author: BELL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Demetri THOR and Richard Lynn Barnett, Defendants-Appellants.
    No. 74-3034.
    United States Court of Appeals, Fifth Circuit.
    May 7, 1975.
    Rehearing Denied July 25, 1975.

      George Wm. Perry, Dallas, Tex. (Court appointed), for Thor.
    James F. Newth, Dallas, Tex., for Barnett.
    Frank D. McCown, U. S. Atty., Harold S. Jaquet, Asst. U. S. Atty., Ft. Worth, Tex., Charles D. Cabaniss, William F. Sanderson, Jr., Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.
    Before BELL, THORNBERRY and GEE, Circuit Judges.
   BELL, Circuit Judge:

Appellants Thor and Barnett were convicted of possessing with intent to distribute a controlled substance (methamphetamine) in violation of 21 U.S.C.A. § 841(a), and of conspiring to manufacture and possess with intent to distribute the same in violation of 21 U.S.C.A. § 841(a). Additionally, in a consolidated case, Barnett was found guilty of carrying a firearm unlawfully during the commission of a felony in violation of 18 U.S.C.A. § 924(c)(2). Others were charged with appellants in the drug counts. Two of these, Carey and Lee, pleaded guilty and testified at the trial. We affirm.

The evidence adduced at trial showed that Agent Glass of the Drug Abuse Law Enforcement Agency had arranged a drug sale with Carey to be consummated- in a Dallas shopping center parking lot on December 12, 1972. According to plan, Glass met Carey at a white panel truck (an old bread truck) in the parking lot. A short time later appellant Barnett, accompanied by Lee, drove by the truck in a Dodge Charger, letting Lee out of the vehicle with the methamphetamine. Lee and Carey were forthwith arrested. Barnett was arrested in the same parking lot five to ten minutes later, after he had driven a short distance from the truck and returned. He was relieved at the time of his .357 magnum pistol. Federal officers were deployed within approximately one hundred yards of the white bread truck and testified as to their observations. Thor was tied to the transaction through ownership of the truck, purchase of a safe in which the methamphetamine was placed by Lee in the truck, and purchase of the labels or the methamphetamine bottles. He witnessed the transaction from a safe vantage point and left the state when he realized that his confederates had been arrested.

Barnett assigns three errors. ■ The first goes only to him. He contends that there was no probable cause for his arrest at the parking lot and hence the pistol should have been súppressed. We disagree. There was ample probable cause to support Barnett’s arrest. The officers saw him deliver Lee and a package to the truck in the parking lot and leave in a vehicle being driven by him. The officers were at the scene for the purpose of apprehending those participating in the sale to Agent Glass. Barnett returned to the scene within five to ten minutes and was then arrested and the pistol removed from a shoulder holster. By the time of his arrest, the surveilling officers knew that the package delivered by Lee contained what purported to be the methamphetamine.

Barnett’s other assignments of error are adopted by Thor. Both have to do with the testimony of co-actor Lee who, after testifying against Barnett for the government, was called two days later by Barnett and thereupon repudiated his testimony. He stated that in his earlier testimony, he was only saying what the prosecutor and drug agent had told him to say.

At this point the court made a remark which would have been better left unsaid but which we do not find to be reversible error. The court, after inquiring if Lee was saying that the prosecutor told him to testify to something that was not true and after Lee had answered in the affirmative, said to Lee, “I don’t believe that.” The court took corrective action almost immediately in terms of two cautionary instructions. The small import of the statement is seen in the fact that no motion for a mistrial or even for a cautionary instruction was made, defense counsel simply remarking that the court had reflected on “the competence of the evidence.” We need not reach any question as to the right of the trial judge to comment on the evidence where the safeguard of a cautionary instruction is supplied. See Quercia v. United States, 1933, 289 U.S. 466, 53 S.Ct. 698, 77 L.Ed. 1321; United States v. Jaequillen, 5 Cir., 1972, 469 F.2d 380. Rather, we hold that the error here, if any, was harmless in light of the overwhelming evidence against Barnett, the contrary earlier testimony of Lee, and his written confession to the contrary. Cf. Chapman v. California, 1967, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 and Harrington v. California, 1969, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, on harmless error.

This occurrence ties in to the other assertion of error in connection with witness Lee. He testified for the government on direct. There was no cross-examination and no reservation whatever by defense counsel as to delaying cross-examination. As stated, two days later, after the government rested, Lee was called by Barnett’s counsel and repudiated his earlier testimony insofar as it implicated Barnett. The government then offered Lee’s confession to impeach him and Barnett’s counsel contended that this was improper because he had Lee on cross-examination and the government could not impeach its own witness. The plain answer to this claim is that Lee was called as a defense witness and any claim to the contrary is spurious.

Appellant Thor claims error in the action of the trial court in permitting Agent Glass to remain in the courtroom as the representative of the government despite the invocation of the rule to exclude witnesses. This was a discretionary matter with the court and we find no abuse of discretion. Del Cristo v. United States, 5 Cir., 1964, 327 F.2d 208.

The remaining assignments of error are also by Thor. He contends that his two written confessions together with the formula for manufacturing methamphetamine, given to federal officers in Dallas, were inadmissible because of the taint of a confession given a few weeks earlier to state officers in California. The vice found in the California confession was based on the four day delay of the state officers in taking Thor before a state magistrate.

The ruling of the district court denying the admission of the California confession on this ground gave Thor more than his due under the decisions of this circuit. Thus the short answer to his allegation of taint is that there was no taint. In Kulyk v. United States, 5 Cir., 1969, 414 F.2d 139, we held that a statement made to a state officer while the defendant was detained in violation of the Georgia statute requiring that a prisoner be brought before a magistrate within 48 hours of arrest was admissible in a trial on federal charges. Thor was not in federal control when he gave the California confession, and there is no factual basis whatever, indeed no claim, of a working arrangement between state and federal officers to obtain such a confession. Cf. United States v. Rollerson, 5 Cir., 1974, 491 F.2d 1209.

A receipt for the safe, discussed supra, and a newspaper clipping giving details of the December 12, 1972 shopping center drug arrests were found in Thor’s vehicle when he was arrested in California and while it was being inventoried. There was no error in admitting these items. He was arrested after he removed a pistol from his belt as he approached his vehicle and after throwing in into his vehicle, all in the plain view of the arresting officers. The plain view and exigent circumstances probable cause exception to the Fourth Amendment warrant requirement is well known. See, e. g., United States v. Lopez-Ortiz, 5 Cir., 1974, 492 F.2d 109; United States v. Cushnie, 5 Cir., 1973, 488 F.2d 81; United States v. Allen, 5 Cir., 1973, 472 F.2d 145; United States v. Ragsdale, 5 Cir., 1972, 470 F.2d 24.

Thor’s last contention is that he was denied a speedy trial. Some detail as to dates will be helpful on this question. The drug arrests in Dallas were on December 12, 1972. Thor departed Dallas on the same date for Oklahoma. He was next heard of in California in late December 1972, when he was approached by state officers as a robbery suspect and arrested on the weapons charge heretofore discussed. He returned to Dallas on his own volition in January 1973 and gave the confessions there in January and February. He next appeared in Oklahoma in an undercover capacity for D.A.L.E., but had no contact with the agency after March or April 1973. Thereafter, on September 26, 1973, he was indicted on the drug charges.

Up to this point we find no violation of appellant’s right to a speedy trial. The interval between commission of the drug offense and indictment did not extend beyond the applicable statute of limitations and was not unreasonable. Moreover, no actual prejudice is shown, and there is no support for any Fifth Amendment due process claim that the delay was an intentional device to gain a tactical advantage over the accused. See United States v. Marion, 1971, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468; Kroll v. United States, 5 Cir., 1970, 433 F.2d 1282; United States v. McGough, 5 Cir., 1975, 510 F.2d 598.

An arrest warrant was issued for Thor on September 27, 1973 and was returned unexecuted on October 19, 1973. Subsequently, in January 1974, he was arrested in Oregon by state authorities while residing there under the alias Grady Fite. He resisted removal to Texas on the Texas warrant. He requested and received an identity hearing which resulted in an order for his removal to Texas dated February 26, 1974 on the drug charges.

The real basis for the claim of a denial of the right to speedy trial began at this point. Thor describes what he terms an odyssey beginning March 12 in the form of a seventy-three day trip from Oregon to Texas by motor transportation. It develops that he spent from one night up to twelve nights in state or federal prisons en route plus a period of forty days in the federal prison at Marion, Illinois. The forty day delay at Marion was the result of a mix-up in identity between Thor and another prisoner who was in fact delivered to Dallas. (The government requests a remand to show Thor’s part in this mix-up in the event the court should determine that the delay may have resulted in the denial of a speedy trial).

Thor demanded a trial on July 8, 1974 and was tried beginning July 17, 1974. Counsel had been appointed for Thor on May 29, 1974. Having in mind the fugitive status of Thor after the indictment, the delay in removal from Oregon at his instance, the delay in reaching Texas, the demand for trial and the trial date, we apply the balancing test of Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, where the court said:

We regard none of the four factors identified above [length of delay, reason for delay, defendant’s assertion of his right, and prejudice to the defendant] as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. .

Id. at 533, 92 S.Ct. at 2193.

Cf. Moore v. Arizona, 1973, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183; Prince v. State of Alabama, 5 Cir., 1975, 507 F.2d 693.

The thrust of Thor’s contention under the balancing test is that the delay contributed to the disappearance of witnesses, interfered with his liberty and right of association, subjected him to public obloquy, drained his resources, and created anxiety in himself and his family. It may not be gainsaid that delay of trial can cause all of these results, but we must examine the delay in light of the facts of the particular case. Accordingly, we do not find that the delay rises to constitutional proportions. We have also examined the contention in light of Rule 48(b), F.R.Crim.P. and we find no violation of that rule.

As to missing witnesses, we find that none could have offered evidence relevant to Thor’s defense, given his confession. There was no prosecutorial theory of his presence during the drug arrest. Thor’s counsel had ample time within which to prepare such defense as he had. The interference with his liberty and right of association, any public obloquy, drain on resources and anxiety, was minimal when considered with his fugitive status, resistance to removal, and the time of the trial. Moreover, some of the witnesses were fugitives and had been since the indictment.

We find no denial of the Sixth Amendment right to speedy trial nor of a violation of Rule 48(b), F.R.Crim.P.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Richard Larry RUSK, a/k/a Demetri Thor, Defendant-Appellant.
    No. 74-3609.
    United States Court of Appeals, Fifth Circuit.
    May 7, 1975.
    Rehearing Denied July 25, 1975.

      George Wm. Perry, Dallas, Tex. (Court-appointed), for defendant-appellant.
    Frank D. McCown, U. S. Atty., Ft. Worth, Tex., Harold S. Jaquet, William F. Sanderson, Jr., Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.
    Before BELL, THORNBERRY and GEE, Circuit Judges.
   BELL, Circuit Judge:

Appellant was convicted of making a false written statement on a Treasury Department form in purchasing a gun, thereby violating 18 U.S.C.A. §§ 922(a)(6) and 924(a). The statement in question consisted of the representation to a firearms dealer in the purchase of a gun that appellant had not been convicted of a crime punishable by imprisonment for a term exceeding one year. This appeal followed and we affirm.

The form was signed in the name Richard Larry Rusk on August 9, 1971 by a person claiming to be Rusk. Appellant’s name was changed by a state court proceeding on May 27, 1969, from Richard Larry Rusk to Demetri Thor.

One assignment' of error is a lack of proof. The circumstantial evidence introduced by the government as probative of appellant’s guilt consisted of two examples of appellant’s signature as Richard Larry Rusk, as well as the form signed by the purchasing party at the time the gun was purchased. A government handwriting expert testified that in his opinion, the handwriting in each instance was that of the same person. The salesclerk could not identify the appellant as the purchaser. In rebuttal, appellant produced two witnesses who testified that Joe Edwards, an acquaintance of appellant, purchased the gun in appellant’s name and with appellant’s former driver’s license which had been issued in the name of Richard Larry Rusk.

' [1,2] In United States v. Nazien, 5 Cir., 1974, 504 F.2d 394, 395, we pointed out that the test of sufficient proof to warrant conviction in circumstantial evidence cases is not whether the evidence is inconsistent with the hypothesis of innocence but rather whether reasonable minds could so conclude, and added, citing United States v. Black, 5 Cir., 1974, 497 F.2d 1039, 1041:

whether the evidence be direct or circumstantial, the matter of the defendant’s guilt is for the jury unless the court concludes that the jury must necessarily have had a reasonable doubt as to the inconsistency,

We do not so conclude on the proof adduced in this case.

Appellant next contends that he was denied a speedy trial. We disagree. The indictment charging appellant was filed on August 8, 1973, one day less than two years after the alleged offense occurred. An arrest warrant was issued on September 27, 1973. We have detailed the facts regarding Thor’s arrest in the following January in Oregon where he was a fugitive living under an alias. See United States v. Thor and Barnett, 5 Cir., 1975, 512 F.2d 811 [No. 74-3034, this day decided]. We have also there described the so-called odyssey as he terms his transfer from Oregon to Texas. A lawyer was appointed for appellant’s arraignment on May 29, 1974, five days after he reached Texas, and his trial on the charges in United States v. Thor and Barnett, supra, began July 17, 1974. The trial out of which this appeal arises began on October 2, 1974. For the reasons stated in No. 74-3034, we find no denial of the Sixth Amendment right to speedy trial nor a violation of Rule 48(b), F.R.Crim.Procedure. The only fact that is additional in this case is the statement by the prosecutor on two occasions that the charge here was insignificant as compared to the drug charges and might be dropped. Considering this fact along with the other facts considered in the balancing test under Barker v. Wingo, 1972, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, as applied in No. 74-3034, and absent a showing of prejudice and there is none here, we still find no speedy trial violation.

There is no merit whatever in the claim that there was no evidence of appellant’s conviction of a crime punishable by imprisonment for more than one year. There was sufficient proof of prior convictions of four burglaries and one assault with intent to rob, each of which under Texas law carries a maximum penalty or more than one year in prison, Further, it was within the jury’s province to infer from the evidence adduced that the dealer was deceived by the false statement.

Affirmed. .

      . Edwards was indicted along with Thor in the drug case which was the subject of the prosecution involved in No. 74-3034, United States v. Thor and Barnett, 5 Cir., 1975, 512 F.2d 811, this day decided. He was a fugitive from justice at the time of that trial.


author: JONES, Circuit Judge:

text:
    Clyde E. HICKS, Plaintiff-Appellee, v. OCEAN DRILLING AND EXPLORATION COMPANY, Defendant-Third Party Plaintiff-Appellant-Appellee, H. B. BUSTER HUGHES, INC., Third Party Defendant-Appellant. Hester GOFORTH, Plaintiff-Appellee, v. OCEAN DRILLING AND EXPLORATION CO., et al., Defendants-Appellants-Appellees, H. B. Buster Hughes, Inc., Defendant-Appellant. Charles Norman GLOVER, Plaintiff-Appellee, v. OCEAN DRILLING EXPLORATION CO., et al., Defendants-Appellants-Appellees, H. B. Buster Hughes, Inc., Defendant-Appellant.
    No. 73-2169.
    United States Court of Appeals, Fifth Circuit.
    May 7, 1975.
    Rehearing Denied June 4, 1975.

      Chester Francipane, Wayne H. Scheuermann, Metairie, La., for Buster Hughes.
    James F. Holmes, New Orleans, La., for Ocean Drilling.
    Arthur F. Dumaine, John M. Lawrence, New Orleans, La., Salvador E. Gutierrez, Jr., Arabi, La., for Clyde Hicks.
    A. Remy Fransen, Jr., New Orleans, La., for Hester Goforth & Charles Glover.
    Before JONES, THORNBERRY and COLEMAN, Circuit Judges.
   JONES, Circuit Judge:

A New Orleans shipbuilder, Higgins, Inc., constructed at its shipyard on the Industrial Canal in that city, for Ocean Drilling and Exploration Company, herein called ODECO, a submersible oil storage facility which became known as the Round Barge. This facility is made up of a superstructure two hundred feet in length and fifty-four feet in width constructed approximately forty feet above cylindrical storage tanks fourteen and one-half feet in diameter. Two of the tanks run the entire length of the superstructure. These are connected to four storage tanks evenly spaced and running the width of the superstructure. This rectangular assemblage of tanks forms the lower structure of the Round Barge. There is a continuous fin or skirt five feet in height around the entire underside of the cylindrical storage tanks, specifically designed to sink the structure in a vertical position in the mud floor of the Gulf of Mexico and to hold the facility in a stationary position. The fin was attached to the outer tanks.

The Round Barge was towed from the shipyard where it was constructed to the site in the Gulf where it was then to be used. It was lowered by flooding the tank at one end of the Barge with water. When it had come to rest on the bottom, the tank on the other end was filled and it descended to the floor of the Gulf. In addition to the fin, about half of each of the tanks sank into the mud or silt on the bottom of the Gulf. The two tanks across the ends of the Round Barge usually contained water ballast. Sometimes other tanks contained water but those were more often used for the storage of oil. Rock ballast was also used to keep the facility at the bottom of the Gulf.

The Round Barge was attached to a header platform constructed on conventional pilings. Pipelines from producing wells were connected to the header platform, which was connected to the Round Barge by flowlines and a catwalk. By this method oil reached the storage tanks. The facility was equipped with a galley and quarters for the crew.

Although ODECO claimed, at the trial, that the Round Barge was designed for the place where it was located, it was designed and constructed so that it could be raised for scraping and repair, and could be moved to another site for storage of oil. Consideration had been given to moving it to a different location in the Gulf. The refloating of the facility would be accomplished by disconnecting the catwalk, flowlines and the like from the header platform and then reversing the installation process by pumping out the water ballast, causing the structure to float.

H. B. Buster Hughes, Inc., one of the appellants, is an oilfield contractor. It supplied a labor crew to ODECO for the Round Barge under a master service contract. Clyde E. Hicks, Charles Norman Glover and Hester Goforth, who were plaintiffs in the district court and are appellees in this Court, were members of the crew furnished by Hughes to ODECO. All of their work was done on the Round Barge or on other ODECO facilities. Glover was a cook’s helper, Hicks was a roustabout and Goforth was a welder.

Hicks testified that he was paid and employed by Hughes. His immediate superior was a Hughes toolpusher named Shepherd. Hicks usually got his orders from Shepherd, or from Punch, a Hughes Supervisor or Superintendent. Shepherd and Punch received their orders from an ODECO Field Superintendent named Aucoin. When asked if he was permitted to refuse to do what Au-coin told him to do, Hicks stated that he was permitted to quit. He further testified that Shepherd and Punch helped with the work, rather than merely coming by to check on him from time to time.

Goforth testified that he was employed and paid by Hughes. Goforth said that he usually got his orders from Aucoin, even though Punch was present. He was asked if this was not “just because he knew you”, and gave the ambiguous response that “yes sir, because I had worked with him so long and for what reason, I couldn’t answer that.” Goforth related that on one 'occasion Au-coin had discharged an employee who was on the Hughes payroll. He stated that Aucoin had sometimes countermanded orders given by Punch. Goforth never asked Punch whether he should take orders from anyone else because he knew that Aucoin was “strictly boss over the whole works.”

Glover took his instructions directly from a cook who was an ODECO employee.

On the night of April 25, 1971, Larry Braud, the head gauger on the Round Barge and an employee of ODECO, had pumped oil from storage tanks into a tanker. This operation was completed at about 3 A.M. Braud, pursuant to instructions from an ODECO supervisor, put into operation the pumps for removing the salt water ballast from the center line tanks.

About six in the morning of April 26, 1971, the incident occurred from which this litigation arose. Glover had been working. Hicks and Goforth were earning time. The removal of the ballast caused the Round Barge to shake, tilt and to refloat on one side.

Hicks, Goforth and Glover were injured. They brought separate actions under the Jones Act against ODECO. Each alleged the unseaworthiness of the platform and asserted Maritime Tort claims against ODECO as separate causes of action. Goforth and Glover named H. B. Buster Hughes, Inc. as an original defendant to their Jones Act claims and also sought recovery against ODECO on the basis of Article 2315 of the Louisiana Civil Code which requires one whose fault causes damage to another to repair it. ODECO filed cross claims and a third-party action against Hughes seeking indemnity under the service contract. The three actions were consolidated and tried before a jury. ODECO’s indemnity claims against Hughes were reserved for decision by the district judge. Considerable testimony was taken at the trial of the consolidated actions. Much of it was directed to the issues of whether the Round Barge was a vessel and whether the plaintiffs were borrowed servants of ODECO.

At the conclusions of the testimony before the jury, Goforth and Glover dismissed their claims against Hughes.

In addition to giving the conventional jury instructions on burden of proof, negligence, causation and damages, the court gave charges on the tests for determining, among other things, whether a structure or facility is a vessel, whether employees are borrowed servants, whether the plaintiffs were members of the crew of the Round Barge, and for ascertaining whether a vessel is or is not seaworthy.

As to the test for determining whether the Round Barge was a vessel the district court said:

“The primary meaning of the term “vessel,” is any water craft or other contrivance used or capable of being used as a means of transportation on water. The term “vessel,” may also include, however, various special purpose crafts, such as barges or dredges, which do not operate as a vessel for transportation, but, rather serve as moveable floating bases that may be submerged, so as to rest on the bottom and be used for stationary operations, such as drilling or dredging. Now, although mere flotation may not in and of itself be sufficient to make a structure a vessel, if a structure is buoyant and capable of being floated from one location to another, it may be found to be a vessel, even though it may have remained in one place for a long time and even though there are no plans to move it in the foreseeable future. Now, in considering whether a special purpose craft is a vessel, the determinative factors are the purposes for which the craft was constructed and the business, in which it is engaged. That is, was the craft designed for and used in navigation or commerce? A craft not designed for navigation and commerce, however, may be classified as a vessel, if at the time of the accident, it had actually been engaged in navigation or commerce. Now, in considering whether a special purpose craft is a vessel, the manner, in which a party or parties may have referred to or denominated such craft in contracts or other documents is not necessarily determinative of its status as a vessel, but is simply a factor for you to consider along with all the other evidence.”

The borrowed servant doctrine, as here applicable, was thus stated by the district court in its charge to the jury:

“Now, the various criteria have been considered in determining when the doctrine of borrowed servant is applicable. While no one of these factors or any combination of them is decisive and no fixed test is used to determine the existence of a borrowed servant relationship, certain guidelines have been given great weight. The most universally accepted standard for determining whether a person is a borrowed servant is to ascertain who controls him in that employment and who has the power and the right to control and direct him in the performance of his work. In order to establish that the employee is the borrowed servant of another, the plaintiffs may establish, among other possible elements of proof, that the borrowing employer exercises control over the employee and has the right to control him. They may establish that the general employer has relinquished the right to control. They may establish that the borrowing employer has assumed the obligation for the payment of the employee’s wages. They may establish that the employee is performing work for the borrowing employer and in the latter’s business. They may establish that the temporary or borrowing employer has furnished the necessary instruments and the place of performance for the work in question. Now, although a formal agreement between the employers, that is ODECO and H. B. “Buster” Hughes, Incorporated, is not indispensible, the existence or nonexistence of such an agreement should be considered. In considering whether the power exists to control and direct an employee, a careful distinction must be made between authoritative action and control on the one hand and mere suggestions as to detail or necessary cooperation, where the work furnished is part of a larger undertaking. On the other hand, cooperation as distinguished from subordination is not enough to create the employment relationship necessary to activate the borrowed servant doctrine.”

The court told the jury that if it found that the Round Barge was a vessel and that the plaintiffs were members of the crew of the vessel or performed functions traditionally performed by seamen it would become necessary to determine whether the Round Barge was unseaworthy in one or more respects. If it was manned by an incompetent crew at the time of the accident, or was improperly equipped by the lack of safety devices it could be found unseaworthy, and if unseaworthiness be found, it must also be found that it was a proximate cause of the injuries.

None of these jury instructions were challenged by the defendants. In response to specific interrogatories the jury found that the plaintiffs were borrowed servants of ODECO, that they were members of the crew of the Round Barge, that the Round Barge was a vessel, that ODECO was negligent, that its negligence was a cause of or contributed to the plaintiffs’ injuries, that the plaintiffs were members of the crew or performed work on the Round Barge which work is traditionally performed by seamen, that the Round Barge was unseaworthy, that the unseaworthiness of the Round Barge was a proximate cause of plaintiffs’ injuries, and that ODECO’s negligence was the proximate cause of the plaintiffs’ injuries.

The jury returned a verdict against ODECO for Hicks in the amount of $177,000, in favor of Goforth for $212,-000 and in favor of Glover for $90,000.

Following the jury trial on the issues of liability and damages the court, without a jury, tried the indemnity claim of ODECO against Hughes. The cause of action was based upon the indemnity provisions of a Master Service Contract between ODECO and Hughes. In this instrument ODECO is referred to as “Drilling Contractor” and Hughes is designated as “Subcontractor.”

The indemnity provision reads,
“Subcontractor agrees to indemnify and hold harmless Drilling Contractor from and against any and all liens and claims for labor or material, and against any and all claims, demands, or suits for damages to persons and/or property (including, but not limited to claims, demands, or suits for bodily injury, illness, disease, death, loss of services, maintenance, cure, property or wages), which may be brought against Drilling Contractor (including, but not limited to those brought by Subcontractor’s employees and agents and the agents and employees of its subcontractors) incident to, arising out of, in connection with, or resulting from the activities of Subcontractor, its employees and agents, or its subcontractors and their employees and agents, or in connection with the work to be performed, services to be rendered, or material to be furnished, under this contract, or under contracts referred to in 1(b) above, whether occasioned, brought about or caused in whole or in part by the negligence of Drilling Contractor, its agents, directors, officers, employees, servants or subcontractors, or otherwise, or by the unseaworthiness of any vessel owned, operated or controlled by Drilling Contractor, regardless of whether such negligence or unseaworthiness be active or passive, primary or secondary.”

Attached to the Master Service Contract was a certificate of insurance which insured Hughes to the extent of $300,000 against its liability under the contract. The insurance policy was not incorporated in or referred to in the service contract.

The district court resolved the indemnity question for ODECO and against Hughes. Post-trial motions were denied, judgments for the several plaintiffs were rendered against ODECO for the amounts of the verdicts. Judgment for the full amount of these recoveries was rendered in favor of ODECO and against Hughes. ODECO and Hughes have taken separate appeals.

ODECO, on this appeal, asserts that the finding of the jury that the Round Barge was a vessel was not supported by the evidence. It compares the Round Barge to a drydock and directs the court’s attention to those precedents which hold that a drydock is not a vessel for maritime jurisdiction. See Atkins v. Greenville Shipbuilding Corporation, 5th Cir. 1969, 411 F.2d 279, where it was held that flotation was not enough to constitute a structure a vessel. It was said that a drydock is not a vessel any more than is a wharf or warehouse when projecting into or upon the water. The distinction, as noted in the Atkins case, is the absence of the element of risk and the hazards of the sea. The Round Barge was not attached to the shore and had full exposure to the risks and hazards of the sea. The contention of ODE-CO is that the connection of the Round Barge to the header platform, which was constructed on conventional pilings, was the equivalent of the shore attachment of a drydock. The comparison is not well taken. The bottom of the Gulf is not shore and the catwalk and flowlines did not secure the one structure to the other. The Round Barge is not comparable to a stationary platform as ODE-CO suggests.

This court recently stated that the purpose for which a facility was constructed and the business in which it is engaged are the controlling considerations in determining whether or not the facility is a vessel. Cook v. Belden Concrete Products, Inc., 5th Cir. 1973, 472 F.2d 999, cert. den., 414 U.S. 868, 94 S.Ct. 175, 38 L.Ed.2d 116 in that case a flat-deck barge which was moored alongside a concrete yard and used as a construction platform was held as a matter of law not to be a vessel. The barge had no motive power of its own. It was submersible so as to permit launching of finished barges. Upon completion of a set of barges, the platform would be towed to deeper water for launching. It would sometimes be moved to different positions along the dock to pick up materials. At the time of the injury which gave rise to the action the platform was secured to the dock by ropes. The district court granted summary judgment in favor of Belden, the employer. The issue on appeal was whether as a matter of law the platform was a vessel for purposes of maritime jurisdiction. The appellant cook attempted to distinguish the platform from a drydock because of the platform’s limited movement. The court rejected this approach. It stated that permanence of fixation is not the criterion which governs the maritime status of floating drydocks and similar structures. The court stated that,

“Conventional ships and barges as well as such unconventional craft as submersible drilling barges and floating dredges which are designed for navigation and commerce are vessels within general maritime and Jones Act jurisdiction and retain such status even while moored, dry-docked, or otherwise immobilized and secured to land.” 472 F.2d 999, 1001.

The Round Barge of this case is very similar to a submersible drilling barge or platform, one of the unconventional craft referred to in the foregoing quotation. Such structures are vessels for Jones Act jurisdictional purposes.

A submersible drilling barge, like the Round Barge, has no motive power in itself but is capable of being moved through navigable water under tow. When in use for the drilling for oil or gas the drilling barge rests, as does the Round Barge, on the bottom of the Gulf. Like the Round Barge it has a galley and quarters for its crew. On occasions this Court has held that a submersible drilling barge is a vessel. Offshore Company v. Robison, 5th Cir. 1959, 266 F.2d 769; Producers Drilling Company v. Gray, 5th Cir. 1966, 361 F.2d 432. Both of the cited cases were for personal injuries sustained by an employee working on the structure while it was resting on the bottom of navigable waters. Both were Jones Act cases. In the Offshore case the court observed that the Jones Act had been extended to cover “Almost any structure that once floated or is capable of floating on navigable waters” and that the word “vessel” includes “special purpose structures not usually employed as a means of transport by water but designed to float in water . . .” 266 F.2d 769, 771, 779.

In the Producers case the court said, “It is well settled that a barge may be a vessel. . . . ” Here we have a special purpose barge designed to serve as a mobile drilling platform. At the time of the accident, the barge was being used for that purpose. The barge is equipped for use in navigable waters, had traveled a considerable distance through such waters to its present site and was, at the time of the accident, located in a navigable canal.” 361 F.2d 432, 437.

We only need to change “mobile drilling platform” to read “oil storage facility” and the language applies to the Round Barge.

The evidence was more than adequate to support the jury’s finding that the Round Barge was a vessel within the provisions of the Jones Act and the general maritime jurisdiction. It is not unlikely that a determination could be made that the Round Barge was a vessel as a matter of law if such a ruling was appropriate.

ODECO contends that the jury finding that Hicks, Goforth and Glover were borrowed employees of ODECO was not supported by the evidence. The evidence warranted the submission of employment status to the jury. The court’s instruction, to which no exception was taken, fully and fairly stated the applicable law. Dugas v. Pelican Construction Company, Inc., 5th Cir. 1973, 481 F.2d 773, cert. den., 414 U.S. 1093, 94 S.Ct. 723, 38 L.Ed.2d 550; Ruiz v. Shell Oil Co., 5th Cir. 1969, 413 F.2d 310. ODECO’s position is without sound basis.

The other contentions of ODECO have been considered. They need not be discussed. They are without merit.

The district court granted indemnity in favor of ODECO against H. B. Buster Hughes, Inc., for the full amount of the judgments in favor of Hicks, Glover and Goforth. The court stated that the Master Service Contract between ODECO and Hughes was in effect, that it governed the relationship of ODECO and Hughes at the time of the accident, and paragraph 9 of the contract entitled ODECO to indemnity. Hughes contends that ODECO is not entitled to indemnity because the negligence was not, nor' was the accident itself related in any way to the activities of Hughes as required by the indemnity paragraph. Hughes asserts that the accident arose out of activities exclusively under the control of ODECO, that there was no work of Hughes being performed at the time of the negligent acts or the occurrence of the accident, and that the accident did not occur at a place prescribed by work orders. The interpretation which Hughes urges is too narrow. Hughes agreed to indemnify ODECO for claims for damages “incident to, arising out of, in connection with, or resulting from the activities of subcontractor ... or in connection with the work to be performed, services to be rendered, or material to be furnished, under this contract. . ” The accident falls within the scope of the quoted language.

Hughes contends that the Master Service Contract applies only in situations where Hughes is performing work as an independent contractor. Paragraph 13 of the contract is as follows:

“Subcontractor shall be an independent contractor with respect to the performance of all work hereunder, and neither Subcontractor nor anyone employed by Subcontractor shall be deemed for any purpose to be the employee, agent, servant, or representative of Drilling Contractor in the performance of any work or service or part thereof in any manner dealt with hereunder. Drilling Contractor shall have no direction or control of the Subcontractor or its employees and agents except in the results to be obtained. The work contemplated herein shall meet the approval of Drilling Contractor and be subject to the general right of inspection for Drilling Contractor to secure the satisfactory completion thereof. The actual performance and superintendence of all work hereunder shall be by Subcontractor, but Drilling Contractor or its representatives shall have unlimited access to the operations to determine whether work is being performed by Subcontractor in accordance with all the provisions of this Contract and the work order.”

The district court rejected this contention as a “grossly erroneous interpretation of the contract” and construed paragraph 13 as establishing that, as between Hughes and ODECO, Hughes was an independent contractor at all times. The court stated that the scope of the contract was set forth in paragraph 1(a), where it was provided that the contract should govern and control all work by Hughes. The district court deemed it unnecessary to determine whether Hughes was an independent contractor in relation to Hicks, Goforth and Glover. In support of its contention that evidence should have been admitted as to the interpretation of the contract, Hughes relies primarily upon Tidewater Oil Company v. Travelers Insurance Company, 5th Cir. 1972, 468 F.2d 985, and Warren Petroleum Corporation v. J. W. Green Contractors, 5th Cir. 1969, 417 F.2d 242. In each of the cited cases the pertinent contract provision was ambiguous. In the case before us the provision is unambiguous. There is no need to look beyond the instrument to determine the intent of the parties. The district court was correct in refusing to admit testimony as to the meaning of the contract.

Hughes next asserts that the contract was invalid because there was no meeting of the minds. It says that there was no bargaining or discussion on any of the contract terms, that Hughes was given no opportunity to reject the indemnity provisions short of rejecting all work for ODECO, that the parties differ on their interpretation of the contract, and that there was no explanation of any of the contract terms. This contention can be disposed of by a brief statement of the Louisiana Court of Appeals which states the controlling rule in these terms:

“A party who signs a written instrument, or who places his mark or allows his mark to be placed thereon, is presumed to know its contents, and he cannot avoid the obligations which may be imposed on him by that instrumerit merely upon a showing that he had not read it, or that he had not had it read and explained to him, or that he did not understand its provisions.” St. Landry Loan Co., Inc. v. Avie, La. App.1962, 147 So.2d 725, 727.

Hughes urges that a clause in a contract which purports to indemnify a vessel owner against its own negligence is against public policy and void. The basis for its position is found in Bisso v. Inland Waterways Corporation, 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911. If the Bisso case is a controlling precedent it would require a holding that the indemnity clause in the ODECO-Hughes contract was invalid. However, Bisso involved a towing contract governed by the maritime law. The indemnity clause in the contract before us is to be construed under the law of Louisiana, and being so construed it is not in violation of public policy. Dickerson v. Continental Oil Co., 5th Cir., 449 F.2d 1209, cert. den., 405 U.S. 934, 92 S.Ct. 942, 30 L.Ed.2d 809.

In Bisso v. Inland Waterways Corporation, supra, one of the reasons given for the rule there adopted was “to protect those in need of goods or services from being overreached by others who have power to drive hard bargains.” 349 U.S. 85, 91, 75 S.Ct. 629, 633, 99 L.Ed. 911. Hughes Would have such protection as this might give him. It is unnecessary to consider the reason for a rule which is inapplicable to a case under consideration, but if it were otherwise Hughes could not prevail. The district court stated, “Buster Hughes was an experienced company of substantial size, itself. So I find as a matter of fact that there was no policy reason to hold the contract invalid because of the relative size of the companies or position in the market.” We accept this determination of the trial court.

The final contention of Hughes is that the recovery against it by ODECO, if any, should be limited to $300,000. The Master Service Contract provides, in part, that:

“At any and all times during the term of this Agreement, Subcontractor agrees to carry insurance of the types and in the minimum amounts as follows:
s{: * # * * *
“Comprehensive general liability insurance with minimum limits of $100,-000.00 for injury to or death of any one person and $500,000.00 for any one accident and with minimum limits of $300,000.00 for property damage. Such insurance shall additionally cover the contractual liabilities and indemnities herein assumed by Subcontractor with minimum limits of $500,000.00.”

Attached to the contract between ODE-CO and Hughes, when it was put in evidence by ODECO, was a certificate of insurance providing for $300,000 liability coverage. The liability of Hughes is no more than the amount.of insurance required by the contract. Dickerson v. Continental Oil Company, supra. Hughes reasons that the certificate showing insurance of a lesser amount than provided in the contract, and the introduction of the contract in evidence with the certificate attached effected an amendment to the contract. We have not been referred to any principle of contract amendment, waiver or estoppel which relieves a party from a contractual undertaking by the doing of something less than the agreement requires in the absence of something done by the party to whom the duty is owed. ODE-CO is entitled to recover for the full amount of the judgments against it.

No reversible error has been shown. The judgments of the district court are

Affirmed.

      . Goforth fixes the time at 6:05.

      . 46 U.S.C.A. § 688.


author: RONEY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frank David FRANCISCHINE, Defendant-Appellant.
    No. 74-3495.
    United States Court of Appeals, Fifth Circuit.
    May 9, 1975.
    Rehearing and Rehearing En Banc Denied June 30, 1975.
    J. V. Eskenazi, Federal Public Defender (Court appointed not under Act), Charlene H. Sorrentino, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., J. B. Ullman, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.

      Before GOLDBERG and RONEY, Circuit Judges, and GROOMS, District Judge.
   RONEY, Circuit Judge:

As a defense to the threatened revocation of his probation, federal prisoner Francischine asserts that his underlying conviction is invalid and therefore the district court does not have jurisdiction to revoke the probation, terms of which he admittedly violated. In affirming the district court’s revocation of probation, we hold that the underlying validity of a conviction cannot be asserted as a defense in a probation revocation proceeding, that the conviction’s validity may be collaterally attacked only in a separate proceeding under 28 U.S.C.A. § 2255, and that a district court has jurisdiction to consider a petition for revocation of probation as if the underlying conviction were unquestioned, until such time as the conviction has been judicially set aside.

Francischine pled guilty to mail fraud under 18 U.S.C.A. § 1341 in 1972. He was sentenced to two years probation, conditioned upon his participation in a drug rehabilitation program. Failure to participate in the drug program brought a split sentence of five months confinement and the remainder of the two year sentence subject to usual conditions of probation. A state marijuana conviction during the probated term brought this petition for revocation before the district court.

In the meantime, the United States Supreme Court held that the type of activity that triggered the mail fraud charge against Francischine did not constitute an offense under the statute to which he had pled guilty. United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974). Francischine had obtained merchandise from merchants with credit cards not his own. The theory of the fraud charge involving use of the mails was based on the mailing by the merchants of invoices to the credit card companies or their own company headquarters. Maze held such activity not to be encompassed within the proscription of 18 U.S.C.A. § 1341.

Faced with Maze at the probation revocation proceeding, the district court held that decision to have prospective effect only, and not effective to invalidate Francischine’s conviction. There being no dispute that the terms of probation had been violated by the marijuana conviction, the court revoked the probation and ordered Francischine returned to prison to serve out the remainder of his term.

Contending that the district court was wrong in failing to give retroactive effect to Maze, the defendant on appeal asserts that the validity of the underlying conviction is jurisdictional and may be raised at any time at any proceeding in connection with the conviction, including a probation revocation proceeding. He suggests that in the interest of judicial economy the defense should be recognized in such proceeding, rather than requiring a separate action collaterally attacking the conviction.

We do not reach the basic question that is necessary to the defendant’s ultimate success, i. e., whether the conviction can be set aside in a § 2255 collateral attack based on Maze. Until the conviction is judicially nullified, its underlying validity plays no necessary part in the consideration of whether a probated prison term should be continued in view of the alleged violation of the terms of probation.

No cases have been cited to support the defendant’s contention that a Maze-type invalidity may be asserted against the underlying conviction in a probation revocation proceeding. We find no authority that the conviction can be so questioned in any other proceeding involving the carrying out of a sentence. The decision may be as much one of policy as it is one of applying fixed legal procedures or analogous precedents. On the whole, however, we think it unwise to mix the two entirely different proceedings.

A probation revocation hearing is not a formal trial. United States v. Bryant, 431 F.2d 425 (5th Cir. 1970). The new Federal Rules of Evidence, specifically Rule 1101(d)(3), provide that the rules, other than with respect to privileges, will not apply in proceedings for revoking probation. The matter at issue in such a hearing is the subsequent act of the probationer which may constitute a violation of the terms of his probation, not the original crime for which he received the probated sentence. See generally Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935). As the Seventh Circuit stated in Brown v. Warden, 351 F.2d 564 (7th Cir. 1965),

The inquiry of the court at such a hearing is not directed to the probationer’s guilt or innocence in the underlying criminal prosecution, but to the truth of the accusation of a violation of probation. Has the probationer abused the privilege of the period of grace extended to him to aid him in rehabilitation?

351 F.2d 566-567.

A revocation of probation is an exercise of broad discretionary power by the trial court akin to that utilized in imposing the probated sentence initially. Evidence that would establish guilt beyond a reasonable doubt is not required to support an order revoking probation. Probably evidence rising to the level of substantial evidence is not even required, absent arbitrary and capricious action in the revocation. All that is required is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation. United States v. Langley, 438 F.2d 91 (5th Cir. 1970); Manning v. United States, 161 F.2d 827 (5th Cir. 1947). On review, an action of the trial court revoking probation will not be disturbed in the absence of a clear showing of abuse of discretion.

A 28 U.S.C.A. § 2255 proceeding for challenging collaterally the validity of a federal conviction is, on the other hand, a formal procedure with all of the usual accouterments of a civil trial. The legal issues are determined under the established requirements of the Constitution, the statutes, and the judicial precedents. The issues of fact will be resolved under the Federal Rules of Evidence, Rule 1101(e). There is no room for the exercise of that judicial discretion which is involved with a phase of sentencing, such as probation. The trial court’s decisions are faced with the clearly erroneous and error of law standards of review applicable to other civil proceedings. The party with the burden of proof loses upon a failure to carry that burden.

The defendant suffers no unfair treatment with this decision. Only rarely does a defendant obtain bail release or suspension of sentence while he is litigating a § 2255 collateral attack on the validity of his conviction. But for the discretionary grace of the trial court in permitting a probated sentence, the defendant Francischine would be serving a confinement sentence while challenging collaterally his conviction. It is patently unfair to permit a probated prisoner, proved unworthy of probation, to remain free of confinement during his collateral litigation while the unprobated but perhaps model prisoner suffers confinement during the same process. The sentencing court and those charged with the control and custody of a convicted prisoner should remain free to supervise the terms of the sentence without being baggaged with concern as to the validity of the conviction. The prisoner may challenge the conviction along the-fixed procedures provided by law.

The attack on the jurisdiction of the court is unconvincing. The regulations of custody and the requirements of a sentence flow from the fact of conviction, until such time as it is successfully vacated. Even were defendant to prevail in the asserted defense to probation revocation, the conviction would remain, absent the judicial relief provided by § 2255. It would create an intolerable degree of uncertainty for all concerned to have a convicted felon serving a probated sentence which the court had no jurisdiction to revoke.

Nor is the plea for judicial economy persuasive. Even assuming a valid defense, the time and effort involved in evidentiary hearings and final decision on the collateral attack would appear to take equal energy and effort whether litigated in the context of a probation revocation hearing or a separate § 2255 hearing.

We therefore conclude that the court should not have considered the retroactivity of United States v. Maze, supra. The factual and policy considerations for a proper determination of that legal issue are not presented by this record. See Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The issue was not properly before the court as a defense to the petition for revocation of probation. There was no other defense. Accordingly, we affirm the revocation of Francischine’s probation without prejudice to his right to file, in the proper forum, a § 2255 challenge to the validity of his 1972 conviction.

Affirmed.


author: GODBOLD, Circuit Judge: GEE, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Hector de Leon MARTINEZ, Defendant-Appellant.
    No. 74-2346.
    United States Court of Appeals, Fifth Circuit.
    May 12, 1975.
    Guadalupe Salinas, Asst. Dist. Atty., Houston, Tex. (Court-appointed), for defendant-appellant.
    William S. Sessions, U. S. Atty., John Pinckney, III, Joel D. Conant, Asst. U. S. Attys., San Antonio, Tex., for plaintiffappellee.

      Before RIVES, GODBOLD and GEE, Circuit Judges.
   GODBOLD, Circuit Judge:

This is an appeal from a conviction of unlawful reentry by a deported alien, 8 U.S.C. § 1326. After evidentiary hearing the trial court denied appellant’s pretrial motion to suppress his oral admissions and evidence allegedly gathered as the fruit of those admissions. The admissions were not introduced as probative of guilt, but the alleged fruits thereof were introduced.

In January 1974 appellant was in the Bexar County, Texas, jail on a state charge unrelated to this appeal. Pursuant to booking procedures at that jail, state officers made several inquiries of each prisoner for purposes of identification, including his name and place of birth. This information was entered on a “booking slip.”

A United States Immigration and Naturalization Service officer was assigned to the jail and was furnished daily with a computer printout of information from the booking slips, including for each person the country stated to be the place of his birth. The officer’s duties included reviewing the bookings in search of persons who might be aliens, with the ultimate purpose of inquiring into the possibility of their having violated federal criminal statutes relating to aliens. If his suspicions were triggered with respect to a prisoner, the officer interrogated him. A primary purpose was to identify the suspect, since many aliens in the area disguise their identities to avoid detection. In many instances it is necessary to obtain fingerprints to get an accurate identification.

Under the interrogation procedure employed, the suspects — often 20 to 40 per day — usually were assembled in small groups at the jail and the members of the group were asked to state the respective countries of which each was a citizen. If a suspect responded that he was a citizen of a country other than the United States, the officer asked him no further questions but took him to his office where he had a telephone. He attempted to locate an I.N.S. file on the suspect. He advised the suspect of his Miranda rights and, if the prisoner signed a waiver, continued the interrogation.

With respect to appellant, the I.N.S. officer’s suspicions were aroused by several factors. The booking slip showed his place of birth as Mexico, the amount of his bond was high (implying fear of flight), and there was a notation on the slip, apparently made by the arresting officer, to “hold for immigration.” The notation indicated to the I.N.S. officer that the arresting state officer considered that immigration officials “would be interested in this person.”

At the request of the I.N.S. officer, and pursuant to the usual custom, appellant was brought to the location in the jail where persons suspected to be aliens were interviewed. Probably appellant was in a group of three or four persons who were questioned together. When the group were asked of what country each was a citizen Martinez responded “Mexico” and then nonresponsively added that he was an alien illegally in the United States. The officer then advised Martinez of his Miranda rights and presented to him a form which Martinez signed, indicating that he understood such rights and was waiving them.

Subsequently, around February 10 or 11, the custodian of I.N.S. records in San Antonio searched for and located the file on Hector de Leon Martinez, which is appellant’s name. He testified that he had no reason to locate the file unless asked to do so, and that he searched for it upon request and as a result of the investigation at the jail. The file revealed that in January 1972 a person named Hector de Leon Martinez had been formally deported from the United States. Examination of the file revealed no application to reenter the United States. A signature in the file purporting to be that of the deported person was turned over to Bexar County officials for comparison with the signature of appellant.

Meanwhile on February 6 the state charges against appellant had been dismissed and he was retained in custody under a federal “hold.” Around February 11 the United States initiated the criminal charge of reentry, based in part upon the contents of the file.

In the non-jury trial it was necessary for the government to establish that appellant was the same person as the Hector de Leon Martinez who had been deported in 1972. For that purpose the prosecution offered the testimony of an expert that the signature of appellant on a document executed pursuant to his state booking in January 1974 was the same as that on documents in the file dated 1972. Appellant’s nonresponsive statement to the I.N.S. officer that he was illegally in the United States was not offered to show guilt.

Citizenship of a suspect is an initial threshold that must be traversed en route to possible deportability and to criminal charges of illegal entry. The government in brief states that “probably [appellant] should have been warned” before being asked to state the country of which he was a citizen. It is not necessary, however, that we decide that issue, and we leave it for another day.

We need not hold that all evidence is “fruit of the poisonous tree” simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Maguire, Evidence of Guilt, 221 (1959). We think it clear that the narcotics were “come at by the exploitation of that illegality” and hence that they may not be used against Toy.

Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 455 (1963). Assuming without deciding that Wong Sun is applicable to the fruit of in-custody interrogation without the prescribed warnings, see United States v. Castellana, 500 F.2d 325 n.7 (CA5, 1974), we conclude that the I.N.S. file on appellant was not “come at by the exploitation” of asking appellant the country of his citizenship. The file already existed, and it was located in the records of the same government agency and in the same city. I.N.S. already knew appellant’s full name and knew that he was born in Mexico. Their attention already was focused upon him by reason of these facts plus the high bond and the notation by the arresting officer. The purpose, the structure, and the implementation of the entire procedure involved support the testimony of the I.N.S. officer that in any event he would have called on the custodian of I.N.S. records for the file, if any, on Hector de Leon Martinez.

We do not stand on a plenary “inevitable discovery” rule but rather upon the test of Wong Sun itself, which recognizes that the central inquiry is exploitation of improper action and not the mere existence of impropriety, and, indeed, recognizes that even if there is a causal connection in a “but for” sense it does not necessarily rise to the level of exploitation of illegality.

In United States v. Hull, 437 F.2d 1 (CA5, 1971), the defendant was arrested by Texas state officers for making an improper left turn. Because he had a California driver’s license and California plates he was taken to the station house to post bond. There his car was illegally searched and pistols were found. Officers then examined the car again, obtained its license plate and vehicle identification numbers, contacted the National Crime Information Center, and discovered that the car was stolen. The defendant was then charged under the Dyer Act. The pistols were not introduced in evidence. He appealed from conviction on the ground that the illegal search triggered the discovery that the car was stolen. We affirmed, saying:

The information was produced by routine police procedures followed when a driver is arrested while driving an out-of-state car and using an out-of-state driver’s license in the circumstances disclosed.

487 F.2d at 4. The instant case is even clearer, because the routine police procedures were in-house procedures of I.N.S. at San Antonio relating to precise information in its own possession. See also, United States v. Jones, 457 F.2d 697 (CA5, 1972), and Weaver v. United States, 374 F.2d 878 (CA5, 1967).

The claim that appellant was illegally arrested is without merit.

Affirmed.

GEE, Circuit Judge

(concurring):

While appellant was in custody on a state charge an immigration officer routinely asked him his nationality. Mexico, he answered responsively, and added, not responsively, that he was in the United States illegally. Appellant claims the information that he was in the United States illegally, obtained from him without his having been given Miranda warnings, was employed to locate the INS file on him, and that the file is therefore to be seen as “fruit of the poisonous tree.” The evidence of appellant’s response was not introduced at trial but portions of the file were.

Though I am in general agreement with the majority opinion, I would decide no more than that since the information that appellant was in the country illegally was volunteered Miranda is inapplicable. Bishop v. Wainwright, 511 F.2d 664 (5th Cir.) [1975]; cf. United States v. McDaniel, 463 F.2d 129 (CA5 1972); United States v. LaMonica, 472 F.2d 580 (CA9 1972). And while I agree with the majority’s resolution of the Wong Sun problem, I am doubtful that one is presented. As we recently noted en banc, United States v. Castellana, 500 F.2d 325, 327 n. 7 (5th Cir. 1974), the Supreme Court has never extended Miranda to the fruit of in-custody interrogations made without requisite warnings. I see no present trend to expand Miranda; rather, if anything, the contrary. See Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974).

      . The District Judge expressed his concern at possibly burdening I.N.S. officers with the necessity of giving Miranda warnings as a prerequisite to investigational activity. In-custody interrogation of persons on whom suspicion already has focused is, of course, to be distinguished from non-custodial investigatory questioning.


author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. F. Lee BAILEY, Defendant-Appellant.
    No. 74-3370.
    United States Court of Appeals, Fifth Circuit.
    May 9, 1975.

      Henry Gonzalez, Tampa, Fla., Roger E. Zuckerman, Washington, D. C., for defendant-appellant.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Robert A. Leventhal, Asst. U. S. Atty., Orlando, Fla., Jay C. Johnson, U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before WISDOM and DYER, Circuit Judges, and KRAFT , District Judge.

       Senior District Judge of the Eastern District of Pennsylvania, sitting by designation.

   DYER, Circuit Judge:

This is an appeal under 28 U.S.C.A. § 1291 from the district court’s denial of defendant Bailey’s motion, based upon former jeopardy, to dismiss an indictment returned against him, and, alternatively, from the denial of his motion for a speedy trial. We dismiss for lack of appellate jurisdiction.

A brief statement of the posture of the case is necessary to focus on the narrow issue before us. Bailey, Bunting, and various other persons, both individual and corporate, were tried under a multicount indictment charging mail fraud and conspiracy to commit mail fraud. The trial began on September 17, 1973, the Government rested its case on January 30, 1974, and Bailey’s motion for severance was granted on April 25, 1974. A mistrial as to the other defendants was declared on May 30, 1974. The Government insists upon a retrial.

The thrust of Bailey’s former jeopardy argument is that Bunting was an essential defense witness in Bailey’s behalf and that although he was willing, if severed, to testify for Bailey and waive his former jeopardy claim as to the severance alone, the court insisted upon the execution of a comprehensive waiver by Bunting requiring him to abandon all claims to alleged prior judicial error and misconduct. This Bunting refused to do. Although Bailey strongly objected to the nature of the waiver sought, he eventually moved for his own severance. Bailey insists that in these circumstances the court aborted his trial over his active objection or without his consent and that this constituted judicial overreaching, so as to cause jeopardy to attach to Bailey’s severance. Alternatively, Bailey argues that the failure of the district court to set a retrial date for him for over eight months as a severed defendant has denied him his constitutional right to a speedy trial. The Government, of course, takes issue with these arguments.

The Government insists that neither the district court’s order denying Bailey’s motion to dismiss on former jeopardy grounds nor its order denying Bailey’s alternative motion for a speedy trial are final appealable orders vesting this Court with jurisdiction. We agree and therefore do not reach the merits in either instance.

Although considerable water has gone over the dam since Judge Brown, now Chief Judge, as organ for the Court, wrote Gilmore v. United States, 5 Cir. 1959, 264 F.2d 44, it is not only very much alive and well but is determinative in this appeal, both on the former jeopardy and the speedy trial issue. Gilmore was tried twice. His first conviction was reversed. The jury at his second trial could not agree and a mistrial was therefore entered. The district court denied Gilmore’s motion under F.R.Crim.P. 29(a) to enter judgment of acquittal on the ground that the evidence was insufficient to sustain conviction, and an appeal ensued. Without considering the merits, this Court dismissed the appeal because it was not taken from a final decision. In reaching this conclusion it was assumed arguendo that the district court could have entered a judgment of acquittal. Judge Brown was careful to point out, however, that in criminal cases there is finality only when the decision terminates the litigation on the merits and sentence has been imposed. Gilmore argued, as does Bailey here, that the order should have been considered final because it disposed finally of the claimed right not to be twice tried for the same offense. In support of this argument Gilmore emphasized that there was no corrective action available if a direct appeal could not be prosecuted since a second trial would have to take place, but a subsequent appeal would review not the errors in the second trial, but the denial of the motion for acquittal at the end of the first trial. It follows, said Gilmore, that the second trial would be superfluous, but “[w]orse, this has all been required and done in defiance of the constitutional rights of an accused, since ‘The prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted is equally put in jeopardy at the first trial.’ ” Id. at 46 (footnote omitted). The Court responded:

But even if it were assumed that the second trial was forbidden as double jeopardy, that does not invest us with jurisdiction to vindicate such right. The Constitution does not guarantee an appeal. That comes wholly from the statute. There are many instances in which it is ultimately determined that constitutional rights have been violated. But the nature of the asserted right, i. e., a constitutional one, does not distinguish appellate review of any such question from the assertion of other rights, whether statutory or common law, or from a proce- • dural rule. At least so long as a criminal case is pending, review of such matters, as for example, unlawful search and seizure, unlawful arrest, unlawful detention, unlawful indictment, unlawful confession, must await the trial and its outcome. This is so even though, at the end of that trial, or an appeal from the judgment of conviction, it is ultimately determined that the violation of the constitutional right compels an acquittal. When that is the outcome, the individual accused may claim in a very real sense to have been subjected to a trial that ought never to have taken place.
The Constitutional right, or the asserted violation of it, does not bridge the gap of appellate statutory jurisdiction. Nor, for like reasons, does it, through some reverse process, expand the term “final decision” into something which, contrary to a long-settled Congressional policy, amounts in actuality to piecemeal review, (footnote omitted). Id. at 46-47.

The principles explicated in Gilmore are strongly rooted.

Finality as a condition of review is an historic characteristic of federal appellate procedure. It was written into the first Judiciary Act and has been departed from only when observance of it would practically defeat the right to any review at all. . . . The correctness of the trial court’s rejection even of a constitutional claim made by the accused in the process of prosecution must await his conviction before its reconsideration by an appellate tribunal. Cobbledick v. United States, 1940, 309 U.S. 323, 324-26, 60 S.Ct. 540, 541, 84 L.Ed. 783. Underscoring the need for finality, the

Court in Parr v. United States, 1956, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377 pointed out that

[i]n general, a “judgment” or “decision” is final for the purpose of appeal only “when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined.”

It further noted that “[fjinal judgment in a criminal case means sentence. The sentence is the judgment.” Id. Parr had challenged the Government’s right to dismiss an indictment returned against him in the Corpus Christi division of the Southern District of Texas after it had obtained a new indictment against him in the Austin division of the Western District of Texas for the same offenses. Holding that Parr could have the Corpus Christi dismissal reviewed upon an appeal from a judgment of conviction under the Austin indictment, the Court dismissed his appeal in conformity with the long standing statutory policy against piecemeal appeals.

Bailey, relying on Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, and United States v. Lansdown, 4 Cir. 1972, 460 F.2d 164, strenuously insists that in the circumstances of this case, the district court’s denial of his motion to dismiss the indictment was a final appealable order. He distinguishes Gilmore by arguing that the result would have been different if, were the jeopardy claim not reached, the defendant on remand.would have to stand trial for nine months rather than stand trial for two weeks or two months. Furthermore, he seems to infer that since the Gilmore opinion failed to discuss or consider Cohen and the kind of analysis that it mandates, the conclusion reached by us in Gilmore was wrong.

We are unpersuaded that the estimated time that it may take to again try Bailey, or, by implication, the prejudice he may have suffered, is determinative of the finality vel non of the order denying a motion to dismiss the indictment. If this nebulous standard were adopted, how much retrial time would be too much time? How much weight would we have to give to the representation made by the Government on oral argument in this case that it has submitted to the district court an offer to dismiss a number of counts in the indictment, substantially cut its witness list, and reduced its case so that it may be tried within five to six weeks? Bailey’s novel theory is unprecedented and unworkable.

The second prong of Bailey’s argument, that Gilmore failed to take cognizance of or give expression to the Cohen exception of finality, is not only inaccurate, but is precisely contrary to the fact that Gilmore relied upon and consideration was indeed given to, the Cohen principle.

Turning from his criticism of Gilmore, Bailey strongly relies on Lansdown. The court there found that there was no manifest necessity to declare a mistrial or discharge the jury in the face of the jury’s desire to continue its deliberations for an additional ten minutes. The court reached the merits on appeal- from the denial of a motion to dismiss the indictment on the grounds of farmer jeopardy. Recognizing that the denial of a motion to dismiss an indictment is not a final order, but an unappealable interlocutory order, it concluded that it nevertheless had jurisdiction to entertain the appeal under the exception to the final judgment rule in Cohen. The Supreme Court in Cohen decided that an appeal under § 1291 could be taken from an order of the district court denying a corporation’s motion that the plaintiff in a stockholder’s derivative suit be required to give security under a state statute. The Court said:

Nor does the statute permit appeals, even from fully consummated decisions, where they are but steps towards final judgment in which they will merge. The purpose is to combine in one review all stages of the proceeding that effectively may be reviewed and corrected if aijd when final judgment results. But this order of the District Court did not make any step toward final disposition of the merits of the case and will not be merged in final judgment.^ When that time comes, it will be too late effectively to review the present order, and the rights conferred by the statute, if it is applicable, will have been lost, probably irreparably."^) We conclude that the matters embraced in the decision appealed from are not of such an interlocutory nature as to affect, or to be affected by, decision of the merits of this case.
This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. Cohen v. Beneficial Industrial Loan Corp., supra at 546, 69 S.Ct. at 1225.

Applying the Cohen rule, the Lansdown court found that the defendant’s Fifth Amendment right was separable from the main cause of action; that since it was a constitutional right it was too important to be denied review; and finally, if the review was not granted, the right to be free from being twice forced to stand trial for the same offense “will be irreparably lost.” The court went on to say:

Even if an appellate court reverses the conviction, in a second trial on the grounds of double jeopardy, a defendant has still not been afforded the full protection of the fifth amendment since he has been subjected to the embarrassment, expense, anxiety and insecurity involved in the second trial, [jf an individual is to be provided the full protection of the double jeopardy clause, a final determination of whether jeopardy has attached to the previous trial must, where possible, be determined prior to any retrial. J United States v. Lansdown, supra at 171.

The court was nevertheless careful to point out that its holding is “limited to the narrow facts and circumstances of this case”; that its decision dealt “only with mistrials instigated by the court and opposed by the defendant”; and that it did not “apply to those cases where the mistrial is declared at the request of the defendant since in those cases the defendant has waived any claim of double jeopardy.” Id. at 171 and 172, nn. 8 and 10.

Even though the Lansdown court narrowly circumscribed the exception it created to the finality rule, which we think sufficiently distinguishes it from this case, we nevertheless disagree with both the rationale and the conclusion reached. Neither in Gilmore, Lansdown, nor the case sub judice, are there the compelling reasons for finality that were delineated in Cohen. Absent such reasons, interlocutory orders, whether based on statutory or constitutional grounds, are unappealable. See, e. g., Di Bellas v. United States, 1962, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614; United States v. Peachtree National Distributors, 5 Cir. 1972, 456 F.2d 442; Application of the United States, 5 Cir. 1970, 427 F.2d 1140. ¡While the right against former jeopardy may be violated by a retrial, the right is neither lost nor lacking in remedy. If the hazards, expense and inconvenience of retrial are the consequences of the violation of the right, this case is no more distinguishable on finality grounds than a violation of any other constitutional right which results in the defendant’s being subjected to the ordeal of a trial . and conviction on the road to reversal. / See, e. g., United States v. Doucet, 5 Cir. 1972, 461 F.2d 1095. We are of the firm conviction that the principles explicated in Gilmore are correct and are fundamental to jurisdiction. Thus we find untenable Bailey’s contention that, even if not final, the denials of his motion to dismiss the indictment and of his speedy trial motion falls within the exceptions to the rule of finality as found in Cohen. The order was there found appealable because it related to matters collateral to the main action which would not be subject to effective review as part of the final judgment. Unlike the Cohen order, the order denying the motion to dismiss the indictment in the instant case will be merged in the final judgment, and lack of review-on the merits of the former jeopardy and speedy trial claims now will not “deny effective review of .a claim, fairly, severable from the context of a larger litigious process.” Swift and Co. Packers v. Compania Columbiana del Caribe, 339 U.S. 684, 689, 70 S.Ct. 861, 865, 94 L.Ed. 1206. While Bailey will have tp hazard another trial before he can obtain a review on the merits of whether jeopardy attached when his motion to sever was granted on the first trial, and while if he prevails on this issue he “may claim in a very real sense to have been subjected to a trial that ought never to have taken place,” Gilmore, supra at 47, “bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship.” Cobbledick, supra at 325.

Appeal dismissed.

      . Section 1291 provides in pertinent part: “The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . .

      . See Gilmore v. United States, supra at 45 n. 3, in which the Cohen principle is set forth as explicated in United States v. Cefaratti, 1952, 91 U.S.App.D.C. 297, 202 F.2d 13.

      . Without supporting reasons the Third Circuit followed Lansdown in United States ex rel. Russo v. Superior Court of N. J., 3 Cir. 1973, 483 F.2d 7.