author: FEINBERG, Circuit Judge:

text:
    Sabine D. JORDAN, Individually and on behalf of all other persons similarly situated, Appellees, v. Jack A. FUSARI, Commissioner of Labor and Administrator of Unemployment Compensation Act of the State of Connecticut, Appellant.
    No. 582, Docket 73-2364.
    United States Court of Appeals, Second Circuit.
    Argued Feb. 28, 1974.
    Decided April 29, 1974.

      Donald E. Wasik, Asst. Atty. Gen. (Robert K. Killian, Atty. Gen., Employment Security Div., Labor Dept., Hartford, Conn., on the brief), for appellant.
    Jane M. Picker, Cleveland, Ohio (Charles E. Guerrier, Cleveland, Ohio; Eugene N. Sosnoff, Sosnoff, Cooper & Whitney, New Haven, Conn., on the brief), for appellees.
    Irving Jaffe, Acting Asst. Atty. Gen.; Morton Hollander and Leonard Schaitman, Attys., U. S. Dept, of Justice; William J. Kilberg, Sol. of Labor; Alfred G. Albert, Laurie M. Streeter, H. A. Kelley, Attys., U. S. Dept, of Labor, amicus curiae.
    Before KAUFMAN, Chief Judge, and FEINBERG and MULLIGAN, Circuit Judges.
   FEINBERG, Circuit Judge:

This case involves the tail end of what might have been major litigation over the constitutionality of the State of Connecticut’s policy of denying unemployment compensation to thousands of women in the months before and after childbirth. Commendably, the suit has been settled, and the only question on appeal is the propriety of an award of attorneys’ fees to counsel for plaintiffs by order of the United States District Court for the District of Connecticut, Robert C. Zampano, J. The record on this basic issue is sparse, however, and the questions raised have been complicated by developments following entry of the challenged order. Accordingly, for reasons discussed in detail below, we remand to the district court for further consideration.

I

In March 1973, plaintiff Sabine D. Jordan brought this action in the district court under 42 U.S.C. § 1983, on behalf of herself and all others similarly situated. Naming various state officials as defendants, the complaint sought, among other things, an injunction against — and a judgment declaring the unconstitutionality of — section 31-236 (5) of the Connecticut General Statutes, which is reproduced in the margin. In part, that statute provides:

No woman shall be eligible to receive benefits within two months before childbirth and, if such child is alive, such ineligibility shall continue for two months after childbirth.

The complaint alleged that withholding of unemployment compensation benefits from plaintiffs’ class “solely on the basis of a condition of . sex is arbitrary and unreasonable and bears no rational relation to the purpose of compensating unemployed workers in the State of Connecticut” and thus denies plaintiffs' class due process and the equal protection of the law.

After the complaint was filed, the Connecticut legislature repealed the statute on May 4, 1973, effective October 1, 1973. This action, however, did not affect claims made prior to that date by women in plaintiffs’ class. Meanwhile, in the period of March through June 1973, the parties held conferences, wisely encouraged by Judge Zampano, which resulted in a settlement of all issues in the case but one. Plaintiff agreed to withdraw a claim of discrimination she had filed with the Equal Employment Opportunity Commission and to drop as parties defendant all those originally named except Jack A. Fusari, Commissioner of Labor and Administrator of the state’s unemployment compensation program. Defendant Fusari promised to pay plaintiff the benefits owed her. He further agreed to stop enforcing the statute quoted above (which otherwise continued in effect until October 1, 1973); to notify women, denied benefits because of the statute, of their right now to claim them; and to review their applications fully and fairly, paying all sums found to be due in the absence of the statutory bar.

The matter left open by the settlement was the question of attorneys’ fees. Since most of the discussions were understandably informal, we have, even on this limited issue, not very much of a record. Apparently defendant was at one time willing to pay a lump sum award of $2,500, whereas plaintiff and her counsel believed that substantially more (25 per cent of benefits obtained) was warranted. But no one could be sure what the benefits would finally total since members of the class had to make, or renew, as yet undetermined claims. After hearing defendant’s objections, the judge held ten per cent of benefits to be an appropriate fee. He ordered defendant to deduct this amount from claims awarded to members of plaintiffs’ class and to forward the sums to plaintiffs’ counsel monthly. The award rested on the theory that plaintiffs’ lawyers had created — or would create — a fund benefiting a whole class, from which it was only just to compensate the attorneys. The court later noted:

I am absolutely satisfied that the only reason the State is making payments today on these claims, and will until October . . . 1973, when the new law goes into effect, is because of this present lawsuit ....

In the following month, defendant asked the court to reconsider the order, claiming apparently for the first time that deduction of attorneys’ fees from unemployment insurance benefits violated federal and state law. (Indeed, defendant opposed the allowance of any sum because of the non-profit status of plaintiffs’ out-of-state counsel.) Judge Zampano held a hearing on these questions and adhered to his prior ruling that plaintiffs’ lawyers were entitled to a ten per cent fee. He modified his prior order, however, to require that the funds be placed in escrow rather than disbursed to the attorneys, until this court had a chance to rule on the matter. The present appeal followed.

II

In his brief and in oral argument in this court, appellant Fusari advances a number of reasons why the order of the district court, as modified, was improper. Some of appellant’s contentions seem unimpressive; e. g., the position, renewed on appeal, that compensation was not warranted because one of the law firms representing plaintiffs’ class is a non-profit organization, Women’s Law Fund, Inc. But at least one argument gives us substantial pause. This is the claim that federal law prevents any deduction for attorneys’ fees from a claimant’s unemployment insurance benefits. Accordingly, we asked for, and obtained, the definitive views of the United States Department of Labor on this issue, and they strongly support appellant’s position. Briefly, the United States argues, Judge Zampano’s order violates those federal statutes that provide that moneys in the unemployment fund of a state are to be used “solely in the payment of unemployment compensation.” 26 U.S.C. § 3304(a)(4); 42 U.S. C. § 503(a). The Government also relies on long-standing administrative interpretation supporting its view in this matter. Appellees, on the other hand, not only challenge the conclusions of the United States on the authorized use of benefit funds; they also point to alternate sources of money to reimburse their counsel- — such as, for example, the “employment security special administration fund” created by the State of Connecticut. C.G.S.A. § 31-259 (d). Although it is by no means clear which party is correct, it is evident that the issue is substantial and was presented to the district court only as an afterthought, without the considered imprimatur of agencies of the United States. This state of affairs is particularly unfortunate since the district court apparently had made an effort to obtain these views, but had met with no success. Nevertheless — even in this posture of the case — we would ordinarily proceed to decide the issue, if we were persuaded that it was necessarily dispositive.

However, a number of circumstances suggest the desirability of another course. One is the argument made to us by appellees that the allowance of counsel fees can be justified on other grounds, which have never been presented to the district court. Thus, appellees point out that an award might be made on the “private attorney general” theory, citing Northcross v. Memphis Board of Educ., 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (per curiam), and Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam), or on the basis that defendant has shown bad faith or been obdurate or obstinate, citing Stolberg v. Members of Bd. of Trustees for State College of Connecticut, 474 F.2d 485 (2d Cir. 1973). Appellees ask us, should we reject the common fund doctrine relied on by the court below, to remand the case to the district court “for reconsideration and further findings” on these or any other theories available to them in support of their claim for counsel fees. We note that such other theories do not ordinarily involve deductions from benefits and therefore avoid the thorny problems created by the order under attack.

Another factor of concern to us is the bareness of the record, not only, of course, on the issues just mentioned, but also on the amount of the fee awarded. At the time the modified order was entered, there were apparently wildly different estimates of what the benefits to plaintiffs’ class would total, since many claims still had to be filed. Accordingly, no one knew what the dollar amount of the ten per cent fee would be. By now, the picture should be clearer. Indeed, the United States suggests that even if some other theory might justify a counsel fee, the amount should in any event be recomputed since the aggregate sum allowed here will be too high and “out of line.” Rejecting the Government’s reasoning, appellees nonetheless “eagerly adopt” the proposed solution of re-evaluating the size of the award because they deem the figure “grossly inadequate.”

We are thus left with the strong feeling that the best course is to remand the case for reconsideration by the district court. Judge Zampano will then have an opportunity to weigh the thoroughly briefed views of the United States, which he was unable to obtain sooner, and appellees’ response thereto. The record can also be clarified on the question of what the ten per cent fee amounts to, now that determinations of claims have presumably all been made. The district court should further consider the alternative theories appellees now advance, which may well justify a judgment imposing reasonable attorneys’ fees on defendant, without deduction from the awards to plaintiffs’ class. In this connection, we note that the United States has called to our attention Rothstein v. Wyman, 467 F.2d 226 (2d Cir. 1972), cert. denied, 411 U.S. 921, 93 S.Ct. 1552, 36 L.Ed.2d 315 (1973), and Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L.Ed.2d 662 (1974), holding that the eleventh amendment barred retroactive payment of welfare benefits. We do not regard these cases as controlling here. Defendant, and of course the State Attorney General representing him, settled the claim for back unemployment insurance benefits in June 1973, nine months after the decision in Rothstein. The settlement is, therefore, a waiver of any eleventh amendment defense as to those benefits. It is true that defendant did not agree to pay attorneys’ fees, and indeed has opposed them with every conceivable argument except the eleventh amendment. But in this context, we do not believe that the eleventh amendment, waived as to benefits, could bar the claim for fees alone. Moreover, it appears to us that the allowance awarded here, as part of an order granting injunctive relief, has at most the “ancillary effect on the state treasury,” which Edelman v. Jordan, supra, 415 U.S. at 668, characterizes as “a permissible and often inevitable consequence of the principle announced in Ex parte Young,” 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

For the foregoing reasons, we remand this case to the district court for further proceedings consistent with this opinion.

      . (5) (A) If it is found by the administrator that a woman
      (a) has left her employment because of pregnancy, she shall be ineligible for benefits during the week in which she left and the remaining period of her pregnancy;
      (b) has been involuntarily separated from her employment because of pregnaney, she shall be eligible to receive benefits, if otherwise eligible, until two months before childbirth, provided, if the separation • was according to the provisions of a rule which, for the employment involved, is reasonable as defined by regulation by the administrator providing for the separation of pregnant women, she shall be ineligible for benefits during the week in which she was separated and the remaining period of her pregnancy.
      (B) No woman shall be eligible to receive benefits within two months before childbirth and, if such child is alive, such ineligibility shall continue for two months after childbirth.
      (C) No woman who left her employment because of pregnancy or who was involuntarily separated from her employment because of pregnancy shall be eligible to receive benefits after childbirth until she has applied, without restrictions, after the expiration of the two-month disqualification period, for reemployment in the same job or other suitable employment which may be offered to her by her most recent employer. If any such woman refuses to accept such reemployment, she shall continue to be ineligible until she has registered for work at the public employment bureau or other agency designated by the administrator, and has applied without restrictions for suitable employment, is available for work and is making reasonable efforts to obtain work. The administrator may require the production of doctors’ certificates to establish the expected date of childbirth.

      . Although neither party has questioned Judge Zampano’s power to enjoin the enforcement of C.G.S.A. § 31-236(5), in light of the requirement that an “injunction restraining the enforcement ... of any State statute . . . upon the ground of the unconstitutionality of such statute” be entered only by a three-judge district court, 28 U.S.C. § 2281, we have considered the question, raising as it does the issue of subject matter jurisdiction, on our own motion. See Nieves v. Oswald, 477 F.2d 1109 (2d Cir. 1973), and authorities cited therein. We are of the view that where, as here, a settlement is reached prior to the district court’s determination whether a three-judge court is required, the single judge retains jurisdiction to issue an order, predicated on that settlement, which enjoins the defendant state officer from enforcing the statute in issue. Quite simply, having mooted the underlying question of constitutionality, the settlement serves also to avoid the statutory three-judge court requirement operative only where the injunction against enforcement is the product of a constitutional adjudication. Finally, any other course would seem completely unwarranted. It would be an exercise in futility to require the district judge now to convene a three-judge court for the purpose of enjoining a statute that has been repealed for over six months.

      . For the proposition “that the district judge, as a federal chancellor, possesses an equitable discretion to award attorneys’ fees” in a successful class suit “despite the provisions of State legal restraints,” see Ojeda v. Hackney, 452 F.2d 947, 948 (5th Cir. 1972) (per curiam). See also Dodge v. Tulleys, 144 U.S. 451, 12 S.Ct. 728, 36 L.Ed. 501 (1892).

      . The Government concedes that “[a] special fund of this nature is not within the ambit of any Federal statutory requirement” and is therefore “wholly a matter of State law on which [it] expresses no view.” Brief of the United States, jointly submitted by the Department of Labor and the Department of Justice (Joint Brief), at 38.

      . At the second hearing, Judge Zampano stated:
      I think the record should note I invited the Department [of Labor] to come in. I said I would listen to them, I would accept anything they had to say, and I welcomed their appearance. I understand the invitation was rejected.

      . Brief for Appellees at 31.

      . Cf. Brewer v. School Bd. of Norfolk, 456 F.2d 943, 951-952 (4th Cir.), cert. denied, 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136 (1972) (imposition of fees on defendant in “quasi-application” of common fund doctrine) .

      . Joint Brief at 45.

      . Appellees’ Brief in response to Joint Brief, at 19-21.

      . In addition to Northeross, Piggie Park Enterprises and Stolherg, cited in text supra, cf. Wilderness Society v. Morton, 495 F.2d 1026 (D.C.Cir. 1974) (en banc); Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974); Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972) (per curiam); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971); La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972). See also note 7 supra.

      . See also Brandenburger v. Thompson, supra note 10, at 888; Gates v. Collier, 489 F.2d 298 (5th Cir. 1973); Sims v. Amos, 340 F.Supp. 691, 694 n. 8 (M.D.Ala.) (3-judge court) (per curiam), aff’d, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972). Cf. Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 48 S.Ct. 97, 72 L.Ed. 168 (1927); Utah v. United States, 304 F.2d 23 (10th Cir.), cert. denied, 371 U.S. 826, 83 S.Ct. 47, 9 L.Ed.2d 65 (1962).


source: Caselaw Access Project

author: JAMES HUNTER, III, Circuit Judge: WEIS, Circuit Judge

license: Public Domain

text:
    William LEVINSON and William Levinson, Assignee of F. M. P. Corporation, formerly known as Fairmount Motor Products Co., Inc., Appellants, v. UNITED STATES of America, Appellee.
    No. 73-1909.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 25, 1974.
    Decided May 8, 1974.

      Andrew F. Mimnaugh, John T. Clary, Thomas J. Mullaney, Philadelphia, Pa., for appellants.
    Scott P. Crampton, Meyer Rothwacks, Elmer J. Kelsey, David English Car-mack, Washington, D. C., Robert E. J. Curran, Philadelphia, Pa., for appellee.
    Before HUNTER and WEIS, Circuit Judges, and MILLER, District Judge.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

The sole issue on this appeal is the determination of the proper method by which civil tax fraud penalties are to be assessed under 26 U.S.C. § 6653. The Internal Revenue Service (“IRS”) assessed a 50% fraud penalty on the difference between taxpayers’ true tax liability and the tax liability shown on taxpayers’ original tax returns. The district court upheld this method of computation and we affirm.

Taxpayers’ returns for 1967 through 1959 were timely filed and the taxes shown thereon timely paid. When the IRS subsequently conducted routine examinations of these returns, adjustments were made resulting in the assessment of additional taxes. Subsequent to this, taxpayers filed amended returns reporting income which had not been included in the original tax returns. The IRS then began an investigation which uncovered further unreported income of taxpayers and which eventually resulted in the bringing of fraud charges against taxpayers. On this appeal taxpayers do not contest their tax liability or the finding of fraud.

Taxpayers do contend, however, that the fraud penalty should not be applied to those deficiencies assessed because of adjustments made to the original tax return at the time routine audits were conducted. The additional taxes assessed at this time resulted from adjustments to inventories and business deductions. These adjustments apparently were not the subject of the subsequent fraud investigation which was based on omitted income. Thus the taxpayers suggest that the fraud penalty should have been computed by the following formula:

50% x [correct tax — (tax shown on original timely filed return + additional tax assessed because of routine audit on original return) ]

The fraud penalty was actually computed on the basis of this formula:

50% X [correct tax — tax shown on original timely filed return]

Taxpayers argue that the decisional law and applicable statute supports their view that the fraud penalty should not apply to nonfraudulent deficiencies assessed as a result of routine adjustments made to their original returns. We do not agree.

Under the Internal Revenue Code of 1939, the fraud penalty provision, section 293(b), provided that “if any part of any deficiency is due to fraud . then 50 per centum of the total amount of the deficiency . . . shall be so assessed . . . .” (Emphasis added.) “Deficiency” was defined under section 271(a) by the following formula:

deficiency = correct tax — (tax shown on return + amounts previously assessed or collected without assessment —rebates)

Where there have been several deficiencies, this definition quite logically requires that, in computing the amount of any new deficiency, credit should be given for deficiencies previously assessed or collected.

In computing the fraud penalty under the 1939 Code, however, courts consistently refused to apply the penalty to only this narrowly defined deficiency. E.g., Middleton v. Commissioner, 200 F.2d 94 (5th Cir. 1952); Romm v. Commissioner, 245 F.2d 730 (4th Cir.), cert. denied, 355 U.S. 862, 78 S.Ct. 94, 2 L.Ed.2d 68 (1957). Since the fraud penalty provision referred to “the total amount of the deficiency,” courts consistently reasoned that where more than one deficiency had been assessed, the penalty applied to all of the deficiencies ; thus, the total deficiency was held to be the difference between the correct tax and the tax shown on the original return. Romm v. Commissioner, supra; Middleton v. Commissioner, supra; Still, Inc. v. Commissioner, 19 T.C. 1072 (1953); Wilson v. Commissioner, 7 T.C. 395 (1946); J. S. McDonnell v. Commissioner, 6 B.T.A. 685 (1927).

Contrary to what taxpayers suggest, we have found no decision under the 1939 code which deviated from this method of computing the fraud penalty or even suggested that in certain situations a different method of computation would apply. Taxpayers rely heavily on J. S. McDonnell v. Commissioner, 6 B.T. A. 685 (1927) as support for the proposition that in computing the fraud penalty the IRS should allow taxpayers “legitimate adjustments” to the tax as reported on the original return.

Taxpayers, however, have misread McDonnell. The 50% fraud penalty in that case was applied to the difference between the correct tax and the tax shown on the original return. The court specifically held that no error had been committed in the method of computation of the penalty. What the court did say, which is far different from that contended by the taxpayers, is that in computing the total tax liability and hence the correct deficiency, the IRS had failed to give credit for legitimate deductions and losses. Taxpayers, however, have not contested the final tax liability determined by the IRS and therefore McDonnell does not support taxpayers’ position. It is also significant that McDonnell was specifically cited by the same court in Wilson v. Commissioner, 7 T.C. 395, 398 (1942) when it noted that,

“[Sjince the Revenue Act of 1918, the [IRS] has consistently computed the [fraud] penalty upon the total amount understated on the return and in every instance in those cases coming before us of which we are aware, we have approved the computation.” (Emphasis added.)

We therefore conclude that under the Internal Revenue Code of 1939, it was the court-sanctioned practice of the IRS to compute fraud penalties on the difference between the correct tax and the tax shown on the original return. The only question remaining then is whether the enactment of the Internal Revenue Code of 1954 affected changes in this substantive policy. We think not.

The present fraud penalty provision, 26 U.S.C. § 6653(b), differs from its predecessor only in its use of the word “underpayment” rather than deficiency:

“If any part of any underpayment ... of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to 50 percent of the underpayment.” (Emphasis added.)

“Underpayment” is defined in section 6653(c) by reference to the definition of deficiency in 26 U.S.C. § 6211 which is virtually identical to its predecessor, section 271(a). Section 6653(c), however, states that for purposes of defining deficiency, only the tax shown on the original timely filed return is to be considered.

On their face these changes appear minor and at most appear to merely clarify what the practice had been under the 1939 Code. That this was the Congressional intent is unquestionably clear from the legislative history. We thus agree with the Second Circuit that the Internal Revenue Code of 1954 did not change the method of computing the fraud penalty and that the method by which the IRS has computed the penalty in the present case is proper under 26 U.S.C. § 6653. See Papa v. Commissioner, 464 F.2d 150 (2nd Cir. 1972).

In view of taxpayers’ insistence that deficiencies assessed as a result of the routine audit of their returns must be applied as a credit pursuant to 26 U.S.C. § 6211(a) (1) (B), a few further observations appear necessary. First, section 6211(a)(1)(B) is identical to its predecessor under the 1939 Code, section 271(a)(1)(B), and as noted previously, prior deficiencies were never applied under the 1939 Code as a credit in determining the “total” deficiency subject to the fraud penalty.

Second, taxpayers suggest that previously assessed deficiencies should be applied as credit under section 6211 (a)(1)(B) just in some circumstances Yet, there is no support in the statute, its legislative history or in the case law for applying section 6211(a)(1)(B) selectively.

Third, the inequities of taxpayers’ position is manifest. Had there been only one deficiency assessed coupled with a finding that at least a part of the underpayment was due to fraud, then there would not have been any previously assessed deficiency for which taxpayers could claim a credit under section 6211(a)(1)(B). The fraud penalty quite clearly would have been applied to the total underpayment, i. e., the difference between the correct tax and the tax shown on the original timely filed return. It does not seem likely that Congress would have conditioned the severity of the fraud penalty on such a fortuity as whether or not a routine audit had been conducted prior to the assessment giving rise to the fraud charge.

Lastly, if there is ambiguity in the statutory language, we think the clear Congressional purpose must prevail. Since Congress unquestionably did not intend to modify the substantive law under the 1939 Code, we agree with the Second Circuit that the fraud penalty under 26 U.S.C. § 6653 is properly computed on the basis of the difference between the correct tax and the tax shown on the original timely filed return. Accord, Papa v. Commissioner, 464 F.2d 150 (2nd Cir. 1972).

The order of the district court of-August 29,1973 will be affirmed.

WEIS, Circuit Judge

(dissenting):

The dreary pages of the Internal Revenue Code contain few passages of any comfort to the taxpayer. The petitioner here has found several provisions which, when read literally and given their common sense meaning, support his position and bring about an equitable result. It is only by reliance upon previous judicial interpretations, written in response to a need which no longer exists, that the Commissioner is able to prevail, thus increasing the government’s revenue but diminishing the resources of the taxpayer. Since I believe that the plain wording of the statute should prevail, I must dissent.

As the majority concedes, the fraud penalty is computed on the “underpayment,” which term is defined as a “deficiency,” which means the amount by which the correct tax exceeds the sum of (a) the amount shown on the taxpayer’s return plus (b) amounts previously assessed.

I agree with the majority’s statement of the formula:

deficiency = correct tax — (tax shown on return + amounts previously assessed) .

Applying the statute literally means that the taxpayer here should pay the penalty of 50 percent only on the amount of tax due because of fraud and not on that portion of the tax which had been paid as a result of a previous assessment based on adjustments for items as to which there was a legitimate basis for difference of opinion. This result is sound and would appear to be eminently reasonable.

The difficulty is that years ago in construing earlier versions of the Internal Revenue Code, the Tax Court found a “loophole” which it felt obliged to close. The problem was articulated in Still v. Commissioner, 19 T.C. 1072, aff’d, 218 F.2d 639 (2d Cir. 1959), where the court said at 1077:

“A taxpayer who had filed a fraudulent return would merely take his chances that the fraud would not be investigated or discovered, and then, if an investigation were made, would simply pay the tax which he owed anyhow, and thereby nullify the fraud penalty.”

This rationale was adopted by the Courts of Appeal in Middleton v. Commissioner, 200 F.2d 94 (5th Cir. 1952), and Romm v. Commissioner, 245 F.2d 730 (4th Cir. 1957), cert. denied, 355 U. S. 862, 78 S.Ct. 94, 2 L.Ed.2d 68 (1957). These cases involve tax assessments prior to the enactment of the 1954 Code, and in each one all of the deficiencies were based on fraud. While there might be some argument about the court’s power to ignore the wording of the statute, nevertheless the equities favor the result.

The “loophole” about which the courts were concerned was closed through congressional action in 1954 by including in section 6653(c) a provision that the “amount shown on a taxpayer’s return” means a return which is timely filed. Thus, a taxpayer who learns that his tax liability is being questioned and who files a later amended return can secure no reduction of the amount of the penalty due by such action. The calculation of the fraud penalty after 1954 clearly involves only the original return, not an amended one. Therefore, the opportunity to “make sport of the so-called fraud penalty” which concerned the Still, supra, and Romm, supra, courts is no longer available.

Papa v. Commissioner, 464 F.2d 150 (2d Cir. 1972), failed to note the pertinent change in the 1954 Code and, adopting the reasoning of the older cases, refused to allow credit for an earlier assessment made by the Internal Revenue Service. However, Papa, supra, was in the nature of an ex parte proceeding, the appeal having been taken by the Commissioner and not contested by the taxpayer. Furthermore, the earlier deficiency which the court refused to credit was also fraudulent. Equities, therefore, favor the result in Papa, supra, as they did in the earlier cases.

Here, however, fundamental fairness supports the taxpayer’s position, and there would seem to be no reason why we should apply decisional law today which was originally developed to remedy a statutory infirmity since cured by legislative revision.

The majority finds fault with petitioner’s contention that a deficiency under section 6211(a)(1)(B) should be credited only in circumstances of non-fraudulent assessments, and dismisses the taxpayer’s position by saying that there is no support in the statute for such an interpretation. We need not reach that point in this case, although to my mind the taxpayer’s interpretation is far preferable to the one which the courts háve made over the years by completely disregarding credit for all prior assessments paid despite the plain wording of the statute. The petitioner’s suggestion requires only a modest construction to promote equity, while the decisional law involves a major interpretation which furthers inequity.

I would give to the petitioner that which the statute requires and reverse the decision of the district court.

      . See Kurtzon v. Commissioner, 17 T.C. 1542, 1548 (1952) ; Rev.Rul. 60-214, 1960-1 Cum-Bull. 700.

      . The effect of this was to refuse to follow the literal definition of deficiency (which would require that credit be given for previously assessed deficiencies) whenever the fraud penalty was imposed. See, e. g., Romm v. Commissioner, supra.

      . Brief of Appellants at 9.

      . 6 B.T.A. at 690-691. See Wilson v. Commissioner, 7 T.C. 395, 398 (1946), wherein the same court explained that in McDonnell it had “held that the penalty was to be computed upon the entire excess of the tax liability over that shown on the return.”

      . 6 B.T.A. at 695.

      . 26 U.S.C. § 6653(c) provides; inter alia,:

      “For purposes of this section, the term ‘underpayment’ means—
      “(1) Income, estate, and gift tames. — In the case of a tax to which section 6211 (relating to income, estate, and gift taxes) is applicable, a deficiency as defined in that section (except that, for this purpose, the tax shown on a return referred to in section 6211(a)(1)(A) shall be taken into account only if such return was filed on or before the last day prescribed for the filing of such return, determined with regard to any extension of time for such filing) . . . . ”

      . 26 U.S.C. § 6211 provides, inter alia: “Definition of a deficiency

      “(a) In general. — For purposes of this title in the case of income, estate, and gift taxes, imposed by subtitles A and B, the term ‘deficiency’ means the amount by which the tax imposed by subtitles A or B exceeds the excess of—
      “(1) the sum of
      “(A) the amount shown as the tax by the taxpayer upon his return, if a return was made by the taxpayer and an amount was shown as the tax by the taxpayer thereon, plus
      “(B) the amounts previously assessed (or collected without assessment) as a deficiency, over—
      “(2) the amount of rebates, as defined in subsection (b) (2), made.”

      . For a discussion of the legislative history see Papa v. Commissioner, 464 F.2d 150, 152 (2nd Cir. 1972).

      . Taxpayers apparently argue that section 6211(a)(1)(B) should be applied just to those deficiencies assessed because of “legitimate adjustments” made to their original timely filed returns as a result of a routine audit. Presumably, they would add that this previously assessed deficiency was not due to fraud.

      , See, e. g., United States v. American Trucking, 310 U.S. 534, 543-549, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940).

      . Section 6653(b) of the Internal Revenue Code of 1954:
      “If any part of any underpayment . . . of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to 50 percent of the underpayment.”

      . Section 6653(c) of the Internal Revenue Code of 1954.

      . Section 6211 of the Internal Revenue Code of 1954:
      “Definition of a deficiency
      (a) In general. — Eor purposes of this title in the case of income, estate, and gift taxes, imposed by subtitles A and B, the term ‘deficiency’ means the amount by which the tax imposed by subtitles A or B exceeds the excess of—
      (1) the sum of
      (A) the amount shown as the tax by the taxpayer upon his return, if a return was made by the taxpayer and an amount was shown as the tax by the taxpayer thereon, plus
      (B) the amounts previously assessed (or collected without assessment) as a deficiency, over — •
      (2) the amount of rebates, as defined in subsection (b) (2), made.”

      . Still, supra, Romm, supra, and Wilson v. Commissioner, 7 T.C. 395 (1946).


author: AINSWORTH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Amalia OLIVARES, Defendant-Appellant.
    No. 73-4021.
    United States Court of Appeals, Fifth Circuit.
    June 21, 1974.
    Joseph A. Calamia, John L. Fashing, El Paso, Tex., for defendant-appellant.
    William Sessions, U. S. Atty., San Antonio, Tex., Ralph Harris, William B. Hardie, Jr., Ronald F. Ederer, Asst. U. S. Attys., El Paso, Tex., for plaintiff-appellee.
    Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.
   AINSWORTH, Circuit Judge:

Amalia Olivares was convicted, after a trial to the district court, on six counts of knowingly transporting aliens knowing them to be in the United States illegally, in violation of 8 U.S.C. § 1324. We find that the search forming the basis of her conviction was conducted without probable cause; and we reverse.

In the district court the parties stipulated, in effect, that, if the six aliens named in the indictment were called as witnesses, they would testify to events constituting the substantive elements-of the offenses charged against defendant. The stipulation was, however, subject to defendant’s motion to suppress all evidence, and the fruits thereof, obtained as a result of the search of the vehicle in which defendant was transporting the aliens. After hearing the testimony relevant to the motion to suppress, the district court denied the motion, and the stipulation was admitted. The facts pertinent to this appeal are not in dispute.

I.

At 4:15 a. m. on October 13, 1973, Constable Jesus R. Cano, who was employed by the County of El Paso to work with law enforcement officers in the area of Fabens, Texas, noticed a heavily loaded Ford Eeonoline Van moving slowly up a slight incline in front of the Texaco service station about a mile from Fabens. The van was spotted by Constable Cano on the access road leading to Interstate 10, as the van was coming north from Fabens and heading toward El Paso. At this point, the van was approximately four or five miles from the border with Mexico. Constable Cano knew from his experience with narcotics and alien smuggling in the Fabens area that vehicles similar to this van were used for such smuggling. The fact that this van was on the road at 4:15 a. m. also aroused his suspicions.

About ten minutes after the van passed, Constable Cano happened to meet Deputy Sheriff Bobby C. Deffers of the El Paso County Sheriff’s Department and informed him that a van with an exceptionally heavy load had entered the highway going west. Constable Cano suggested that Deputy Deffers stop the van and check it out.

In his twenty-one months with the El Paso Sheriff’s Department, Deputy Deffers had experience in detecting the smuggling of marijuana and illegal aliens. In addition, he was aware that there had been problems in the area with smuggling and burglaries and that van-type vehicles had been used for these purposes. So he proceeded on to Interstate 10. When he located defendant’s vehicle, he noticed that the van was riding a “little low in the rear,” as though it were carrying a load, that the rear windows of the van were blocked, and that the van had out-of-state license plates. Deputy Deffers turned on his emergency lights, and, after defendant pulled over to the side of the road, Deffers notified his dispatcher that he was making a routine traffic check. Deputy Deffers walked up to the van and asked defendant for identification, whereupon she produced a valid Illinois driver’s license. At this point, he noticed a passenger sitting in the front seat — “what appeared, to be a Mexican male.” Deputy Deffers asked the passenger for identification. Though the reply was in Spanish and Deputy Deffers did not understand Spanish, the passenger apparently indicated that he had no identification. Deputy Deffers next inquired as to the passenger’s home, and to this the passenger replied, “Mexico.” From his position, Deputy Deffers could not see to the rear of the inside of the van because a blanket, which hung behind the two front seats, blocked his view. Deputy Deffers asked defendant what was in the back of the van, to which she replied that there were two mattresses. He then asked defendant to open the van, which she did, and eighteen to twenty males and females were found inside. When these individuals were asked to produce proper identification permitting them to be in this country and were unable to do so, they were detained, and the Border Patrol was notified. After transporting the individuals to the Texaco service station, Deputy Deffers and the Border Patrol searched them for weapons and narcotics and found none.

II.

It is settled, of course, that a moving vehicle may be stopped and searched without a warrant where there is probable cause for the search. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Almeida-Sanchez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537-2538, 37 L.Ed.2d 596 (1973); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carlton v. Estelle, 5 Cir., 1973, 480 F.2d 759, cert. denied, 414 U.S. 1043, 94 S.Ct. 546, 38 L.Ed.2d

334. The Government contends that probable cause for the warrantless search of defendant’s van is furnished by viewing, as we must, these circumstances as a whole: the van was riding low because it was carrying a heavy load; the van was moving in a direction away from the border; the van was spotted at 4:15 a. m.; the van bore out-of-state license plates; the rear windows of the van were blocked; and the officers were aware of a high incidence of marijuana and alien smuggling in the Fabens area. See, e. g., United States v. Lopez-Ortiz, 5 Cir., 1974, 492 F.2d 109; United States v. Doyle, 5 Cir., 1972, 456 F.2d 1246. We realize that we must deal not with technicalities but with probabilities associated with the everyday practical considerations of reasonable men. See Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). We cannot say, however, that the facts and circumstances within the officers’ knowledge in this case would “warrant a man of reasonable caution in the belief that an offense has been or is being committed,” Brinegar v. United States, supra at 175, 69 S.Ct. at 1310-1311; see Carroll v. United States, supra at 162, 45 S.Ct. at 288; Stacey v. Emery, 97 U.S. 642, 645, 24 L.Ed. 1035, 1036 (1878). Tested by objective standards, see, e. g., Dodd v. Beto, 5 Cir., 1970, 435 F.2d 868, 870, the movements of this van did not give rise to a reasonable belief that criminal activity was afoot. Driving a loaded van with out-of-state plates in the early morning hours, heading west from Fabens toward El Paso, does not create a reasonable inference of criminal activity. The situation is not, moreover, turned into a basis for probable cause merely because there was a high incidence of smuggling in the area. Cf. Sibron v. State of New York, 392 U.S. 40, 62, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968).

Most of the circumstances offered by the Government in support of probable cause came into play before Deputy Deffers stopped defendant’s van. If subsequent events are also considered, however, no adequate basis for the search is apparent. Although Deputy Deffers reported to his dispatcher that he was making a routine traffic check, he testified that no traffic violation was involved in his stopping the vehicle. When asked for identification, defendant produced a valid Illinois driver’s license; and she explained that the van was riding low because there were two mattresses in the rear. That defendant’s passenger in the front seat was from Mexico, coupled with other facts set forth above, is still insufficient to establish that probable cause existed. See United States v. Mallides, 9 Gir., 1973, 473 F.2d 859, 860.

There being no probable cause for the search of defendant’s van, the search violated defendant’s Fourth Amendment right to be free of “unreasonable searches and seizures.” Accordingly, since the evidence obtained as a result of the search should have been excluded by the district court, defendant’s conviction is

Reversed.

      . The statute provides :
      § 1324. Bringing in and harboring certain aliens; persons liable; and authority to arrest
      (a) Any person, including the owner, operator, pilot, master, commanding officer, agent, or consignee of any means of transportation who—
      (1) brings into or lands in the United States, by any means of transportation or otherwise, or attempts, by himself or through another, to bring into or land in the United States, by any means of transportation or otherwise;
      (2) knowing that he is in the United States in violation of law, and knowing or having reasonable grounds to believe that his last entry into the United States occurred less than three years prior thereto, transports, or moves, or attempts to transport or move, within the United States by means of transportation or otherwise, in furtherance of such violation of law;
      (3) willfully or knowingly conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, in any place, including any building or any means of transportation; or
      (4) willfully or knowingly encourages or induces, or attempts to encourage or induce, either directly or indirectly, the entry into the United States of—
      any alien, including an alien crewman, not duly admitted by an immigration officer or not lawfully entitled to enter or reside within the United States under the terms of this chapter or any other law relating to the immigration or expulsion of aliens, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $2,000 or by imprisonment for a term not exceeding five years, or both, for each alien in respect to whom any violation of this subsection occurs: Provided, however, That for the purposes of this section, employment (including the usual and normal practices incident to employment) shall not be deemed to constitute harboring.
      (b) No officer or person shall have authority to make any arrest for a violation of any provision of this section except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws.

      . The stipulation reads in pertinent part:
      “That on or about October 13, 1973, they met the defendant AMALIA OLIVARES at the Hotel Los Pinos in Juarez, Chihuahua, Mexico; that they all had a conversation with her and at which time she proposed to them to bring them into the United States for the sum of $200.00 each. They further agreed that for this sum they would be transported to Chicago, Illinois. The witnesses for the Government would further testify that defendant knew that they were Mexican citizens and not entitled to enter into the United States because she was advised by them that they did need someone to help them to come into the United States. The witnesses as named would further testify that she led them up the river to a point near Ysleta, Texas, at which time she led them across the river into a waiting truck. That they proceeded to get into the truck and that she was the driver. That she proceeded to transport them within the .United States at which time they were stopped by officers of the Sheriff’s Department near Clint, Texas. The witnesses for the Government as named about would further testify that they are citizens of the republic of Mexico, that they were here in the country, in the United States, on the date alledged [sic] on the indictment against AMALIA OLIVARES illegally and that they had not been duly admitted by an Immigration officer of the United States and they were not lawfully entitled to enter and to reside within the United States and that AMALIA OLIVARES well knew this to be true.”

      . We note the following exchange between defendant’s counsel and Deputy Deffers concerning Deputy Deffers’ practices with respect to van-type vehicles:
      Q How many [vehicles similar to this van] have you stopped for checking them out because they — for any reason, this type of vehicle, how many times have you stopped them and searched them as you say, to check them out in your 21 months period.
      A Two or three times a week, at least.
      Q This type of vehicle, referring to this
      A —yes sir, closed van or a truck.
      Q Any type of closed van, you consider this type of vehicle suspicious?
      A Yes, sir.
      Q So you make it your business that when you see an enclosed Van in the neighborhood of El Paso and Clint and Fabens, on the freeway, and it is enclosed, you want to know what is in it, is that correct?
      A It would depend on the circumstances.
      Q All right sir. And if the circumstances were such that it was loaded down, that is when you want to look into it, or in the early morning hours?
      A If it is a strange vehicle to that area, yes sir.i
      Q You mean out of state license?
      A Out of state license or a strange vehicle to that area?
      Q You mean a vehicle not known in this area?.
      A Or known to the officers in that area, yes, sir.

      . After the group’s return to the service station, Constable Cano was told by a service station attendant that the attendant had seen defendant’s van on the preceding evening heading toward the border. This information was not within the officer’s knowledge at the time of the search of the van, however, and is not considered in our determination of the probable cause question. iSee, e. g., Brinegar v. United States, 338 U. S. 160, 175, 69 S.Ct. 1302, 1310-1311, 93 L. Ed. 1879.

      . The Government does not contend that this was a border search or its functional equivalent ; nor does it contend that defendant consented to the search of her vehicle.

      . When evidence obtained as a result of a search and seizure by state law enforcement officers is offered in a federal prosecution, as in this case, it is well established that federal constitutional principles are to be applied. Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); United States v. West, 5 Cir., 1972, 460 F.2d 374.

      . In its brief, the Government notes our recognition “that a police officer may stop a vehicle and request the production of a driver’s license with somewhat less than probable cause as a requisite,” Dell v. State of Louisiana, 5 Cir., 1972, 468 F.2d 324, 326, cert. denied, 411 U.S. 938, 93 S.Ct. 1904, 36 L.Ed.2d 400 (1973); see United States v. Pearson, 5 Cir., 1971, 448 F.2d 1207, 1212, and suggests that the dispositive issue in this case is whether a stop of the van and a brief detention was based on a reasonable suspicion of criminal activity, see, e. g., Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). In this case, however, we do not deal with a stop accompanied by a limited inquiry for routine investigative purposes.


author: BELL, Circuit Judge:

text:
    INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 278, Plaintiff-Appellee-Cross Appellant, v. JETERO CORPORATION, Defendant-Appellant-Cross Appellee.
    No. 73-2860.
    United States Court of Appeals, Fifth Circuit.
    June 21, 1974.

      Michael C. Kendrick, Jr., Corpus Christi, Tex., Robert S. Bambace, Hugh E. Hackney, Houston, Tex., for defendant-appellant.
    David L. Perry, Corpus Christi, Tex., for plaintiff-appellee.
    Before BELL, SIMPSON and INGRAHAM, Circuit Judges.
   BELL, Circuit Judge:

This appeal involves an arbitration award which resulted from a suit to enforce a collective bargaining agreement under § 301 of the Labor-Management Relations Act. 29 U.S.C.A. § 185. The dispute between the parties centers on a contract dated May 8, 1972 wherein it was provided:

“1. As to proposed construction sites at Sage Apartments, Corpus Christi, Texas and Everhart Apartments, Corpus Christi, Texas, Jetero Corporation agrees to comply with the terms of your ‘Agreement between the Texas Gulf Coast Division of the Southeast Texas Chapter, National Electrical Contractors Association, Inc., and Local Union No. 278 of the International Brotherhood of Electrical Workers, Corpus Christi, Texas,’ as approved October 9, 1970, and amendments thereto.”

It is to be noted that this contract refers to the “October 9, 1970” agreement and “amendments thereto.” The key issue presented is whether an agreement dated September 1, 1972 was an amendment to the October 9, 1970 agreement.

The plaintiff union sought injunctive relief based on an alleged breach of the May 8 contract by virtue of defendant using a non-union electrical subcontractor on the named jobs. The court denied injunctive relief but found that the May 8 contract was valid and binding, and that the defendant was bound to comply with the terms of the agreement dated October 9, 1970 which is referred to therein. The court went on to hold that the defendant had breached the May 8 contract and ordered defendant “to comply with whatever grievance and arbitration provisions are contained” in the October 9, 1970 agreement. In the same order the court held that the September 1, 1972 agreement was not binding on defendant.

The dispute then went to arbitration and the union moved to enforce the award of the arbitrators. The arbitration provision in the October 9, 1970 agreement, in lieu of strikes or lockouts, provided for a labor-management committee consisting of representatives of the union and employer. All unresolved grievances or questions in dispute “relating to the agreement” were to be referred to this committee. Article I, §§ 4-6.

The award of the arbitrators required payments of lost back wages to the union through August 1972 under the October 9, 1970 agreement and thereafter under the September 1, 1972 agreement. As stated, the controversy is over whether the September 1, 1972 agreement was an amendment to the 1970 agreement as found by the arbitrators despite the contrary ruling of the court in the order of reference to the arbitrators. The district court set aside the arbitration award to the extent that it included the 1972 agreement, holding that the arbitrators exceeded their authority in view of the court’s prior construction of the May 8 contract to the effect that the 1972 agreement was not an amendment to the 1970 agreement. We agree.

In Atkinson v. Sinclair Refining Company, 370 U.S. 238, 82 S.Ct. 1318, 8 L.Ed.2d 462 (1962), the court said:

“Under our decisions, whether or not the company was bound to arbitrate as well as what issues it must arbitrate is a matter to be determined by the Court on the basis of the contract entered into by the parties . . . . ” 370 U.S. at 241.

The district court made this determination in the order of reference. The May 8, 1972 contract was not embraced in the 1970 agreement containing the arbitration provision. The language “and amendments thereto” in the May 8, 1972 contract was an entirely separate matter from the 1970 agreement and the parties had agreed only to arbitrate grievances and disputes relating to the 1970 agreement. The district court was not in error in restricting the arbitrators to an award based on the October 9, 1970 wage scale. Cf. The Steelworkers’ Trilogy. Cf. also Local Union No. 787, Int’l Union of Elec., Radio and Machine Workers v. Collins Radio Co., 5 Cir., 1963, 317 F.2d 214; Oil Chemical and Atomic Workers International Union v. Southern Union Gas Company, 5 Cir., 1967, 379 F.2d 774.

The defendant contends that it was improper to refer the matter to arbitration in the first instance. The union suggested the remedy of arbitration after having first filed suit. The union answers that the defendant was denying that a contract was involved prior to the suit having been filed but changed its position after the suit was filed to admit the contractual coverage. It was at this point, contends the union, that arbitration became a proper course. The district court did not err in requiring arbitration. The duty to arbitrate is of contractual origin and here the contractual requirement cannot be disputed.

It does not appear that a dispute exists as to the date when defendant ceased to be in violation of the May 8 contract. This is a tangential question for determination on remand. It will be necessary in any event for a computation to be made of the sums due under the award of the arbitrators as modified by the district court.

Affirmed on the appeal and cross-appeal; remanded for further proceedings not inconsistent herewith.

      . “It is, therefore, ORDERED, ADJUDGED and DECREED that Plaintiff’s Application for a Temporary Injunction be, and the same is hereby, denied. However, the Court does direct the Defendant Jetero to comply with whatever grievance and arbitration provisions are contained in the document which is heretofore referred to as Plaintiff’s Exhibit No. 2.” [Agreement of October 9, 1970]

      . United Steelworkers of America v. American Manufacturing Company, 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprize Wheel and Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960).


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Juventino H. MARTINEZ, alias Willie Gonzales, and Joe Ramon Rodriguez, Defendants-Appellants.
    No. 73-1951.
    United States Court of Appeals, Fifth Circuit.
    June 26, 1974.
    Rehearing and Rehearing En Banc Denied Oct. 23, 1974.

      Manuel V. Lopez, Jr., San Antonio, Tex., Joe A. Rudberg, Dallas, Tex. (Court-appointed), for defendants-appellants.
    William S. Sessions, U. S. Atty., Joel D. Conant, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and GODBOLD, Circuit Judges.
   AINSWORTH, Circuit Judge:

Appellants, Juventino H. Martinez and Joe Ramon Rodriguez, were jointly tried before a jury and convicted under a single count alleging a conspiracy under 21 U.S.C. § 963 to import marijuana contrary to 21 U.S.C. § 952(a), and to possess marijuana with intent to distribute contrary to 21 U.S.C. § 841(a)(1). Numerous errors are alleged on appeal. We reverse because of the trial court’s comments and instructions to the jury, which deprived defendants of a fair trial.

Michael Bell was arrested in Laredo, Texas, on July 5, 1972 while driving a vehicle containing approximately 100 pounds of marijuana which he had obtained from Mexico. He agreed to cooperate with the Government and furnished information which subsequently led to the arrest and indictment of appellants, Joe Rodriguez and Juventino Martinez.

The only evidence at the trial which connected appellants with the offense charged came from the two acknowledged accomplices, Pete Herrera and Michael Bell, and Bell’s wife, Julia. 45**The gist of the Government’s testimony was that appellants employed Herrera to act as a runner to bring back marijuana from Mexico. Herrera in turn suggested that an acquiantance, Michael Bell, might also be interested in the venture. Thereafter, Herrera approached Bell with the idea, received a favorable response, and introduced him to appellants Rodriguez and Martinez, who made the necessary arrangements to procure the contraband. During the months of June and July 1972, several trips were made to Mexico for the purpose of importing marijuana: on June 10 by Herrera and Bell, accompanied by their wives; on June IS by Bell and Joe Martinez (the non-apprehended defendant at the time of the trial); on June 25 by Bell and his wife, Julia; on July 5 by Bell, which trip resulted in his arrest while attempting to cross the border. The Government’s evidence also showed that appellants either singly or jointly furnished and arranged for cars to transport the marijuana and that they compensated Bell for two successful trips occurring on June 25 and July 5.

Both appellants took the stand and testified to their innocence. Their testimony was diametrically opposed to that of Herrera, Bell and Mrs. Bell who, though admitting their complicity in the undertaking, cast appellants in the primary roles of organizers and directors of the operation. The jury was faced with the dilemma of choosing between two sets of conflicting testimony, and they rejected appellants’ version. This credibility choice would not be disturbed on appeal were it not for the fact that the trial judge by repeated prejudicial remarks effectively directed a verdict of guilty.

Contrary to the great mass of the testimony of both Mrs. Bell and her husband, the trial judge expressed his opinion that the evidence showed that Mrs. Bell knew nothing about the purpose of the June 10 and June 25 trips to Mexico (the only two trips made by Mrs. Bell with her husband) until she returned home from the second trip. In his charge to the jury the trial judge said:

[Tjhere was a disagreement among counsel as to what one witness had said. And that particularly is the case of Mrs. Julia Bell. Counsel for the defendant repeated many times that on her last trip to Mexico she knew all about it before she left. Counsel for the Government challenged that and said, “No, that was not her testimony at all.” She said that she was very suspicious but it was bnly on that second trip • home, that after she had crossed the border she confronted her husband and knew at that time that he had been engaged in an unlawful enterprise. Who has the most correct recollection of that testimony? Does the defendant’s counsel or does the Government’s counsel? Frankly I have an opinion as to who has the better recollection, and I am entitled to express an opinion. I think the Government’s attorney has the better recollection, however, the recollection of it is entirely for you. And you are to accept your version of the testimony and not that of counsel for the Government, counsel for the defendant, or the remarks of the Court. The jury is as free as the air to disregard any opinions expressed by either counsel or the Court and to determine the case solely on the evidence of the case.

The testimony of Mrs. Bell is somewhat contradictory. However, for the most part it shows not only that she was aware of the illegal conspiracy at least as early as June 24, 1972, one day prior to her second trip to Mexico, but that she was an active participant in it.

On cross-examination Mrs. Bell reaffirmed the fact that she knew the illegal purpose of the trips to Mexico prior to tile time she made her second and last trip with her husband.

From the testimony of Mrs. Bell quoted in the margin it is apparent that she was a knowing participant in the conspiracy when she accompanied her husband to Mexico on June 25. The trial judge’s recollection of her testimony as stated in his charge to the jury, that she was ignorant of the purpose of the venture, apparently stemmed from remarks of Mrs. Bell while being questioned on cross-examination relative to her husband receiving compensation for his activities as a runner. Contrary to her prior assertions, she stated that she was unaware of the activities of the conspirators until she returned from the June 25 trip.

We do not question the right of a trial judge to comment on the evidence or express his fair opinion of that evidence where the jury is cautioned that they are not bound thereby and the ultimate resolution of factual issues is left to the jury. United States v. Jacquillon, 5 Cir., 1972, 469 F.2d 380; United States v. Dopf, 5 Cir., 1970, 434 F.2d 205. Indeed, the judge’s remarks can be extremely salutary in assisting a jury to sift through confusing and irrelevant evidence. However, “It is well known, as a matter of judicial notice, that juries are highly sensitive to every utterance by the trial judge, the trial arbiter, and that some comments may be so highly prejudicial that even a strong admonition by the judge to the jury, that they are not bound by the judge’s views, will not cure the error.” Bursten v. United States, 5 Cir., 1968, 395 F.2d 976, 982-983; United States v. Womack, 5 Cir., 1972, 454 F.2d 1337, 1343. This is the situation here. The trial judge’s undue emphasis of his personal opinion of Mrs. Bell’s noninvolvement in the marijuana traffic had the effect of nullifying the fact-finding function of the jury. Especially is this true where the trial judge’s recollection of the testimony was substantially erroneous. There was no evidence to inculpate appellants except that which came from the testimony of the accomplices. In essence, the trial judge informed the jury that in his opinion Mrs. Bell was not an accomplice to the conspiracy. Mrs. Bell’s testimony was damaging to appellants. Although the jury was told of their right to reject the judge’s version of the testimony, his impression of Mrs. Bell’s neutrality and nonparticipation in the criminal operation was further impressed upon the jury when he further commented:

“And his [Bell’s] actions with these people supported by the testimony of his wife, who has neither been charged, or actually you could find from the evidence if you cared to was not actually involved in any of the criminal acts complained of, although her husband readily admitted that he was, and he was being paid to do his job.” [Emphasis supplied.]

Under these circumstances, the instruction by the trial judge that the jury was not bound by his opinion was of questionable value. Moreover, the court’s instruction that the testimony of an accomplice should be received with caution and weighed with care doubtless had little effect on the jury’s assessment of the testimony of Mrs. Bell, who, because of the remarks of the court, had been effectively removed from the category of an accomplice.

If the jury still entertained a reasonable doubt of appellants’ guilt, that doubt was all but dispelled when the district judge, again commenting on the Government’s evidence, said:

“I would think that if you believed all-those facts beyond a reasonable doubt you wouldn’t have much hesitancy, and you would be entitled, although I am not instructing you in any way because the deliberation is all yours, not mine. I think that you might reasonably find that the offense has been proved. You have heard the defendants in this case, who have said absolutely nothing, they did not in any wise have anything to do with this.” [Emphasis supplied.]

We have had occasion to hold trial judges’ remarks similar to these as constituting an impermissible directed verdict. The error here is even more prejudicial when combined with the other remarks previously alluded to.

Another serious error asserted by appellants is the failure of the trial court to instruct the jury on the elements of the substantive crimes constituting the objects of the charged conspiracy, i. e., (1) to import marijuana and (2) to possess same with intent to distribute. There is nothing in the charge to the jury which apprised them of the definition, 'character or nature of the acts of importing, possessing, or distributing marijuana. Moreover, the trial judge omitted any reference to the substantive crime of possessing with intent to distribute marijuana, one of the objects of the charged conspiracy. Only once, during the entire charge, did the court attempt to inform the jury of the crime with which appellants were charged, when it instructed: “You, the jury, determine from all the facts and circumstances whether or not a criminal conspiracy existed between these two persons and others to import marijuana from Mexico into the United States.”

The district court also committed error in permitting the prosecution to elicit from appellant Rodriguez-on cross-examination the fact that he was carrying loaded pistols at the time of his arrest. The marijuana was seized from Bell at the Laredo, Texas bridge. Rodriguez was nowhere in that vicinity. Rodriguez’ subsequent possession of firearms had no connection with the crime of which he was convicted. The defense objected to the line of questioning but the court admitted the testimony for the purpose of impeachment. It is well settled, of course, that convictions for felonies or for misdemeanors involving moral turpitude are admissible for impeachment of a defendant who testifies. Steele v. United States, 5 Cir., 1957, 243 F.2d 712; Daniel v. United States, 5 Cir., 1959, 268 F.2d 849; Hamilton v. United States, 5 Cir., 1969, 409 F.2d 928; United States v. Garber, 5 Cir., 1972, 471 F.2d 212. However, there was no conviction growing out of Rodriguez’ having possessed the pistols, which could have justified the admission of the evidence. Nor can the evidence be justified under the theory that Rodriguez had put his reputation in issue, either by calling character witnesses, Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), or by false assertions on direct examination relative to his prior unlawful conduct, Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). This is not such a case. Under the circumstances, the evidence was improperly admitted. See, e. g., United States v. Davenport, 5 Cir., 1971, 449 F.2d 696.

Appellants’ challenge of the legal sufficiency of the indictment warrants only brief discussion. Under the criteria discussed by the Supreme Court in Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 1049, 8 L.Ed.2d 240 (1962), and the numerous eases cited thereat, we find the indictment sufficient. It contains the elements of the offense intended to be charged; it sufficiently apprises the defendants of what they must be prepared to meet, and protects them from being again put in jeopardy for the same offense. Nevertheless, the indictment contains a minor, technical and non-pre judicial error which may be amended on remand. See Russell v. United States, supra, 369 U.S. at 770, 82 S.Ct. at 1050. The indictment charges a conspiracy under 21 U.S.C. § 963 to possess marijuana with intent to distribute contrary to 21 U.S.C. § 841(a)(1), whereas the correct conspiracy statute governing an offense under section 841(a)(1) is 21 U.S.C. § 846. The language of the two conspiracy statutes is identical. The error was beyond a doubt harmless and is no ground for dismissal of the indictment. See Rule 7(c)(3), Fed.R.Crim.P.

In light of our remand we do not reach the question of sufficiency of the evidence. The two additional errors alleged by appellants are- without merit.

Reversed and remanded.

      . Also charged in the indictment as defendants were Pete ,T. Ilerrera and Joe Martinez. Michael Bell was named as a coconspirator but not as a defendant. Herrera was granted a motion for severance and at the time of trial Joe Martinez had not been apprehended.

      . Appellant alleges:
      1. The indictment is fatally defective because it charges offenses not proscribed by the laws of the United States.
      2. The district court’s instructions to the jury with respect to the elements of the crime charged amount to plain error.
      3. The remarks of the trial judge were prejudicial and constituted directions to the jury to return verdicts of guilty.
      4. The evidence is insufficient to support appellants’ convictions.
      5. The district court’s failure to instruct that corroboration of accomplice testimony was necessary, combined with its erroneous instructions concerning circumstantial evidence, constituted prejudicial error.
      6. The district judge prejudicially erred in permitting the Government to question appellant Rodriguez concerning wrongful conduct for which no conviction had been obtained.
      7. Appellants’ rights under the Fifth and Sixth Amendments were abridged by the trial court’s actions concerning testimony sought to be elicited from Government counsel.

      . The only other witness called by the Government was United States Customs Agent McPhink who arrested Bell at Laredo. McPhink’s knowledge of appellants was acquired through Bell.

      . gee n. 1.

      . Mrs. Bell testified that she met the appellants Joe Ramon Rodriguez and Juventino Martinez (known to her as “Willie”) around June 24, 1972. ghe was asked on direct examination (Tr. 29-31) :
      Q. Now, on both of these trips, on June 10th and June 24th, did you receive any expense money for going down there?
      A. Yes, we did.
      Q. Okay. Who gave you the expense money?
      A. Well, on the first trip it was given to Michael so I didn’t even know what was going on. The second trip was given to Michael and I together by Joe, himself.

      Q. Rodriguez?
      A. Yes, sir.

        Q. IIow much did he give you?
      A. He gave us $190 total. It was supposed to be $150 advance payment and $40 for expenses.
      Q. All right. $40 for expenses, and $150 in advance?
      A. Yes, sir.
      Q. IIow much were you to be paid for a trip where you would go to Mexico and come back?
      A. Around $300 or $350.
      Q. On June 10th did you get paid the $300 for going to Laredo?
      A. Not that I know of.
      Q. But you weren’t able to make the complete trip?
      A. No.
      Q. Now, on June 24th you were given $150, is that correct?
      A. Right.
      Q. Now, did you make the trip to Laredo? A. Yes, we did.
      Q. And did you bring back a load of marijuana?

      A. Yes, xoe did. [Emphasis supplied.] Mrs. Bell was further asked (Tr. 31-32) :
      Q. Now, on June 25th did you have an occasion to talk with the two Defendants in this case about your trip to be made that weekend?

      A. That Saturday, we did.

      Q. Okay. That would be the 24th?

      A. Right, sir.
      Q. All right. And who did you talk to to make the arrangements to go down to Mexico to bring back this load of marijuana?
      A. Well, we talked to Joe and Willie both. Q. Okay. Now, when did you actually make the trip that you discussed on the 24th with the two Defendants?

      A. The next day.

      Q. That would be the 25 th?
      A. Right.
      Q. On Sunday?
      A. Right.
      Q. All right. How did you go down to Mexico on the 25th?
      A. By the car furnished by Joe.

      Q. All right. Who took you to get that car?
      A. Willie did.

        Q. The Defendant — excuse me, Juventino Martinez?

      A. Right. I don’t know his other name.

      Q. All right. This Defendant over here?

      A. Right, sir.

        Q. Now at the time that he took you to get the car did he give you any instructions as to what you were to do when you got to Mexico?
      A. Yes. He gave us a phone number to call when we got there. [Emphasis supplied.]

      . The witness was asked (Tr. 34) :
      Q. Mrs. Bell, how many trips have you made to Nuevo Laredo to bring marijuana hack?
      A. Do you mean myself?
      Q. Yes.
      A. Two. One that I knew of, and one I didn’t know of.
      Q. And one time you didn’t know that you were going there to bring marijuana, is that correct?
      A. Well, I found out after I had gotten back that that’s why I went.
      Michael Bell was also of the opinion that his wife knew of the purpose of the second trip. He testified on cross-examination as follows:
      Q. She went with you how many times, once or twice?
      A. Twice.
      Q. And both times she knew that you were being paid to go over there, is that right?
      A. The first time she was vague, she knew something was amiss. The second time she knew exactly what was going on. Q. And she knew that you were going to bring marijuana?

      A. Right.

      Q. And the first time she knew that you were getting some money for going out there, and you were getting some money when you came back?
      A. Yes.
      Q. And she knew that the second time— the second time she was almost certain it was narcotics?
      A. Yes. [Emphasis supplied.]

      . Mrs. Bell was asked (Tr. 39) :
      Q. And you knew by then [June 26] this involved bringing narcotics across the border?
      A. No, I didn’t. Not until we came back. On the way back I questioned my husband about what he was doing.
      Q. And you found out that he had received some money for going there but you didn’t know what?.
      A. Yeah.
      Q. But you suspected?
      A. Yes.

      . See, e. g., United States v. Williams, 5 Cir., 1973, 473 F.2d 507; United States v. White, 5 Cir., 1972, 459 F.2d 990; United States v. Lowry, 5 Cir., 1972, 456 F.2d 341; United States v. Womack, 5 Cir., 1972, 454 F.2d 1337; United States v. Dopf, 5 Cir., 1970, 434 F.2d 205; United States v. Garza, 5 Cir., 1970, 426 F.2d 949.

      . See n. 2.


author: GEWIN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Maria Corral GARCIA, Defendant-Appellant.
    No. 73-1929.
    United States Court of Appeals, Fifth Circuit.
    June 24, 1974.
    Rehearing Denied Aug. 13, 1974.
    Rehearing and Rehearing En Banc Denied Oct. 3, 1974.

      Joseph A. Calamia, John L. Fashing, El Paso, Tex., for defendant-appellant.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Edward Marquez, Ralph E. Harris, Asst. U. S. Attys., El Paso, Tex., for plaintiff-appellee.
    Before BROWN, Chief Judge, and GEWIN and GOLDBERG, Circuit Judges.
   GEWIN, Circuit Judge:

I

Mrs. Garcia appeals from a judgment of conviction under 21 U.S.C. § 841(a) for possessing with intent to distribute approximately two pounds of heroin. After a bench trial, Mrs. Garcia was found guilty and sentenced to ten years imprisonment with a special parole term of five years. She raises two principal issues on this appeal: (1) whether the court erred in allowing statements allegedly elicited in violation of Miranda to be used to support a search; (2) whether a motion to suppress evidence was erroneously denied.

Her second issue is based upon the premise that the heroin was discovered through an unconstitutional search. She contends that the search was unreasonable because there was no probable cause and that it cannot be justified as a “border search” or as a “voluntary consent” search. Furthermore, she contends that the government, in order to sustain a “consent” theory, was under an obligation to demonstrate that any alleged consent had been given with the knowledge that it could be freely withheld. We conclude that this case must be reversed and remanded for a new trial not for the precise reasons asserted on appeal but rather because a review of the record establishes that statements taken from Mrs. Garcia in violation of Miranda were used to enhance the prosecutions’ casein-chief.

II

Mrs. Garcia and her son attempted to cross the border between Mexico and El Paso, Texas. Upon approaching the primary inspection station, the license number of their automobile was routinely placed in a computer system known as CADPIN. The CADPIN report indicated that Mrs. Garcia was suspected of smuggling heroin.

In response to the positive CADPIN report she was referred to a secondary inspection. She possessed a valid permanent resident alien crossing card, and a search of her automobile failed to disclose any contraband. Similarly, personal searches of her and her son failed to produce any contraband. The Customs Inspectors, however, did discover in Mrs. Garcia’s purse a key similar to the type used for storage lockers at bus depots. Apparently, the Customs Inspectors knew that such lockers were commonly employed by drug dealers to transfer narcotics.

Special Agent Hirsch was notified by-telephone of the positive CADPIN report and the discovery of the locker key. He arrived at the Paso Del Norte Port of Entry about one hour after the initial detention. Mr. Hirsch and Special Agent Henry talked to Mrs. Garcia outside the presence and hearing of her son in a small office with the door closed. They asked her the purpose of her El Paso visit, and she responded that her son had requested to come to El Paso for a' hamburger. Agent Hirsch then left her in the small room and walked outside to ask her son the purpose of their trip. The son replied that he had not asked to come to El Paso for a hamburger but rather accompanied his mother at her request.

In response to further questioning by Agent Hirsch, Mrs. Garcia said that the bus locker key had been given to her by her daughter, and explained that the locker contained some Christmas gifts which she was to pick up and return to her daughter in Mexico. Mrs. Garcia told Agent Hirsch that she did not know where the locker was located. Agent Hirsch thought the key looked similar to those used at the Continental Bus Station and a telephone call to Continental further substantiated his suspicion. Mrs. Garcia was then asked whether she would have any objections to showing Agent Hirsch the contents of the locker and she stated he would be welcome to inspect because the locker only contained gifts.

Mrs. Garcia accompanied the officers to the bus station and opened the locker. Examination of the contents revealed a quantity of a substance that later was shown to be heroin. Mrs. Garcia was then placed under arrest for smuggling heroin and for the first time was advised of her Miranda protections. At a later time Mrs. Garcia explained her part in the heroin operation to the officers.

III

If Agent Hirsch’s questioning was a custodial interrogation, then the appellant was entitled to Miranda warnings. The Government contends that Hirsch’s questioning was not a custodial interrogation. Rather, the Government would describe his actions as the “traditional investigative function and the general questioning of a citizen in the fact-finding process.” The Government’s characterization ignores the fact that Mrs. Garcia was detained for over an hour and questioned by two officers in a small room separated from her 13 year old son. Agent Hirsch himself testified that he had made up his mind to detain the appellant until he was satisfied as to the contents of the locker.

The Government characterization more importantly ignores our decision in United States v. Salinas, 439 F.2d 376 (5th Cir. 1971). Judge Bell, in Salinas, clearly delineated when a border detention becomes custodial.

Thousands of persons enter the country daily and are subject to some degree of detention while their luggage is searched and they are asked routine questions concerning citizenship, destination, whether they have items to declare, questions regarding contraband, and the like. To hold that questioning of these types or routine border searches of luggage place a person “in custody” within the meaning of Miranda would unduly distort that case. . . . However, when the border search becomes more than routine, such as when a person is discovered to be concealing suspicious materials, or when a person is taken to a private room and strip searched as here, a different outcome obtains. (citations omitted)

It is obvious that the governmental activity revealed here was more than “routine.” Mrs. Garcia was subjected to a complete strip search and detained for at least an hour. The discovery of the locker key had aroused the agents’ suspicion. Under the Salinas standard, she was subjected to a custodial interrogation by Agent Hirsch. Her statements during this interrogation were used to aid the prosecution’s casein-chief. Agent Hirsch was permitted to testify about the inconsistent responses of Mrs. Garcia and her son regarding the purpose of their El Paso trip. He also testified concerning Mrs. Garcia’s explanation of Christmas presents in the locker and her disclaimer of knowledge of the locker’s location. Accordingly, she is entitled to a new trial without the introduction of these statements.

IV

Next we shall consider whether the heroin seized from the locker may be properly admitted into evidence. Mrs. Garcia asserts that the heroin was procured during an unreasonable search without probable cause. The Government does not contest the assertion of a lack of probable cause. It seeks, however, to validate the search as a voluntary consent search or as a border search. It is well established that a search conducted pursuant to consent is excepted from the requirements of both probable cause and a warrant. A prosecutor who seeks to introduce the fruits of such a search has the burden of proving the consent was voluntarily given and not the result of duress or coercion. This is a question of fact to be determined from all the circumstances.

Mrs. Garcia contends that the Government was under an obligation to demonstrate not only that the alleged consent had been uncoereed, but that it had been procured with an understanding by her that it could be freely and effectively withheld. She recognizes that the Supreme Court recently rejected this contention in a noncustodial situation. Custody, however, is alleged to so heighten the possibilities for coercion as to require a specific warning of one’s fourth amendment rights. This court has previously refused to distinguish custodial from noncustodial consent. The test in either situation remains the same. Voluntariness is a question of fact to be determined from all the surrounding circumstances, and custody like the subject’s knowledge of a right to refuse, is only one factor that should be taken into account. Therefore, knowledge of fourth amendment rights is not necessarily required to validate consent to search after a suspect is in custody. Mrs. Garcia’s next contention is that the Miranda violation should vitiate her alleged consent. If the evidence taken in violation of Miranda cannot be used to aid the Government on the issue of guilt, she argues that the statements elicited should similarly not be used by the Government during a motion to suppress to show her consent. Mrs. Garcia’s application of the Miranda principles to statements proving consent to search has been almost universally ignored. We are aware, nevertheless, that the independent application of Miranda principles to fourth and fifth amendment protections has been somewhat clouded by this court.

In both United States v. Legato and United States v. Canseco this court was faced with a consent search when Miranda warnings had been given prior to the consent. The consent searches were validated in each case, and the judgments of conviction were affirmed. Both opinions, however, mentioned the prior Miranda warnings. Legato stated, “[S]uch consent constitutes a valid waiver of fourth amendment rights if prior to the search Miranda warnings are given.” Likewise, the Canseco court said, “Where Miranda warnings are adequate, further specific warnings relating to Fourth Amendment search rights are unnecessary to validate the search. .” In a subsequent case with prior Miranda warnings this court reviewed the language of Legato and Canseco and through the use of italics made the prior Miranda warnings seem even more crucial to the decision.

None of the above cases directly presented a consent search situation without prior Miranda warnings. The court has faced the situation, however, on at least one occasion. In United States v. Horton a custodial consent search was validated when Miranda warnings were not given until after the completion of the search. In Horton the court emphasized that the question of voluntary consent is a factual issue to be resolved from the totality of the circumstances. The resolution of that issue is not to be disturbed unless clearly erroneous.

Rather than rely on the intimations of those decisions not directly presented with this issue, we choose instead to cast our lot with what we perceive to be the weight of authority. Accordingly, we hold that prior Miranda warnings are not required to validate consent searches in the circumstances here presented. Briefly stated, Miranda held that the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. The fifth amendment privilege against self-incrimination plays a crucial role in preserving the integrity of the trial process, and this clearly was the principal basis for the Court’s Miranda decision. While the fourth amendment proscription against unreasonable searches and seizures is no less important than fifth amendment protections, it has not been recognized as promoting the integrity of the trial process.

In a fifth amendment context a defendant’s statements, in and of themselves, present the potential constitutional evil. For purposes of the fourth amendment, however, it is an unreasonable search that must be condemned, not the use of a defendant’s statements proving consent to a search. A search and seizure produces real and physical evidence, not self-incriminating evidence. Our task under the fourth amendment is to test the reasonableness of a search and exclude evidence procured unreasonably. We have been appropriately warned of the dangers inherent in “the domino method of constitutional adjudication . . . wherein every explanatory statement in a previous opinion is made the basis for extension to a wholly different situation.” Therefore, Miranda’s ratio decidendi which was enunciated to strengthen the fifth amendment’s function in preserving the integrity of our criminal trials should not be superimposed ipso facto to the wholly different considerations in fourth amendment analysis. Although in a proper case the need for such an extension may be shown, it does not appear before us now.

Finally we should review the traditional standards of voluntariness as recently set forth in Schneckloth v. Bustamonte. The voluntariness of a consent to search depends on all of the particular facts and circumstances of each ease. The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. Account must be taken of subtly coercive police questions as well as the possibly vulnerable subjective state of the person who consents.

In view of our remand, the district court should consider all factors which may have some bearing on the question of consent including those which are favorable to the appellant and those which are favorable to the Government. Under all the facts and circumstances the consent must be voluntary or the search will be impermissible under the consent theory

Reversed and remanded.

      . 21 U.S.C. § 841(a) provides:
      (a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
      (1) to manufacture, distribute, or dispense, or • possess with intent to manufacture, distribute, or dispense, a controlled substance; or
      (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.E.2d 694 (1966).

      . 439 F.2d 376, 379, 380 (5th Cir. 1971). Judge Bell further explained that interrogation in the circumstances of a strip search room might compel appellants to speak where they would not otherwise do so.

      . Since it is not claimed that probable cause was present we are not called upon to analyze the few specifically established and well delineated situations which would excuse the lack of a warrant. E. g., Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

      . Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973).

      . Id. 412 U.S. at 223, 227, 93 S.Ct. at 2045, 2048, 36 L.Ed.2d at 860, 863.

      . Id. 412 U.S. at 240, 93 S.Ct. at 2055, 36 L.Ed.2d at 870 n. 29. In Schneckloth “consent” was argued to be a “waiver” of rights under the Fourth Amendment. Accordingly, to establish “waiver”, the prosecution must demonstrate an intentional relinquishment of a known right or privilege. Id. 412 U.S. at 235, 93 S.Ct. at 2051, 36 L.Ed.2d at 867. Finding the waiver theory inapplicable to the fourth amendment prohibition against unreasonable searches and seizures the Court limited the requirement of a knowing and intelligent waiver to those constitutional guarantees involving the preservation of a fair trial. See also, notes 17 and 18 infra and accompanying text.

      . United States v. Luton, 486 F.2d 1021, 1023 (5th Cir. 1973); United States v. Horton, 488 F.2d 374, p. 380, n. 4 (5th Cir. 1973) [No. 72-3574]. The Circuits are split on this issue, however. See United States v. Watson (9th Cir., No. 73-1539, Mar. 20, 1974) [14 Cr. L. 2299].

      . Cf. Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 2059, 36 L.Ed.2d 854, 875 (1973).

      . See United States v. Kunkel, 417 F.2d 299 (9th Cir. 1969); State v. Oldham, 92 Idaho 124, 438 P.2d 275 (1968); People v. Trent, 85 Ill.App.2d 157, 228 N.E.2d 535 (1967); State v. McCarty, 199 Kan. 116, 427 P.2d 616 (1967); Lamot v. State, 2 Md.App. 378, 234 A.2d 615 (1967); State v. Forney, 181 Neb. 757, 150 N.W.2d 915 (1967); adhered to State v. Forney, 182 Neb. 802, 157 N.W. 2d 403 (1968); State v. Carlton, 83 N.M. 644, 495 P.2d 1091 (N.M.App.1972).

      . 480 F.2d 408 (5th Cir. 1973).

      . 465 F.2d 383 (5th Cir. 1972).

      . United States v. Luton, 486 F.2d 1021, 1023 (5th Cir. 1973).

      . 488 F.2d 374 (5th Cir. 1973) [No. 72-3574],

      . See note 10 supra.

      . Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The Supreme Court has recently recognized the protection of a fair trial as the basis for Miranda. See Schneckloth v. Bustamonte, 412 U.S. 218, 239, 93 S.Ct. 2041, 2054, 36 L.Ed.2d 854, 870 (1973).

      . This distinction is expressly recognized in Schneekloth. The Court notes, “[tjhere is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. . . . [Those] protections . . . are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial.” Id. 412 U.S. at 241, 93 S.Ct. at 2055, 36 L.Ed.2d at 871.

      . Id. 412 U.S. at 246, 93 S.Ct. at 2057, 36 L.Ed.2d at 874 citing Friendly, The Bill of Bights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929, 950.

      . 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

      . Id. at 248, 93 S.Ct. at 2059, 36 L.Ed.2d at 875. See generally 9 A.L.R.3d 858, 865.

      . Schneckloth v. Bustamonte, 412 U.S. 218, 229, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854, 864 (1973).

      . Because we find the search may be justified as a consent search we do not treat in depth the Government’s contention that the search is permissible under border search principles as well. For a recent border search case that may be analogous, however, see United States v. Steinkoenig, 487 F.2d 225 (5th Cir. 1973).