text:
    James R. DAMERON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-2778.
    United States Court of Appeals, Fifth Circuit.
    Jan. 23, 1974.
    Cecil M. Burglass, Jr., New Orleans, La., for petitioner-appellant.
    Robert E. Hauberg, U. S. Atty., E. Donald Strange, Asst. U. S.-Atty., Jackson, Miss., Marshall Tamor Golding, Asst. U. S. Atty', U. S. Dept, of Justice, Washington, D. C., for respondent-appel-lee.
    Before TUTTLE, GEWIN and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

We hold that a person can successfully attack collaterally a conviction under 18 U.S.C.A. § 922(g)(1) for interstate transportation of a firearm by a convicted felon when his counselless state felony conviction has been subsequently voided under the constitutional principles of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

Dameron was convicted of transporting a .38 caliber Derringer pistol in interstate commerce from Louisiana to Natchez, Mississippi in June, 1970, in violation of Section 922(g)(1) which provides:

It shall be unlawful for any person-
(1) . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
to ship or transport any firearm or ammunition in interstate or foreign commerce.

Dameron had been previously convicted on a guilty plea of burglary and grand larceny in Arkansas in 1951 and had fully served his time for those offenses.

After his arrest in June, 1970 but before his indictment in January, 1971 on the federal firearms charge, Dameron received a full pardon from the Governor of Arkansas for his prior state offenses. He was nevertheless tried and convicted by a jury of this federal charge on the basis of the state convictions, and was sentenced to five years imprisonment. This Court affirmed his conviction holding that the subsequent pardon did not alter his status as a convicted felon at the time that he transported the firearm. United States v. Dameron, 460 F.2d 294 (5th Cir.), cert. denied, 409 U.S. 882, 93 S.Ct. 168, 34 L. Ed.2d 137.(1972).

The statutory prohibition was triggered by his status as a convicted felon, a status which did not change until the pardon was received. The pardon simply came too late to save appellant from this charge. Compare United States v. Liles, 432 F.2d 18 (9th Cir. 1970).

460 F.2d at p. 295.

Subsequently, following Ai’kansas procedure, defendant obtained an order from the state court in which he was previously convicted setting aside his 1951 state convictions ab initio on the federal constitutional ground that his convictions were based upon uneounseled guilty pleas.

Thereafter petitioner filed this 28 U. S.C.A. § 2255 motion asking that his federal firearms conviction be set aside on the ground that it was predicated upon unconstitutional prior state convictions. The District Court, holding that the subsequent state order did not alter Dameron’s status at the time he transported the firearm, any more than had the subsequent pardon from the Governor, denied the motion. We reverse.

Apparently conceding that if the state action voiding the convictions had preceded the transportation of the firearm, no crime could have been committed under Section 922(g)(1), the Government contends that a person, once having been convicted of a felony, cannot carry a firearm in interstate commerce without violating the federal firearms statute until he has obtained an official ex-pungement of that past conviction. The Government argues, in effect, that after February 19, 1973 when the state court order was entered voiding the conviction, Dameron could carry a firearm in interstate commerce without offending Section 922(g)(1), but before that date he could not.

The Government recognizes that the only three circuits of the United States Court of Appeals presented with this precise question have, in effect, decided contrary to the Government’s position.

In Pasterchik v. United States, 466 F.2d 1367 (9th Cir. 1972), the Ninth Circuit vacated a conviction under 15 U.S.C. § 902(e) (1964). Promptly after the prior state conviction which supported the federal conviction for interstate transportation of a firearm by a felon had been vacated on constitutional grounds, the defendant raised the point in a 28 TJ.S.C.A. § 2255 motion.

McHenry v. California, 447 F.2d 470 (9th Cir. 1971), involved a petition for writ of habeas corpus from a state prisoner who had been convicted under a California law prohibiting possession of a concealed weapon by a person who had-been convicted of a felony. After an evidentiary hearing, the District Court concluded that certain rights guaranteed to McHenry under the federal Constitution had been infringed to such an extent that the prior felony conviction was void. The Ninth Circuit held that California therefore was required to release the defendant from the firearms conviction unless it retried and convicted him of the prior felony charge. Judge Wright dissented on the ground that the case was indistinguishable from United States v. Liles, 432 F.2d 18 (9th Cir. 1970).

In United States v. Thoresen, 428 F. 2d 654 (9th Cir. 1970), the Ninth Circuit considered a direct appeal in which, after being indicted under 15 U.S.C. § 902(e) (1964), the defendant had attempted to establish the invalidity of a prior Maine felony conviction in both state and federal courts in Maine. Relief had been denied, however, because defendant was not “in custody.” The Court held that Thoresen was entitled to an opportunity, at the trial on the federal firearms charge, to negate an essential element of the crime by establishing the constitutional invalidity of the underlying Maine conviction.

United States v. Lufman, 457 F.2d 165 (7th Cir. 1972), was a direct appeal from a conviction under 18 U.S.C.A. App. § 1202(a) for possession of a firearm by a convicted felon. The defendant argued as a defense that the conviction asserted by the Government as proof of his status as a convicted felon was constitutionally void under Gideon. The Seventh Circuit held that, since the prior conviction was constitutionally void at its inception, Lufman was not a convicted felon at the time of possession and the use of such a conviction in a proceeding under Section 1202(a) was reversible error. It distinguished United States v. Liles, supra, on the ground that Liles’ conviction “was not void ‘at its incipiency,’ but voidable, since it was pending determination on appeal, and its subsequent reversal was not based on a finding of constitutional defect.” 457 F.2d at p. 168.

In United States v. DuShane, 435 F.2d 187 (2d Cir. 1970), the Second Circuit considered the constitutional defects in the Oklahoma conviction which was an “integral part of the crime” charged under 15 U.S.C. § 902(e) (1964). The Court held that the parties correctly assumed that a constitutionally invalid prior conviction could not be the basis of a conviction under Section 902(e).

The Government does not seek to distinguish these cases, but argues that their holdings are based upon a misunderstanding of the relevant considerations and hence should not be followed. The Government contends that the statute is not punitive, but merely classifies those persons who may not transport firearms in interstate commerce, as a matter of legislative gun control. It makes a two-pronged argument: that the legislative intent requires official expungement of past convictions as a precondition to lawful access to firearms and that there is no constitutional impediment to effectuate that intent.

The Government would have us read Section 922(g)(1) to make unlawful interstate transportation of firearms by any person who has an existing, unexpunged record of a felony conviction, whether constitutionally or unconstitutionally obtained. We need not reach the Government’s argument that there is no constitutional impediment to such a provision. Nor need we look further than the statute to determine legislative intent. The statute should explicitly set forth application to unconstitutional convictions, if it is so intended. We read the statute to prohibit the interstate transportation of firearms by those who have been constitutionally convicted of a felony. It is the fact of the conviction which Congress utilizes for classification purposes and the cases are legion which hold that a conviction in violation of Gideon is void, and not a conviction at all. It cannot be judicially used for any purpose. We are precluded from following the course in McHenry, which would have preserved the firearm conviction if defendant were retried and convicted by Arkansas in accordance with constitutional precepts. The defendant has served his sentence on the Arkansas conviction and is not subject to retrial.

The legal rationale of the retrospective application of Gideon may be theoretical in most instances, but the bedrock of the principle of retrospective application is that the defendant would not have been convicted if he had had counsel. Viewed in this way, it can be readily seen that, in the eyes of the law, the defendant, although convicted without counsel, would not have been a convicted felon with counsel, and therefore would not be in the prohibited status at the time of transportation.

The Government quite properly argues that a person’s guilt or innocence is not the test of congressional power to control firearms, citing United States v. Brown, 484 F.2d 418 (5th Cir. 1973). In Brown we held former 15 U.S.C. § 902(e) (1964), prohibiting interstate transportation of firearms by a person under indictment, constitutional. The prohibition was held to involve neither an arbitrary classification nor a violation of an individual’s presumption of innocence. Brown also held that “the crime under § 902(e) is complete when a firearm is carried in interstate commerce by a person then under indictment,” even if the indictment is later found invalid. Id. at 424. We do not ground our decision on Dameron’s innocence of the state crime, however, but on the meaning of the words of the statute which we hold do not cover a person whose felony conviction is unconstitutional.

Reversed.

      . 15 U.S.C. § 902(e) (1964) was repealed by § 906 of the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, 82 Stat. 197, 234. Interstate transportation of a firearm by convicted felons is now unlawful under both 18 U.S.O.A. § 922(g)(1), the statute involved in the present appeal, and 18 U.S.O.A. App. § 1202(a).

      . Although the Court’s opinion parenthetically explains Pasterehik’s unlawful act as “possession of a firearm by a felon,” 466 F.2d 1368, such conduct was not within the ambit of 15 U.S.C. § 902(e) (1964) which covered only transportation or shipment in interstate commerce. The Court’s opinion on Pasterchik’s direct appeal reveals that he was in fact charged with interstate transportation. See Pasterchik v. United States, 400 F.2d 696, 697, 701 (9th Cir. 1968).

      . Liles affirmed a conviction under 18 U.S. C.A. App. § 1202(a) for possession of a firearm by a felon although the defendant’s previous felony conviction had been reversed for lack of sufficient evidence the day before he was convicted under Section 1202(a).

      . Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) (Gideon violative convictions cannot be used either to support guilt or to enhance punishment under a recidivist statute); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (Resentencing required when sentencing court took into consideration convictions obtained in violation of Gideon); Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 49 (1972) (Convictions void under Gideon may not be used to impeach defendant on cross-examination).

      . It might be well to point out that the Government did not proceed under the indictment provision of the statute in this ease, nor has it argued that the defendant is in some status of an indicted but uncon-victed felon.

      . This section, like 15 U.S.O. § 902(g) (1964), was repealed in 1968. See note 1, supra. It has been replaced by 18 U.S.O.A. § 922(g)/(l).


source: Caselaw Access Project

author: CLARK, Circuit Judge:

license: Public Domain

text:
    The KRAMERTOWN COMPANY, INC., Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 73-2809
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 23, 1974.

      Charles Delbert Hosemann, Jr., Charles L. Brocato, Jackson, Miss., for petitioner-appellant.
    Scott P. Crampton, Meyer Rothwacks, Asst. Attys. Gen., Tax Div., U. S. Dept, of Justice, Leonard J. Henzke, Jr., Lawrence B. Gibbs, Acting Chief Counsel, I. R. S., Alfred S. Lombardi, Tax Div., Dept, of Justice, Washington D. C., for respondent-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

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

   CLARK, Circuit Judge:

The Kramertown Company (taxpayer) appeals from the tax court’s holding that the cost of certain rooftop air conditioning and heating units was not eligible for the investment credit. We affirm.

The facts relevant to this appeal were mainly stipulated and are in part as follows. Taxpayer is the owner of a seven store shopping center. It provides rooftop heating and air conditioning units to six of the center’s store tenants pursuant to negotiated leases. The eleven units provided for these six stores cost the taxpayer 69,021.71 dollars. These dual energy units are supplied with natural gas and electric energy from the interior of the stores. The gas lines run through an exterior cutoff valve before reaching the point of connection to the units which is a pipe coupling. The electric lines run through an exterior weather-proof disconnect switch box before the .ultimate point of connection to the units. The units themselves rest upon wood runners or steel beams laid upon the finished surface of the roof and are not directly attached to the building. However, the units are connected to permanent ducts which lead through the roof surface into the store they service. These same ducts distribute treated air throughout the inside of the store.

Section 38(a) of the Internal Revenue Code of 1954 provides for a credit against income tax for investment in certain depreciable property. Section 48 of the Code defines “Section 38 property” as tangible property but “not including a building and its structural components.” Since these heating and air conditioning units are clearly tangible property, the issue presented by this appeal turns upon whether the units are structural components of a building for purposes of Section 48.

Treas.Reg. 1.48-l(e)(2) provides: “[t]he term ‘structural components’ includes such parts of buildings as walls, partitions, floors and ceilings, as well as any permanent coverings therefor, such as paneling or tiling; windows and doors, all components (whether in, on, or adjacent to the building) of a central air conditioning or heating system, including motors, compressors, pipes and ducts.” The tax court held each of the rooftop units in the instant case to be a component of the storewide central air conditioning system of which it is a part within Treas.Reg. 1.48-1 (e) (2). Although it is based on facts that were mainly stipulated, this ultimate factual conclusion is binding if it is a permissible inference even though this court might have reached a contrary result had it been the trier of fact. Moreover, our independent review of the facts leaves us without the slightest doubt that these combination air conditioning and heating units, are as much parts of a central system for each store as such units would be if they had been built into the roof or walls or otherwise more permanently integrated with the other internal components.

The taxpayer argues that the effect of Treas.Reg. 1.48-1 (e)(2) and the interpretive revenue rulings is contrary to the intent of Congress in two respects: (1) they fail to adequately distinguish between individual air conditioning units and a central air conditioning system as required by the legislative history of Section 38; (2) they fail to accord enough significance to state fixtures law and employ a test contrary to the Eighth Circuit’s decision in Minot Federal Savings and Loan v. United States, 435 F.2d 1368 (1970).

The technical explanation of the Revenue Act of 1962 contained in the Senate Report states:

Assets accessory to the operation of a business such as . individual air conditioning units generally constitute tangible personal property for purposes of Section 38, even though such assets may be termed fixtures under local law.
The terms “structural components” of a building includes such parts of the building as central air conditioning and heating systems, . . .

The House Ways and Means Committee Report also contains an express distinction between individual units and components of a central air conditioning system. While the Treasury Regulation speaks only in terms of a central air conditioning system and does not also refer to individual air conditioning units as did the legislative reports, taxpayer ascribes entirely too much to the form used to set out the regulation.

Section 38(b) provides: “[t]he Secretary or his delegate shall prescribe such regulations as may be necessary to carry out the purposes of this section and subpart B.” The reason for this statutory grant of power in Section 38 is obvious. Congress deemed it more appropriate to rely upon the administrative flexibility of the Treasury Department for those nice distinctions which must be drawn as to eligibility of various types of property for the investment credit. Regulations issued pursuant to the express statutory authorization in Section 38(b) are legislative in character and as binding upon a court as a statute if they are (a) within the granted power (b) issued pursuant to proper procedure and (c) reasonable. K. Davis, Administrative Law, Section 5.03 at 299.

Since the taxpayer does not allege procedural deficiencies in the issuance of these regulations, it must show that they are without the power granted by Section 38 or that they are unreasonable. It is true that the regulation does define structural components only in terms of including components of a central air conditioning system, rather than taking the dual approach of also setting out specifically that structural components excluded individual air conditioning units. However, the mere utilization of this form of expression furnishes too slight a basis to infer that the Secretary intended thereby to expand the term central air conditioning system to encompass individual air conditioning units as well in contravention of the legislative history of Section 48. The accuracy of this interpretation is confirmed by observing that one year after the enactment of the investment credit, when Congress considered changes in its provisions, the history of that consideration shows it expressly approved the Commissioner’s proposed regulations as consistent with Congressional intent in enacting the investment credit. “The proposed regulations issued by the Treasury Department with respect to the term ‘structural components’ provide an extensive list of the type of items considered to be structural components and therefore not eligible for the investment credit . . . these regulations are an accurate interpretation of the intention of Congress last year in this respect.” H.R.Rep.No.749, 88 Cong., 1st Sess., page 41 (1964-1 Cum.Bull. 123, 159). The Senate Finance Committee Report includes the same statement. S. Rep.No.830, 88 Cong., 2d Sess., (1964-1 Cum.Bull. 505, 545).

The taxpayer’s second contention asserts that under Mississippi law these combination units are considered personal property and that this determination should be given some weight. Taxpayer gleans from the Committee Report an intention to permit the term tangible personal property to be given a broader meaning than that term is given under state law, but without in any sense permitting it tb have a more restrictive meaning. We think a more reasonable reading of the cited Committee Report language is that state law is irrelevant. See Watson v. Commissioner, 345 U.S. 544, 73 S.Ct. 848, 97 L.Ed.2d 1232 (1953). Additionally, taxpayer’s argument taken to its logical conclusion would result in creating investment credit rights which would vary from state to state. For instance, if State X defined detachable components of a central air conditioning system to be personal property and the law of State Y considered such components to be real property, an investment credit for like property would be allowable in State X but not in State Y.

Finally, the taxpayer argues that to ■ hold these units to be structural components of a building is necessarily inconsistent with Minot Federal Savings and Loan Association v. United States, 435 F.2d 1368 (8th Cir. 1970). In Minot the Commissioner argued that movable partitions used as room dividers in a building owned by the taxpayer-lessor served the function of walls and were thus structural components of the leased building not eligible for the investment credit. This argument was rejected by the court as contrary to the legislative history of Section 48, the intent of the investment credit, and to the Treasury Department’s regulations. The court held that since these dividers were not permanent in nature and could be easily detached and moved, they were tangible personal property, eligible for the investment credit.

The taxpayer asserts that these rooftop air conditioning units similarly cannot pass a permanency test because they too can be detached. Taxpayer concedes that the air ducts and the gas and electric lines which make the units functional are structural components. However, it argues that since the units themselves are designed and installed so that they can be removed from the building for service or replacement and since no unit services more than one store tenant, they are “individual” units. We disagree. The motors and compressors of most central air conditioning units are capable of being removed and replaced by relatively simple mechanical methods. Thus, the quality of removability is not the sole determinant of whether a piece of machinery is a structural component. The weight, location and capacity of these storewide rooftop units are all indications of the reasonableness of classifying these machines of structural components of the buildings they serve under either a functional test or a permanency test. The decision of the tax court is

Affirmed.

      . See 26 U.S.O. § 38.

      . One tenant, A & P Pood Stores, Inc., fur- ' nishes its own heating and air conditioning units under its lease with taxpayer.

      . S.Rpt. 1S81, 87th Cong., 2d Sess., 1962-3 Cum.Bull. 858.

      . H.Rpt. 1447, 87th Cong., 2d Sess., 1962-3 Cum.Bull. 415.

      . The Senate Report provides:
      Tangible personal property is not intended to be defined narrowly here, nor to necessarily follow the rules of State law. It is intended that assets accessory to a business such as grocery store counters, printing presses, individual air conditioning units, etc., even though fixtures under local law, are to qualify for the credit. S.Rpt. 1881, 87th Cong., 2d Sess., 1962-3 Cum. Bull. 722.

      . Our disposition of the instant case is fully supported by another Tax Court case on indistinguishable facts. Fort Walton Square, Inc. v. Commissioner, 54 T.C. 653 (1970).


author: DUNIWAY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles Albert MULLIGAN et al., Defendants-Appellants.
    Nos. 73-1715, 73-1716, 73-1717.
    United States Court of Appeals, Ninth Circuit.
    Nov. 9, 1973.

      Jack M. Schulman (argued), Cleveland, Ohio, for defendants-appellants.
    William D. Keller, U. S. Atty., Robert C. Bonner, Asst. U. S. Atty. (argued), for plaintiff-appellee.
    Before CHAMBERS and DUNIWAY, Circuit Judges, and SCHWARTZ, District Judge.

       The Honorable Edward J. Schwartz, Chief Judge, United States District Court, Southern District of California, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

Mulligan, Christopher and Dinsio appeal from convictions on three counts of an indictment. Count I charged conspiracy to burglarize the United California Bank (hereinafter referred to as the “Bank”) in Laguna Niguel, California, in violation of 18 U.S.C. § 371; Count II charged entering the Bank on or about March 24-27, 1972, with intent to commit larceny, in violation of 18 U.S.C. § 2113(a); Count III charged theft of money and property of a value exceeding $100, in violation of 18 U.S.C. § 2113(b).

I. Searches and Seizures

Appellants challenge the legality of three searches and seizures.

a. The Search in Christopher’s Residence.

Viewing the evidence in the light most favorable to the government, the following are the facts. At about 7:30 in the morning, Christopher was arrested by FBI agents at his Cleveland, Ohio, residence pursuant to a parole violation warrant. When arrested in the upstairs hallway, Christopher was wearing only pajama shorts. Once under arrest, Christopher entered his bedroom, followed by the FBI agents, so that he could obtain clothing, and was ordered to sit on his bed. He was not handcuffed. Between two and one-half feet and three and one-half feet from where Christopher was seated was a closet, the door to which was open.

Immediately after Christopher was ordered to sit on the bed, he stood up without permission and picked up a pair of undershorts lying next to the closet. This action surprised the agents, and Christopher was ordered to sit back on the bed. Within 45 to 60 seconds, Christopher again stood up and moved toward the closet. Agent Robertson, standing between the bed and the closet, put his hand out to stop Christopher; another agent ordered him to return to the bed and asked him what he-wanted. Christopher replied that he wanted a pair of pants, whereupon agent Robertson took a pair of pants hanging on the closet door and passed them to another agent, who emptied the pockets and handed them to Christopher.

Agent Robertson then drew his gun and “brushed the clothing that was hanging in the closet aside to see if there was anybody hiding in there.” He felt “a large lump in the bottom of a garment bag, a hard lump that could have been a weapon.” He then reached into the garment bag and pulled out a package of money, which contained approximately $30,000 in cash.

Appellants argue that the search violated Chimel v. California, 1969, 395 U. S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, and its progeny. Chimel delineated the types of searches permissible incident to a valid arrest:

There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control” — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. 395 U.S. at 763, 89 S.Ct. at 2040.

The real issue, then, is whether the closet was within Christopher’s “immediate control;” was it an “area from within which he might gain possession of' a weapon . . ..” ? It was not unreasonable for agent Robertson to search the open closet to see if someone was hiding there with a weapon to help Christopher resist arrest or effect his escape. The search was additionally justified by Christopher’s two sudden movements toward the open closet. Although he was ostensibly trying to reach his clothes, these two actions surprised the agents and aroused agent Robertson’s suspicions that someone might be hiding in the closet with a weapon. Under these circumstances, the closet was within Christopher’s immediate control; it was an “area from within which he might gain possession of a weapon. . . .” Id. (emphasis added) See also United States v. Wysocki, 5 Cir., 1972, 457 F.2d 1155, 1160; United States v. Patterson, 10 Cir., 1971, 447 F.2d 424; Application of Kiser, 8 Cir., 1969, 419 F.2d 1134, 1137.

Appellants argue that this case does not fall within the ambit of Chimel, citing United States v. Mapp, 2 Cir., 1973, 476 F.2d 67 and United States v. Shye, 6 Cir., 1973, 473 F.2d 1061. In Mapp, the defendant, a known seller of heroin, was seen to enter the apartment of one Linda Walters carrying a large brown paper bag. After he left the apartment ten minutes later without the bag, federal narcotics agents forced their way into the apartment, arrested Ms. Walters in her bedroom, and demanded the package that Mapp had left earlier. She pointed to a closed closet in the bedroom. A search of the closet produced a brown paper bag containing two kilograms of heroin. The court held that this evidence must be suppressed. The difference between that case and the one before us is apparent.

In United States v. Shye, supra, the Sixth Circuit affirmed the District Court’s suppression of a bag of money found in a “closet-type depression” next to a water heater in an apartment in which the four defendants were arrested. 473 F.2d at 1063. Although the bag of money was only four feet from one of the defendants, the court held that the area from which the bag was seized was not within the defendant’s “immediate control,” as defined in Chimel. Shye is easily distinguishable from the present case. In Shye, as in Mapp, supra, the only purpose of the search was to seize evidence. The search here was to protect the agents from possible harm. The latter type of search is expressly condoned by Chimel; the former is expressly forbidden without a search warrant.

b. The Search of Dinsio’s Residence.

On June 27, 1972, a search warrant was issued for appellant Dinsio’s residence in Boardman, Ohio. The supporting affidavit contained the following salient allegations:-

1. Dinsio was connected with the burglary of the Bank. A June 2, 1972, search of an automobile, discussed infra, produced, among other items, a shotgun, walkie-talkies, drills, flashlights and batteries, gloves, hammers, and three gold coins identified as having been stolen during the burglary from a safety deposit box in the Bank. One of the hammers was identified as the tool used to force safety deposit boxes during the burglary. In addition, Dinsio’s fingerprints were found on the flashlight batteries.

2. $98,600 was discovered buried in the ground across the street from Din-sio’s residence.

3. According to a reliable informant, Dinsio’s habit upon completing a burglary was to bury some of the loot.

4. A reliable informant was told by Dinsio that he had robbed an Ohio bank and had a large portion of stolen money in his possession.

5. The Boardman, Ohio, address was Dinsio’s sole residence.

6. When Dinsio was arrested he had $537 on his person.

Appellants assert that the affidavit did not state probable cause for the search. The constitutional requirements for a valid search warrant were set forth in Aguilar v. Texas, 1964, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and further explicated in Spinelli v. United States, 1969, 393 U.S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637. Aguilar requires an affidavit that discloses the underlying circumstances from which the affiant has concluded that his information is reliable and that contains a statement of the underlying circumstances “to enable the magistrate independently to judge of the validity” of the affiant’s conclusion that the things to be seized are where he says they are. United States v. Bailey, 9 Cir., 1972, 458 F.2d 408.

On appeal, the test applied by this court is that “[t]he facts submitted to the Commissioner must be sufficient to justify a conclusion by him that the property which is the object of the search is probably on the person or premises to be searched at the time the warrant is issued.” Durham v. United States, 9 Cir., 1968, 403 F.2d 190, 193. Moreover, if “in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” United States v. Ventresca, 1965, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684.

Here the magistrate had before him six important allegations concerning Dinsio. In reviewing the affidavit, we ignore the fourth allegation listed above. The fact that Dinsio told an informant that he had robbed an Ohio bank is irrelevant to a search warrant which on its face is specifically limited to evidence related to the robbery of a California bank. Nevertheless, the remaining five allegations did present sufficient probable cause. They linked Dinsio with the crime, and the allegation concerning the buried money linked him with evidence of the crime. The latter allegation meets the double test of Aguilar. Although there was no direct evidence that any evidence from the burglary was inside Dinsio’s residence, there was sufficient evidence from which the magistrate could use his common sense to infer that the loot and tools, if not buried, were probably in the house. United States v. Ventresca, supra, 380 U.S. at 108, 85 S.Ct. 741. The fact that Dinsio was arrested with only $537 on his person and that the Boardman house was his sole residence increased this probability.

Because “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause,” we conclude that the affidavit contained a sufficient constitutional basis for a finding of probable cause.

c. The Search of a 1962 Oldsmobile.

On June 2, 1972, a search warrant was issued for a 1962 Oldsmobile automobile parked in the driveway of one Earl Dawson in Tustin, California. Appellant Mulligan had brought the car to Dawson’s residence in late March, 1972, and it remained there until the June 2 search. The car was registered under a fictitious name at a nonexistent address.

The government argues that appellants lack standing to attack the search of the Oldsmobile. Appellants Christopher and Dinsio do lack standing. Suppression of a search “can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence.” Alderman v. United States, 1969, 394 U.S. 165, 171-172, 89 S.Ct. 961, 965, 22 L. Ed.2d 176. See also, Jones v. United States, 1960, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697; Diaz-Rosendo v. United States, 9 Cir., 1966, 357 F.2d 124, 130-134, cert. denied, 1966, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83.

As to Mulligan, the government presents four reasons why he has no standing:

1. He had no control over the Oldsmobile when it was searched.
2. He was not present during the search.
3. He was not the registered owner of the Oldsmobile.
4. He had surrendered possession of the car to Dawson for over two months before the search.

The standard for standing was stated in Jones, supra: “In order to qualify as a ‘person aggrieved by an unlawful search and seizure’ [see Fed.R. Crim.P. 41(e)] one must have been a victim of a search or seizure, one against whom the search was directed . . ..” 362 U.S. at 261, 80 S.Ct. at 731. The fact that a person neither has control over the premises nor is present during the search does not preclude him from being a victim of that search and seizure. As to the government’s third objection, despite the fact that the car was registered under a fictitious name, Mulligan was nevertheless the true proprietor. Concerning the fourth point, Mulligan did not abandon possession of the car; he telephoned Dawson on June 2 to say that he was going to get it on that day. Mulligan has standing to challenge the search.

Mulligan argues that the supporting affidavit failed to set forth sufficient facts to establish probable cause.

The affidavit contained the following allegations:

1. There was circumstantial evidence showing that the appellants, all of whom had prior convictions, were in California during March, 1972, and left immediately after the Bank burglary.

2. Mulligan used Dawson’s house for a “private meeting” and asked if he could leave his Oldsmobile at Dawson’s for three weeks.

3. The car was registered to a fictitious owner at a nonexistent address.

4. In late March, Mulligan told Dawson that he was going to buy some “tools,” and drove off in the ear. He returned the car the same day, where it remained until the June 2 search.

5. An FBI agent looked through the car windows on June 2 and saw a pair of gloves similar to a pair found at the scene of the burglary as well as a footprint made with a light-colored powdery substance resembling the crushed concrete found in the Bank’s vault.

6. Mulligan telephoned Dawson on June 2 to say that he was flying out from Cleveland to get the car.

These allegations meet the constitutional standards of Aguilar and Spinelli, supra. The affidavit is even stronger than the one supporting the warrant for the search of Dinsio’s residence; it shows direct observation of objects similar to those found at the scene of the burglary.

II. The Admissions of Mulligan and Dinsio — Bruton

The trial court, over objection, allowed Dawson to testify to a conversation he had with Mulligan on June 2, 1972, in which Mulligan implied that he was involved in the Bank burglary. The court also admitted, over objection, statements made by Dinsio to one Richard Gabriel at the Los Angeles County Jail after Dinsio’s arrest, in which Dinsio admitted his participation in the burglary. The jury was instructed that they were to consider the above statements as evidence only against the declarant and not against any of the co-defendants.

Appellants argue that the admission of these statements violated Bruton v. United States, 1968, 391 U.S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476. In that case, the Court held that the introduction of an extrajudicial admission of one defendant that implicates or inculpates a co-defendant violates that co-defendant’s sixth amendment right to confrontation. Appellants’ reliance on Bruton is misplaced. Mulligan’s statements inculpated only Mulligan. Dinsio’s statements inculpated only Dinsio. Appellants ask us to extend the Bruton rule to exclude the admission of one defendant even though the admission does not directly implicate a co-defendant. We decline to do so.

There is little danger that a jury in a joint trial, in weighing the evidence against A, will consider against A an admission by B concerning only B’s activities. Following the appellants’ argument to its logical conclusion would require separate trials in every case where any defendant has made an admission. Such a holding is wholly unwarranted.

III. The Admissions of Mulligan and Dinsio — Massiah

Appellants argue that Mulligan’s admission to Dawson and Dinsio’s admission to Gabriel violated the rationale and spirit of Massiah v. United States, 1964, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. We disagree.

Massiah held that a defendant was denied his sixth amendment right to counsel “when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” 377 U.S. at 206, 84 S.Ct. at 1203. Mulligan’s statement was made before he was arrested. The Supreme Court has unequivocally rejected the argument that Massiah should be extended to pre-arrest statements. Hoffa v. United States, 1966, 385 U.S. 293, 309-310, 87 S.Ct. 408, 17 L.Ed.2d 374. Massiah is also inapposite to Dinsio’s statements to Gabriel. Massiah excludes only evidence which federal agents elicit from the defendant. 377 U.S. at 206, 84 S.Ct. 1199. It was only after Dinsio admitted participation in the burglary to Gabriel that the latter contacted FBI agents and gave then a statement. Gabriel was not a “creature of law enforcement” when Dinsio confessed to him.

Affirmed.

      . Cf. United States v. Baca, 10 Cir., 1969, 417 F.2d 103, 105.

      . gee also United States v. Lucarz, 9 Cir., 1970, 430 F.2d 1051, 1055:
      “The situation here does not differ markedly from other cases wherein this court and others . . . have upheld searches although the nexus between the items to be seized and the place to be searched rested not on direct observation, as in the normal search-and-seizure case, but on the type of crime, the nature of the missing items, the extent of the suspect’s opportunity for concealment, and normal inferences as to where a criminal would be likely to hide stolen property.”

      . Spinelli v. United States, 1969, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637; see also Beck v. Ohio, 1964, 379 U.S. 89, 96-97, 85 S.Ct. 223, 13 L.Ed.2d 142.


author: BRIGHT, Circuit Judge.

text:
    TEAMSTERS, LOCAL UNION NO. 688, Affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, a Labor Organization, Plaintiff-Appellant, v. CROWN CORK & SEAL COMPANY, INC., Defendant-Appellee.
    No. 73-1084.
    United States Court of Appeals, Eighth Circuit.
    Submitted Oct. 15, 1973.
    Decided Dec. 26, 1973.
    Rehearing Denied Jan. 18, 1974.

      Earl B. Wilburn, St. Louis, Mo., for appellant.
    Edwin D. Akers, Jr., St. Louis, Mo., for appellee.
    Before LAY and BRIGHT, Circuit Judges, and EISELE, District Judge.

       G. THOMAS EISELE, District Judge, Eastern District of Arkansas, sitting by designation.

   BRIGHT, Circuit Judge.

Teamsters Local Union No. 688 (the Union), affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, brought this breach of contract action against Crown Cork & Seal Company, Inc., (the Employer) seeking a money judgment representing the difference between actual contributions made by the Employer to an employees’ pension fund after April 1970, and the greater amounts allegedly required by the then-existing collective bargaining agreement between the parties. Federal jurisdiction rests on Section 301(a) of the Labor Management Relations Act, 29 U.S. C. § 185(a) (1970). The district court construed the pertinent pension provision of the contract against the Union and denied it relief. The Union brings this timely appeal. We reverse for reasons stated below.

In the collective bargaining agreement between the parties covering a three-year period of March 1, 1970 to February 28, 1973, the article governing pension contribution read:

Effective MARCH 5th, 1969, the Company agrees to contribute to the Central States, Southeast and Southwest Areas Pension Fund the sum of TEN ($10.00) DOLLARS per week for each employee who has been on the payroll thirty (30) days or more.
The Company thereafter (but for a period not exceeding the termination of this Contract) agrees to contribute to said Central States, Southeast and Southwest Areas Pension Fund such amount or amounts as are or may be in the future from time to time required to be paid by other contributory Employers to said Fund for each employee covered by the Central States Area Local Cartage Agreement. (Emphasis added.)

The appellee-Employer pursuant to this agreement has paid the pension fund ten dollars per week for each qualified production employee covered by the agreement but has refused to make any additional contributions measured by increased pension contributions in the current Central States Area Local Cartage Agreement. This latter agreement was completed in July 1970, and provided that employer parties pay into a pension fund $11 per week effective April 1970, $12 per week effective January 1, 1971, $13 per week effective June 1, 1972, and $14 per week effective January 1, 1973, for each qualified employee.

As explained by the testimony presented at the trial, this Central States Local Cartage Agreement embodies a labor agreement applicable to employers engaged in the local cartage industry in the metropolitan area of St. Louis, Missouri. Appellee is not in the cartage business, and neither it nor appellant-Local No. 688 has ever been a signatory to the labor agreement covering the cartage industry of metropolitan St. Louis.

The appellant-Union contends that the reasonable interpretation of the provision of the labor contract here in issue would compel the Employer to pay, as pension contributions on behalf of its employees, the same amounts contributed to the pension fund by employers who are bound by the Central States Local Cartage Agreement. As previously noted, the appellee-Employer has paid the pension fund ten dollars per week for each qualified employee as required by the first paragraph of the questioned pension provision but contends that the second paragraph only becomes operative during the contract period if and when it hires truck drivers who are protected by the Cartage Agreement.

The trial court determined the questioned second paragraph to be ambiguous in meaning and subject to the interpretation urged by either party to the contract. Applying principles of contract law, the trial court adopted the Employer’s construction of the provision and held that when part of a contract is unclear or open to different constructions, it is construed most strongly against the party who prepared it and at whose urging it was inserted into the contract. See Miravalle Supply Co. v. El Campo Rice Milling Co., 181 F.2d 679, 683 (8th Cir.), cert. denied, 340 U.S. 822, 71 S.Ct. 56, 95 L.Ed. 604 (1950). We disagree with this conclusion and hold that the Union has correctly construed this disputed contract provision.

According to appellee’s argument, since the reading of the questioned terms produces ambiguity of meaning, this court should affirm on the basis of the “clearly erroneous” rule in Fed.R.Civ.P. 52(a). However, Rule 52(a) does not apply to appellate review of a contract issue resting upon the construction of written documents. We must reach an independent judgment as to the meaning of the contract. Dingman v. United States, 429 F.2d 70, 72 (8th Cir. 1970); Arrow Equipment, Inc. v. M-R-S Mfg. Co., 416 F.2d 152, 154 (8th Cir. 1969). See Eddy v. Prudence Bonds Corp., 165 F.2d 157, 163 (2d Cir. 1947), cert. denied, 333 U.S. 845, 68 S. Ct. 664, 92 L.Ed. 1128 (1948). Appellee cites the case of St. Louis Typographical Union No. 8 v. Herald Company, 402 F. 2d 553 (8th Cir. 1968), in support of its Rule 52(a) argument; however, that case is distinguishable on its face because there the existence of pension provisions rested solely upon disputed oral testimony.

As a basic proposition we note that contract principles of state law do not control in the construction of collective bargaining agreements which are the subject of Section 301(a) suits under the L.M.R.A. The Supreme Court in Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-457, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957), said:

We conclude that the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. * * * Federal interpretation of the federal law will govern, not state law. * * * But state law, if compatible with the purpose of § 301, may be resorted to in order to find the rule that will best effectuate the federal policy.

Subsequently, the Court in United Steelworkers v. American Mfg. Co., 363 U.S. 564, 567, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960), elaborated further on this doctrine:

In our role of developing a meaningful body of law to govern the interpretation and enforcement of collective bargaining agreements, we think special heed should be given to the context in which collective bargaining agreements are negotiated and the purpose which they are intended to serve.

Thus, in conformity to this instruction, we need examine with special care the context in which the disputed bargaining agreement was negotiated.

The record discloses that an earlier collective bargaining agreement between appellant and appellee effective for three years from March 1, 1967, contained the following provision relating to pensions:

ARTICLE XXIX — PENSIONS
Effective February 27, 1967, the Company agrees to contribute to the Central States, Southeast and Southwest Areas Pension Fund the sum of eight dollars ($8.00) per week for such employee who has been on the payroll thirty (30) days or more.
Effective March 4, 1968 the Company agrees to contribute to the Central States, Southeast and Southwest Areas Pension Fund the sum of nine dollars ($9.00) per week for each employee who has been on the payroll thirty (30) days or more.
Effective March 5, 1969 the Company agrees to contribute to the Central States, Southeast and Southwest Areas Pension Fund the sum of ten dollars ($10.00) per week for each employee who has been on the payroll thirty (30) days or more.
The Company thereafter (but for a period not exceeding the termination of this contract) agrees to contribute to the said Central States, Southeast and Southwest Areas Pension Fund such amount or amounts as are or may be in the future from time to time required to be paid by other contributory Employers to said Fund for each employee covered by the Central States Area Local Cartage Agreement.

The eight, nine and ten dollar amounts called for in that 1967 contract generally track the amounts required to be paid for employees protected by the Central States Area Local Cartage Agreement in effect for the period of April 1, 1967 to March 31, 1970. The cartage agreement specified contributions of $9 per week for each qualified employee effective April 1, 1968, and $10 per week effective April 1,1969.

In preparing a new 1970 contract to cover appellee’s employees, the business representative of Teamsters Local No. 688 testified that he copied the last two paragraphs from the pension provision (Article XXIX, supra) of the 1967 contract. The Union made no demand for pension increases and the language now in dispute became incorporated into the agreement without discussion by the parties. The Union’s representative testified without contradiction that this last paragraph of the pension provision was included in the 1967 agreement at the request of the Union. Neither in 1967 nor in 1970, did the Union represent any truck drivers under its contract with ap-pellee, Crown Cork & Seal Company, Inc., nor, as already noted, was either appellant or appellee a party to the Ceñ-tral States Area Local Cartage Agreement.

In construing the disputed pension provisions of the 1970 agreement, the Employer argues that some significance should be attached to the fact that the Union also represents appellee’s office employees under a separate contract. In bargaining sessions held in 1970, the Union successfully negotiated an increase in the pensions for these office workers to ten dollars but did not include language in the pension provision similar to that found in the disputed paragraph. At the same time, no special demands were made for an increase in pension contributions for the production employees. The Employer argues that the subsequent developments tend to establish that the parties intended to contract only for the ten dollar pension rate. We reject this argument.

It is apparent from the record that in the negotiations by the production workers in 1970, those provisions of the earlier labor agreement, including the pension provisions which produced no friction between the Employer and the Union, were carried over and incorporated in the new contract. We assume such a practice to be a normal course in negotiating the renewal of labor-management contracts.

Furthermore, following the instruction of Steelworkers, supra, we must look at the intention of the parties as expressed in the 1967 contract and carried over until 1970, and the context which produced the language of the now-disputed pension agreement. Examining the record, therefore, we find that the overall pension provision in the 1967 agreement is in general accord with the maximum pension contributions then stipulated in the Cartage Agreement. The language of the 1967 agreement as modified to reflect only the last applicable (1969) date became the language of the 1970 agreement. The effect of this language served to ensure that production employees of Crown Cork & Seal represented by appellant-Local 688 would receive the same maximum pension benefits as other Teamster members of unions participating in the Cartage Agreement. Thus, when the Teamsters and the local cartage industry finally concluded an agreement in July of 1970, increasing employee pensions in the cartage industry as of the preceding April, the appellee, Crown Cork & Seal, under its own labor agreement became obligated to make pension contributions equivalent to pension contributions called for in the latest local Cartage Agreement.

We think that the construction of the disputed pension provision of the contract urged by the Union gives it a present vitality applicable to current employees. Conversely, the Employer’s argument seems most tenuous — that language in the disputed paragraph stipulating that contributions which are to be paid for each employee covered by the Central States Area Local Cartage Agreements should be taken to refer to future employees who belong to a union which is a party to the Local Cartage Agreement. Such a construction gives the disputed contract provision applicability to a most unlikely contingency. Recognizing the generally hard bargaining by both sides to reach agreement in labor-management relations, we think it unrealistic to conclude that the parties negotiated any pension agreement in this case to cover nonexistent employees.

We believe the teachings of Textile Workers, supra, and Steelworkers, supra, require federal courts to place a practical and realistic construction upon labor agreements, giving due consideration to the purpose which they are intended to serve. This contract needs to be construed as applying to existing employees, not those to be hired in the future.

Accordingly, we reverse and remand this case to the district court and direct the entry of judgment in favor of the Union for the deficiency in pension contributions. According to the record, that sum amounts to $30,041 from April 1970 through April 1972.

Reversed and remanded.


text:
    G & M, INC., a corporation, Plaintiff-Appellee, v. R. B. NEWBERN, Defendant-Appellant (two cases).
    Nos. 71-2561, 72-1287.
    United States Court of Appeals, Ninth Circuit.
    Oct. 9, 1973.

      Jack H. Cairns (argued), Portland, Ore., Neis Peterson, of Peterson, Chaivoe & Peterson, Portland, Ore., for defendant-appellant in No. 71-2561.
    Bruce M. Hall (argued), Kenneth M. Novack, Gerard K. Drummond, of Rives, Bonyhadi & Hall, Portland, Ore., Robert E. Heaton, of Short, Cressman, & Cable, Seattle, Wash., for plaintiff-appellee in No. 71-2561.
    David M. Brown (argued), Robert Sarno, of Fleishman, McDaniel, Brown & Weston, Hollywood, Cal., for defendant-appellant in No. 72-1287.
    Robert C. Bonner, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee in No. 72-1287.
    Before DUNIWAY, ELY, and WRIGHT, Circuit Judges.
   OPINION

DUNIWAY, Circuit Judge:

These appeals arise from the same case, and were heard together, although they were separately briefed.

1. The Appeal in No. 71 — 2561.

This is an appeal from a final judgment. We affirm.

In March of 1968, plaintiff-appellee G & M, Inc. purchased about 104,000 shares of the stock of Gas-Ice Corp. from defendant-appellant R. B. Newbern (about 21,000 shares), his wife (about 49,000 shares), his son (about 12,000 shares) and an associate (about 21,000 shares). Gas-Ice was in the business of producing liquid carbon dioxide and dry ice. The purchase price of the stock was $2.87 a share. G & M paid $.47 a share as a down payment and was to pay the remaining $2.40 over a ten-year period. In addition to these shares, there were about 46,000 publicly owned shares outstanding. G & M also purchased most of these, paying $2.87 per share, and eventually owned more than 98% of the stock of Gas-Ice. The total purchase price was $423,870.30. In addition, G & M agreed that Gas-Ice would lease from Mr. and Mrs. Newbern a storage facility, which they owned, known as the “tank farm,” at a rental of $1,200 a month for ten years, with an option to purchase at the end of five years for $90,000, or at the end of ten years for $60,000.

G & M made the purchase in reliance on Newbern’s representations as to the general physical and financial condition of Gas-Ice and the tank farm. Most of these representations proved false. G & M then brought this action against New-bern for damages, alleging violations of the securities laws, 15 U.S.C. § 78j and Rule 1 Ob-5, and breach of contractual warranties. A jury returned a general verdict of $160,000 in favor of G & M.

Newbern makes a number of arguments. We consider them seriatim.

1. Newbern had told G & M that the tank farm was under no prior lease. In fact Gas-Ice had in 1965 leased the tank farm from the Newbems for ten years at $600 per month. This is one of the misrepresentations alleged by G & M.

Newbern argues that the district court was precluded by collateral estoppel from considering the fraud as to the lease because of a decision of the Oregon Circuit Court (since affirmed by the Oregon Supreme Court). In that case Gas-Ice was plaintiff and Newbern was defendant. Gas-Ice claimed that New-bern had breached his fiduciary duty to Gas-Ice when he was an officer of that corporation by having Gas-Ice enter into the 1965 and 1968 leases of the tank farm. The basis of the complaint was that Newbern was aware that a permit for the facility had never been issued by the state Chief Boiler Inspector be-i cause of structural defects, and that the facility was liable to being shut down at any time, as it was in fact in June of 1970. Gas-Ice sought, inter-alia, can-cellátion of the 1968 lease. The state court, while finding that plaintiff had been constructively evicted from the facility when it was shut down, declined to treat the lease as void ab initio.

Newbern argues that G & M is estopped by that judgment from relying upon his fraudulent representations about the two leases in this case. The issue in this case is the misrepresentations about the lease, as part of the larger picture of misrepresentations involved in the contract. While G & M is in such a relationship with Gas-Ice that collateral might apply in an otherwise proper ease, the issues involved in the two cases are not sufficiently similar to bring that doctrine into play. See Bahler v. Fletcher, 1970, 257 Or. 1, 474 P.2d 329; Schwartz v. Pub. Admin., 1969, 24 N.Y. 2d 65, 298 N.Y.S.2d 955, 246 N.E.2d 725.

2. Newbern argues that the district court erred in its instruction about the proper measure of damages for violations of the securities laws. The jury found that plaintiff’s damages were $160,000, or $1.08 per share for the approximately 148,000 shares that plaintiff purchased. Newbern’s claim is that if he is liable, it is only for the $1.08 per share for the 21,000 shares that he himself sold to G & M.

We disagree. A plaintiff who is induced to buy or sell stock as a result of misrepresentations made by someone not a party to the sale may sue that person for damages incurred as a result of the sale. See, e. g., Brennan v. Midwestern United Life Ins. Co., N.D.Ind., 1966, 259 F.Supp. 673, 682; New Park Mining Co. v. Cranmer, S.D.N.Y., 1963, 225 F.Supp. 261, 266; Freed v. Szabo Food Service, Inc., CCH Sec. L. Rptr., ¶ 91,317 (1961-64 Transfer Binder, N.D.Ill., Jan. 14, 1964). See generally 2 Bromberg, Securities Laws Fraud-See. Rule 10b-5, § 8.5 at 208.10 (1971), and cases cited therein.

3. Newbern argues that the court’s instructions on damages under the breach of warranties count were in error, because they did not limit New-bern’s liability to damages resulting from the sale of his shares alone. Again we disagree. The contract for the sale of 104,000 shares provided that the sellers were jointly and severally liable. Thus Newbern by the terms of the contract itself is liable for damages resulting from breaches of warranty as to the 104,000 shares. Further, the contract provided that G & M was to purchase as many of the other outstanding shares in Gas-Ice as it could. The damages incurred by plaintiff as to these remaining shares, therefore, were clearly foreseeable by Newbern, and a natural consequence of Newbern’s conduct. See, e. g., Restatement, Contracts, §'330.

4. Newbern argues that the court should have had the jury return a special verdict, not a general one. He says that because elements of the two claims — violation of the securities laws and breach of contractual warranties— differed, the jury might have found a violation under one claim and assessed damages under another, and because a general verdict was returned, we do not know whether they did or not. The damages, however, would have been the same under either theory. The district court may, in its discretion, refuse to require that the jury return a special verdict. There was no abuse of discretion here. See Rule 49, F.R.Civ.P.; 5A Moore, Federal Practice, jf 49.03 [1] (2d ed. 1971).

5. Newbern argues that the court erred in not giving Newbern’s requested instructions concerning his representations to G & M as to Gas-Ice’s future earnings. Before G & M decided to purchase the stock, Newbern had told G & M that Gas-Ice’s earnings for that year would be about $155,000; the actual earnings totaled some $43,000. New-bern’s position is that his statement was mere expression of opinion, and not actionable.

Under the securities law a reasoned and justified statement of opinion, one with a sound factual or historical basis, is not actionable. Here, however, considering the gross disparity between prediction and fact, and also considering Newbern’s other misrepresentations and failures to disclose, which were relevant to the accuracy of his prediction, we have no difficulty in finding this “prediction” to be actionable. See, e. g., 1 Bromberg, supra, § 5.3 at 97; § 7.2(1) at 147-48; and cases cited therein.

6. Newbern’s other arguments go to the question of the amount of damages that should have been awarded. We do not consider his arguments in detail because it is clear to us that there was ample evidence to support the verdict for $160,000.

2. The Appeal in No. 72-1287.

A. The Rule 37(c) Motion.

On December 3, 1971, the judge issued an order in response to G & M’s Rule 37(c) motion for expenses incurred as a result of Newbern’s failure to admit. Newbern attacks this order on the ground that the district court was without jurisdiction to make it. We agree.

The relevant events occurred as follows:

1) On April 21, 1971, judgment was entered.
2) On July 7, 1971, Newbern filed a timely notice of appeal.
3) On July 16, 1971, G & M filed its Rule 37(c) motion.
4) On August 2, 1971, the court heard the motion.
5) On December 3, 1971, the court issued an order granting the motion in part.

The order provided:

“Plaintiff’s Rule 37 motion is allowed in part:
$1,000 - Expenses
$7,500 - Attorney fees
IT IS ORDERED that the judgment herein be modified to add the sum of $8,500 to the total thereof.”

The general rule is that

“The filing of a timely and sufficient notice of appeal has the effect of immediately transferring jurisdiction from the district court to the court of appeals with respect to any matters involved in the appeal. It divests the district court of authority to proceed further with respect to such matters, except in aid of the appeal, or to correct clerical mistakes . . . or in aid of execution of a judgment that has not been superseded, until the district court receives the mandate of the court of appeals.” 9 Moore, Federal Practice, jf 203.11. See also Ruby v. Secretary of the Navy, 9 Cir., 1966, 365 F.2d 385; Maloney v. Spencer, 9 Cir., 1948, 170 F.2d 231; Rogers v. Consolidated Rock Products Co., 9 Cir., 1940, 114 F.2d 108.

The court’s action in entertaining the motion and making its order does not fall within any of the exceptions to the rule. The order is not “in aid of the appeal.” It is not a correction of a clerical error. It is not an order in aid of execution of judgment. Rather, the order is one which could have been made before judgment and notice of appeal, had G & M chosen to make its motion sooner. The fact that the motion is a belated one does not give the court jurisdiction to entertain it once jurisdiction of the case has passed to this court.

G & M argues that the matter of expenses to be reimbursed under Rule 37(c) relates to matters “not involved” in the appeal. We see no merit in this reasoning. It is true, for instance, that an appeal from an order granting or denying a preliminary injunction does not divest the district court of jurisdiction to proceed with the action on the merits —i. e., the merits are not matters “involved in the appeal.” See Moore, supra, at 739. This is not the situation here: the proof plaintiff was required to make as a result of defendant’s failure to admit was directly involved in the verdict and judgment in the main case. The order purports to amend the judgment. The issue of reimbursement of expenses is not “involved” in this appeal only because plaintiff failed to raise the issue in a timely fashion.

G & M also argues that a holding that the court was without jui-isdiction to entertain the motion would lead to a “race to the courthouse” to which this court should not give its blessing. It is true, as G & M points out, that Rule 37(c) is intended to provide posttrial relief. See 48 F.R.D. 541. And, as Moore notes, if the requested pai*ty denies the authenticity of documents or truth of facts, the requesting party then proves his case at the trial in the usual way and subsequently moves the court for the award of his expenses in putting on the unnecessary proof. 4A Moore, supra, j[ 37.04. G & M seems to be asserting that the requesting party is required to wait until judgment before it may make its Rule 37(c) motion, and, should the other party have its notice of appeal ready for instant filing if verdict and judgment go against it, the requesting party must either win the race to the courthouse with its 37(c) motion or see the district court deprived of jurisdiction to consider it. However, there is no requirement that the requesting party make its motion only after there has been a judgment. At any feasible point during the trial it could make its motion, and the district court could rule on it before judgment, or before an appeal.

B. The Order regarding Payments on the Note.

On November 30, 1971, the judge made an order directing that payments by G & M to the estate of the now deceased Mrs. Newbern on account of the notes that Mrs. Newbern had received from G & M in exchange for her stock in Gas-Ice, be made to the court in satisfaction of the judgment against her husband. The order was issued after a hearing was held to determine ownership of the notes.

The order provided, inter alia:

“It is not necessary for this court to decide at this time whether the notes in the hands of the executor are community property. It is clear that some beneficial interest in the notes is now, or in due course will become, an asset of the defendant. It is also clear that R. B. Newbern is attempting to hinder, delay, and defraud the plaintiff as a judgment creditor in the present case.
******
“IT IS ORDERED that the money due under any note given to Lula P. Newbern ... as part of the purchase price of the stock which was the subject of this litigation shall be paid into court until a sufficient sum has been paid to satisfy the judgment herein.”
We affirm.

Newbern argues that the September 28 order to show cause, which initiated the proceeding, was issued ex parte, and improperly so. There is nothing in this argument. Any defect in the ex parte nature of the proceeding was rectified by the October 14 noticed hearing.

Newbern argues that the court did not comply with the Federal Rules of Civil Procedure (specifically, Rule 69) and the relevant Oregon statutes. Rule 69 provides in part:

(a) In General. . . . The procedure ... in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, . . . except that any statute of the United States governs to the extent that it is applicable. In aid of the judgment . . . the judgment creditor . . . may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules or in the manner provided by the practice of the state . . . district court is held.

O.R.S. 23.720 provides in part:

“Examination of judgment debtor; order subjecting property. if- . it appears that the judgment debtor has any property liable to execution, the court . . . shall make an order requiring the judgment debtor to apply the same in satisfaction of the judgment, . . . .”

The court followed the proper procedure. The proceeding was “in aid of execution.” The court found that the judgment debtor had “property liable to execution,” and made an order applying “the same in satisfaction of the judgment.”

Newbern’s last point is that the court was without jurisdiction to make the order. At the time the order was issued, Mrs. Newbern’s estate was in probate. In his order the judge concluded that it will be determined that Newbern has a property interest in the notes. It is presumably in the probate proceedings that the determination will be made. When that happens, it will be no problem for the court to release that part of the paid-in-money that is not Newbern’s.

Bankruptcy proceedings were pending against Newbern when the order was issued. G & M had filed a petition in the United States district court in Seattle asking that the defendant be adjudicated a bankrupt. Newbern argues that the bankruptcy court had exclusive jurisdiction over defendant’s property.

G & M asked the bankruptcy referee to determine whether the notes were subject to execution, and that a receiver be appointed for the notes. The bankruptcy referee denied appointment of a receiver, and suggested that the determination of whether or not the notes were community property should be made in another court. On the same day, September 28, the Order to Show Cause was presented to and signed by the judge in this case.

Collier states:

“Once the petition has been filed, the bankruptcy court has exclusive jurisdiction of the bankrupt’s property, except when otherwise provided in the Act. Where a petition has been filed against an alleged bankrupt, another court has no power to seize, attach, fix a lien upon or otherwise affect the bankrupt’s property by virtue of proceedings begun thereafter, unless with the consent of the bankruptcy court . . . .” (emphasis added) 4A Collier, Bankruptcy, j[ 70.06.

The present case falls within this exception.

In No. 71-2561 the judgment is affirmed. In No. 72-1287, the order of December 3, 1971, made under Rule 37 (c), is vacated; the order of November 30, 1971, is affirmed; the case is remanded so that the court may consider G & M’s motion under Rule 37(c) anew. G & M shall recover its costs on appeal.


author: McENTEE, Circuit Judge.

text:
    John E. RAPER et al., Plaintiffs, Appellants, v. David J. LUCEY et al., Defendants, Appellees.
    No. 73-1224.
    United States Court of Appeals, First Circuit.
    Heard Oct. 2, 1973.
    Decided Dec. 11, 1973.

      Stephen J. Ransford, Holyoke, Mass., for plaintiffs, appellants.
    Christopher H. Worthington, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., was on brief, for defendants, appellees.
    Before COFFIN, Chief Judge, MeENTEE, Circuit Judge, and MOORE, Senior Circuit Judge.

       Of the Second Circuit sitting by designation.

   McENTEE, Circuit Judge.

This action brought under 42 U.S.C. § 1983 (1970) alleges that certain deficiencies in the current Massachusetts administrative procedures governing motor vehicle license applications are vio-lative of procedural due process.

Briefly stated, the pertinent facts are as follows. In 1962, at the age of 16, plaintiff Raper first applied to the Registrar of .Motor Vehicles in Massachusetts for a license to operate motor vehicles. His application was denied but he was not told why. Since that time Raper periodically renewed his application for a license. Each time it was denied but the Registrar never gave him any reasons. Following his most recent application, which was made in early 1972, Raper received two letters from the Registrar, both of which indicated that his application was again being denied because “it did not appear advisable” to issue him a license. However, no specific reasons were stated in either letter. After the 1972 denial, Raper took his case to the Board of Appeal on Motor Vehicle Liability Policies and Bonds (the Board of Appeal) and in May of that year appeared with counsel before the Board. This meeting was held in Boston which is the only place in the Commonwealth where the Board meets. At that time the Board informed plaintiff that it would not exercise its jurisdiction over the appeal until permission letters, so-called, were obtained from his probation and parole officers. These letters, which the record shows contained recommendations, were submitted to the Registrar and the application was referred back to his office for further consideration. No action having been taken, by either the Registrar or the Board during the next several months, plaintiff commenced the instant suit. On motion of the defendants, the district court dismissed the complaint for failure to state a claim upon which relief can be granted.

On this appeal plaintiff contends that the due process clause of the fourteenth amendment imposes on Massachusetts the following procedural constraints with regard to the handling of license applications: (1) to provide a statement of reasons when license applications are rejected; (2) to publish whatever policies and rules the Board of Appeal observes in conducting hearings on rejected applications; and (3) to hold Board of Appeal hearings at various locations in Massachusetts, and not merely in Boston.

In ■ order to evaluate whether plaintiff’s contentions state a cause of action under § 1983, we must focus our attention upon two separate and distinct questions. First, does the claim involve a federally protected constitutional right? Secondly, has the plaintiff alleged facts which indicate that defendants have infringed upon that right?

The district court ruled that since the issuance of an operator’s license is discretionary with the state, a constitutionally guaranteed “right” was not involved. By so holding, the court misconceived the issue. In his complaint, plaintiff did not argue that he had a right to an operator’s license, and we may take it as settled that such a right, federal or state, does not exist. See, e. g., Perez v. Tynan, 307 F.Supp. 1235, 1238 (D.C.Conn.1969); United States v. Carter, 275 F.Supp. 769, 770 (D.C. D.C.1967). However, the plaintiff did assert that he had a constitutionally protected right to procedural due process in the state application procedures whereby a determination of whether to issue such a license will be made. With this assertion, we are in complete agreement.

Among other things, the due process clause of the fourteenth amendment protects individuals from unreasonable and unjustifiable state deprivations of personal liberty. Board of Regents v. Roth, 408 U.S. 564, 571-572, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960). Although an exact description of what constitutes protectible “liberty” has never been fully articulated, it has long been held that such liberty encompasses much more than the simple right to be free from unwarranted bodily restraint. Board of Regents v. Roth, supra; West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); Smith v. Texas, 233 U.S. 630, 34 S.Ct. 681, 58 L. Ed. 1129 (1914); Allgeyer v. Louisiana, 165 U.S. 589, 17 S.Ct. 427, 41 L.Ed. 832 (1897). In Wall v. King, 206 F.2d 878 (1st Cir.), cert. denied, 346 U.S. 915, 74 S.Ct. 275, 98 L.Ed. 411 (1953), this court' was faced with the contention that the personal liberty provision of the due process clause should be extended to cover the use of a motor vehicle. After careful analysis, the court accepted this proposition, remarking:

“We have no doubt that the freedom to make use of one’s own property, here a motor vehicle, as a means of getting about from place to place, whether in pursuit of business or pleasure, is a ‘liberty’ which under the Fourteenth Amendment cannot be denied or curtailed by a state without due process of law.” 206 F.2d at 882.

See also Reese v. Kassab, 334 F.Supp. 744 (W.D.Pa.1971); Perez v. Tynan, supra; cf. Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Brockway v. Tofany, 319 F.Supp. 811 (S.D.N.Y.1970). Although Wall involved the application of procedural due process to license suspension proceedings, we can see no legitimate basis to decline to apply its rationale to the instant challenge directed against comparable license application proceedings. Cf. Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964) (procedural due process applicable to application for retail liquor license). The principles are identical. If the use of a motor vehicle may properly be viewed as a “liberty” protectible by due process, it makes no difference whether the threatened state deprivation will result from the loss of an operator’s license, or from the failure to have one issued. We thus conclude that fourteenth amendment due process will attach to state procedures regulating the application and issuance of a motor vehicle operator’s license. Consequently, the claims asserted in the complaint must be said to involve a federally protected right.

Even though federally protected rights are at issue, plaintiff must sufficiently allege facts to indicate that a deprivation of those rights by defendants has occurred. If not, the complaint would fail to state a claim under § 1983. See Wall v. King, supra. Normally we would begin any analysis of plaintiff’s asserted procedural due process deprivations by first identifying the particular opposing private and governmental interests involved, and then weighing the validity and relative importance of these interests against the backdrop of our constitutional scheme. Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961); Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960). However, in this ease, at least with respect to plaintiff’s first two contentions, our task is simplified by the complete absence of any legitimate governmental interest.

Initially, plaintiff has contended that the failure of the Registrar to indicate reasons for the denial of his license application constitutes a deprivation of due process. Raper’s strong interest in adequate notice of the specific reasons behind the Registrar’s decision is clear. It is elementary that due process within administrative procedures requires the opportunity to be heard “at a meaningful time and in a meaningful manner.” Goldberg v. Kelly, supra, 397 U.S. at 267, 90 S.Ct. at 1020. Although plaintiff, by exercising his statutory right to appeal an adverse decision of the Registrar, would have the opportunity to be heard by the Board, we are at a loss to comprehend how such a hearing could be said to be “meaningful” if prior thereto the plaintiff was unaware of the grounds for the Registrar’s decision. Maintaining even an adequate presentation before the Board under these circumstances would seem a Herculean accomplishment. Without a statement of reasons, an applicant would not know what, or for that matter whether, to appeal. Reasons for governmental action affecting important individual rights must be timely proffered in order to satisfy due process. See Board of Regents v. Roth, supra (termination from state employment); Goldberg v. Kelly, supra (termination of welfare benefits) ; Misurelli v. City of Racine, 346 F.Supp. 43, 49 (E.D.Wis.1972) (denial of application for renewal of liquor license); Clutchette v. Procunier, 328 F.Supp. 767, 782 (N.D.Cal.1971) (prison discipline). The government has not advanced any appropriate interest that would be served by its refusal to detail reasons. The function of the Board of Appeal is not to rubber-stamp the Registrar, but to provide a sufficient forum for the correction of administrative mistakes. It would therefore be in the state’s interest to note the reasons for denial, so that the Board hearing may more likely achieve its intended purpose. Moreover, by compelling the Registrar to indicate a specific basis for his action, we minimize the possibility of arbitrary or unreasoned administrative judgment. A statement of reasons may thus serve as an important safeguard against unwarranted abuse of the Registrar’s statutory discretion in approving or disapproving license applications.

For many of the same reasons, plaintiff’s second contention, regarding the failure of the Board to publish existing policies and regulations, would similarly seem to constitute an infringement of due process rights. In order that the Board hearing may legitimately be said to be held “in a meaningful manner,” Goldberg v. Kelly, supra, it appears necessary to inform applicants of any existing procedural requirements that must be complied with, as well as those current substantive criteria which will govern Board decisions. Additionally, there do not appear to be adequate countervailing governmental interests in nonpublication, and any financial or other burden that publication would impose upon the Board seems minimal.

Plaintiff’s final claim appears to be that his due process rights were infringed by the failure of the Board to hold hearings throughout Massachusetts. He cites no direct support for this novel proposition, nor has this court found any. In our opinion the Board hearings presently provided in Boston are adequate and entirely consistent with procedural due process. As to this contention, the complaint fails to state a cause of action.

The judgment of the district court is reversed, and the case is remanded for proceedings not inconsistent with this opinion.

      . On appeal, defendants for the first time assert that since Raper had a substantial criminal record, and at the time of this 1972 application was on parole in Vermont and on probation in Massachusetts for separate offenses, the reason for the most recent denial of his application was his criminal background. Although this may have motivated the Registrar to conclude that issuance of a license did not “appear advisable,” the record does not reveal any evidence of this.

      . The named defendants were the Registrar of Motor Yehicles, the Attorney General and the Commissioner of Insurance, or their nominees, as members of the Board of Appeal. In addition, the Registrar was named in his official capacity.

      . Defendants urge alternatively, that the complaint should have been dismissed for plaintiff’s failure to exhaust available state administrative remedies. In the first place, we think the available administrative procedures would not have responded to plaintiff’s demand for procedural due process. Moreover, a series of recent Supreme Court decisions, Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1971) (per curiam) ; Wilwording v. Swenson, 404 U.S. 249, 92 S. Ct. 407, 30 L.E.d.2d 418 (1971) (per curiam) ; Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 (1968) (per curiam) ; Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647 (1967) (per curiam) ; McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963), have led many lower federal courts to conclude that such a requirement is no longer necessary in § 1983 cases. See, e. g., Beale v. Blount, 461 F.2d 1133, 1139 n. 11 (5th Cir. 1972) ; Padilla v. Ackerman, 460 F.2d 477, 479 (9th Cir. 1972) ; Gilliam v. City of Omaha, 459 F.2d 63, 63-64 (8th Cir. 1972) (per curiam) ; Jones v. Metzger, 456 F.2d 854, 856 (6th Cir. 1972) ; Hayes v. Secretary of Dept. of Public Safety, 455 F.2d 798, 800 (4th Cir. 1972) ; LeVier v. Woodson, 443 F.2d 360, 361 (10th Cir. 1971) ; Musselman v. Spies, 343 F.Supp. 528, 533 (M.D.Pa.1972) ; Cook v. Edwards, 341 F.Supp. 307, 310 (D.N.H.1972).
      We concede that several of our own recent opinions in the area of school administration, read broadly, would seem out of step with these authorities. Beattie v. Roberts, 436 F. 2d 747, 748-749 (1st Cir. 1971) ; Drown v. Portsmouth School Dist., 435 F.2d 1182, 1186 n. 10 (1st Cir. 1970), cert. denied, 402 U.S. 972, 91 S.Ct. 1659, 29 L.Ed.2d 137 (1971) ; Dunham v. Crosby, 435 F.2d 1177, 1180 n. 2 (1st Cir. 1970). To the extent that they indicate a general or automatic requirement of administrative exhaustion in § 1983 cases, we note our disapproval and signal our acceptance of the earlier cited line of cases. But we adhere to our view of the necessity for ripeness to the extent that there must be at least some definitive administrative or institutional determination before a § 1983 action may arise. We subscribe to the view expressed in Stevenson v. Board of Education, 426 F.2d 1154, 1157 (5th Cir.), cert. denied, 400 U.S. 957, 91 S.Ct. 355, 27 L.Ed.2d 265 (1970), that we should not “intervene in school personnel and management problems without requiring such prior reference to local institutional authority as may be necessary to assure that the action complained of is final within the institution in the sense that it is ripe for adjudication.”

      . We note that plaintiff does not allege that due process requires a full hearing before the Registrar prior to denial of a license application. To require such a hearing would place an inordinate burden on the Registrar’s limited facilities, and would seem unnecessary in view of the statutory mechanism for immediate appellate hearing before the Board. Nor does plaintiff seek to challenge the adequacy of the statutory standards whereby the Registrar is authorized to deny a license application merely if the applicant is not deemed a “proper person.” Mass.Gen.Laws Ann. eh. 90, § 8 (1969). CV. Jodbor Cinema Ltd. v. Sedita, 309 F.Supp. 868 (W.D.N.Y.1970).

      . It also appears that it would impose no real administrative burden on the Registrar to include a statement of reasons in his notice of denial. Where the government can achieve a result equally well by according due process as by denying it, the former course of action must be followed. Palmigiano v. Baxter, 487 F.2d 1280 at 1287-1288 (1st Cir., 1973).

      . We are careful to note that plaintiff does not seek to compel the Board of Appeal, as a matter of due process, to promulgate any particular appellate standards or procedures. A much closer question would be presented by such a contention. Plaintiff merely urges that the Board’s failure to publish those policies which have already been adopted constitutes a denial of due process.

      . For example, Raper was completely unaware that Board policy required the submission of certain permission letters before jurisdiction over the appeal would be assumed. Failure to be adequately apprised of this requirement caused him needless travel and expense.