive educations only to file for discharges immediately after graduation. Not only does this practice waste the taxpayer’s money, it also excludes other deserving students from the academies. With much to go on, therefore, Congress might well require persons like McCullough and Joy to pay their own way.
“It is not too unreasonable to suppose, on the other hand, that Congress would forgive the debt entirely. Certainly attrition at the academies, whether due to illness, disciplinary problems, or whatever, has shown Congress not to expect a 100 percent return on its investment. And yet thus far it has not sought to recoup the loss. Perhaps it would feel especially compassionate towards conscientious objectors, who by hypothesis have entered the academy without any preconceived plans to trick the Air Force and have left it not because of any wrongdoing or personal fault, but only because their consciences have come to stand between them and their careers. Considerations such as these may convince Congress to forgive the debt, especially since the effect on the budget would be trifling in comparison to the heavy burden which it would place on the individual.
“Still another plausible alternative exists. Not unlikely, Congress would resolve the two extremes with a compromise, such as requiring alternate civilian service much like conscientious objectors perform within the Selective Service System. This procedure, although probably not entirely satisfactory to either side of the controversy, at least puts academy graduates on a par with other conscientious objectors and gives a measure of return on the federal investment without burdening the individuals with heavy payments. Like the other choices Congress could make, therefore, this alternative has much to commend it.”

Accordingly, the judgment of the district court granting Doctor Smith’s discharge from the Air Force is affirmed. That portion of the order of discharge conditioning Doctor Smith’s release upon alternative service in a civilian work program administered by the Selective Service System is reversed. The matter is remanded to the district court with directions to stay the order of discharge to allow the Air Force a reasonable time within which to discharge Doctor Smith in accordance with Air Force regulations. The mandate shall issue forthwith.

      . Under the program, the Air Force assumed the expenses of Captain Smith’s medical education, and in exchange, he agreed to serve three years active duty for each year of medical school sponsored by AFIT. Estimates of the cost to the Air Force of Doctor Smith’s education range from approximately $50,000 to $60,000.

      . 32 CFR § 888 [e].

      . 32 CFR § 75.

      . These criteria are incorporated in AFR 35-24 and DoD 1300.6.

      . R. Vol. II p. 46.

      . R. Vol. II p. 48.

      . R. Vol. II p. 54.

      . R. Vol. II p. 66.

      . R. Vol. II p. 53.

      . It has been held, for example, that the filing of an application for classification as a conscientious objector after receipt of orders to report to a combat zone is in and of itself insufficient grounds for denying an application. See e. g., Tressan v. Laird, 454 F.2d 761 (9th Cir. 1972) ; Rothfuss v. Resor, 443 F.2d 554 (5th Cir. 1971).

      . R. Vol. II p. 63.

      . R. Vol. II pp. 52, 54.

      . The review was conducted by career officers who had no personal contact with Captain Smith. Their recommendations that Doctor Smith’s application be denied were based upon inferences drawn from an inanimate record, and all such recommendations were based not upon hard, reliable provable facts but rather were based upon disbelief as to his sincerity, or the alleged inconsistencies pointed out by the investigating officer, which we feel were adequately explained in Captain Smith’s letter of rebuttal.

      . Captain Smith’s remaining active duty obligation is approximately ten years.

      . Under DoD 1300.6 and AFR 35-24, an in-service conscientious objector with less than 180 days active duty can be required to participate in an alternative service program administered by the Selective Service System.

      . Strait v. Laird, 464 F.2d 205 (9th Cir. 1972) ; Packard v. Rollins, 422 F.2d 525 (8th Cir. 1970) ; United States v. Clifford, 409 F. 2d 700 (4th Cir. 1969) ; Moore v. Connell, 318 F.Supp. 884 (D.Md.1970) ; Osborne v. Seaman, 318 F.Supp. 41 (D.Md.1970).

      . Congress has already enacted some legislation in this area. For example, pursuant to 38 U.S.C. § 3103 persons discharged from the armed forces as conscientious objectors under certain circumstances are ineligible to receive benefits administered by the Veterans Administration. Pursuant to DoD 1300.6, in-service applicants for discharge as conscientious objectors must sign a waiver which incorporates the provisions of 38 U.S.C. § 3103.


author: BRIGHT, Circuit Judge.

text:
    FARMLAND INDUSTRIES, INC., Appellant and Cross-Appellee, v. KANSAS-NEBRASKA NATURAL GAS COMPANY, INC., Appellee and Cross-Appellant.
    Nos. 72-1775, 72-1779.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 10, 1973.
    Decided Oct. 23, 1973.
    Rehearing Denied Nov. 20, 1973.

      Leonard O. Thomas, Kansas City, Kan., for Farmland.
    Richard Jones, Wichita, Kan., for Kansas-Neb. Natl. Gas.
    Before GIBSON and BRIGHT, Circuit Judges, and TALBOT SMITH Senior District Judge.

       Eastern District of Michigan, sitting by designation.

   BRIGHT, Circuit Judge.

Since the early 1960’s, Farmland Industries, Inc. has produced anhydrous ammonia for use as fertilizer at its Hastings, Nebraska, plant, this manufacturing process requires natural gas both as a raw material, called firm or process gas, and also as fuel for its boilers, known as interruptible or fuel gas. The only source of- natural gas in the region was and continues to be Kansas-Nebraska Natural Gas Co., Inc., and Farmland, accordingly, had concluded two contracts —one for fuel gas and one for process gas — with Kansas-Nebraska in 1963.

Both contracts contained termination with notice clauses, and on November 24, 1970, Kansas-Nebraska gave proper notice to Farmland of its desire to terminate boiler fuel service as of January 1, 1971, unless the parties could agree to new rate terms. Negotiations stalled, and, on January 9, 1971, Kansas-Nebraska cut off Farmland’s supply of fuel gas. For two weeks, Farmland utilized fuel oil, a high cost substitute for natural gas, but finally signed a new contract with higher rates on January 23, 1971. Shortly thereafter, on February 16, 1971, Kansas-Nebraska threatened a similar cutoff of process gas, to become effective April 30, 1971, prompting Farmland to sign a new contract for that gas as well, albeit under protest.

Farmland commenced the instant action in federal court seeking damages and injunctive relief against Kansas-Nebraska, contending that Kansas-Nebraska’s conduct constituted an abandonment of natural gas service for both boiler gas and process gas in violation of the provisions of the Natural Gas Act, 15 U.S.C. § 717.

The district court awarded Farmland damages in the sum of $33,824.29 for unlawful termination of service of boiler gas during January 1971, but declined any relief from the higher rates or for Kansas-Nebraska’s threats to cut off service of process gas. Farmland has appealed the judgment as inadequate. Kansas-Nebraska has cross-appealed from the award of a money judgment in favor of Farmland.

Upon the trial of the merits in the district court, Chief Judge Warren K. Urbom determined that Kansas-Nebraska, which had provided service to Farmland through facilities constructed under a certificate of convenience and necessity issued by the Federal Power Commission, had violated provisions of the Natural Gas Act by abandoning boiler gas service to Farmland without first obtaining approval of the Federal Power Commission pursuant to 15 U.S.C. § 717f (b).

The district court declined to award any damages attributable to the controversy concerning process gas, since no termination of service had actually occurred, and further declined to intervene in the rate disputes between the parties stemming from the increased charge made for boiler gas after January 1971 and for process gas after April 1971, on the ground that the court possessed no jurisdiction to determine the reasonableness of those rates.

We agree with Judge Urbom’s resolution of this controversy. He has. set forth the facts and the applicable law with succinctness and admirable clarity in a written decision reported as Farmland Industries, Inc. v. Kansas-Nebraska Natural Gas Co. Inc., 349 F.Supp. 670 (D.Neb.1972). Since we affirm on the basis of this decision, we find it necessary to add but a few comments.

The language of 15 U.S.C. § 717f(b), a provision of the Natural Gas Act, in a straightforward manner states that: “No natural-gas company shall abandon * * * any service * * * without the permission and approval of the Commission first had and obtained, after due hearing * * In the absence of any contrary legislative history or judicial gloss, its plain meaning must be deemed controlling. Old Colony R. Co. v. Commissioner, 284 U.S. 552, 560, 52 S.Ct. 211, 76 L.Ed. 484 (1932); Bruhn’s Freezer Meats of Chicago, Inc. v. U.S.D.A., 438 F.2d 1332, 1338 (8th Cir.1971). Kansas-Nebraska was under a continuing duty to deliver gas until it could justify an abandonment to the Commission, even though its contract obligation had expired. See Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 155, 80 S.Ct. 1392, 4 L.Ed.2d 1623 (1960). Where there exists a federal right, there must be a concurrent federal remedy. 349 F.Supp. at 677 et seq.; see generally J. I. Case Co. v. Borak, 377 U.S. 426 (1964). Kansas-Nebraska abandoned its boiler gas service to Farmland without the approval of the Federal Power Commission and must, therefore, be liable in damages to its customers. Since it did not in fact terminate service of process gas, no action under the Natural Gas Act lies for abandonment of that service.

A few words, however, need to be said regarding Farmland’s claim that, in the circumstances of this case, the federal courts should exercise jurisdiction over the reasonableness of the rates charged by Kansas-Nebraska. Certainly by its terms the Natural Gas Act excludes intrastate sales from the “reasonable rate” regulation of the Federal Power Commission, compare 15 U.S.C. § 717(b) with 15 U.S.C. § 717c(a), and hence from enforcement in the federal courts, see 15 U.S.C. § 717u. Moreover, the amounts paid by Farmland in excess of a “reasonable rate” after the new contracts were signed cannot logically be viewed as part of the damages arising out of the illegal cutoff of fuel gas, as Farmland would have us believe. The district court aptly observed:

Presently, actions are pending in state courts between the plaintiff and the defendant here. There is nothing to suggest that those actions, or some different action in a state court, would be inadequate to determine the reasonableness of the rates Kansas-Nebraska has charged Farmland since the termination of the former contract for boiler gas. As new federal remedies should be no broader than necessary, one should not be extended to take from the state courts the prerogative of deciding the rate issue. The wrong, if there be one, will not go remediless if no federal claim is inferred. [349 F.Supp. at 681.]

The district court correctly held that it was without jurisdiction under the Natural Gas Act to determine the reasonableness of the rates for natural gas delivered to Farmland by Kansas-Nebraska.

Both' parties on oral argument conceded that, although Nebraska law provides for no administrative controls or supervision over the natural gas rates, a consumer or indeed the gas supplier might obtain by an appropriate civil action in state court a retrospective judicial determination of the reasonableness of those rates.

Accordingly, we find no error in the declination of the district court to accept' jurisdiction over those aspects of the suit in which Farmland sought to contest the propriety of the revised rates that Kansas-Nebraska charged Farmland as a condition of continuing its service beyond December 31, 1970, for boiler gas, and beyond April 30, 1971, for process gas.

We affirm on the basis of Judge Ur-bom’s opinion, 349 F.Supp. 670 (D.Neb. 1972).

      . On this appeal, Farmland has suggested that the district court should have exercised pendent jurisdiction over the claim for damages arising from excessive rates charged for gas. This contention raises no claim of reversible error here. As has been noted by the Supreme Court, “ * * * pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right.” United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). But, in saying this, we do not mean to intimate that the district court might not have exercised pendent jurisdiction over the rate phase of the controversy between the parties if it had so chosen.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lance SCHENKER, a/k/a Lance Shenker, Defendant-Appellant.
    No. 73-2601
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 6, 1973.

      Daniel S. Pearson, Bruce S. Rogow, Miami, Fla., for defendant-appellant.
    J. Daniel Ennis, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

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

   PER CURIAM:

Lance Schenker appeals solely on the ground that he was improperly sentenced under the Youth Corrections Act, 18 U.S.C., § 5010 et seq. He complains that he was sentenced as an adult in the absence of an express finding by the trial court that he would not derive benefit from treatment, 18 U.S.C., § 5010(d). The government argues that such a finding is implicit in the sentence.

This is a dispute which can quickly be resolved by the District Court.

We vacate the sentence and remand to the District Court, where the appellant may be resentenced on his plea of guilty, according to law, and with appropriate findings under 18 U.S.C., § 5010(d).

Vacated and remanded.