author: FRIENDLY, Circuit Judge:

text:
    Albert J. WAHBA, Plaintiff-Appellant, v. NEW YORK UNIVERSITY and Severo Ochoa, Defendants-Appellees.
    No. 353, Docket 73-2143.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 16, 1974.
    Decided Feb. 11, 1974.

      Stanley Faulkner, New York City (Faulkner & Schmidt, New York City, of counsel), for appellant.
    George I. Harris, New York City (Burke & Burke and Thomas C. Crane, New York City, of counsel), for defendants-appellees.
    Before MOORE, FRIENDLY and ANDERSON, Circuit Judges.
   FRIENDLY, Circuit Judge:

This appeal presents another variation on the pervasive theme of what constitutes government action. The complaint, filed in the District Court for the Southern District of New York, alleged the following: Plaintiff was a research associate professor in the Biochemistry Department of the New York University School of Medicine. Defendant Ochoa was chairman of the Department. Beginning in 1957, the New York University Medical Center received a series of annually renewed grants from the National Institute of Health (NIH), a component of the United States Department of Health, Education, and Welfare, for a program of basic research on Enzymic Mechanisms in Biosynthesis. The initial grant application designated Dr. Ochoa as “Principal Investigator;” Dr. Wahba was later listed as a participant. In January 1969 Dr. Wahba was invited to discuss the work he had been doing at a June symposium sponsored by the Cold Spring Harbor Laboratory of Quantitative Biology. Dr. Wahba accepted the invitation and subsequently agreed to submit, a related manuscript for publication in the laboratory’s journal. In September, the complaint alleged, Dr. Ochoa rebuked plaintiff for having sent the manuscript without clearance and without including Dr. Ochoa’s name. He demanded that Dr. Wahba write that experiments performed after submission of the manuscript made it desirable to withhold publication. Deeming this to be untrue, plaintiff refused to sign. Dr. Ochoa then removed Dr. Wahba from work on the research project and demanded that Cold Spring Harbor Laboratory cancel publication of the manuscript. About two months later, plaintiff was advised that his contract as a research associate professor would not be renewed upon its expiration on August 31, 1970. Prior to that time, Dr. Wahba obtained other employment at a medical school in Montreal. Apparently having suffered no economic loss, plaintiff requested punitive damages of $250,000 for harm to his reputation and emotional suffering.

In their answer, defendants attributed Dr. Ochoa’s refusal to allow publication of the manuscript to the well-recognized scientific practice that papers emanating from group research shall not be published without the advance approval of the principal investigator. They added that Dr. Wahba’s manuscript contained assertions that were at variance with findings of other investigators in the Department of Biochemistry which were then being prepared for publication. They also noted that despite Dr. Ochoa’s protests, Dr. Wahba’s manuscript was published. Alleging that it had continued to pay plaintiff’s salary through February 1970, although he had been paid by the Sherbrooke University School of Medicine since January 2, defendant New York University counterclaimed for the two months’ pay.

On the basis of affidavits of an attorney and two University officials, accompanied by copious exhibits, defendants moved for dismissal of the complaint or summary judgment in their favor on the basis that their conduct did not constitute government action. Judge Knapp granted the motion for summary judgment in defendants’ favor; he later issued the appropriate certificate under F.R.Civ.P. 54(b), noting that the pendency of the counterclaim afforded no just reason for delaying the entry of judgment. Plaintiff has appealed.

It is not clear from his complaint whether plaintiff seeks recovery for his dismissal from the research project, or for the University’s failure to renew his one-year contract without according him a due process hearing, or for both. As a non-tenured faculty member, in order to sustain his claim that he was dismissed without the requisite procedural protections, he would have to show some deprivation of liberty or property under the criteria established in Board of Regents v. Roth, 408 U.S. 465, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Beyond this, however, Dr. Wahba appears to claim that he was denied First Amendment rights by virtue of Dr. Ochoa’s demand that he withdraw his paper, and that he was denied due process by being severed from the research program without a hearing. We find it unnecessary to differentiate among the various possible claims raised in the complaint, since we are unable to discern the government action necessary to sustain any of them.

Plaintiff characterizes his situation as analogous to that of the students at the New York State College of Ceramics at Alfred University, discussed in Powe v. Miles, 407 F.2d 73 (2 Cir. 1968). As to the Ceramics College students, we found state action in the administration of discipline even though this was done by the President and Dean of Students of Alfred, who were not state officials, and the acts of the students were committed outside the Ceramics College. The distance separating this case from that of the New York State Ceramics College is sufficiently shown by quoting the most pertinent portion of our opinion, 407 F.2d at 82-83:

We hold that regulation of demonstrations by and discipline of the students in the New York State College of Ceramics at Alfred University by the President and the Dean of Students constitutes state action, for the seemingly simple but entirely sufficient reason that the State has willed it that way. The very name of the college identifies it as a state institution. In part I of this opinion we have extensively reviewed the statutes making the college an integral part of the State University; it suffices here to cite Education Law § 6102, whereby Alfred University maintains discipline and determines educational policies with respect to the State College “as the representative of the state university trustees.” We see no reason why the State should not be taken at its word. The statutory provisions are not mere verbiage; they reflect the Legislature’s belief that the citizens of New York would demand retention of State control over an educational institution wholly supported by State money. If the discipline had been administered by the Dean of CC, all of whose salary is paid by the State, because of acts of CC students in the State-owned buildings, the existence of state action would hardly be doubted. We do not think a different result is justified because here the CC students were demonstrating on another part of the campus, which the State’s payments on their behalf entitled them to enter for proper purposes, and the authority was exercised by delegates of the State who also have other roles. While even as to the CC students the President and the Dean of Students may lack the symbolic tie with the state furnished by the deputy sheriff’s badge in Griffin v. Maryland, supra, [378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754] or the public building in Burton v. Wilmington Parking Authority, supra, [365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45] the students of the New York State College of Ceramics can properly regard themselves as receiving a public education and entitled to be treated by those in charge in the same way as their counterparts in other portions of the State University. If the State wanted Alfred’s policy on demonstrations changed for the CC students, mere order of the State University trustees would suffice, Education Law § 355(1) (a), and (2)(b); no general legislation would be needed, as it would be if the State desired to control the policy for other students. However one characterizes Alfred’s relationship to the State with respect to the New York State College of Ceramics, it is much closer than that of an independent contractor. The State furnishes the land, buildings and equipment; it meets and evidently expects to continue to meet the entire budget; it requires that all receipts be credited against that budget, Education Law § 6102; and in the last analysis it can tell Alfred not simply what to do but how to do it.

This, however, does not end the case. Plaintiff claims that the relationship established by the research grant sufficiently involves the United States to carry the First Amendment and the due process clause of the fifth over to New York University’s dealings with him.

The application for the initial grant stated the names, so far as available, and included biographical sketches of all the personnel whose salaries were to be funded; Dr. Wahba’s name was not listed. The grant included the salaries, certain other itemized expenses, and 20% of the total for indirect costs. Dr. Wah-ba’s name first appeared in answer to a request for the names and title of “all other professional personnel engaged in the project” in an application for continued support through August 31, 1964; he was not, however, among those whose salaries were to be reimbursed. The same pattern continued thereafter. Papers co-authored by Dr. Wahba were mentioned in several of the applications. The research was thus a project of the Biochemistry Department of the New York University School of Medicine carried on with the collaboration of a number of University-paid personnel and on University facilities. The University received no federal payment for the services of the personnel or the use of the facilities except insofar as these were covered by the 20%. allowance for incidental costs.

Plaintiff cites a Policy Statement of the Department of Health, Education, and Welfare, revised July 1, 1967. This clearly informs grantees that

Public Health Service grants and awards must be administered in conformance with the Civil Rights Act of 1964; the regulation (45 CFR, Part 80) issued pursuant thereto by the Department of Health, Education, and Welfare; and the grantee’s Assurance of Compliance (Form HEW-441), on file with the Public Health Service.

Plaintiff makes no contention that the defendants have violated Title VI of the 1964 Civil Rights Act, which provides, 42 U.S.C. § 2000d, that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Instead, he relies on general language in the Policy Statement which we set forth in the margin. This, says the plaintiff, is clear evidence that the Federal Government regards itself as “a partner or a joint venturer” in the research project, see Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 177, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972).

As indicated in Powe v. Miles, supra, 407 F.2d at 82-83, and Grafton v. Brooklyn Law School, 478 F.2d 1137, 1141-1143 (2 Cir. 1973), we do not find decisions dealing with one form of state involvement and a particular provision of the Bill of Rights at all determinative in passing upon claims concerning different forms of government involvement and other constitutional guarantees. In any event there was here no partnership or joint venture in the ordinary meaning of those words. As against the language of the Policy Statement on which plaintiff relies, another paragraph states:

Administration of a grant-supported research project is a joint undertaking by the grantee and the principal investigator. The grantee assumes responsibility for fiscal and administrative management and fulfillment of any special conditions which may be prescribed for the conduct of the research. The principal investigator and the grantee institution share responsibility for the conduct of the research and for using grant funds prudently for the purposes set forth in the application and Notice of Grant Awarded.

The venture was to be that of New York University and Dr. Ochoa, undertaken with government support. What NIH wanted least was to share responsibility for its administration.

The Court in Moose Lodge could not have meant the reference to partners or joint venturers to be satisfied with some commonalty of economic interests simpliciter, since as a comment has pointed out, The Supreme Court 1971 Term, 86 Harv.L.Rev. 1, 73-74 (1972), such interests existed in a substantial degree in that case itself. The lodge received from the state permission to operate a lucrative business and obtained a valuable property right in the liquor license itself; the state operating 'a monopoly system, was provided with a distributor that produced substantial revenue. Reconciliation of Moose Lodge with Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), where the reciprocity of economic interests was not measurably greater, must rest on the difference between a private club and a restaurant in a public building. However offensive the exclusion of blacks from a social club holding one of a restricted number of state liquor licenses, the Court thought it significantly less than their exclusion from a restaurant in a building owned and operated by a public authority and whose construction and maintenance were paid by public funds. As Mr. Justice Clark so eloquently said in Burton, 365 U.S. at 724-725, 81 S.Ct. at 861,

It is irony amounting to grave injustice that in one part of a single building, erected and maintained with public funds by an agency of the State to serve a public purpose, all persons have equal rights, while in another portion, also serving the public, a Negro is a second-class citizen, offensive because of his race, without rights and unentitled to service, but at the same time fully enjoys equal access to nearby restaurants in wholly privately owned buildings.

Plaintiff likewise derives little benefit from two leading and oft-cited cases relating to government grants, Kerr v. Enoch Pratt Free Library, 149 F.2d 212 (4 Cir.), cert. denied, 326 U.S. 721, 66 S.Ct. 26, 90 L.Ed. 427 (1945), and Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4 Cir. 1963) (en bane), cert. denied, 376 U.S. 938, 84 S.Ct. 793, 11 L.Ed.2d 659 (1964). Apart from the point that both involved racial discrimination, the relative amount of public support in Pratt had become so great that in practical effect the city had simply chosen to allow private trustees to operate a public agency, and in Moses H. Cone the federal government had involved North Carolina in administering the clearly unconstitutional “separate but equal” provision of the Hill-Burton Act, 60 Stat. 1041, 1043 (1946). Pointing in defendants’ favor but not truly decisive are Grossner v. Trustees of Columbia University, 287 F.Supp. 535 (S.D.N.Y.1968), and our own decision in Grafton v. Brooklyn Law School, supra, 478 F.2d 1137. In Grossner, Judge Frankel refused to find state action, in the context of student discipline, despite Columbia’s receipt of over 40% of its total revenues from the federal government, together, of course, with the benefits of federal, state and local tax exemption. Similarly, in Grafton we rejected the plaintiff’s contention, in the context of First Amendment and due process claims, that the conduct of the law school officials constituted state action because of a combination of the school’s tax exemption, the sale of a site by New York City at a price so low that the school ultimately paid nothing for the portion of the land on which it was built, a $400 payment by the State for each degree awarded, and State regulations setting criteria for the law school curriculum that would qualify an applicant to take the state bar examination. We are left therefore with the task of “sifting facts and weighing circumstances” imposed by Mr. Justice Clark’s opinion in Burton v. Wilmington Parking Authority, supra, 365 U.S. at 722, 81 S.Ct. 856, 6 L.Ed.2d 45 a procedure which, despite contemporary criticism of the opinion for failure to afford sufficient guidance, has survived much better than attempts at more definitive formulations.

As the writer has suggested elsewhere, determination of government action in such cases as this hinges on the weighing of a number of variables, principally the degree of government involvement, the offensiveness of the conduct, and the value of preserving a private sector free from the constitutional requirements applicable to government institutions. Here, while NIH funded the salaries of personnel engaged full-time in the project, one of the very reasons for its having this research conducted by the New York University School of Medicine, rather than performing the work itself, was to enlist the participation of other members of the Department of Biochemistry, notably the principal investigator, Dr. Ochoa, a scientist of international renown who had won the Nobel Prize in Physiology and Medicine in 1959. The Policy Statement makes the principal investigator “responsible for the scientific and technical direction of the project”; if he should cease to serve in that capacity, the grant is ended unless the grantee chooses to nominate a successor satisfactory to NIH. The form and manner of publication of results are left entirely in private hands.

This kind of arrangement, whereby federal funds are used to prime the pump of research effort in private scientific institutions which the Government could not perform as well, has social values too obvious to require elaboration. Only rarely are professors of Dr. Ochoa’s eminence willing to enter 'government service in peacetime. It is equally clear that scientists of his reputation on the staffs of private institutions, with a wealth of choices before them, are not likely to be willing to undertake projects under public grants if they are deprived of the freedom of management which they consider necessary and would have in projects not governmentally financed. It is hardly an attractive prospect for a research scientist to be forced to divert time from scientific inquiry to appear before a court or even a university board to justify such decisions as his refusal to allow a participant in his research project to make what he considers a premature and ill-advised publication; even less inviting is the prospect that the hearing board, in construing what it deems to be its constitutional mandate, may require him to allow such publication. Congress has specified one constitutional command, a prohibition of racial discrimination, which those engaging in federally financed projects must respect. This very specification affords some indication that the Government did not mean to require compliance with other constitutional guarantees; we do not think the Constitution imposes them proprio vigore.

At. argument appellant’s counsel called our attention to McQueen v. Druker, 438 F.2d 781 (1 Cir. 1971). Dealing with a low and moderate income housing project under § 221(d)(3) of the National Housing Act, 12 U.S.C. § 1715l(d)(2), the court held that a landlord who had received the very substantial aid which the federal program provided could not evict a tenant whose lease had not been renewed because of the tenant’s “associational activities” on behalf of fellow tenants; the court avoided passing on further claims with respect to what, if any, notice and hearing in addition to normal state court eviction proceedings would be required in cases not presenting what the court considered a valid First Amendment defense.

We are not here required to decide whether we would follow McQueen, despite our holding in Langevin v. Chenango Court, Inc., 447 F.2d 296 (2 Cir. 1971), that tenants under the same program were not entitled to a hearing on a rent increase which the FHA had approved. The government involvement in a § 221(d)(3) project is arguably greater than under a NIH grant. The basis of the holding in McQueen was “that at least when a specific governmental function is carried out by heavily subsidized private firms or individuals whose freedom of decision-making has, by contract and the reserved governmental power of continuing oversight, been circumscribed substantially more than that generally accorded an independent contractor, the coloration of state action fairly attaches,” 438 F.2d at 784-785. See also Joy v. Daniels, 479 F.2d 1236, 1238-1239 (4 Cir. 1973). As previously indicated, there is no similar circumscription of decision-making here. Coming to our second criterion, we think the offensiveness of refusing to renew a lease in retaliation for a tenant’s efforts to protect his rights and those of his fellows, see 438 F.2d at 785 and n. 8, considerably outruns the action of a principal investigator in controlling publication by a subordinate — even if, as Dr. Wahba asserts, Dr. Ochoa’s interest was to have his name included. Finally, there is much less possibility of harm to a § 221(d)(3) project by prohibiting eviction because a tenant has engaged in “associational activities” for the benefit of tenants, than in loading a basic research program with the full panoply of First Amendment and Fifth Amendment due process rights. McQueen, whether we ultimately follow it or not, thus does not dictate reversal here.

We mention a final point, only to avoid any suggestion that we have implicitly ruled upon it. Unlike the plaintiff in McQueen who somehow was allowed to spin a violation of 42 U.S.C. § 1983 relating to action under color of state law, and consequent jurisdiction under 28 U.S.C. § 1343(3), out of federal involvement, a mystery not discussed by the court, Dr. Wahba has forthrightly placed his case under the principle of Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), with jurisdiction resting on the general federal question section, 28 U.S.C. § 1331. Although the Bivens Court did not rule out the possibility of private damages actions for violation of other constitutional rights by federal officers, the decision was limited to violations of the Fourth Amendment. Mr. Justice Harlan, concurring, was at pains to note that “the experience of judges in dealing with private trespass and false imprisonment claims supports the conclusion that courts of law are capable of making the types of judgment concerning causation and magnitude of injury necessary to accord meaningful compensation for invasion of Fourth Amendment rights,” whereas this “may not be true with respect to other types of constitutionally protected interests, and therefore the appropriateness of money damages may well vary with the nature of the personal interest asserted,” 403 U.S. at 409 and n. 9, 91 S.Ct. at 2011. We need say only that we regard the question as open.

Affirmed.

      . The University officials who submitted affidavits were Thomas A. Fitzgerald, Assistant Comptroller and Director of Research and Training Program Management at the Medical Center, and Miguel de Capriles, the Vice President and Secretary of the University. The latter set forth that while New York University has a tenure system, Dr. Wahba’s appointment was probationary and without tenure implications. It recited a by-law whereby research professors, research associate professors, and research assistant professors are considered to have non-tenure positions which “shall be for a definite period of time, not exceeding one academic year unless otherwise specified, and [which] shall automatically terminate at the close of that period unless there is an offered notice of renewal.”

      . In order to demonstrate a deprivation of liberty, Dr. Wahba would have to prove that the reasons given for the denial of his reemployment would “seriously damage his standing and associations in his community,” or impose upon him “a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities,” Roth, 408 U.S. at 573, 92 S.Ct. at 2707. To prove a deprivation of property, he would have to prove not just “a unilateral expectation” of continued employment, but “a legitimate claim of entitlement to [it],” by showing, for example, that the University’s yearly contract renewal system amounted to “a de facto tenure program.” Sindermann, 408 U.S. at 600, 92 S.Ct. at 2700. See Russell v. Hodges, 470 F.2d 212, 210-217 (2 Cir. 1972); Simard v. Board of Education, 473 F.2d 988, 992 (2 Cir. 1973).

      . This Policy Statement should be used by grantee institutions as the source of the basic policy requirements under which Public Health Service research grants are administered. Under the terms of a research grant, the institution and the principal investigator enter into a special relationship with the Public Health Service for the utilization of grant funds. This relationship results from the basic nature of the grant as a conditional gift in response to a request for support of a project in which there is a substantial measure of public interest.
      A grant, therefore, represents a mutual joining of interests on the part of the grant- or and the grantee institution in the pursuit of a common objective. In this relationship, the grantee institution assumes with the grantor the obligation to act in the public interest in achieving a common purpose. This is a relationship of trust which imposes upon the grantee institution the responsibility to assure that the grant funds are utilized for the purpose for which they were awarded, and to exercise the same probity and prudence in their expenditure that is extended to the use of the grantee institution’s own funds.
      It is to these broad obligations that a recipient of a Public Health Service grant is accountable. This Policy Statement does not attempt to specify the full extent of the considerations which should bear upon a grantee institution in the use of grant funds. The Public Health Service is concerned with assessing the adequacy of administrative practices and the prudence exercised by the grantee institution to assure conformity with the terms of this Policy Statement.
      Examination of the administrative processes utilized in the expenditure of grant funds is a continuing responsibility of the Public Health Service in the administration of these programs.

      . See Lewis, Burton v. Wilmington Parking Authority — A Case Without Precedent, 61 Colum. L.Rev. 1458 (1961).

      . The Dartmouth College Case and the Public-Private Penumbra (University of Texas at Austin, 1969).

      . We recognize that many private universities have established boards to jmss on the discipline of students and tó make employment decisions regarding untenured faculty. Developments in the Law — Academic Freedom, 81 Harv.L.Rev. 1045, 1101-04, 1157-59 (1968). I5ut these are flexible measures voluntarily adopted by the schools themselves. Furthermore, plaintiff’s position would necessarily entail that decision of such a board with respect to a project financed by a federal grant would be subject to at least some judicial review.

      . The McQueen decision, handed down some five months previously, was not brought to our attention by the parties in Langevin and we were not aware of it. Our result accorded with the First Circuit’s decision with respect to rent increases in Hahn v. Gottlieb, 430 F.2d 1243 (1970), involving the same project as McQueen, although we reached it by a different path. For a full discussion see, without connotation of full approval, Note, Procedural Due Process in Government-Subsidized Housing, 86 Harv.L.Rev. 880 (1973).

      . While this issue of fact — strongly contested by defendants — could not be decided on a motion for summary judgment, we note that 'many publications listed in applications to NIH, including some in which Dr. Wahba was an author, did not include Dr. Ochoa’s name. Strong proof would be needed to warrant a conclusion that a scientist whose name was on scores of publications would be vitally interested in one more.

      . The district court had made an attempt at explanation, 317 F.Supp. 1122, 1133 (D. Mass.1970), but we find this rather unconvincing.


source: Caselaw Access Project

author: RONEY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James MADDOX and Bradford G. Knowles, Defendants-Appellants.
    No. 73-2611.
    United States Court of Appeals, Fifth Circuit.
    April 4, 1974.

      Alvin T. Prestwood, Montgomery, Ala. (Court-appointed), for defendants-appellants.
    Ira DeMent, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.
    Before TUTTLE, GOLDBERG and RONEY, Circuit Judges.
   RONEY, Circuit Judge:

Defendants James Maddox and Bradford Knowles were found guilty of conspiring (18 U.S.C.A. § 371) to transport 10,000 stolen shirts in interstate commerce, knowing the shirts to be stolen (18 U.S.C.A. § 2314).

The most troublesome point in these appeals is the assertion by Maddox that the trial court improperly allowed a confession by co-defendant Knowles to be used against him. We have finally concluded, however, that whatever error may have occurred in this regard in the Government’s case in chief was cured when Knowles took the stand and admitted making the statement which implicated Maddox. Finding no merit in the other legal errors asserted on appeal, we affirm both convictions.

Briefly, the facts are these. Suspecting theft as the reason for its inordinate inventory losses, shirt manufacturer Alatex, Inc., solicited the private investigative services of its parent corporation, Cluett-Peabody, Inc., to locate the culprits. Cluett-Peabody’s private agents, making known their desire to “deal” in stolen shirts, were contacted by the defendants and arranged to “fence” the merchandise in Atlanta. The delivery of 300 stolen shirts to the security agents sufficiently fulfilled the conspiratorial overt act.

(1) The defendants argue that the company’s deep involvement in the conspiracy, to the extent of suggesting and arranging for the transportation, amounts to complicity and precludes their conviction because of entrapment as a matter of law. The argument overlooks the fact that private investigators, rather than governmental agents, participated in the arrangements. The entrapment defense does not extend to inducement by private citizens. United States v. Prieto-Olivas, 419 F.2d 149 (5th Cir. 1969); Pearson v. United States, 378 F.2d 555 (5th Cir. 1967). Moreover, the defendants received the benefit of the defense when the District Court submitted the issue of entrapment to the jury for factual determination. United States v. Groessel, 440 F.2d 602 (5th Cir. 1971). The jury found against the defendants. In any. event, the conduct of the private investigators merely afforded opportunities and facilities for the commission of the offense, a continuing illegal enterprise, without initiating the criminal design in the defendants’ minds. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).

(2) Defendants allege the Government did not prove that the goods actually transported in interstate commerce were valued in excess of $5,000. Defendants were convicted of conspiracy, however, and it is not necessary to prove every element of the substantive offense. For a conspiracy conviction, the Government need only prove knowledge of the conspiracy and that some act in furtherance of it was intentionally done. Huff v. United States, 301 F.2d 760, 766 (5th Cir. 1962): The Government sufficiently proved innumerable overt acts in furtherance of a conspiracy to abscond with 10,000 shirts, an amount whose value satisfies the monetary element of 18 U.S.C.A. § 2314.

(3) Defendants claim the Court should have allowed defense attorney Prestwood to testify as to a telephone conversation to explain why he had invited a representative of the Travelers Insurance Company to attend the trial. After introducing the insurance agent to the jury during its opening statement, the defense did not call the agent as a witness. In rebuttal, the Government called Mr. Prestwood and asked if he invited the agent. Prestwood gave an affirmative reply. By way of self-cross-examination, Prestwood attempted to testify to the agent’s comments during a telephone conversation to him. The Government’s hearsay objection was properly sustained. The defense should have called the insurance agent if it wished to produce his testimony.

(4) The District Court acted within its discretion by sustaining the Government's objection to a defense witness’ testimony concerning certain Ala-tex inventory shortages. Inventory summaries were known and available to the defense, and could have been introduced. Defendants seem to argue that because governmental witnesses testified concerning the inventories, their witness should be heard. The defense, however, did not object to the Government’s potentially excludable hearsay testimony. A rule of evidence not invoked is waived. 1 Wigmore on Evidence § 18 (3d ed. 1940).

(5) The voluntariness of Knowles’ confession is challenged on appeal. The private investigators arranged for Alatex employee suspects to be questioned at a local motel concerning the missing merchandise. The employees, still on the company payroll and not under arrest, were maintained at company expense in a casual atmosphere. A T.V. room, sandwiches, and snacks were provided. The employees received their normal pay, including overtime during the questioning. Their freedom to leave was equivalent to that while “on the job.” It was in this context that Knowles confessed his activities.

Defendants’ objection is premised on the private investigator’s failure to give Miranda warnings to Knowles. Miranda is inapplicable to non-custodial questioning by private citizens. Yates v. United States, 384 F.2d 586 (5th Cir. 1967). The facts surrounding the confession were scrutinized by the trial judge at an out-of-the-presence-of-the-j ury hearing on voluntariness requested by the United States Attorney. The jury was subsequently instructed as to voluntariness. The factual determination by the jury is not legally precluded.

(6) Maddox argues that his conviction should be set aside because the Court admitted Knowles’ confession into evidence against him. The statement implicated Maddox:

A fellow by the name of James Maddox called me and told me this guy, Emmett, wanted some shirts and wanted to know if I could get him some.

Made after termination of the conspiracy rather than in the course of the conspiracy, the statement was inadmissible hearsay evidence against Maddox under Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949). Even had the confession been admitted with an instruction that it could be used against Knowles alone, Maddox could claim reversible error under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The Government concedes that the confession was initially admitted by the trial court contrary to the rule in Bruton, but contends that when Knowles later took the stand, denied the truthfulness of the statement, and claimed that he was tricked and coerced into making the statement, Bruton became inapplicable. We agree.

In Bruton the Supreme Court overruled Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), which had held that such a statement could be introduced if the Court instructed the jury not to consider it as evidence against the non-declaring co-defendant. The Bruton court held that a jury instruction is insufficient to cure the prejudicial effect of an inadmissible co-conspirator’s statement implicating a co-defendant since the co-defendant is entitled to confront the de-clarant and engage him in full and effective cross-examination.

When Knowles took the stand, Maddox's right to confrontation was fulfilled and he had the opportunity to engage Knowles in full and effective cross-examination. In Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971), decided after Bruton, the Supreme Court held that where an out-of-court hearsay statement of one defendant implicating a co-defendant was admitted in the Government’s case in chief, the subsequent in-eourt testimony of the one who made the statement was sufficient to afford the prejudiced co-defendant his right to “full and effective” confrontation and the Bruton rule became inapplicable. See California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); Hawkins v. United States, 417 F.2d 1271 (5th Cir. 1969); James v. United States, 416 F.2d 467 (5th Cir. 1969); Santoro v. United States, 402 F.2d 920 (9th Cir. 1968), cert. denied, 400 U.S. 849, 91 S.Ct. 58, 27 L.Ed.2d 86 (1970).

Although under the Bruton rule, Knowles’ statement should not have been admitted in the Government’s case in chief, it became appropriate evidence on cross-examination of Knowles as a prior contradictory statement for impediment purposes. Of course Bruton does not hold that such evidence becomes admissible against a non-declaring co-defendant such as Maddox merely because he receives confrontation and the right to cross-examination. Bruton would indicate, however, that upon confrontation and cross-examination a Delli-Paoli instruction would be sufficient to protect a non-declaring defendant against prejudice so that the evidence could be admitted against the maker of the statement. Since Knowles denied the truth of the statement, Maddox might have been entitled to an instruction at the time of Knowles’ testimony that the statement could be used only to determine the credibility of Knowles, and should not be used as proof of the truth of the hearsay statement concerning Maddox. No instruction was then requested, however. On final submission to the jury, the Court gave a correct instruction. The Court charged that any statement by a conspirator implicating a co-conspirator could not be used against the co-conspirator unless made in the course of the conspiracy. Specifically, the trial judge instructed the jury that

in determining whether a particular defendant was a member of the conspiracy, if there were any you should consider only his acts and statements and the acts of independent witnesses other than the other conspirator. A conspirator cannot be bound by the acts and declarations of other participants in the conspiracy until after it has been established that a conspiracy existed and that he was one of its members. Now, you may not consider a declaration or act of one alleged conspirator as evidence against any other alleged conspirator unless you are satisfied beyond a reasonable doubt that the act or the declaration was made when the alleged conspiracy was in existence and still in progress. . [Y]ou should not consider a defendant’s confession in the case if from the evidence there exists a reasonable doubt in your mind as to whether the confession was voluntarily made. And you may not consider a confession, admission, or extrajudicial statement by an alleged conspirator as evidence against any other alleged conspirator unless you are satisfied beyond a reasonable doubt that such confession, admission, or extrajudical statement was made prior to the termination of the conspiracy and during the existence of the conspiracy.

No objection was made to this charge nor were any additional charges requested. Assuming that the jury properly followed these instructions, the statement was not used as evidence against Maddox. In any event, a review of the record indicates to us that even if the trial court mishandled the admission of the single reference to Maddox in the statement, any slight error was harmless beyond a reasonable doubt in view of the other evidence supporting the verdict of guilt. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

Affirmed.


author: BELL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Aurelio LOPEZ-ORTIZ, John David Kopp and Danny Ray Poston, Defendants-Appellants.
    No. 73-2936.
    United States Court of Appeals, Fifth Circuit.
    April 4, 1974.
    Rehearings and Rehearings En Banc Denied May 16, 1974.
    Rehearing Denied July 5, 1974.

      Albert Armendariz, Jr., El Paso, Tex. (Court-appointed), for Lopez-Ortiz.
    John L. Fashing, El Paso, Tex., for Kopp.
    Emmett Colvin, Jr., Dallas, Tex., Frank Moore, Irving, Tex., for defendants-appellants.
    Danny Ray Poston, pro se.
    William S. Sessions, U. S. Atty., San Antonio, Tex., Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., James W. Kerr, Jr., Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before BELL, THORNBERRY and DYER, Circuit Judges.
   BELL, Circuit Judge:

The question in this case as to all three defendants, Kopp, Poston and Lopez-Ortiz, arises from their assertion of error in the denial of a motion to suppress approximately 539 pounds of marijuana seized at the time of their arrests. As will be explained, disposition of this issue turns on whether the arrests were supported by probable cause. As to defendant Lopez-Ortiz, there is the additional question of sufficiency of the evidence to justify his conviction.

The defendants were convicted on a two-count indictment charging in the first count a violation of 21 U.S.C.A. § 846, in that they conspired to possess marijuana with the intent to distribute it, contrary to 21 U.S.C.A. § 841(a)(1); and in the second count, possession of the same marijuana with intent to distribute it, contrary to 21 U.S.C.A., § 841(a)(1). This appeal followed. We affirm as to Kopp and Poston and reverse as to Lopez-Ortiz.

As will be seen, the investigation was begun on the basis of information received from an informer, but there was no effort on the part of the prosecution to establish that the informer was reliable. The customs officer in charge indicated at the hearing on the motion to suppress that he did not wish to give out any information whatever about the informer.

The first information received from the informer was that Dan Poston of Dallas, Texas, was a major dealer in marijuana and made frequent trips to El Paso for the purpose of obtaining marijuana for distribution in other parts of the country. This information was received by a customs agent during the first week of April 1973. The customs agent then checked the name of Poston against customs files and connected Pos-ton with Kopp. The files disclosed that Kopp had been arrested on February 9, 1973 in possession of 320 pounds of marijuana, while driving an automobile leased from an El Paso automobile dealer by Poston. The vehicle had been leased on January 23, 1973 and the lease was renewed by Poston on February 9, the day of Kopp’s arrest, through the payment of three hundred dollars.

Thereafter the customs agent received advice from the confidential source that Poston would be in El Paso during the weekend of April 27, 1973 in connection with a marijuana transaction. The agent knew that Kopp resided in El Paso. Putting two and two together, he caused a surveillance to be established in the area of Kopp’s residence beginning between 7:30 and 8:00 P.M. on April 27. The surveillance team consisted of seven customs agents, including the agent who had received the information and who had connected Poston with Kopp. The agents were positioned in the area of Kopp’s residence and were in radio communication with each other.

Upon beginning the surveillance, the agents obsei’ved a 1966 Pontiac sedan in the driveway of the Kopp residence, facing the door of a garage attached to the house, and a 1968 Ford Galaxie in the driveway behind the Pontiac. A Buick Skylai'k automobile was parked in front of the l’esidence. At 10:15 P.M., a 1969 El Camino pickup truck, with a camper attached, arrived in the area and parked across the street.from the Kopp l’esi-dence. The occupants of the pickup walked across the street and entered the Kopp residence. At 10:30 P.M. the Ford Galaxie left the residence with either one or two unidentified occupants and returned at approximately 11:00 P. M. This time four occupants exited the vehicle and entered the Kopp residence.

At approximately 1:00 A.M., April 28, the Ford Galaxie, occupied only by a driver, pulled out of the driveway, circled the block, and parked in the street in front of the residence. At 1:15 A.M., the El Camino pickup which had been parked across the street was backed into the driveway. It was separated from the garage by the Pontiac which remained immediately in front of the garage. Three of the surveilling agents, at least two using binoculars and positioned from twenty yards to a block away, observed several people unloading large filled gunnysacks from the rear of the pickup and placing the bundles in the garage. The front door of the garage as well as the front of the residence, according to photographs in evidence, were very near the street. The agents who observed this activity notified the participating agents by radio of what they were seeing. The agents then moved in, purportedly to see if a marijuana transaction was taking place, and if so, to arrest the persons engaged in the transaction. Upon moving in, they identified themselves as federal officers, whereupon the participants in the unloading operation broke and ran. Only three persons were apprehended: Pos-ton and Kopp in the immediate vicinity, and Lopez-Ortiz, who was found hiding behind a rock wall which separated the backyard of the Kopp residence from the next door residence.

Six of the gunnysacks were in view of the officers at the time of the arrests, and the odor of marijuana was prevalent. These sacks were seized, as was another which was discovered by an agent when he flashed his light into the Buick Skylark parked in front of the house in an effort to find one or more of the escapees. Further, an additional sack was found several days later during a search of the Buiek’s trunk. It is the marijuana in these eight sacks which was the subject of the motion to suppress. Whether the court committed error in denying the motion turns, as we shall explain, on the validity of the arrests and we proceed to a consideration of that issue.

I.

It is important to note at this point that we are not concerned with a search of any sort. We are concerned only with the accepted rule that contraband in plain view may be seized, even though it is on private property, so long as the initial intrusion on to the property is legitimate by virtue of a warrant or an exception to the warrant requirement, at least in circumstances where a warrant for the contraband itself could not have been previously obtained. See Coolidge v. New Hampshire, 1971, 403 U.S. 443, 464-471, 91 S.Ct. 2022, 2037-2040, 29 L.Ed.2d 564, 581-586. Since it is clear that there was no time prior to entry to obtain a warrant, we need deal only with whether the initial warrant-less intrusion was legal. If it was, the combination of the odor of marijuana and the nature of the plainly visible sacks was sufficient to support seizure of the bags as containing contraband.

As one justification for the agents’ presence on Kopp’s premises, the government contends that they entered merely to inquire of the defendants whether a marijuana transaction was in progress. The general idea is to analogize their entry to the approach of the officers, without probable cause, in Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, and Adams v. Williams, 1972, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612. However, classifying this entry as a so-called investigative approach strains the facts, inasmuch as it was accomplished by a sudden raid by seven officers. Thus, we pretermit this approach as justification for the officers’ presence on the property. Rather, we proceed on the theory that the raid constituted an arrest, that the contents of the plainly visible sacks were apparent to the agents once they were on the property, and that the validity of the seizure thus turns on whether the arrests were valid.

The question we must answer is that posed in Beck v. Ohio, 1964, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145:

“Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. . . . ”

Were facts and circumstances known to the arresting officers here, or of which they had reasonably trustworthy information, of such sufficiency as to warrant a prudent man in believing that the defendants were committing an offense? We think so.

The sum of the showing on probable cause for the arrests begins with the tip from the informer that Poston was engaged in the marijuana business in El Paso. The customs agent by independent investigation then developed the connection between Poston and Kopp. As heretofore outlined, Poston had supplied the vehicle used by Kopp when he was previously apprehended in possession of a large quantity of marijuana. The informer then supplied the further information that Poston would be in El Paso on a particular weekend in connection with a marijuana transaction. At this point, the officers determined to place the Kopp residence under surveillance.

In the course of the surveillance, the agents saw a pickup truck camper arrive and several people enter the Kopp residence. Subsequently, the camper was backed into the Kopp driveway, and several men then engaged in an unloading operation wherein gunnysacks were moved from the camper and placed in the garage. At this point the arrests were made. The fair inference from the evidence was that the surveilling officers were experienced in apprehending those engaged in the drug traffic and that the sacks which were being unloaded were known to them to be of the type used in packaging marijuana.

We think that the frame of authority to determine this issue is that established by Draper v. United States, 1959, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, and Beck v. Ohio, supra. In Draper, an arrest was upheld where based on information received from a reliable informant that Draper was selling narcotics in Denver, was going from Denver to Chicago to obtain narcotics, and would be returning to Denver on one of two trains. The informant gave a description of Draper by color, age, height and weight, described his dress and manner of walking and stated that he would be carrying a tan zipper bag. As it developed, these facts were accurate and lead the officers to Draper, with the result that narcotics were found during a search incident to the arrest. The present case differs from Draper in three' respects. Here, (1) there was no proof that the informer was reliable, and (2) the information furnished by the informer contained fewer precise details. But, (3) here the arrest was at a time when sacks, thought to contain marijuana, were being unloaded in the sight of the officers.

In Beck v. Ohio, supra, the arresting officers had received information from an informer that defendant was engaged in a lottery operation. In reversing the conviction, on the grounds that the arrest was invalid and would not support the subsequent search, the court noted that the informer had given no information that the defendant would be found at the time and place of his arrest, and that no evidence was introduced as to either what the informer actually said or why the officers thought the tip was creditable. The Court discussed Draper and stated that the evidence of probable cause did not reach the level found sufficient in that case. The Court noted that the record did not show that the officers, before arresting Beck, “saw, heard, smelled, or otherwise perceived anything else to give them ground for belief that petitioner had acted or was then acting unlawfully.” 379 U.S. at 94, 85 S.Ct. at 227, 13 L.Ed.2d at 147.

This case lies between Beck and Draper, but nearer Draper. The evidence of probable cause, as in Beck, does not incorporate a reliable informer, but only an informer of unspecified credentials. Unlike Beck, however, here the officers did their own investigative work and corroborated the information received from the informer to the extent of connecting Poston to Kopp, a known marijuana dealer. Also here the informer stated that Poston would be in El Paso at a certain time to purchase marijuana, whereas in Beck neither time nor place were specified. Further, and of great importance, the officers here, substituting their own investigation for the detailed information received from the reliable informer in Draper, and in furtherance of the information received from the informer, were able to place themselves so as to view the unloading of what appeared to be bags of marijuana. The quantum of probable cause at this point was near if not equal to that in Draper, and far exceeded that of Beck.

We thus believe that the officers, as prudent men, were warranted in believing that a crime was being committed at the moment they entered the driveway, announced themselves as federal officers, and effected the arrests. Cf. Ker v. California, 1963, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (arrest, and seizure incident thereto, upheld where based on meeting under suspicious circumstances between defendant and known narcotics wholesaler, and on reliable information that defendant was a marijuana retailer, even though no packages were seen to pass between defendant and the wholesaler at their meeting). For courts of appeals decisions somewhat similar on the facts, see United States v. Cothren, 4 Cir., 1967, 386 F.2d 364, and Cali v. United States, 1 Cir., 1964, 338 F.2d 974.

It is not critical that the informant here was never shown to be reliable. The idea that a reliable informer may somehow supply probable cause while a first-time informer can not is only the beginning of the inquiry. Probable cause rests on the whole of the evidence which is urged in support of police action. It may rest entirely on information from a reliable informer, or it may be based on a combination of informer’s information, itself insufficient, and facts generated by independent police investigation.

An apt analogy is found in cases considering the sufficiency of an affidavit to support a search warrant. Such an affidavit may be based entirely on information received from a reliable informer, if it also relates underlying facts and circumstances which enable the magistrate independently to assess both the validity of the informant’s conclusions and the basis of the officer’s belief in his reliability. Aguilar v. Texas, 1964, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729. On the other hand, Spinelli v. United States, 1969, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, acknowledges that a warrant may properly issue on the basis of a tip otherwise inadequate under Aguilar if it is corroborated to such an extent that it becomes as trustworthy as that in Aguilar. 393 U.S. at 415-416, 89 S.Ct. at 588-589, 21 L.Ed.2d at 643. Further, even if the corroborated tip is inadequate to support a warrant on its own, it may nonetheless be combined with other information known to the police to produce probable cause. 393 U.S. at 418, 21 L.Ed.2d at 644-645.

That Aguilar and Spinelli do not prescribe particular types of information in particular combinations has been previously recognized in this circuit. In Gonzales v. Beto, 5 Cir., 1970, 425 F.2d 963, 968-970, Judge Thornberry concluded that an informer’s tip can be buttressed by independent observations which corroborate the details of a tip to the extent of negating the possibility that the informer fabricated his report, or which contribute to a showing of probable cause “by revealing not merely normal patterns of activity but activity that reasonably arouses suspicion . . . . ” Id. at 969.

Viewed in this framework, our finding of probable cause for appellants’ arrests is affected by the unreliability of the tip only to the extent that its inadequacy increases the reliance that must be placed on information obtained by independent police investigation and observation. The total quantum of evidence being sufficient to satisfy the benchmark standards for probable cause of Draper and Aguilar the arrests must be upheld, and with them the seizure they occasioned.

II.

This leaves for consideration the sufficiency of the evidence against Lopez-Ortiz. He claimed at trial that he had illegally entered the United States from Mexico some two days in advance of his arrest, that he had stopped at the Kopp residence seeking food, that he had been knocking on the door at the time of the raid, and that he had fled to avoid deportation. This story was impeached in at least three ways at trial, and it was doubtless these inconsistencies that resulted in a jury verdict of guilty. For one thing, Lopez-Ortiz admitted at the time of his arrest that he had been in the house for several hours. Second, at trial he displayed considerable confusion about the time at which he arrived at the house. Finally, his account of what he saw and heard upon approaching and seeking entrance to the residence is not consistent with the unloading operation being carried on at that time.

The issue before us however is not the credibility of Lopez-Ortiz’s story. Rather, it is the sufficiency of the evidence connecting him with the marijuana. At best, the evidence establishes only that he was present in the area and had fled from federal officers. It does not show that he actually participated in the unloading operation, or began his flight from near the truck. Further, there was no testimony by the government agents that Lopez-Ortiz had approached and entered the house prior to the raid. Indeed, all the arresting officers could say was that they found him behind a nearby rock wall.

Lopez-Ortiz’s situation is similar to that in Williams v. United States, 5 Cir., 1966, 361 F.2d 280, where we reversed the conviction of a defendant who was one of three passengers in an automobile loaded with material intended for use in producing illegal whiskey. Revenue agents had been investigating an unregistered distillery, and had destroyed it with a dynamite charge. Just as the charge went off, they saw three men flee from an automobile stopped on a dirt road two or three hundred yards from the still. Williams denied any knowledge of the illegal distillery operation and any previous acquaintance with the two other men in the vehicle. His testimony was that he had been coon hunting and was walking home along the dirt road when the two men stopped and offered him a ride. He admitted fleeing but stated that he had done so because he had been startled by the dynamite explosion and by the sight of uniformed men, who he thought were soldiers, running out of the woods.

In Williams, the government conceded that mere presence is insufficient to prove possession, but contended that presence' plus flight made out a case. In dealing with this question, we cited Vick v. United States, 5 Cir., 1954, 216 F.2d 228, and McFarland v. United States, 5 Cir., 1960, 273 F.2d 417. In Vick, we held that presence plus flight is insufficient evidence to warrant conviction because the jury cannot reasonably conclude that such evidence excludes every reasonable hypothesis save that of guilt, at least where, as here, there are explanations of presence and motives for flight that are consistent with innocence. In McFarland, there was evidence over and above presence and flight, and we upheld the conviction. See also Hill v. United States, 5 Cir., 1968, 395 F.2d 694; Pinion v. United States, 5 Cir., 1968, 397 F.2d 27.

Here we have nothing but presence in the area and flight, and so the conviction of Lopez-Ortiz on the possession count cannot be sustained. We also think that there must be a similar result as to the conspiracy count. There was no proof of joint possession or participation by Lopez-Ortiz in the unloading operation, or even of a meeting, between him and an alleged co-conspirator. In short, he was not connected to the conspiracy.

Affirmed as to Kopp and Poston; reversed and remanded for further proceedings not inconsistent herewith as to Lopez-Ortiz.

      . Actually one of the eight sacks of marijuana was discovered in a subsequent search of the Buick, as noted above, but counsel for the parties have been satisfied to treat the marijuana taken from the Buick as having the same status as that found in the garage.

      . Here the time frame was somewhat less precise (a weekend rather than one of two trains arriving one day apart from each other), and tire location was much less precise (El Paso, rather than a specific site). Further, a physical description played no role here — while one officer testified that he received a rough description of Poston, there is no indication that a man matching that description had been seen before the arrests.

      . Cf. also United States v. Lee, 1927, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202, where persons on a boat were arrested for revenue and prohibition offenses by agents who saw, through the use of a searchlight, what appeared to be cases of liquor on the deck.

      . Indeed, no tip at all is necessary to obtain a warrant if the affiant possesses sufficient personal knowledge. See, e. g., Gonzales v. Beto, 5 Cir., 1970, 425 F.2d 963, 968.

      . That cases concerning probable cause for issuance of search warrants are relevant to inquiries into probable cause for warrantless arrests is established in Spinelli v. United States, 1969, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, n. 5:
      “While Draper involved the question whether the police had probable cause for an arrest without a warrant, the analysis required for an answer to this question is basically similar to that demanded of a magistrate when lie considers whether a search warrant should issue.”

      . For further cases illustrating the use that can be made of tips by untested or unknown informants, see the following cases cited in United States v. Legato, 5 Cir., 1973, 480 F.2d 408, 412, n. 10: United States v. Berry, 1972, 150 U.S.App.D.C. 187, 463 F.2d 1278, 1281; Government of Canal Zone v. Wright, 5 Cir., 1972, 460 F.2d 1402; United States v. Dzialak, 2 Cir., 1971, 441 F.2d 212; United States v. Viggiano, 2 Cir., 1970, 433 F.2d 716. See also DiPiazza v. United States, 6 Cir., 1969, 415 F.2d 99, 104-106. As we noted in Legato, the importance of corroboration is a principal teaching of Draper.


author: GODBOLD, Circuit Judge: GEE, Circuit Judge

text:
    Donnie Lynn SWANSON, Petitioner-Appellant, v. W. J. ESTELLE, Respondent-Appellee.
    No. 73-1054.
    United States Court of Appeals, Fifth Circuit.
    April 4, 1974.

      James H. Randals, Staff Counsel for Inmates, Tex. Dept. of Corrections, Ellis Unit, Huntsville, Tex., for petitioner-appellant.
    John L. Hill, Atty. Gen., W. Barton Boling, Jack Boone, Asst. Attys. Gen., Austin, Tex., for respondent-appellee.
    Before GODBOLD, DYER and GEE, Circuit Judges.
   GODBOLD, Circuit Judge:

Appellant’s petition for writ of habeas corpus was denied by the District Court without an evidentiary hearing. While we° are not entirely free of doubt we conclude that the court was required to inquire further into the matter.

Swanson pleaded guilty in Texas state court to robbery by assault. A jury heard evidence and fixed his punishment at life imprisonment. The Texas Court of Criminal Appeals affirmed. Swanson applied for habeas corpus in the state convicting court, raising along with other grounds the claim that his plea of guilty was involuntary because there was a plea bargain with the prosecutor that was not carried out. The court conducted a hearing on July 29, 1971, at which Swanson was represented by counsel. Neither of the two successive defense counsel nor the prosecutor testified. The only evidence consisted of Swanson’s testimony. The court found that the plea was voluntary because (a) Swanson was guilty and so testified, and (b) “for the reason that he hoped that in entering a plea of guilty before the jury, he would receive no more that a ten (10) year sentence.” Several non-jurisdictional grounds were held to have been waived by the valid guilty plea. The petition was denied. The Court of Criminal Appeals affirmed without written order.

Petitioner, proceeding pro se, then sought federal habeas relief alleging several grounds one of which was that his plea was involuntary because he was “promised a deal” that he would not get a sentence of more than 10 years, and the agreement was not carried out. The U. S. Magistrate found that there was no plea bargain. The federal habeas court adopted the findings and conclusions of the Magistrate, found that the state court record fairly supported the findings and conclusion of the state court judge, and denied relief.

According to Swanson’s testimony in the state habeas hearing, he was originally offered a plea bargain of a 15-year sentence, and when he was unwilling to agree the state then threatened to rein-dict him with an enhancement count thus exposing him to a mandatory life sentence. He concluded not to agree and was promptly reindicted with an enhancement count added. His attorney then withdrew and new counsel was appointed.

Against this background, Swanson described what occurred when his case was set for trial under the new indictment.

At one point he testified:
Q. Is there anything else that influenced you in your plea of guilty?
A. Just the attorney saying that I wouldn’t get over 10 years if everything I told him was true.

Earlier, when asked what happened when he was called to court, he had stated:

Q. What happened when he called you down to Court ?
A. I talked to Mr. Sands [appointive counsel] in here and he called me late in the day, I’d say 10:00 o’clock. It wasn’t nobody in there, and he talked to me back there in the jury room and he told me that he had made an agreement with the district attorney’s office and that he was going to just sit back and forget about the motion while the district attorney’s office was going to withdraw the second paragraph of the indictment.
Q. Forget about what motion?
A. Pretrial motion that he had filed to suppress evidence and lineup and he said that he felt this was the best bet; that the district attorney’s office was going to withdraw this enhancement off of the indictment and that I had a good chance of, if everything I told him was true about the robbery, that there wasn’t any violence in it. He said if I could come out here and enter a plea of guilty, that he felt that I wouldn’t get a day over 10 years, and I agreed to do that.
Q. Had there been any agreement, now, between Mr. Sands and anyone else concerning the time that you might get.
A. As far as I now I just talked to him only, and he told me that. I asked him if we were going to plead guilty to the judge and he said No, that the State still wanted a jury trial; that you couldn’t deny them a jury trial if they wanted one. (Emphasis added.)

Overall these statements are not free from ambiguity. But we do know that the state’s construction of them is not correct. The state’s position at oral argument was that there was no “plea bargain” at all. It enables itself to take this position by interpreting “plea bargain” as confined to an agreement concerning the length of sentence. But this is a semantical device that does not stand scrutiny. The foregoing testimony unequivocally says that there was a bargain to dismiss the enhancement count of the indictment, and the record reveals that bargain was carried out and the enhancement count dismissed before the case was submitted to the jury. In fact the state acknowledges that is what occurred and affirmatively asserts that it carried out such agreement. What is left unanswered is whether there was a second leg to the agreement — that the prosecutor would recommend to the jury a 10-year sentence — or whether Swanson and his counsel rolled the dice on the sentence the jury would impose (which could be as much as life) with the enhancement count (and a mandatory life sentence) out of the picture.

The state habeas court concluded that a 10-year sentence was only a “hope.” But that conclusion is supported by a specific page number to a single page of the evidentiary hearing transcript where there appears the statement by Swanson that he was influenced by his attorney’s “saying that I wouldn’t get over 10 years if everything I told him was true.” The court did not refer to Swanson’s earlier and express testimony that there was an agreement, or to the fact that the record itself showed, at least with respect to the enhancement count, that Swanson’s version of what occurred was correct. Nor did it refer to the testimony concerning the earlier refusal to plead guilty for an agreed 15-year sentence. The record is silent as to what recommendation, if any, the prosecutor made to the jury as the sentencing authority. The state habeas court made no finding that Swanson was not credible, and in fact relied upon Swanson’s own statement as the predicate for the “only a hope” finding.

The U. S. Magistrate, whose findings and recommendations were accepted by the federal habeas judge, and the state on this appeal, have focused on the statement of Swanson that the appointive attorney “felt” that the sentence would not be over 10 years. The difficulty with this argument is that this is not the testimony to which the state ha-beas court referred in its decision. Additionally, the testimony concerning what the attorney “felt” is ambiguous —does it mean Swanson agreed to 10 years, or agreed to take his chances on his attorney’s feeling that he wouldn’t get over 10 years? The Magistrate, like the state court, made no reference to the fact that there was a bargain and that the only dispute concerned its scope.

Swanson at least set out the rough contours of a claimed dual-aspect bargain in which he was not a participant, and those who can accurately describe it and state whether there was only one aspect to it or two have not been heard from. Swanson’s testimony and the accompanying circumstances raise at least “built in” doubts which the state has not attempted to resolve. Fortner v. Balkcom, 380 F.2d 816 (CA5, 1967). Under all the circumstances we must conclude “that the material facts were not adequately developed at the State court hearing.” 28 U.S.C. § 2254(d)(3). In a similar context, in a case in which state proceedings were pre-Santobello and the federal habeas court did not conduct an evidentiary hearing, we remanded to the District Court for reconsideration “in light of Scmtobello and for whatever further evidentiary proceedings may be deemed warranted.” James v. Smith, 455 F.2d 502, 503 (CA5, 1972). That is what we do here also.

Vacated and remanded to the District Court for further proceedings not inconsistent with this opinion.

GEE, Circuit Judge

(dissenting):

Unable to distinguish this case in principle from our very recent en banc decision in Bryan v. United States, 492 F.2d 775 (5 Cir. 1974), and convinced that Swanson’s showing amounts to no more than a “hope” grounded in what his attorney “felt,” I respectfully dissent.

      . Swanson v. State, 447 S.W.2d 942 (Tex.Cr.App.1969).

      . The state habeas hearing took place before Santobello v. N. Y., 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).


author: DYER, Circuit Judge:

text:
    Herman RANDALL, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections and Clarence Jones, etc., Respondents-Appellees.
    No. 73-3298.
    United States Court of Appeals, Fifth Circuit.
    April 4, 1974.

      Melvyn Carson Bruder, Dallas, Tex., for petitioner-appellant.
    John B. Tolle, Asst. Dist. Atty., Dallas, Tex., John L. Hill, Atty. Gen., Robert C. Flowers, Roland Daniel Green, III, Thomas M. Pollan, Asst. Attys. Gen., Austin, Tex., for respondents-appellees.
    Before BELL, THORNBERRY and DYER, Circuit Judges.
   DYER, Circuit Judge:

Randall appeals from the district court’s denial of his habeas petition challenging the legality of his state murder conviction. The petitioner bases his claim for relief on the single contention that his testimonial admission of guilt was impelled by the prosecution’s introduction of a written confession procured from Randall by an investigating officer who gave the petitioner fatally belated Miranda warnings. We vacate and remand for an evidentiary hearing to determine the voluntariness vel non of Randall’s judicial confession.

I

Responding to a radio call to investigate a possible homicide, two uniformed Dallas, Texas police officers discovered Randall crouched over the body of a woman, subsequently determined to be Randall’s common-law wife. Due to inclement weather, the officers took Randall to their marked police car, where he was interrogated for ten to fifteen minutes. During this period, Randall, without the benefit of Miranda warnings, informed the officers of the location of the murder weapon. After this preliminary examination, the officers briefed a police detective who had arrived to continue the investigation. On the basis of this information, the detective, prior to speaking with Randall, formed the opinion that the petitioner was the likely culprit. Randall was then directed by the detective to a second police car where, after additional questioning, the petitioner orally admitted that he had killed his wife. Only at this juncture did the detective recite the Miranda litany, the entire interrogation by all three investigatory officers having been accomplished without the prefatory warnings required for a custodial interrogation. Randall was then taken to police headquarters where he executed a written confession prepared by the same investigating detective some two or three hours after the on-the-scene confession.

At the trial, the state court suppressed Randall’s oral confession as vio-lative of Miranda, but his written statement was admitted over the defendant’s objection that the later statement was tainted by the prior illegal confession, inasmuch as the intervening Miranda warnings given by the detective had not dissipated the effects of the prior interrogation. After this inculpatory evidence was admitted, Randall took the stand to testify on his own behalf despite his attorney’s vigorous opposition to this tactic. The petitioner immediately admitted responsibility for the homicide but protested that the deed was done with no “malice” toward the victim. His conviction for murder duly followed, and the judgment was affirmed on appeal.

On the basis of these facts, the district court denied habeas relief without conducting an evidentiary hearing. The court essentially determined that Randall’s conviction stemmed from his own freely offered testimony and that any taint stemming from the suppressed oral confession and the written statement did not fatally infect the judicial admission. In so holding, the district court rejected Randall’s reliance on Harrison v. United States, 1968, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047, in which the Supreme Court found that the defendant’s incriminating testimony at his trial was the inadmissible product of an illegally procured confession.

II

It is beyond peradventure that Randall’s oral confession resulted from custodial interrogation sufficient to trigger the Miranda-prescribed requirements, rather than from inherently non-coercive, on-the-scene questioning. In past Miranda cases, this Court has consistently considered one factor to be paramount in the case-by-case analysis of whether an interrogation is custodial in nature, namely whether the investigation has focused on the defendant at the time of interrogation. See Brown v. Beto, 5 Cir. 1972, 468 F.2d 1284, 1286; United States v. Phelps, 5 Cir. 1971, 443 F.2d 246, 247-248; Bendelow v. United States, 5 Cir. 1969, 418 F.2d 42, 47. The facts of this case plainly show that Randall was the focal point of an intensive interrogation by three police officers in the distinctly unfamiliar environs of a police car.

Further, we discern a fatal causal connection between the pre-Miranda confession and the written statement made at police headquarters shortly thereafter. The intervening warnings, coming as they did at the end of the interrogation process rather than at the beginning, could scarcely serve sufficiently efficacious purposes when only two hours had passed before Randall was asked to repeat the incriminating statements to the very officer who had successfully undertaken the pre-Miranda interrogation. The second confession was simply not amply removed from the preceding statement in time or circumstances to “sufficiently distinguish” it from the unlawful oral confession.

In view of the illegality of the written confession introduced at trial, the Harrison principle proscribing the use of incriminating testimony which is impelled by the introduction of a bad prior confession becomes highly relevant to our inquiry. The extraordinary occurrence of Randall’s taking the stand despite his attorney’s protestations raises the possibility that the introduction of the written confession unconstitutionally overbore Randall’s will, and thus rendered his testimony at trial involuntary. As in Harrison, Randall’s defense strategy apparently did not contemplate the petitioner’s taking the stand at all, but this strategem was abandoned by the defendant upon the court’s admission of the illegally obtained statement.

The district court, however, attempted to distinguish Harrison entirely from the present case. We find this effort unpersuasive. There is no indication that Harrison was merely an exercise of the Court’s supervisory powers, rather than a constitutionally based holding. Moreover, the opinion does not state, as the district court suggests, that Harrison took the stand in accordance with his attorney’s advice. To the contrary, the only indication made by the Court was that Harrison’s attorney announced at the outset of the trial that his client would not testify in his own behalf. Moreover, the fact that Harrison involved the use of the defendant’s prior incriminating testimony at a subsequent trial is of no importance to its applicability to the case sub judice.

In light of Harrison, it is incumbent on the district court to hold an eviden-tiary hearing to determine whether Randall’s election to testify was truly voluntary. In this hearing, the burden is clearly on the Government to “show that its illegal action did not induce [the petitioner’s] testimony.” Harrison, supra, 392 U.S. at 225, 88 S.Ct. at 2011.

Vacated and remanded.


author: PER CURIAM: RIVES, Circuit Judge

text:
    Roy Alton LANE, Petitioner-Appellant, v. ATTORNEY GENERAL OF the UNITED STATES, Respondent-Appellee.
    No. 72-1747.
    United States Court of Appeals, Fifth Circuit.
    April 4, 1974.
    William A. Clineburg, Jr., Atlanta, Ga. (Court-appointed), for petitioner-appellant.
    John W. Stokes, Jr., U. S. Atty., P. Bruce Kirwan, William P. Gaffney, Asst. U. S. Attys., Atlanta, Ga., for respondent-appellee.
    Before RIVES, THORNBERRY and GOLDBERG, Circuit Judges.
   PER CURIAM:

In an opinion issued April 26, 1973, 5 Cir., 477 F.2d 847, we reversed the district court’s order denying appellant’s petition for writ of habeas corpus. Relying on this Court’s decision in Cottle v. Wainwright, 5 Cir. 1973, 477 F.2d 269, we held that the “constitutional principle ... of ‘equal protection of the laws,’ mandates the appointment of counsel . . . where, as here, the authority revoking parole permits more affluent parolees to appear with retained counsel.” We expressly pretermitted “any discussion of the question of whether due process requires the appointment of counsel for indigents facing revocation of parole.” (emphasis added).

Subsequent to our original opinion in this case, the Supreme Court in Gagnon v. Scarpelli, 1973, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, held that, although due process does not require that counsel be provided for indigents in all probation revocation cases, the body conducting the proceedings must determine the need for counsel in each individual case. The state should provide counsel when the indigent probationer or parolee may have difficulty in presenting his version of disputed facts without the examination or cross-examination of witnesses or the presentation of complicated documentary evidence. The Court in Scar-pelli set forth the following “general guidelines”:

Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for _ the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself.
In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.

411 U.S. at 790-791.

Several months after its decision in Scarpelli, the Supreme Court vacated the judgment of the Fifth Circuit in Cottle v. Wainwright, supra, and remanded the case for further consideration in light of Scarpelli. Wainwright v. Cottle, 1973, 414 U.S. 895, 94 S.Ct. 221, 38 L.Ed.2d 138. In view of the strong reliance in our original opinion in this case on the Fifth Circuit decision in Cottle, the Supreme Court’s mandate compels us to reset our course in the case sub judice.

Our decision of April 26, 1973, in the case sub judice, 477 F.2d 847, is hereby vacated. The order of the United States District Court for the Northern District of Georgia, denying appellant’s petition for writ of habeas corpus, is reversed, and the case is remanded to the district court for consideration in light of Gag-non v. Scarpelli, supra.

Reversed and remanded.

RIVES, Circuit Judge

(concurring specially):

I agree that our previous decision in this case should be vacated, and that the case should be remanded to the district court. At the same time, I wish to make clear my belief that Gagnon v. Scarpelli, 1973, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, does not decide the equal protection issue discussed in our initial opinion.

The Supreme Court in Gagnon determined that a case by case analysis was necessary to determine whether an indigent probationer or parolee had a due process right to appointed counsel at revocation hearings. The Supreme Court subsequently vacated this Court’s judgment in Cottle v. Wainwright, 5 Cir. 1973, 477 F.2d 269, and remanded that case for further consideration in light of Gagnon. Wainwright v. Cottle, 1973, 414 U.S. 895, 896, 94 S.Ct. 221, 38 L.Ed.2d 138. The instant case on the equal protection issue is similar to Cottle, and our original opinion relied upon the holding in that case.

In dissenting from the majority’s vacation and remand in Cottle, Justice Douglas, joined by Justice Blackmun, argued that Gagnon was “inapposite” to the issue raised in Cottle. Justice Douglas described the issue in Cottle as “whether the court below was correct in holding that the Equal Protection Clause requires the right to appointed counsel at parole revocation hearings in cases where, unlike Gagnon v. Scarpelli, supra, a solvent parolee has a statutory right to the presence of retained counsel.” I agree that Gagnon does not decide the equal protection issue raised in Cottle and in this case.

The fact that Justices Douglas and Blackmun were in dissent does not necessarily mean that the majority disagreed with their analysis. The majority vacated and remanded this Court’s judgment, but wrote no opinion. Possibly the majority acted upon the idea that application of Gagnon might make it unnecessary to reach the constitutional issue raised in Cottle. Or perhaps the majority felt that the question raised in Cottle deserved further study in light of Gagnon.

One difference between Cottle and this case deserves mention. In Cottle, the petitioner raised his equal protection claim under the equal protection clause of the Fourteenth Amendment. Lane is a federal probationer and therefore raised his equal protection claim under the due process clause of the Fifth Amendment. There remains a substantial question as to whether equal protection violative of the due process clause of the Fifth Amendment is coextensive with equal protection specifically protected by the Fourteenth Amendment. The intimation to that effect in Bolling v. Sharpe, 1954, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884, finds support not only in the earlier decided Supreme Court eases hut also in the later decisions.

That constitutional question should not be reached unless the facts of the case so require. If made necessary by the facts developed upon remand, the district court should decide whether the federal government, having provided for representation by retained counsel, may constitutionally deny the assistance of counsel to those unable to pay attorneys’ fees.

I therefore concur specially.

      . This Court on its own motion took the case for rehearing en banc, 488 F.2d 534; but in an order issued February 22, 1974, the en banc Court remanded the case to this panel for disposition. 489 F.2d 1274.

      . See, e. g., Sunshine Coal Co. v. Adkins, 1940, 310 U.S. 381, 401, 60 S.Ct. 907, 84 L.Ed. 1263; Helvering v. Lerner Stores Co., 1941, 314 U.S. 463, 468, 62 S.Ct. 341, 86 L.Ed. 343; Detroit Bank v. United States, 1943, 317 U.S. 329, 337, 338, 63 S.Ct. 297, 87 L.Ed. 304.

      . Schneider v. Rusk, 1964, 377 U.S. 163, 168, 84 S.Ct. 1187, 12 L.Ed.2d 218; Shapiro v. Thompson, 1969, 394 U.S. 618, 642, 89 S.Ct. 1322, 22 L.Ed.2d 600; Hurtado v. United States, 1973, 410 U.S. 578, 590, 93 S.Ct. 1157, 35 L.Ed.2d 508 (see also dissenting opinion of Justice Douglas at p. 600); Frontiero v. Richardson, 1973, 411 U.S. 677, 680, 93 S.Ct. 1764, 36 L.Ed.2d 583; United States v. Kras, 1973, 409 U.S. 434, 458, 93 S.Ct. 631, 34 L.Ed.2d 626; Wainwright v. Cottle, supra, 414 U.S. at 896.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Eubergene NICHOLSON, Defendant-Appellant.
    No. 73-2680
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 4, 1974.
    Tommy C. Mann, Macon, Ga., for defendant-appellant.
    William J. Schloth, U. S. Atty., Charles T. Erion, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
    Before WISDOM, GOLDBERG and GEE, Circuit Judges.

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

   PER CURIAM:

Defendant Eubergene Nicholson was indicted on two counts of misapplication of funds and receipt of funds with intent to injure and defraud the Sanders-ville Production Credit Association, in violation of 18 U.S.C. § 657 and 18 U.S.C. § 1006. Pursuant to Rule 23(a), Fed.R.Crim.P., defendant waived his right to trial by jury. The district court sitting without a jury convicted defendant on both counts and sentenced him to four months on Count 1 and to two years probation on Count 2. On this appeal defendant makes only one allegation of error: that the district court improperly admitted evidence of a separate and independent crime, similar in nature, upon which no conviction was proved.

We need not decide whether the district court’s failure to exclude the evidence in question was improper, because the record clearly demonstrates that the error, if any, was not prejudicial. We note briefly the combination of factors that compels this conclusion. First, there was overwhelming evidence, entirely independent of the testimony concerning the prior crime, to support the conviction. Second, defendant presented no witnesses and offered no evidence at trial. Third, the very moderate sentences on both counts give no indication that evidence of the prior offense was used for enhancement purposes. Finally, we note that this was a bench trial; the prejudicial impact of erroneously admitted evidence is thus presumed to be substantially less than it might have been in a trial before a jury. See United States v. Dillon, 5 Cir. 1971, 436 F.2d 1093, 1095. We are satisfied that the admission of evidence of the prior crime did not affect substantial rights of defendant and therefore does not constitute grounds for reversal, Fed.R.Crim.P. 52(a).

Affirmed.


author: COLEMAN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Kenneth Kermit HAYLES, Defendant-Appellant.
    No. 72-3681.
    United States Court of Appeals, Fifth Circuit.
    April 4, 1974.
    Rehearing Denied May 3, 1974.
    Francis I. Gandy, Jr., Corpus Christi, Tex., for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., James R. Gough, Ellis C. McCullough, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
   COLEMAN, Circuit Judge:

Kenneth Kermit Hayles appeals from a conviction of bank robbery, 18 U.S.C., § 2113(a) and an ensuing sentence of twenty five years imprisonment. We affirm.

This appeal was argued in New Orleans on October 1, 1973. We deferred decision pending the outcome in the Supreme Court of United States v. Matlock, _ U.S. _, 94 S.Ct. 988, 38 L.Ed.2d 242 [decided February 20, 1974, 42 LW 4252] ,

In Matlock the Supreme Court held that “the consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared.”

This settles the primary contention raised by Hayles. There can be no doubt that Mrs. Hayles consented to the search of an automobile which her husband, the appellant, had borrowed from another. Hayles sought, however, to suppress evidence secured from that vehicle on the ground that his wife had no joint control. The District Court found that Mrs. Hayles did have joint control and that finding is supported by the evidence.

Hayles was arrested at his home. As he took his departure with the officers he carried several items with him but not the car keys, which were on a dresser. Members of the family had always had access to another car owned by the defendant but he gave no instructions as he left the keys that they were not to use the borrowed vehicle. Thereafter, the son did use the car to drive to school; this had been done so the wife would-not have to take him and return home to get other children ready for school before leaving to go to her employment. Indeed, the wife testified that she would not have given the son permission to drive the car to school had she thought it would displease her husband. The car was in the family yard when she gave the keys to the officers.

Hayles also complains that he had already been convicted of the robbery in the state courts and thus the federal prosecution amounted to double jeopardy, but the Supreme Court adversely disposed of a similar contention in Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). The decision in Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) is of no help to the appellant since that case involved prosecution for the same conduct by both the state and by one of its municipalities, they not being separate sovereignties.

Neither can we review the discretion of the Executive in deciding to prosecute for a federal offense although a state conviction had already been secured for the same conduct, United States v. Cox, 5 Cir., 1965, 342 F.2d 167, cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700.

The assignments of error as to the conduct of the trial, the denial of a change of venue, the failure to sequester the jury, or to poll it as to alleged unfavorable publicity have been duly considered and are found short of reversible magnitude.

The Judgment of the District Court is

Affirmed.


text:
    UNITED STATES of America, Plaintiff-Appellant, v. Murphy Albert LEWIS, Defendant-Appellee.
    No. 73-2694
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    April 8, 1974.
    Rehearing and Rehearing En Bane Denied June 24, 1974.

      Gerald Gallinghouse, U. S. Atty., Dennis Coleman Weber, Asst. U. S. Atty., New Orleans, La., for plaintiff-appellant.
    Clay J. Calhoun, Jr., Lynne C. Rothschild, John P. Nelson, Jr., New Orleans, La., for defendant-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

Murphy Albert Lewis was indicted for failing to report for and submit to induction in the Armed Forces in violation of 50 U.S.C.A. App. § 462(a). After an evidentiary hearing held on May 29, 1973, the district court granted a motion to dismiss the indictment because the local board had postponed Mr. Lewis’ initial order to report for induction beyond the 120 day maximum permitted by 32 CRF § 1632.2(a). The Government now attempts to pursue an appeal from that district court'judgment.

Although the provisions of 18 U.S.C. § 3731 permit a Government appeal from an order dismissing an indictment, no appeal shall lie if the accused would be placed in double jeopardy. The present law of double jeopardy precludes retrial when the district court has ruled in favor of the defendant on facts going to the merits of the case if these facts were adduced at an evidentiary hearing. United States v. Velazquez, 490 F.2d 29 (2d Cir. 1973); see United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L.Ed.2d 207 (1972); United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970); United States v. Findley, 439 F.2d 970 (1st Cir. 1971); United States v. Ponto, 454 F.2d 657 (7th Cir. 1971); United States v. McCreery, 473 F.2d 1381 (7th Cir. 1973); United States v. Weller, 466 F.2d 1279 (9th Cir. 1972); United States v. Rothfelder, 474 F.2d 606 (6th Cir. 1973). See also United States v. Jenkins, 490 F.2d 868 (2d Cir. 1973).

The thrust of the protection against double jeopardy is to limit to one the number of times that a defendant may be required to submit his proof to challenge by his adversary. United States v. Velazquez, supra.

Accordingly this appeal by the Government must be dismissed because further prosecution of Lewis would constitute double jeopardy.

Dismissed.

      . In pertinent part 18 U.S.C. § 3731 provides : In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopary clause of the United States Constitution prohibits further prosecution.