author: EDWARDS, Circuit Judge.

text:
    James S. TURNER, Plaintiff, v. GLOBAL SEAS, INC., Defendant and Third-Party Plaintiff-Appellant, v. CERES, INC., and Buffalo Overseas Terminals, Inc., Third-Party Defendants-Appellees.
    No. 73-2262.
    United States Court of Appeals, Sixth Circuit.
    Nov. 13, 1974.

      John D. Kelleher, McCreary, Ray & Robinson, John H. Hanninen, Cleveland, Ohio, for appellant.
    Merritt W. Green, II, R. Paul Win-gart, Thomas J. Manahan, Toledo, Ohio, for appellees.
    Before EDWARDS., PECK and Mc-CREE, Circuit Judges.
   EDWARDS, Circuit Judge.

This appeal concerns a case in admiralty and maritime jurisdiction. Third-party plaintiff-appellant, Global Seas, Inc., owner of the ship M/V First Lady, appeals from the District Judge’s denial of an order of indemnification in its favor against third-party defendants-ap-pellees, Ceres, Inc., and Buffalo Overseas Terminals, Inc.

The underlying cause of action (no longer in dispute) was that of Turner, a longshoreman foreman for Ceres, who was injured while inspecting a cargo of steel billets loaded on the M/V First Lady at a dock at Toledo. Turner was preparing to lead a longshoreman crew in loading trucks on top of the steel billet load which had been put aboard by Buffalo Overseas, another stevedoring company at a dock at Buffalo.

Turner alleged that the ship was not in a seaworthy condition at the time of his injuries and that his injuries resulted therefrom. He also alleged that Global Seas, as owner of the ship, was responsible for the unseaworthiness or otherwise caused his injuries by its negligence. The jury found $35,000 damages for Turner, minus 25% for contributory negligence on his part.

After the jury verdict in favor of Turner and against Global Seas had been returned, the District Judge submitted other Special Interrogatories to the same jury pertaining to Global Seas’ third-party indemnification claims against Buffalo and Ceres. In its responses the jury found that both Buffalo and Ceres had failed to perform their work in accordance with their warranty of workmanlike performance. But the jury also found that Global Seas was guilty of conduct which prevented or seriously hampered each of the third-party defendants’ performance of its duty in accordance with its warranty. On that basis the District Judge entered judgments in favor of both third-party defendants.

The facts involved in these proceedings must be stated somewhat more fully before we reach the legal issues.

M/V First Lady was owned by Global Seas, Inc. In August of 1970 it was time chartered to Zim Israel Navigation Company and docked at Buffalo, New York, to load 3,320 tons of steel billets. Zim Israel had hired Buffalo Overseas to load the steel billets which measured 4" x 4" square and came in lengths from 12' to 24' long. They had been bundled into flat bundles 4" x 16", which bundles averaged four tons in weight. Buffalo Overseas loaded the billets into four of the M/Y First Lady’s five holds. The M/V First Lady’s loading plan called for the ship to call at Toledo to load army trucks on top of the load of steel billets. Zim Israel had hired third-party defendant Ceres (the employer of plaintiff Turner) to load these trucks at Toledo.

Turner’s testimony at trial, which was obviously believed by the jury, was to the effect that the steel billets had been loaded at Buffalo in hills and valleys and voids and without proper dunnage to secure the steel billets- from shifting and endangering the Toledo stevedores. Turner testified that he was engaged in inspecting the steel billet load in a hold immediately aft of the deck house when an improperly secured bundle of steel slipped and pinned and crushed his ankle. His testimony concerning the dangerous condition of the load was such as to allow the jury to find contributory negligence on his part in continuing his inspection to the point of injury when he had already observed the hazards described above. This contributory negligence caused the jury to reduce the damages awarded to him in the main case by 25%. Also presumably it is the basis for the jury determination that Ceres was guilty of breach of its warranty of workmanlike performance.

The other principal eyewitness at trial was Sullivan, the president of the Buffalo Overseas Terminals, Inc., who testified to supervising the loading of the steel at Buffalo. While Sullivan testified that the load had been properly secured, he acknowledged that in at least two holds there were major voids and differences in heights of the loaded billets (“hills and valleys”) which would have required leveling of the load of billets (or filling of the voids with pallets —or both) before the loading of army trucks at Toledo (which he knew was planned) could be accomplished.

Sullivan’s testimony as to why the ship sailed from Buffalo with a load which was not level was as follows:

“We had conversations about completion of the loading. That conversation was that I knew in Toledo they were going to load trucks and in order for them to load the trucks and save them a multitude of lifting of this cargo, re-arranging in order to load trucks on top because as you know, to load these military vehicles on top they have to be at an absolute level place to push. We agreed it was not level. I wanted to level the ship and the Captain said no. I got Sharon on the phone and I explained the situation to him and he said if the Master will not agree to this, there is nothing I can do about it, forget it. So I said the expense of this will fall on you from Toledo, so this is the situation.”

On the basis of this (and other) testimony, the jury held that both Buffalo and Ceres had violated their contract obligation to perform their stevedor-ing duties in accordance with their implied warranty of workmanlike performance. But the jury also held that Global Seas had been guilty of conduct which “prevented or seriously hampered” Buffalo and Ceres in the proper performance of their warranty.

In dismissing Global Seas’ third-party complaint and denying its motion for reconsideration or new trial, the District Judge said:

“Specifically, as to the issue of the defendant’s hampering the operations of the third party defendant Buffalo Overseas Terminal, there is the question of the weight to be given to the evidence that the defendant’s master refused to delay sailing long enough to permit the third party defendant to make proper stowage of the cargo of steel which afterwards fell and injured plaintiff.
******
“The same action of defendant’s master which prevented the proper stowage of the cargo in Buffalo also hampered the third party defendant Ceres in its assigned task of loading trucks on top of the steel.”

We affirm.

Sullivan’s testimony concerning the denial by Global Seas’ agents of his request for delay in sailing in order for Buffalo to level the load of steel billets was evidence from which the jury could properly have found that Global Seas “prevented or seriously hampered” both Buffalo’s and Ceres’ performance of their stevedoring contracts in accordance with their warranties of workmanlike performance. While there are conflicts of evidence in this record pertaining to whether or not proper (or any) dunnage was employed, whether or not the steel billet bundles were piled “steel on steel,” whether or not they were properly braced to prevent their shifting, and whether or not plaintiff Turner was injured in a hold which Sullivan intended, if given the chance, to level, we believe that all these fact issues were for jury consideration and resolution.

Appellant Global Seas relies for allowance of indemnification primarily upon the rule set forth in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). Therein a 5-4 majority of the Court held that a shipowner was not precluded by the Longshoremen’s and Harbor Workers’ Compensation Act Section 5, 33 U.S.C. § 905 (1970), from claiming indemnification from a stevedoring contractor where that contractor was also the employer of the injured longshoreman. The Court allowed the shipowner’s suit for indemnification on the ground that the contractor’s negligence had created the unseaworthiness of the vessel and hence the injury for which the shipowner had been held liable and was seeking indemnification. The Court there distinguished Halcyon Lines v. Haenn Ship Ceiling & Fitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952) — a distinction with which the dissenting Justices were unable to agree. Our instant case, however, adds an additional factor not present in the Ryan case in that, as noted above, the jury found on disputed but substantial evidence that Global Seas “prevented or seriously hampered” both stevedoring companies in performance of their duty in accordance with their warranties of workmanlike performance.

The basic legal proposition in this case is simply that a party to a contract cannot recover indemnification from another contracting party for a breach which the first party caused or substantially helped to cause.

Restatement Of Contracts § 295 says:

“If a promisor prevents or hinders the occurrence of a condition, or the performance of a return promise, and the condition would have occurred or the performance of the return promise been rendered except for such prevention or hinderance, the condition is excused, and the actual or threatened non-performance of the return promise does not discharge the promisor’s duty, unless
(a) the prevention or hindrance by the promisor is caused or justified by the conduct or pecuniary circumstances of the other party; or
(b) the terms of the contract are such that the risk of such prevention or hindrance as occurs is assumed by the other party.”
Restatement Of Contracts § 295 (1932).

In the closest Supreme Court case to our facts, the Court cited § 295 of Restatement of Contracts and held that a ship or shipowner may recover indemnification for substandard performance of work by a stevedoring company — provided the would-be indemnitee is not itself guilty of conduct which precludes recovery. See Weyerhaeuser S.S. Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958). See also Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 455, 3 L.Ed.2d 413 (1959).

In Weyerhaeuser the actual language employed was:

“If in that regard respondent rendered a substandard performance which led to foreseeable liability of petitioner, the latter was entitled to indemnity absent conduct on its part sufficient to preclude recovery. The evidence bearing on these issues — petitioner’s action in making the shelter on its ship available to respondent’s employees in Boston although it apparently was unsafe, as well as respondent’s continued use of the shelter for five days thereafter without inspection — was for jury consideration under appropriate instructions.” Weyerhaeuser S.S. Co. v. Nacirema Operating Co., supra, 355 U.S. at 567, 78 S.Ct. at 441. (Footnotes omitted.)

See also Waterman S.S. Corp. v. David, 353 F.2d 660 (5th Cir. 1965), cert. denied, 384 U.S. 972, 86 S.Ct. 1863, 16 L.Ed.2d 683 (1966); Calderola v. Cunard S.S. Co., 279 F.2d 475 (2d Cir.), cert. denied, 364 U.S. 884, 81 S.Ct. 172, 5 L.Ed.2d 104 (1960).

The Supreme Court has also emphasized that the question of the reasonableness of conduct of the parties (here that of the stevedore) should be resolved by jury verdict rather than by the Court as a matter of law. In reversing the Second Circuit’s decision in Albanese v. N. V. Nederl. Amerik Stoomv. Maats., 392 F.2d 763, the Supreme Court said:

“The cause of the longshoreman’s injury was carbon monoxide inhalation that occurred as he and other longshoremen were using gasoline-powered vehicles to move cargo in the ship’s lower hold. The shipowner contends that the stevedore’s hatch boss acted unreasonably. When longshoremen complained about the lack of ventilation in the hold, the hatch boss informed one of the ship’s officers that his men would walk off the job unless the officer turned on the ship’s ventilating system. The officer told the men to continue working and promised to activate the ventilating system, which was within the shipowner’s exclusive control and which was conced-edly adequate to ventilate the hold. When, less than 10 minutes later, the hatch boss realized that the ventilating system had not been turned on, he ordered the men from the hold. The injured longshoreman collapsed as he was ascending a ladder to leave.
“The Court of Appeals said that the hatch boss should have ceased work when he first learned that the ship’s ventilating system was not operating, despite the officer’s promise to turn on the system. Alternatively, he should have used the stevedore's blowers, which had been left on the pier, to ventilate the hold. The jury, however, in response to a special interrogatory, found that the stevedore had acted reasonably in continuing to work for a brief period in reliance on the officer’s promise. We cannot agree with the Court of Appeals that the stevedore acted unreasonably as a matter of law. Under the Seventh Amendment, that issue should have been left to the jury’s determination. Any other ruling would be inconsistent with this Court’s decision in Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355 [82 S.Ct. 780, 7 L.Ed.2d 798] (1972).” International Terminal Operating Co. v. N. V. Nederl. Amerik Stoomv. Maats., 393 U.S. 74, 89 S.Ct. 53, 21 L.Ed.2d 58 (1968).

We recognize that there are cases which have allowed the shipowner to recover on an indemnity claim against a stevedoring company in spite of the fact that the ship itself contributed to the injury by its unseaworthiness. Rederi A/B Nordstjernan v. Crescent Wharf & Warehouse Co., 372 F.2d 674 (9th Cir. 1967); Brock v. Coral Drilling, Inc., 477 F.2d 211 (5th Cir. 1973); Southern Stevedoring & Contracting Co. v. Hellenic Lines, Ltd., 388 F.2d 267 (5th Cir. 1968) .

Essentially these cases weighed the negligence of the shipowner against that of the stevedoring company and found the greater fault on the part of the latter. In the last of these cited above, the Fifth Circuit said:

“III. The District Court held that, since it was the negligence of Southern that brought the unseaworthiness of the vessel into play, such unseaworthiness did not constitute conduct on the part of the ship sufficient to preclude recovery, and Hellenic was not guilty of any other conduct sufficient to preclude recovery of indemnity. Whether or not the total conduct of Hellenic was sufficient to preclude recovery is determined by the law of contract, Weyerhaeuser Steamship Co. v. Nacirema Operating Co., supra; Waterman Steamship Corporation v. David, 5 Cir. 1965, 353 F.2d 660; Cf. Restatement of Contracts (First), Sections 295, 315; in that such conduct, to preclude indemnity, must be sufficient to bar the enforcement of the contract. Calmar Steamship Corporation v. Nacirema Operating Co., 4 Cir. 1959, 266 F.2d 79. The vessel’s unseaworthiness, although a proximate cause of the accident, is not in itself conduct necessarily sufficient to preclude recovery. T. Smith & Son, Inc. v. Skibs A/S Hassel, supra [5 Cir., 362 F.2d 745]. See also Calmar Steamship Corporation v. Nacirema Operating Co., supra; Lusich v. Bloomfield Steamship Co., 5 Cir. 1966, 355 F.2d 770; D/S Ove Skou v. Hebert, supra [5 Cir., 365 F.2d 341]. Without entering the thicket of primary and secondary, or active and passive negligence, Weyerhaeuser Steamship Co. v. Nacirema Operating Co., supra, the trier of fact must weigh the substantiality of the fault of the shipowner against the breach of warranty by the stevedore to determine whether the former’s conduct is ‘sufficient to preclude indemnity.’ Waterman Steamship Corp. v. David, supra.” Southern Stevedoring & Contracting Co. v. Hellenic Lines, Ltd., supra, 388 F.2d at 271-272.

In our instant appeal it appears to us that the jury under proper instructions has done the weighing of the substan-tiality of the fault of the shipowner against the breach of warranty to determine whether the shipowner’s conduct was “sufficient to preclude indemnity.”

The jury on this record had a right to conclude (as it did) that the effect of Global Seas’ refusal to delay the sailing of the M/Y First Lady from Buffalo “prevented” Buffalo Overseas from leveling the steel billet load — and thus securing it. Similarly, the jury had a right to find that the consequent failure of Buffalo Overseas to level and secure the steel billet load “substantially hampered” Ceres in the workmanlike performance of its stevedoring duties. In the original ease the jury had weighed the fault of the shipowner against that of claimant Turner and determined that the shipowner’s fault was in 75 to 25 ratio to that of Turner. Since clearly the only fault charged to Ceres in the third-party indemnity action was that of Turner, we believe this ratio properly applies in the indemnity action likewise. Under this view, the District Court was correct in denying indemnity.

Global Seas’ complaint did not seek contribution (as distinguished from indemnity) from either of the third-party defendants, and no issue concerning contribution was raised before the District Court. Under these circumstances, it would be inappropriate for us to consider the interesting problems concerning contribution discussed in Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 40 L.Ed.2d 694 (1974).

Global Seas also claims that there is conflict between the jury’s general verdicts against Buffalo and Ceres and the special verdicts. As to this the District Judge was correct in holding that the special verdicts prevail. Barnes v. Brown, 430 F.2d 578 (7th Cir. 1970). We also feel that under the view of the facts and jury verdicts set forth above, the jury’s answers may be viewed as consistent. See A. & G. Stevedores v. Ellerman Lines, 369 U.S. 355, 364, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962).

We find no reversible error in the District Judge’s charge or any omissions therefrom.

The judgment of the District Court is affirmed.

APPENDIX A

SPECIAL INTERROGATORIES AS ANSWERED BY THE JURY

(Filed April 20, 1973)

1. Was the defendant, Global Seas, Inc., negligent?

(X) Yes ( ) No

2. If the answer to No. 1 is yes, did that negligence in any way or manner cause the plaintiff’s injuries?

(X) Yes ( ) No

3. Was the First Lady unseaworthy ?

(X) Yes ( ) No

4. If the answer to No. 3 is yes, did that unseaworthiness in any way or manner cause the plaintiff’s injuries?

(X) Yes ( ) No

5. If the answers to No. 2 or No. 4 are yes, at what amounts do you fix the damages sustained by the plaintiff as a result of the accident of which he complains ?

135,000.

6. Was the plaintiff negligent?

(X) Yes ( ) No

7. If the answer to No. 6 is yes, did the negligence in any way or manner cause plaintiff’s injuries?

(X) Yes ( ) No

8. If the answer to No. 7 is yes, to what degree was the plaintiff negligent? (0% to 100%)

25%

APPENDIX B

SPECIAL INTERROGATORIES AS ANSWERED BY THE JURY

(Filed April 20, 1973)

1. Did the third-party defendant, Ceres, Inc., perform its work in accordance with its warranty of workmanlike performance ?

( ) Yes (X) No

2. If the answer to #1 is no, did such failure in any way or manner cause the plaintiff’s injuries ?

(X) Yes ( ) No

3. Was the defendant, Global Seas, Inc., guilty of conduct which prevented or seriously hampered third-party defendant’s Ceres, Inc., performance of its duty in accordance with its warranty of workmanlike performance?

(X) Yes ( ) No

4. Did the third-party defendant, Buffalo Overseas Terminals, Inc., perform its work in accordance with its warranty of workmanlike performance ?

( ) Yes (X) No

5. If the answer to #4 is no, did such failure in any way or manner cause the plaintiff’s injuries?

(X) Yes ( ) No

6. Was the defendant, Global Seas, Inc., guilty of conduct which prevented or seriously hampered third-party defendant’s, Buffalo Overseas Terminals, Inc., performance of its duty in accordance with its warranty of workmanlike performance ?

(X) Yes ( ) No

      . The Special Interrogatories concerning Turner’s suit against Global Seas will be found as Appendix A to this opinion and the Special Interrogatories concerning Global Seas’ suits for indemnification against Buffalo and Ceres will be found as Appendix B.

      . This result would follow much more directly from the language of the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act Section 5, 33 U.S.C. § 905 (Supp. II 1972), amending 33 U.S.C. § 905 (1970), which, however, are not applicable to this appeal.


source: Caselaw Access Project

author: JAMES M. CARTER, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Euclid TUTWILER, Jr., Defendant-Appellant.
    No. 74-1334.
    United States Court of Appeals, Ninth Circuit.
    Aug. 9, 1974.

      Matthew N. Lees, San Diego, Cal., for defendant-appellant.
    Richard E. L. Strauss, Asst. U. S. Atty., San Diego, Cal., for plaintiff-ap-pellee.
    Before CARTER and TRASK, Circuit Judges, and WHELAN, District Judge.

      Honorable Francis G. Whelan, United States District Judge, Central District of California, sitting by designation.

   OPINION

JAMES M. CARTER, Circuit Judge:

Defendant Tutwiler appeals from a judgment of conviction on two counts: (1) conspiracy to possess heroin with intent to distribute in violation of 21 U.S. C. § 841(a)(1) and 846, and (2) possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

The seizure and arrest was made on February 23, 1973, at an immigration check point approximately 50 miles north of the Mexican border. Approximately five ounces of heroin were seized (the indictment alleges 112 grams) from the possession of defendant’s companion, Eddie Leroy Anderson.

The trial court denied a motion to suppress. Defendant was convicted by a jury, but no issues are raised on appeal concerning the jury trial. Generally, the same evidence was presented as on the motion to suppress except for the references to the informers. At the trial, Anderson, previously indicted in a separate proceeding, testified for the government against defendant, to the effect that he, one Nichols and the defendant had agreed to travel to Mexico to secure heroin; that he (Anderson) and Nichols each put up one-half of the money for the purchase; that defendant was to receive one-third of the heroin for having the necessary contacts in Mexico and for making the arrangements; that they obtained the heroin the night before, hid it under a palm tree, and on the morning of the arrest, defendant picked up the heroin near the tree and handed it to Anderson, who placed it in his waistband.

The government’s attempt to sustain the search and seizure as the result of a “pat down” for weapons, fails. Its attempt to claim an “extended border search” fails because of interruption in keeping a complete surveillance of the defendant and his companions northward from the border.

However, there was probable cause for the search, seizure and arrests, and the fact that the customs agents decided to utilize the cheek point for safety reasons does not negate their probable cause to search, seize and arrest.

Customs agent Espinoza, on February 23, 1973, secured information from an informant that defendant had purchased approximately five ounces of heroin in Mexicali, Mexico, and that delivery was to be in Calexico or Brawley, California.

Agents observed defendant and his companions, Anderson, Dixon and Nichols, enter the United States at the Cal-exico port of entry. The four men and the Cadillac car they were in were searched and no contraband found. Surveillance of the car and the men was then started.

Previously, the same informant had supplied information that about January 11, 1973, the defendant had purchased two ounces of heroin in Mexico; that on January 23, 1973, the defendant and Nichols were in Mexicali, Mexico, to buy heroin and that delivery was to be made in the United States; that on January 25, 1973, defendant and Nichols purchased four ounces of heroin and that it was to be delivered in Brawley, California. Defendant and Nichols had left the area by the time the agent received this latter information.

A surveillance of defendant and his companions on January 11, 1973, and four days thereafter produced no results.

On January 23, 1973, defendant and Nichols crossed the border into the United States. Nichols was searched and had $3,000 cash on his person. On January 24, 1973, he was again searched on crossing the border, and the cash was gone.

The defendant was driving the Cadillac automobile on both January 11 and January 23, 1973.

Information was also supplied by a second informant on February 21, 1973, that defendant was en route from Northern California to Calexico to purchase heroin in the same Cadillac he had been observed in on January 11 and on January 23, 1973.

The informants were both shown to have been reliable and the agents testified “in camera” as to the basis for the informants’ information. The two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed.2d 637 (1967) was satisfied.

United States v. Rawlinson (9 Cir. 1973), 487 F.2d 5, 7, cert. denied, 415 U.S. 984, 94 S.Ct. 1579, 39 L.Ed.2d 881 (1974), approves the use of such an “in camera” proceeding stating: “ . in most situations an ‘in camera’ hearing provides a salutary means by which to satisfy the balancing of interests required by Roviaro.” (Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

We have carefully examined the transcript of the in camera hearing conducted by the trial court. As specifically noted by the court below, the transcript demonstrates the total reliability of the informant, the likelihood that the testimony of the agent, if given in open court, would reveal the identity of the informant, and the total lack of anything that could have aided the defendant’s case. See United States v. Anderson (9 Cir. 1974), 509 F.2d 724, where, on facts identical to those of the present case, the use of the in camera hearing below was upheld with respect to Tutwiler’s companion, Eddie Leroy Anderson. We fully endorse the reasoning and analysis of relevant case law set forth in that opinion at pp. 727-730.

There was also corroboration of the first informer’s statements. A telephone number was supplied to the agent as one given by the defendant to the dealer to use “when he had merchandise to sell.” The agent verified it as defendant’s home telephone. The informant supplied the agent with the make and license number of defendant’s car, which was subsequently found to be accurate. This corroboration served to further verify the reliability of the informer.

In addition, the surveillance of February 23, 1973, placed defendant in various areas of Brawley where bars are the main source of narcotics traffic in Brawley. Defendant was observed near Brawley getting out of the Cadillac he was driving, near a lone palm tree. He opened the hood of the ear and looked up and down the highway as if looking for something. There was no traffic on the highway. The area was one of open fields and a straight road. Defendant, after 15 to 20 seconds, approached the palm tree and reached down with his hands toward a low-hanging limb. As he walked back to the car the passenger side was opened by someone from the inside, and defendant made an underhand pitching motion toward the open door with his left hand.

Agent Espinoza, after defendant left, found defendant’s foot prints near the palm, raised the same palm leaf or limb, and observed a hole under the tree, as if something had been taken out of it. The hole was one and one-half to two inches deep and about the same size as the five-ounce package of heroin found on the search.

The motion to suppress was properly denied. The judgment of conviction is affirmed.


author: JAMES M. CARTER, Circuit Judge.

text:
    Gordon Lee WILKINS, Petitioner-Appellant, v. Donald R. ERICKSON, Warden, et al., Respondents-Appellees.
    No. 74-1270.
    United States Court of Appeals, Ninth Circuit.
    Nov. 6, 1974.
    David J. Patterson, of Montana Defender Project, Missoula, Mont., for appellant.
    Robert Woodahl, Atty. Gen., Helena, Mont., for respondents-appellees.
   OPINION

Before CHAMBERS and CARTER, Circuit Judges, and LINDBERG, District Judge.

JAMES M. CARTER, Circuit Judge.

This appeal is from a denial of a petition for a writ of habeas corpus, under 28 U.S.C. § 2254, following a state conviction. The district court held an evi-dentiary hearing.

The case is apparently one of first impression in this circuit and raises the following major questions:

1. Is a guilty plea voluntarily and intelligently made under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and cases following, if the defendant at the time of pleading guilty is not specifically advised by the State court judge that by pleading guilty he will waive his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers?

2. Does a post-conviction evidentiary hearing conducted by a federal district court on the question of voluntariness violate the “spirit” of Boykinl

THE FACTS

Appellant Wilkins, represented by counsel, was brought to trial before a jury in the District Court of Cascade County, Montana, on a charge of murder in the first degree. During the third day of the trial, after twenty-two state witnesses had testified and had been cross-examined. Wilkins requested and received permission to change his plea from not guilty to guilty of murder in the second degree.

Wilkins decided to change his plea following a consultation with his attorneys during which they informed him that the state’s next witness would be Miss Linda Matthews. Wilkins’ attorneys had learned, and informed Wilkins, that Miss Matthews was prepared to testify that Wilkins was not only present when the crime occurred, but was the person who fatally struck the victim. After being advised of the remote chance of acquittal, the sentences possible under both first and second degree murder, and that the prosecutor probably would not accept a change of plea after Miss Matthews’ testimony, Wilkins decided to change his plea.

Prior to accepting Wilkins’ change of plea, the State court inquired of him if it was his own free will and wish to change his plea, understanding that he could be sentenced to life in prison. Wilkins answered affirmatively and the plea of guilty was accepted by the court.

Following entry of his guilty plea on September 24, 1969, Wilkins was subsequently sentenced to fifty (50) years in the Montana State Prison. He was later transferred to the South Dakota State Prison pursuant to a contract between Montana and South Dakota for the implementation of the Western Interstate Corrections Compact.

Thereafter, on February 28, 1973, Wilkins filed an application for writ of habeas corpus in the United States District Court for the District of South Dakota, Southern District, alleging that his plea of guilty was not voluntarily and understandingly given because he had not been specifically advised that by pleading guilty he waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers (hereinafter Boykin rights). On March 26, 1973, the court transferred Wilkins’ application to the United States District Court for the District of Montana.

The District Court for the District of Montana, following an evidentiary hearing on the allegations raised by Wilkins’ application, denied the petition for writ of habeas corpus on December 20, 1973.

The district court decided that the particular language in Boykin, quoted infra, was merely advisory, and eonclud-ed that a plea could be voluntary and intelligent without specific articulation of the three Boykin rights, as long as the court, “passing upon the application for a writ, be able to find from the whole record before it, without the aid of presumptions, that a plea of guilty was voluntarily and intelligently made.” This appeal followed.

I

Boykin Does Not Require Articulation of the Three Rights

Wilkins relies upon Boykin v. Alabama, supra. He contends that since he was not personally advised by the trial judge on entry of his plea that by pleading guilty he was waiving (1) his privilege against self-incrimination, (2) his right to trial by jury, and (3) his right to confront his accusers; that he was unaware of the consequences, and that his plea, therefore, was not voluntarily and intelligently made. Wilkins further argues that the failure of the trial judge to articulate these three rights on the record resulted in a “silent” record which cannot be supplemented by a post-conviction evidentiary hearing. Accordingly, he wants the opportunity to replead.

Wilkins relies on the following language from Boykin:

“We cannot presume a waiver of these three important federal rights from a silent record.
“What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which, courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what a plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought.” 395 U.S. at 243-244, 89 S.Ct. at 1712. [Footnote reference omitted]

The district court’s decision, however, is supported by Supreme Court decisions subsequent to Boykin and several circuits. The rigid interpretation of Boy-kin urged by Wilkins has not been adopted by the Supreme Court in subsequent decisions on voluntariness of guilty pleas. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Court citing Boykin, upheld a guilty plea as voluntary and intelligent even though defendant had not been specifically advised of the three rights discussed in Boykin. The Brady Court clarified Boykin by stating, “[t]he new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.” 397 U. S. at 747-748 fn. 4, 90 S.Ct. at 1468. In North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970), the Court stated that in determining the validity of guilty pleas the “standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Specific articulation of the Boykin rights is not the sine qua non of a valid guilty plea.

Other circuits have considered the application of Boykin to state prisoner petitions and have held in accordance with Brady v. United States, supra. McChesney v. Henderson, 482 F.2d 1101, 1106 (5 Cir. 1973) (The court alternately held that a subsequent state evidentiary hearing could be considered); Wade v. Coiner, 468 F.2d 1059, 1060 (4 Cir. 1972). Cf. Todd v. Lockhart, 490 F.2d 626, 627 (8 Cir. 1974) (A subsequent state evidentiary hearing failed to decide the question of voluntariness. On appeal from denial of a writ of habeas corpus by the district court, its judgment was reversed).

The Ninth Circuit has apparently not passed on the question. Accordingly, we hold that Boykin does not require specific articulation of the above mentioned three rights in a state proceeding. Brady v. United States, 397 U.S. at 747-748, 90 S.Ct. 1463 and cases supra.

II

Boykin is Limited to its Facts and is Distinguished on its Facts from the Present Case

Furthermore, contrary to Wilkins’ contention, the factual situation in Boy-kin was totally dissimilar to the factual situation here.

In Boykin the record reflected only that upon arraignment on five indictments of robbery, Boykin pleaded guilty to all five indictments. “[S]o far as the record shows, the judge asked no questions of petitioner, concerning his plea, and petitioner did not address the court.” 395 U.S. at 239, 89 S.Ct. at 1710. Not only was the trial record silent, but neither the state nor federal courts had held an evidentiary hearing on the plea. The precise holding of Boykin was that there was reversible error “because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.” 395 U.S. at 244, 89 S.Ct. at 1713. The opposite situation is presented in the instant case.

The State trial record in the instant case standing alone is substantial evidence that Wilkins was not only aware of the rights discussed in Boykin, but was fully aware of the consequence of waiving them. Wilkins’ plea, unlike Boykin’s, was entered on the third day of a jury trial during which twenty-two state witnesses had already testified and been cross-examined. The jury trial was then recessed to afford Wilkins’ two attorneys an interview with the state’s next witness, Linda Matthews. Following an out-of-court consultation with his attorneys, during which the import of Miss Matthews’ prospective testimony and available options were discussed, Wilkins requested that the court allow him to change his plea to guilty of murder in the second degree. Upon Wilkins return to court, the judge inquired if his change of plea was of his own free will and wish; and, if he was aware that he could receive a life sentence. Wilkins answered in the affirmative to both questions.

Certainly, a more in-depth examination of Wilkins by the State judge, prior to accepting his guilty plea, would have been preferable. Nevertheless, the examination which the judge did conduct —viewed in the context that Wilkins first pleaded not guilty and went to trial by a jury; that after three days of trial by jury, wherein he observed the cross-examination of twenty-two prosecution witnesses, he pleaded guilty — strongly indicates that Wilkins was ignorant of neither his rights nor the consequence of waiving them. In contrast, Boykin pleaded guilty upon arraignment.

Ill

A District Court, if Necessary, May Conduct an Evidentiary Hearing Without Violating the “spirit” of Boykin

Unlike the Boykin Court, the reviewing court in the instant ease had the benefit of evidence adduced at an evidentiary hearing concerning relevant circumstances surrounding the change of plea. Wilkins’ assertion that he did not understand the consequences of his plea is clearly refuted by the following colloquy at the hearing:

[By the court]
Q. What did you think was going to happen when you entered the plea of guilty to the second degree murder charge, Mr. Wilkins?
A. Well, I was informed at the time that I may have to testify against another individual that was charged in this matter.
Q. But in terms of your own case, what did you think was going to happen to it? Did you think you were going to continue with that trial with the jury sitting there and call more witnesses ?
A. No.
Q. You knew then that if you plead guilty the trial would end at that moment, didn’t you ?
A. Well, I didn’t know, when it would end. I assumed that it would when my guilty plea was entered and taken, that I’d be sentenced, Yes.

Evidentiary hearings have been held proper in determining if a plea of guilty in a state proceeding was voluntarily and intelligently made. McChesney v. Henderson, supra, and cases cited therein; Todd v. Lockhart, supra; Wade v. Coiner, supra. Federal district courts, in a number of cases in this circuit, have held evidentiary hearings on state prisoner allegations of invalid guilty pleas. For example, see Reyes v. Wilson, 422 F.2d 1316 (9 Cir. 1970). See also Townsend v. Sain, 372 U.S. 293, 322, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) and Walker v. Caldwell, 476 F.2d 213, 215-216 fn. 1 (5 Cir. 1973).

Rule 11, Fed.R.Crim.P., of course, does not apply to a plea of guilty in state courts. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) interpreted Boykin as applied to pleas of guilty in federal courts. In United States v. Sherman, 474 F.2d 303, 305 (1973), this circuit stated “In short, neither McCarthy nor Boykin requires that a defendant be specifically advised of all his constitutional rights by the trial court if his plea is to be valid. Nor do we think that due process or Rule 11 impose such a requirement. . . . Requiring a specific waiver of every one [of his constitutional rights] would only sow the seeds for later collateral attack. See Boykin v. Alabama, supra, 395 U.S. at 244, 89 S.Ct. 1709.”

We hold, alternatively, that an eviden-tiary hearing in the district court is proper, if necessary, to determine if the plea of guilty by a State defendant is voluntarily and intelligently made, and that such a hearing does not violate the “spirit” of Boykin.

The finding of the district court that Wilkins’ plea was voluntarily and intelligently made has not been shown to be clearly erroneous and, therefore, cannot be set aside on appeal. Fed.R.Civ.P. 52(a). Knowles v. Gladden, 378 F.2d 761,766-767 (9 Cir. 1967).

The order of the district court denying Wilkins’ petition for writ of habeas corpus is affirmed.

       Honorable William J. Lindberg, Senior United States District Judge, Western District of Washington, sitting by designation.


author: PER CURIAM.

text:
    Margaret CODDENS, Appellee, v. Caspar W. WEINBERGER, Secretary of Health, Education and Welfare, Appellant.
    No. 74-1074.
    United States Court of Appeals, Tenth Circuit.
    Argued Sept. 12, 1974.
    Decided Nov. 1, 1974.

      John K. Villa, Atty., Dept, of Justice (Carla A. Hills, Asst. Atty. Gen., Richard A. Pyle, U. S. Atty., Stephen F. Eilperin, Atty., Dept, of Justice, with him on the brief), for appellant.
    Albert R. Matthews, Muskogee, Okl., for appellee.
    Before LEWIS, Chief Judge, SETH, Circuit Judge, and CHRISTENSEN, Senior District Judge.

       Of the District of Utah, sitting by designation.

   PER CURIAM.

This is an appeal by the Secretary of Health, Education and Welfare from a decision by the trial court that the ap-pellee was an independent contractor and was not an employee of the Muskogee State Fair which was a tax-exempt organization.

The appellee-claimant filed an application for hospital insurance benefits under the Social Security Act [42 U.S.C. § 426(a)] on the premise that she was, during 1969 and 1970, an independent contractor having paid self-employment social security taxes. The claim was denied on the ground that she was instead an employee of a nonprofit organization which had not waived its social security tax exemption. She sought her administrative remedies, and the administrative law judge concluded she was not entitled to benefits. The Appeals Council upheld the hearing decision. The appellee then began this action to review the Secretary’s decision.

Under the portion of the Act for which benefits were here sought [Part A, Sub-chapter XVIII, 42 U.S.C. § 1395c], a certain number of quarters of “coverage” are required as an “employee” as defined in 42 U.S.C. §§ 409-410 or as a self-employed person under 42 U.S.C. § 411. The organization here concerned had elected not to waive its exemption from social security taxes. Thus employment with it would not qualify the applicant, and her only ground for claim is the self-employment status. See 42 U.S.C. § 411 (a), (b) and (c). She paid the required taxes as a self-employed person.

The record shows that the claimant was a longtime employee of the Fair as a secretary with some added duties. The permanent organization of the Fair was very small, and her duties were broad. In 1969 the Fair sought to end the employer-employee relationship with the claimant, and substituted an agreement with her as an independent contractor. We are unable to find in the record any significant change in her duties after she was put under contract. If the common law definitions of an employee are applied, claimant must be held to come within them. The same result comes about from the application of the definitions in the Act, 42 U.S.C. § 410(j). The Supreme Court in Bartels v. Birmingham, 332 U.S. 126, 67 S.Ct. 1547, 91 L.Ed. 1947, and in United States v. Silk, 331 U.S. 704, 67 S.Ct. 1463, 91 L.Ed. 1757, considered the “employee” definition under the Social Security Act. The issues there concerned contributions, but we must hold the two cited cases to be controlling. These and other cases hold that the realities of the situation must control over the form into which the relationship is sought to be cast.

The Secretary made the factual determination that the relationship was that of employer and employee. This finding is supported in the record by substantial evidence. See Atteberry v. Finch, 424 F.2d 36 (10th Cir.); Dvorak v. Celebrezze, 345 F.2d 894 (10th Cir.), and Folsom v. O’Neal, 250 F.2d 946 (10th Cir.).

The judgment of the trial court is set aside and the case is remanded with instructions to dismiss the action.


author: RUSSELL E. SMITH, District Judge. DUNIWAY, Circuit Judge

text:
    PEOPLE OF the STATE OF CALIFORNIA, acting By and Through Evelle J. YOUNGER as Attorney General of California, et al., Plaintiffs-Appellants, v. Caspar W. WEINBERGER, as Secretary of the United States Department of Health, Education, and Welfare, and Mercia L. Kahn, as Regional Representative of the Bureau of Health Insurance, United States Department of Health, Education, and Welfare, Defendants-Appellees.
    No. 73-1494.
    United States Court of Appeals, Ninth Circuit.
    Nov. 7, 1974.
    Fred J. Hiestand (argued) of Public Advocates, Inc., San Francisco, Cal., for plaintiff s-appellants.
    Michael Kimmel, Atty., U. S. Dept, of Justice, Washington, D. C., for defendants-appellees.
    Before DUNIWAY and TRASK, Circuit Judges, and SMITH, District Judge.

       The Honorable Russell E. Smith, Chief Judge of the United States District Court for the District of Montana, sitting by designation.

   OPINION

RUSSELL E. SMITH, District Judge.

Appellants, relying on the Freedom of Information Act (5 U.S.C. § 552), sought the disclosure of “Extended Care Facility Survey Reports” which were in the custody of the Secretary of Health, Education and Welfare. These are reports by which state agencies annually inform the Secretary about the performance of nursing and old-age homes which receive federal funds under the Medicare program. The Secretary refused to disclose. Appellants brought an action to compel disclosure. 5 U.S.C. § 552(a)(3). The district court denied relief and this appeal followed.

The Freedom of Information Act requires the disclosure of the records of federal agencies but provides for exceptions, one of which is :

“(b) This section does not apply to matters that are—
***** *
(3) specifically exempted from disclosure by statute;”.

The question posed is whether 42 U.S. C. § 1306(a) relating to disclosure of Health, Education and Welfare records, reading in part,

No disclosure of any ... report . . . obtained at any time by the Secretary ... or by any officer or employee of the Department . in the course of discharging their respective duties under this chapter [the chapter on social security] shall be made except as the Secretary . . . may by regulations prescribe . . .,

specifically exempts from disclosure the reports here sought.

The question has been answered both ways. The case of Stretch v. Weinberger, 495 F.2d 639 (3d Cir. 1974), held that these reports were not exempted from disclosure. The dissenting opinion of Judge MacKinnon in Schechter v. Weinberger, 498 F.2d 1015 (D.C.Cir.1974), reached the opposite conclusion. We agree with Judge MacKinnon. To us his analysis of Stretch v. Weinberger, supra, and his analysis of legislative history of 42 U.S.C. § 1306, including the Social Security Amendments of 1972 (86 Stat. 1428, 1461-1462 (1972), are persuasive.

To what Judge MacKinnon has said we add these observations: It appears to us that when Congress used the word “specifically” it was requiring no more than that the exemption be found in the words of the statute rather than the implication of it. If an act were to exempt “all records” of a given agency, we believe that “all records” would be specifically exempted even though they were not described with “some degree of particularity.” This view is contrary to the one expressed in Stretch.

We do not believe that Section 1306 was an “authorization for administrative exemption,” but if we did we would agree with the conclusion reached in Stretch. We think the words of Section 1306, “no disclosure . shall be made,” are words of congressional exemption which prohibit disclosure and the words “except as the Secretary . . . may by regulation prescribe” are words allowing the Secretary to relax the absolute prohibition established by Congress. We realize that as a practical matter there may not be much difference in effect between a congressional exemption with power in the Secretary to relax it and a congressional authorization of administrative exemption. Where, however, as here, we seek the meaning of congressional language, particularly the words “specifically exempted from disclosure by statute,” there is a real difference between a statute in which the congressional words themselves prohibit disclosure and a statute which authorizes an administrator to exempt from disclosure. In the latter case the exemption is the creature of the administrator and does not fall within the meaning of the words “specifically exempted ... by statute.”

The judgment is affirmed.

DUNIWAY, Circuit Judge

(dissenting) :

I would reverse the judgment in this case. The question presented is not an easy one, but I believe that the court in Stretch v. Weinberger, 3 Cir., 1974, 495 F.2d 639, correctly construes the Freedom of Information Act and 42 U.S.C. § 1306(a). See also Serchuk v. Weinberger, 5 Cir., 1974, 493 F.2d 663, which follows Stretch, supra; Schechter v. Weinberger, D.C.Cir., 1974, 506 F.2d 1275. Cf. Robertson v. Butterfield, D.C.Cir., 1974, 498 F.2d 1031. In my opinion, Environmental Protection Agency v. Mink, 1973, 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119, does not require affirmance in this ease. It dealt with a different exemption, and see the Court’s comment at p. 80 and fn. 6, 93 S.Ct. 827. I do not find Judge MacKinnon’s dissent in Schechter v. Weinberger, D.C.Cir., 1974, 498 F.2d 1015, as persuasive as my brothers do.

      . The majority opinion did not reach the question.

      . This seems to have been the Secretary’s argument in the Stretch case. See Stretch v. Weinberger, supra, 495 F.2d at 640.


text:
    Frances ELDREDGE, Petitioner, v. Wallace S. GOURLEY, U. S. District Judge, Respondent.
    No. 74-1771.
    United States Court of Appeals, Third Circuit.
    Submitted Aug. 12, 1974.
    Decided Oct. 4, 1974.
    William G. Boyle, Meyer, Unkovic & Scott, Pittsburgh, Pa., for petitioner.
    John I. Hook, Jr., Hook & Hook, Waynesburg, Pa., for respondent.
    Before SEITZ, Chief Judge, and AL-DISERT and GIBBONS, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM.

This is a petition for a writ of mandamus to set aside a district court order denying the petitioner’s demand for a jury trial. The petitioner is the defendant in a civil action pending before the lower court. She owns land in Pennsylvania with the plaintiff in that suit as joint tenants with rights of survivor-ship.

The plaintiff brought an equitable action in the state court to partition the land in question. Defendant-petitioner removed the case to the district court under the court’s diversity jurisdiction. The defendant-petitioner answered the complaint and also set up a counterclaim that is legal in nature, sounding in contract. He alleges that the plaintiff has breached an oral agreement whereby the plaintiff had agreed not to divide the realty and to pay the plaintiff’s pro rata share of the acquisition costs for the realty and other expenses. The defendant-petitioner seeks damages for the alleged breach.

In Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), the Supreme Court found that where a defendant in equitable proceedings had made a legal counterclaim that raised factual issues resolution of which would be determinative of the plaintiff’s prayer for equitable relief, the defendant’s demand for a jury trial was improperly denied. It further determined that a writ of mandamus is an appropriate means of protecting the right to jury trial. 359 U.S. at 511, 79 S.Ct. 948; see also, Dairy Queen, Inc. v. Wood, 369 U.S. 469, 472, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). Therefore, unless the district court should conclude as a matter of state law that the counterclaim lacks merit, the defendant-petitioner ’s entitled to his requested jury trial on the subject matter of the legal counterclaim. It follows that the writ should issue.

In Beacon Theatres, the Court instructed the trial court to conduct a jury trial of the issues raised by the defendant’s counterclaim prior to consideration of the plaintiff’s claim for equitable relief. In granting the defendant’s motion for mandamus, the Court noted that its decision would not unduly complicate the litigation, stating:

Whatever permanent injunctive relief Fox might be entitled to on the basis of the decision in this case could, of course, be given by the court after the jury renders its verdict. In this way the issues between these parties could be settled in one suit 359 U.S. at 508, 79 S.Ct. at 955.

In the instant case, a writ will issue stating that the district court is directed to conduct a jury trial of the issues raised by the defendant-petitioner’s counterclaim unless the court first determines that the counterclaim lacks substance as a matter of state law. The writ will direct the district court to dispose of the legal counterclaim of the defendant-petitioner before reaching, if necessary, the equitable claims asserted by the plaintiff.

An appropriate writ will issue.


author: TONE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Malcolm McCONAHY, Defendant-Appellant.
    No. 74-1393.
    United States Court of Appeals, Seventh Circuit.
    Argued Oct. 4, 1974.
    Decided Nov. 5, 1974.
    Rehearing Denied Jan. 16, 1975.

      Wayne H. Rusch, Madison, Wis., for defendant-appellant.
    William J. Mulligan, U. S. Atty., and Randall Standfort, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff-appellee.
    Before CUMMINGS, STEVENS and TONE, Circuit Judges.
   TONE, Circuit Judge.

This appeal concerns the right to a speedy trial under a federal indictment when the defendant was serving a prison sentence in a foreign country.

In January 1969 the defendant Malcolm W. McConahy was released on bail pending appeal after having been convicted of mail fraud in the United States District Court for the Eastern District of Wisconsin and sentenced by that court to imprisonment for one year and one day. The bond signed by him required his appearance at all future hearings in the cause and gave his address as 120 South 12th Street, Minneapolis, Minnesota. When McConahy failed to appear at a hearing in the Wisconsin state court on an unrelated state charge, the federal prosecutor moved for an increase in the federal bond and mailed notice of this motion to McConahy at the Minneapolis address given in the bond. McConahy failed to appear at the hearing on the motion. The District Court then entered an order requiring him to appear on April 21, 1969 and providing that if he failed to appear his bond would be forfeited and a bench warrant issued. Notice was sent to McConahy at the same address. He again failed to appear, and on May 13, 1969 an indictment was returned against him under 18 U.S.C. § 3180 charging wilful failure to appear as required by the order.

According to a stipulation between the government and the defendant in this case, from the time he was released on bond until January 21, 1969 McConahy lived with his father at the Minneapolis address. On that date he went to California and remained there until at least March 3, 1969. On June 17, 1970 Mc-Conahy was arrested in London, England, where he was held until the following September by reason of the pending charges in the United States and thereafter on forgery charges brought against him by the British government. In March 1971 he was convicted on the British charges and sentenced to a term of five years imprisonment with a recommendation for deportation.

McConahy was released from British custody on December 24, 1973 and deported to the United States in January 1974. His trial on the bail-jumping charges was held before the court without a jury on May 8, 1974, approximately five years after the date of the indictment. Prior to trial he filed a motion to dismiss the indictment on the ground that the government had failed to give him a speedy trial as guaranteed by the Sixth Amendment. The motion was ruled on during the trial, after the introduction of evidence bearing upon the motion. The court, while finding that “the ability to defend is made more difficult for both the government and the defendant by the period of delay involved,” held that the defendant was not entitled to dismissal because “the government is not chargeable with delay.” At the conclusion of the trial, the court found McConahy guilty.

The government concedes that “the defendant from time to time has asserted his speedy trial rights.” It is therefore unnecessary to describe in detail McConahy’s requests made during the time he was incarcerated in England that arrangements be made to return him to the United States for trial.

The government also concedes, and the District Court found, prejudice resulting from the delay. The prejudice consisted of the unavailability of witnesses whose testimony would have been relevant on the issue of whether McConahy’s failure to appear on April 21, 1969 was wilful, i. e., whether he received notice that he was required to appear on that date and whether he understood prior to that date that he was permitted to leave the jurisdiction and would not be required to be in court for an extended period. Cf. United States v. DePugh, 434 F.2d 548 (8th Cir. 1970), cert. denied, 401 U.S. 978, 91 S.Ct. 1208, 28 L.Ed.2d 328 (1971); United States v. Reed, 354 F.Supp. 18 (W.D.Mo.1973). He testified that there were three witnesses who would have been able to testify concerning communications he claimed to have received from his then attorney to the effect that he was permitted to leave the jurisdiction. One of the witnesses, his father, had died in 1973. His present attorney was unable to locate the other two witnesses, whom McConahy had known in California in 1969. Mc-Conahy also testified that as a result of the lapse of time he had lost notes and correspondence that would have had a bearing on wilfulness. Had the issue been McConahy’s state of mind in May 1970, when he was apprehended in England, we would have great difficulty in finding that the alleged lost evidence was material. The relevant time, of course, is April 1969, and it is not inconceivable that he could have persuaded a trier of fact that he did not have the requisite wilfulness at that time. This, we assume, is the basis for the District Court’s finding and the government’s concession that defendant’s defense was prejudiced by the delay.

Under Barker v. Wingo, 407 U.S. 514, 530-533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), four factors are to be considered in determining whether the defendant has been deprived of his right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) the prejudice to the defendant. The government concedes in the case at bar that the third and fourth factors weigh in favor of the defendant and also that the delay “was substantial”; but it argues that the reason for the delay is the defendant’s own conduct, and we should therefore apply the following rule stated in Barker v. Wingo: “We hardly need add that if delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine, the demand rule aside.” 407 U.S. at 529, 92 S.Ct. at 2191.

In a sense the delay resulting from a defendant’s imprisonment in another jurisdiction is attributable to him. The quoted sentence from Barker does not, however, apply to such a case unless either the defendant fails to demand that an effort be made to have him returned for trial or, after a demand has been made by him, the prosecuting authorities make a diligent, good faith effort to have him returned and are unsuccessful. In Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), the Court held that a defendant under a Texas criminal charge who was serving a federal prison sentence was denied his right to a speedy trial by the failure of the Texas authorities to attempt to arrange for his presence for trial before the expiration of his federal sentence, when he had requested them to do so. The Court said, “Upon the petitioner’s demand, Texas had a constitutional duty to make a diligent, good-faith effort to bring him before the Harris County court for trial.” 393 U.S. at 383, 89 S.Ct. at 579.

There is no reason not to apply the rule of Smith v. Hooey when the defendant is incarcerated by a foreign government rather than the United States or one of its states. That the additional expense is not a factor deserving of consideration is clear from footnote 11 in the opinion in that case. 393 U.S. at 380, 89 S.Ct. 575. Unless there is a showing that an effort to have the defendant returned to this country for trial would be futile, the government must make such an qffort. There has been no such showing here.

It is argued that neither bail jumping nor the offense for which Mc-Conahy was convicted in 1969 was an extraditable offense under the Extradition Treaty between the United States and Great Britain, which is in evidence, and that McConahy therefore could not be extradited. Assuming this is so, it is immaterial. There would have been no need to extradite McConahy, since he was not resisting extradition. On the contrary, as the government concedes, he was requesting that he be returned to the United States to answer the charges pending here.

We are simply unable to determine on the record before us whether the British government would have honored a request that McConahy be returned to the United States for trial before he completed serving his British sentence. McConahy testified that the British authorities told him that such a request would be honored. The prosecution offered nothing to the contrary in the form of an opinion from the Office of the Secretary of State, expert testimony on relevant British or international law or policy, or otherwise. We are compelled to assume on this record that it might have been possible to obtain the British cooperation that would have been necessary' to bring McConahy back for trial.

The government accordingly had “a constitutional duty to make a diligent, good-faith effort to bring [defendant] before the [district] court for trial.” Smith v. Hooey, supra, 393 U.S. at 383, 89 S.Ct. at 579. It made no effort whatsoever and simply ignored McConahy’s requests that he be returned here for trial.

We are therefore required on the authority of Smith v. Hooey to reverse the judgment of the District Court and since irremediable prejudice to the defense resulted from the delay, to order that the indictment be dismissed.

Reversed.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Donald Lee SENNETT, Defendant-Appellant.
    No. 74-1193.
    United States Court of Appeals, Seventh Circuit.
    Heard Sept. 19, 1974.
    Decided Nov. 14, 1974.
    As Modified Nov. 18, 1974.
    Rehearing Denied Dec. 26, 1974.

      James G. Walker, Bloomington, 111., for defendant-appellant.
    Donald B. Mackay, U. S. Atty., Max E. Goodwin, Asst. U. S. Atty., Springfield, 111., for plaintiff-appellee.
    Before SPRECHER and TONE, Circuit Judges, and PERRY, Senior District Judge.

       Senior District Judge J. Sam Perry of the Northern District of Illinois is sitting by designation.

   TONE, Circuit Judge.

Defendant Donald Lee Sennett was convicted of bank robbery and sentenced under Section 5010(b) of the Youth Corrections Act, 18 U.S.C. § 5010(b). At the trial, his only defense was insanity. He contends that the giving of an instruction referring to a presumption of sanity and argument based on that instruction created prejudicial error, that other trial errors occurred, and that refusal to disclose the presen-tence report was also error.

The defendant, while 18 years old and a freshman at Illinois State University, robbed the People’s Bank of Lexington, Illinois, of about $7,964. He was arrested within an hour after the crime and made a complete confession.

At the trial before a jury, the defendant, admitting that he had committed the robbery, raised the defense of insanity and offered the testimony of a psychiatrist who had examined him four days after the robbery to the effect that at the time of the robbery the defendant suffered from a psycho-neurotic obsessive-compulsive neurosis, which, although it did not make him incapable of distinguishing right from wrong, did render him unable to conform his conduct to the requirements of the law. The Government, in rebuttal, offered expert testimony tending to refute the testimony of the defendant’s expert.

References to the Presumption of Sanity

The District Court gave the jury, verbatim, the insanity instruction mandated by this court, sitting in banc, in United States v. Shapiro, 383 F.2d 680 (7th Cir. 1967), which is as follows:

“The defendant has interposed insanity as a defense. The law presumes that a defendant is sane. This presumption is rebuttable. Where a defendant introduces some evidence that he had a mental disease or defect at the time of the commission of the crime charged, the prosecution must establish beyond a reasonable doubt that defendant did not have a mental disease or defect, or that despite the mental disease or defect he had substantial capacity both to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law.”

In addition, the court, at the request of the defendant, gave the following additional instruction on the issue of insanity :

“Under the defendant’s plea of not guilty, there is an issue as to his sanity at the time of the alleged offense. The law does not hold a person criminally accountable for his conduct while insane, since an insane person is not capable of forming the intent essential to the commission of a crime.
“The sanity of the defendant at the time of the commission of the alleged offense is an element of the crime charged and must be established by the Government beyond reasonable doubt, just as it must establish every other element of the offense charged.
“A defendant is insane within the meaning of these instructions if, at the time of the alleged criminal conduct, as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.”

In his closing argument the prosecutor paraphrased the Shapiro instruction, including its recital of the presumption of sanity, and argued that the defendant’s evidence of insanity “was so weak the jury could legitimately disregard it and stop right there, but you may, on the other hand, wish to weigh all of the evidence, both the Government’s and the defense in this case.” Defendant did not object to this argument, but he had previously objected, at a conference on instructions held by the court, to the giving of the Shapiro instruction, on which the argument was based.

The stated grounds for defendant’s objection, reiterated in this court, were that the instruction referred to insanity as a defense and, even though some evidence of insanity had been introduced, recited the presumption of sanity. The defendant’s position, as stated in oral argument, is that it is never appropriate to advise the jury of the presumption of sanity as the Shapiro instruction does; for if there is no evidence of insanity an instruction on the insanity defense is unnecessary, and if there is some evidence of insanity the presumption disappears as a matter of law and it should not be mentioned to the jury.

We are asked to hold that it was error for the District Court to give the insanity instruction which this court seven years ago, in its in banc decision in Shapiro, directed district courts to give in future cases. The defendant bases this request on the later decision of a panel of this court in United States v. Bohle, 445 F.2d 54 (7th Cir. 1971).

The issue before the court in the Shapiro case was whether the District Court had correctly defined insanity in its instructions to the jury. The majority opinion carefully analyzed the American Law Institute’s definition (ALI, Model Penal Code, Proposed Official Draft, May 14, 1962, p. 66, § 4.01), compared it with the definition in Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895), and decided that the so-called LaBuy instruction on insanity (Manual on Jury Instructions in Federal Criminal Cases, § 5.03 (1965), 33 F.R.D. 560) should be modified “in order to adapt it to the ALI definition.” The court then set forth the instruction as it was to be given in the future, which is the instruction the District Court gave in the case at bar.

It was not argued in Shapiro that it was error to refer to insanity as a defense or to speak of a presumption of sanity. The court, therefore, did not consider those arguments when it left unchanged the recitals of the LaBuy instruction concerning the defense of insanity and the presumption, while modifying the portion of the instruction defining insanity.

In the Bohle case (445 F.2d 54), in the face of evidence that the defendant suffered from a mental disease or defect at the time of the commission of the offense, the prosecutor referred in his closing argument to “a presumption of sanity” and said the jury had to determine whether the presumption was overcome. When the defendant’s counsel objected, the court said, “I think the statement is proper.” In this court, a majority of the panel, interpreting Davis v. United States, supra, 160 U.S. 469, 16 S.Ct. 353 (1895) and following Otney v. United States, 340 F.2d 696, 698-699 (10th Cir. 1965), held that the presumption of sanity disappears when some evidence of insanity is introduced, and that “the statement of the prosecutor, concurred in by the court, was erroneous as a matter of law in advising the jury in effect that it could weigh the presumption against Bohle in reaching its verdict.” 445 F.2d at 71.

In the concluding paragraph of the section of its opinion dealing with this point, the Bohle majority said, “Further, we find it prejudicially erroneous where the jury is misinformed concerning what it could consider on the critical issue of a case and that misinformation is reenforced by the court after the defendant challenges its accuracy.” 445 F.2d at 71. The court, however, Held that three other trial errors had occurred (id. at 63, 69, 75), and, at the conclusion of the entire opinion, said, “ . . . without deciding whether any of the errors recited- herein would, standing alone, be of sufficient magnitude in this case to require reversal, we are convinced that, when taken together, their prejudicial impact was sufficient to deny Bohle a fair trial on the issue of insanity.” Id. at 76.

Although the opinion does not disclose the instructions given to the jury on the issue of insanity in Bohle, the record in that case shows that the District Court gave the Shapiro instruction. The treatment at trial of the presumption of sanity in Bohle and the case at bar were thus similar. In each case the prosecutor, in his closing argument, made a reference to the presumption of sanity, based on the Shapiro instruction which was to be given to the jury, and contended in substance that the jury, after considering the evidence of insanity, could determine that the presumption was not overcome.

Here, unlike Bohle, there was no objection to the argument at the time it was made; but, at the conference on instructions held shortly before the argument, defendant’s counsel had objected to the giving of the Shapiro instruction because of its reference to the presumption, and the court had overruled that objection. Counsel was therefore not required, in order to preserve error, to object to an argument based on that instruction. Nevertheless, because such an objection was not made, the prosecutor’s argument was not reenforced in the presence of the jury by a ruling of the court, as it was in Bohle.

The only direction the jury in the case at bar received from the court with respect to the law applicable to the defense of insanity came from the instructions. These included not only the Shapiro instruction but the instruction set forth above which defendant tendered. By giving the latter, the court unequivocally told the jury that in this case the government had the burden of proving beyond a reasonable doubt that the defendant was sane.

Bohle is therefore distinguishable, because the error found there was one of several, the cumulative effect of which required reversal, and because here the combined effect of the absence of reenforcement by the court of the prosecutor’s argument and the added instruction to the jury was to eliminate any substantial risk that the jury would give any weight to the presumption of sanity. We need not decide, therefore, whether this panel would have reached the same result as the majority of the Bohle panel did on the facts of that case, or the extent to which the ruling in Bohle is arguably inconsistent with the law as stated in the Shapiro instruction. We decide only that there is no showing of substantial prejudice in this case.

The Bohle opinion does not suggest that, as defendant argues, it is error to refer to insanity as a defense. We hold that it is not, so long as the jury is adequately instructed concerning the government’s burden, as it was here.

In light of the considerations discussed in the Bohle opinion, the following instruction, instead of the Shapiro instruction, should be given in future cases when insanity is raised as a defense and some evidence of insanity is introduced:

“In this case the sanity of the defendant at the time of the offense charged is an issue. This means that, in addition to proving beyond a reasonable doubt the elements of the offense charged, the prosecution must also prove beyond a reasonable doubt that at the time of the offense charged the defendant did not have a mental disease or defect, or that despite the mental disease or defect he had substantial capacity both to appreciate the wrongfulness of his conduct and to conform his conduct to the requirements of the law.”

While we do not accept defendant’s argument that the reference to insanity as a defense in the Shapiro instruction is erroneous, we think the above introductory sentence is preferable. Also, following the reasoning of Bohle, we have omitted in the above instruction the introductory clause found in the last sentence of the Shapiro instruction, “Where a defendant introduces some evidence that he had a mental disease or defect at the time of the commission of the crime charged . . . .” Whether there is “some evidence” is a question for the court, not the jury. Bohle, 445 F.2d at 71.

Since we are modifying a direction given by the court in banc in Shapiro for the conduct of future cases, we have circulated this opinion among all judges of this court in regular active service. No judge has requested that the case be reheard in banc.

Other Trial Errors

The District Court excluded the testimony of defendant’s supervisor in his part-time employment in the student union dining room that defendant was “very cooperative” and performed his assignments as instructed. The court also excluded the testimony of defendant’s roommate that during a period of several months, ending one or two months before the robbery, the defendant stated from time to time in talks they had that “he was unsure of his future,” that “things seemed sort of confused to him,” that he “really didn’t know what he wanted,” that he “was just mostly concerned with where he was going, that’s all, and about the people in his life, his family,” and that there was “a lack of love and understanding among the family.” It is contended that this evidence had a bearing on defendant’s mental condition. Assuming that it did, it is largely cumulative, the defendant himself having been permitted to testify without limitation about his personal history and activities and the subjects of the offer of proof made through the roommate. Defendant’s expert was allowed to testify in full about what defendant told him. All this evidence was uncontroverted. There was ample evidentiary foundation for the opinion of defendant’s expert without the excluded testimony. Excluding it did not result in prejudice to defendant.

It is also contended that the district judge repeatedly and unjustly disparaged defendant’s counsel in the presence of the jury and thereby deprived defendant of a fair trial. We have carefully examined the entire transcript of the trial proceedings. We are satisfied that the incidents complained of, whether considered singly or together, were trivial in the context of the entire trial and did not affect defendant’s rights or prejudice him in the eyes of the jury. See United States v. Glasser, 116 F.2d 690, 704-705 (7th Cir. 1940).

Refusal to Disclose Contents of Pre-Sentence Report

After conviction the District Court ordered a presentence report and subsequently, after denial of defendant’s motion for new trial, ordered him committed for observation and study under Section 5010(e) of the Youth Corrections Act, 18 U.S.C. § 5010(e). Upon return of the study report by the Chairman of the Youth Division of the United States Board of Parole, defendant’s counsel moved for disclosure of the study report and shortly thereafter moved also for disclosure of the presentence report or, in the alternative, that part the court “has or will rely on in arriving at sentence.” The court allowed counsel for the parties to see the study report but denied the motion for disclosure of the presentence report. Defendant asserts that the denial was error.

This court held in United States v. Miller, 495 F.2d 362 (7th Cir. 1974) that “a district court should hereafter state any grounds in the presentence report motivating the imposition of the sentence,” and that, “If the trial judge denies a motion seeking access to a pre-sentence report, he should henceforth make it clear that his sentence determination is not predicated on the contents of the report or describe the substance of any matter he considers significant.” 495 F.2d at 364-365.

While the rule of the Miller case is to operate prospectively only, and the sentence in this case was imposed on February 8, 1974, two months before Miller was decided, that rule would not require reversal here even if it were applicable. It is clear from the transcript of the sentencing hearing that the trial judge did not rely upon any part of the presentence report and that he relied solely upon the study report prepared pursuant to Section 5010(e) of the Youth Corrections Act. That report was disclosed to counsel for defendant before the sentencing hearing and he referred to it and relied upon it in his argument at that hearing. He asked the court “to sentence the defendant under either § 5010(a) [of the Youth Corrections Act], which we consider preferable, or if the Court thinks that more control is needed, sentence under § 5010(b).” The latter subsection makes applicable by reference Section 5017 of the Act, 18 U.S.C. § 5017, which provides for conditional release of the youth offender within four years and unconditional discharge within six years of his conviction. The district judge adopted the second alternative, stating that in doing so he was relying upon the study report. The judge said that he based his sentencing decision on “what the authorities down there think about it under the Youth Corrections Act,” they having given “the requisite tests that would determine what .should be done about it” and having reported that “he needs further supervised training, and that’s why I am following their advice.” Under the circumstances, the court’s refusal to order disclosures of any part of the presentence report to defendant was not prejudicial.

The judgment is affirmed.

Affirmed.

      . Defendant also complains that the District Court, in reading the instructions to the jury, gave undue emphasis to the Shapiro instruction by reading it twice, whereas the defendant’s tendered instruction on insanity was only read once. The rereading of the Shapiro instruction occurred because the court’s reading of the instructions was interrupted by a side bar conference, and upon returning to the reading the court began over again the portion dealing with the defense of insanity, The reason for the rereading must have been apparent to the jury, and no prejudice re-suited.

      . Although at one point in his explanation of the reasons for his sentencing decision the judge spoke of “the Probation report that I have received,” it is apparent from his statement in its entirety that he was referring to the study report.


author: TALBOT SMITH, Senior District Judge.

text:
    Charles LaPLANTE, Appellant, v. Charles L. WOLFF, Jr., Appellee.
    No. 74-1175.
    United States Court of Appeals, Eighth Circuit.
    Submitted Sept. 9, 1974.
    Decided Nov. 8, 1974.
    Certiorari Denied March 24, 1975.
    See 95 S.Ct. 1436.
    Leroy P. Shuster, Lincoln, Neb., for appellant.
    Harold Mosher, Asst. Atty. Gen., Lincoln, Neb., for appellee.
    Before GIBSON, Chief Judge, BRIGHT, Circuit Judge, and TALBOT SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   TALBOT SMITH, Senior District Judge.

Charles LaPlante appeals from the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. He was convicted in 1960 upon a plea of guilty in the district court for Saunders County, Nebraska of breaking and entering with intent to steal. In 1968 he was convicted by a jury in the district court for Dodge County, Nebraska of another crime. Based in part on his 1960 conviction, he was then found to be an habitual criminal and sentenced to ten years. The 1968 conviction and sentence were affirmed on direct appeal. Subsequent thereto the Supreme Court of Nebraska also affirmed the denial in Dodge County of his motion for post-conviction relief.

The petition before us asserts that the 1960 conviction was unconstitutional because: 1) “no counsel was appointed for him or offered to him at the expense of the county,” and 2) “he did not intelligently or understandingly waive the assistance of counsel and the court did not conduct a hearing to determine whether an intelligent or understanding waiver had been made.”

District Judge Schatz held two hearings on the petition, at each of which the petitioner was present and represented by counsel. Determination was made after the first hearing (August 29, 1973), that petitioner had not deliberately by-passed the orderly procedures of the state courts, and that a full and fair factual hearing on the alleged constitutional infirmity in the 1960 conviction should be held. Such was held by Judge Schatz on December 3, 1973, at which time the petitioner testified and the court received the transcript of the 1960 proceedings in the district court for Saunders County, substantial portions of which appear in the Appendix hereto. It was the finding of the District Judge, in part, after a review of the authorities, that

This record shows that-the trial judge questioned Mr. LaPlante specifically about whether he understood that he had a right to an attorney and that Mr. LaPlante specifically refused to take advantage of this right. Further, the record shows that the petitioner was present in court when similar questions were asked of the other defendants, so petitioner had a period of time to consider what his own answers would be.
The record also shows that petitioner declined an opportunity to consult with his family before entering a plea. This offer by the trial court clearly demonstrates that it wished to impress on Mr. LaPlante the importance of the decision facing him and the fact that the Court would give him additional time to make this decision if he so desired.
* * * The transcript as a whole shows that Mr. LaPlante was concerned with having the entire matter disposed of as quickly as possible, and that he understood exactly what he was doing when he declined the offer of the court to appoint counsel for him.
Therefore, this Court finds that Mr. LaPlante made a knowing and intelligent waiver of counsel at the time of his 1960 conviction and that his petition for a writ of habeas corpus should be denied.

The first issue, offer or appointment of counsel, may be summarily disposed of. The petitioner first asserted, in the August 29 hearing, that he didn’t “believe they ever made an offer of an attorney,” then stated that he had “signed a paper but I don’t know what was on it.” At the second hearing (December 3), his memory was more positive:

Q. You don’t recall at any time during any of the court proceedings you have described today of the Judge or anyone else asking you if you wanted counsel ?
A. No.

It is clear from the transcript, infra Appendix, that, as the District Court found, the petitioner was in truth tendered counsel.

The petitioner also asserts a nonunderstanding waiver, which, of course, is no waiver. Thus we are faced with the problem of determining, some fourteen years after the event, the then state of mind of the petitioner, with all of the uncertainty resulting from problems of credibility and reliability of memory, here the more difficult because of the petitioner’s inaccurate statements made with respect to his first issue.

The objective facts respecting waiver tendered us by petitioner, upon whom the burden rests, are a) He is an Indian; b) He was 18 years of age at the time. Subjectively, he asserts that he didn’t comprehend what was happening. Legally he suggests various defenses he might have asserted and relies upon the plurality opinion in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948) and holdings consistent therewith as establishing a constitutional defect in his 1960 hearing. Putting aside for the moment the constitutional analysis, and looking at the specific facts before us' petitioner relies solely upon his age, his ethnic origin, and his own self-serving version of his understanding at the time. Upon the totality of circumstances presented on this record these are not enough. We are not persuaded that there has been any basic unfairness in his treatment.

So much has been written upon the meaning to be given to the words “knowing and intelligent waiver” of counsel that it would be an affectation of scholarship to present further review. The opinions of this court in Collins v. United States, 206 F.2d 918 (8th Cir. 1953), United States ex rel. Miner v. Erickson, 428 F.2d 623 (8th Cir. 1970), and United States v. Warner, 428 F.2d 730 (8th Cir.), cert. denied, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1970) (the latter cases illuminated by the dissents of Judge Lay), and the Seventh Circuit opinion in Spanbauer v. Burke, 374 F.2d 67 (7th Cir. 1966), cert. denied 389 U.S. 861, 88 S.Ct. 111, 19 L.Ed.2d 127 (1967), discuss thoroughly the issues involved.

Much of the current controversy concerns the interpretation to be given Von Moltke v. Gillies, supra. It is there said in part:

To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.

332 U.S. at 724, 68 S.Ct. at 323.

With literal adhesion to the words just quoted the petitioner points out to us the many omissions of the trial court. Thus he “did not inform or inquire of the defendant,” for example, “That the state must prove the alleged crime by competent witnesses; and that a crime cannot be proven by hearsay.” This is all true, of course; but if these enuncia-tions by the court are to be required, must not the courts also explain the concept of competence as well as the rudiments of hearsay and its exceptions, if, that is, the information to the defendant is to be (as the saying goes today) “meaningful ?”

It is, of course, possible to apply the Von Moltke language thus. But the courts have not done so. As we said in United States v. Warner, supra 428 F.2d at 734:

The United States Courts of Appeals have not applied the broad language of Von Moltke literally. In Spanbauer v. Burke, 374 F.2d 67 (7th Cir. 1966), cert. denied 389 U.S. 861, 88 S.Ct. 111, 19 L.Ed.2d 127 (1967), which contains perhaps the most exhaustive study of the law of waiver of counsel as applied in the various circuits, the Court said, 374 F.2d at 72:
“It appears that federal courts have looked to the substance of the Von Moltke formulations, and not to its formulas * * * [and]
* -X- -X- * * -X-
“-x- * -x- have * * * viewed the question of waiver of counsel as ultimately an issue, irrespective of the trial court’s fulfillment of its Von Moltke duties, of whether the accused knowingly and intelligently chose to waive counsel.”
Virtually the same appraisal of the law was made by this Court in Collins v. United States, 206 F.2d 918 (8th Cir. 1953).

The reasons therefor are not obscure. A literal compliance with the quoted portion of the Von Moltke opinion would require the District Judge to “give a short course in constitutional law and judicial procedure.” Those who have struggled with the inculcation of these rudiments in first-year law students will be keenly aware of the problems involved. Moreover, in the context before us the legal principles must be explained and digested in a matter of minutes, or possibly days if the court has a light docket, rather than the months ordinarily allotted. But an even greater difficulty is presented by the fact that we have, not a willing student and a skilled teacher, but an accused, with all of his constitutional protections, and a Judge, with all of his constitutional obligations. We tend to share the concerns expressed by Judges Ely and Hufstedler, dissenting in Hodge v. United States, 414 F.2d 1040, 1054 (9th Cir. 1969), that the trial court, in order to acquire information as to “possible defenses,” may risk infringement on the accused’s constitutional right against self-incrimination. In the light of these and similar considerations there is much support for the view that the “federal courts have looked to the substance of the Von Moltke formulations, and not to its formulas.” Spanbauer v. Burke, supra 374 F.2d at 72 and cases herein cited; Collins v. United States, supra 206 F.2d at 922.

We have heretofore summarized the petitioner’s contentions. On the other hand it appears that he had completed the ninth grade in school, according to his brief, and that he was able to speak and understand the English language. At the hearing, quoted in the margin, he took pains to correct the spelling of his name. The court was painstaking in its explanation of his rights to counsel and solicitous respecting his treatment, even to the extent of telling him that “if you want to talk to me about it [the Probation report], you can let the Sheriff know and I will be happy to talk to you at any time.” In Nebraska the assignment of counsel, to those having “not the ability to procure counsel,” antedated Gideon by some 90 years, and the state judges were well aware of the practice and its procedural requirements, as exemplified by the record before -us. Particularly pertinent hereto is the observation of our court in an earlier case involving the related question of the proper acceptance of a plea of guilty that it did not believe “that all sentences which have in the judicial in-formalities of the past half century or more been so pronounced must consequently be branded as legal nullities and void incarcerations,” and, particularly when, as here, the petitioner not only did not assert his innocence but freely admitted his guilt.

We agree with the District Court that the petitioner has not carried his burden of proof. The totality of the circumstances show the conduct of a nonper-functory inquiry appropriate to the individual involved and the crime charged. The standards of basic fairness have been met. We exact compliance with no formula nor adhesion to a specific script.

Affirmed.

APPENDIX

The following is a partial transcript of the 1960 proceedings in the district court for Saunders County:

THE COURT: My name is John Zei-linger and I am one of the Judges here.

I see that you have been in the courtroom while I have been talking to Donald Hansen and Robert Fajman, and both of those young men have been arraigned. Have you been able to hear most of what was said?

THE DEFENDANT: Yes, sir.

THE COURT: I would like to ask you a few questions and, as I told them, you don't have to answer if you don’t want to and, if you don’t want to, please say so.

Are you Charles LaPlante ?

THE DEFENDANT: Yes, sir. The last name is spelled with an “e” on the end.

THE COURT: L-A P-L-A-N-T-E?

THE DEFENDANT: Yes, sir.

MR. HAESSLER: Do I have permission to add that, your Honor?

THE COURT: All right. And how old are you?

THE DEFENDANT: Eighteen.

THE COURT: Do you have an attorney?

THE DEFENDANT: No.

THE COURT: Do you want time to consult with an attorney about your rights in this matter?

THE DEFENDANT: No.

THE COURT: I want you to understand that, under the laws of Nebraska, a person that does not have the means to employ an attorney is entitled to have an attorney appointed for him at the expense of the County. Do you understand your right in that regard ?

THE DEFENDANT: Yes, sir.

THE COURT: Do you want to make application to have the Court appoint an attorney for you?

THE DEFENDANT: No.

THE COURT: And you specifically waive the right to have an attorney?

THE DEFENDANT: Yes.

THE COURT: Now, do you want some time to consult with the members of your family and to get members of your family here before you' are arraigned ?

THE DEFENDANT: No.

THE COURT: You understand that I will give you time for that purpose if you want to do it and we will set another time for this hearing and come back again.

THE DEFENDANT: I don’t think so.

THE COURT: Under the law every person charged with a crime, a felony, is entitled to have a copy of the Information for twenty-four hours before he is arraigned, and you have been served with a copy of this Information, as I understand it, is that correct?

THE DEFENDANT: That’s right.

THE COURT: But it hasn’t been twenty-four hours?

THE DEFENDANT: No, it hasn’t.

THE COURT: So, before we can proceed, you have to waive the right to have a copy of the Information for twenty-four hours before proceeding. Do you waive that right?

THE DEFENDANT: Yes.

THE COURT: And you signed the statement on the back of the Information in which you waive your right to have a copy of the Information for twenty-four hours?

THE DEFENDANT: Yes.

THE COURT: And you did that this morning, is that right?

THE DEFENDANT: That’s right.

THE COURT: But, in spite of that, if you now say that you want time, I will give you time; I want you to understand that. If you just as soon go ahead with this hearing now, we will go ahead.

THE DEFENDANT: I would like to go ahead with it.

THE COURT: All right, sir, do you understand the four different choices a person has in the way of pleading to an Information ?

THE DEFENDANT: Yes, sir.

THE COURT: You have heard me explain that to these other young men?

THE DEFENDANT: Yes.

THE COURT: And are you ready to be arraigned at this time ?

THE DEFENDANT: Yes, sir.

THE COURT: All right, I will ask the County Attorney to read the Information.

(Whereupon, the County Attorney read said Information.)

THE COURT: You have heard the reading of the Information. Do you understand the nature of the charge against you?

THE DEFENDANT: Yes, sir.

THE COURT: And are you ready to enter a plea to that Information at this time ?

THE DEFENDANT: Yes, sir.

THE COURT: And how do you plead ?

THE DEFENDANT: Guilty.

THE COURT: Now, has anybody threatened you in any way to induce you to enter that plea?

THE DEFENDANT: No.

THE COURT: Has anybody promised you anything to enter that plea?

THE DEFENDANT: No.

THE COURT: And you do so voluntarily, is that right?

THE DEFENDANT: That’s right.

THE COURT: All right, I want to look into this matter and I’m going to have to remand you to the custody of the Sheriff while I do that, and I will ask our Probation Officer to make an investigation and report to me. The Probation Officer will be around here and talk to you about that matter and, if you want to talk to me about it, you can let the Sheriff know and I will be happy to talk to you any time.

* * * * * *

      . State v. LaPlante, 183 Neb. 803, 164 N.W.2d 448 (1969).

      . State v. LaPlante, 185 Neb. 816, 179 N.W.2d 110 (1970).

      . See generally Y. Kamisar, W. LaFave & J. Israel, Modern Criminal, Procedure 57-60 (4th ed. 1974) and cases and authorities cited therein.

      . Von Moltke was not an opinion of the Court. Four of the Justices were of the opinion that the waiver of counsel there involved was not competent. Justices Frankfurter and Jackson, agreeing to reverse, called for further findings as to whether or not the plea and waiver were based upon misinformation from an F.B.I. agent. At least one court has considered Von Moltke sui generis and has relied more heavily on Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Twining v. United States, 321 F.2d 432 (5th Cir. 1963), cert. denied, 376 U.S. 985, 84 S.Ct. 1126, 11 L.Ed.2d 982 (1964); see Spanbauer v. Burke, 374 F.2d 67, 72 n. 3 (7th Cir. 1966), cert. denied 389 U.S. 861, 88 S.Ct. 111, 19 L.Ed.2d 127 (1967).

      . W. Beaney, The Right to Counsel in American Courts 63 (1955).

      . Ch. 58 Neb.G.S. § 437 (p. 821) (1873) (now Neb.R.R.S. § 29-1804.04 to 29-1804.07 (Supp.1972)).

        . Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

      . Collins v. United States, 206 F.2d 918, 922 (8th Cir. 1953).