author: BELL, Circuit Judge:

text:
    ATLANTA GAS LIGHT COMPANY et al., Petitioners, v. FEDERAL POWER COMMISSION, Respondent. ATLANTA GAS LIGHT COMPANY et al., Plaintiffs-Appellants, v. SOUTHERN NATURAL GAS COMPANY and Federal Power Commission, Defendants-Appellees. ALABAMA GAS CORPORATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
    Nos. 72-1475, 72-1539 and 72-1415.
    United States Court of Appeals, Fifth Circuit,
    Feb. 7, 1973.
    Rehearing Denied July 11, 1973.

      Albert G. Norman, Jr., Carroll L. Wagner, Jr., Atlanta, Ga., and John E. Holtzinger, Jr., Washington, D. C., for Atlanta Gas Light Co.
    James E. Joiner, Atlanta, Ga., for Ga. Power Co.
    John W. Hinchey, Asst. Atty. Gen., and Arthur K. Bolton, Atty. Gen., Atlanta, Ga., for Ga. Public Service Comm.
    John Izard, Jr., and Charles L. Gowen, Atlanta, Ga., James J. Flood, Jr., Washington, D. C., and Ronald L. Kuehn, Jr., Birmingham, Ala., for Southern Natural Gas Co.
    John W. Stokes, Jr., U. S. Atty., Atlanta, Ga., Gordon Gooch, Gen. Counsel, George W. McHenry, Jr., Comm. Staff Counsel, Leo E. Forquer, Sol., J. Richard Tiano, First Asst. Sol., F.P.C., Washington, D. C., for F.P.C.
    Edwin D. Robb, Jr., and George W. Williams, Savannah, Ga., for Savannah Electric & Power Co.
    Howard E. Wahrenbrock, Washington, D. C., for Miss. Valley Gas Co.
    Thomas F. Brosnan, Washington, D. C., Leon M. Payne, Houston, Tex., R. Y. Patterson, Jr. and Norman E. Duke, Winter Park, Fla., for Fla. Gas Transmission Co.
    Before JOHN R. BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.
   BELL, Circuit Judge:

Under § 4 of the Natural Gas Act, 15 U.S.C.A. § 717c, any “natural-gas company” must file with the Federal Power Commission a notice of any change in a service rendered by the company in connection with the sale or transportation of natural gas subject to the jurisdiction of the Commission. Subsections (d) and (e) of § 4 provide that the Commission may, upon receipt of a notice of change, allow the change to take effect, or it may “suspend” the change until it determines, after hearing, that the change is lawful. These consolidated appeals arise (1) from petitions for review filed by Alabama Gas Corporation (Alagasco), Atlanta Gas Light Company (Atlanta Gas), et al., who challenge the lawfulness of the Commission’s action in allowing Southern Natural Gas Company (Southern), a jurisdictional pipeline, to institute a plan which curtails gas deliveries under contracts between Southern and the petitioners, and (2) from the dismissal by the district court of a complaint filed by Atlanta Gas and others seeking declaratory relief against the Federal Power Commission for its interim adoption of Southern’s curtailment plan, and equitable relief and damages against Southern for breach of its service contracts. We affirm the action of the Commission challenged in the petitions for review, and we affirm the dismissal of that portion of the district court complaint which relates to the prayer for declaratory and equitable relief. For reasons stated, we vacate the dismissal of that portion of the complaint which relates to the prayer for damages and remand to the district court to retain jurisdiction for possible further proceedings.

Nos. 72 — HI 5 and 72-U75

On April 15, 1971, the Federal Power Commission issued Order No. 431. That order required all jurisdictional pipelines to submit “written reports” to the Commission stating how the pipelines would implement the Commission’s policy of protecting the dwindling supply of natural gas and of insuring reliable and adequate service for the 1971-1972 heating season. The order provided that any pipeline which, because of shortages, found that it would be “necessary” to curtail service during the heating season should file with the Commission revised tariff sheets embodying a curtaih ment plan, “pursuant to §§ 4 and 5 of the Natural Gas Act.” See footnote (2).

In response to Order No. 431, Southern filed a revised tariff sheet with the Commission on November 24, 1971. The revised tariff curtailed the volume of gas which Southern was obliged to deliver under contracts with certain customers and established service priorities among several classes of customers. Relying upon a statement by Southern that some curtailment of firm service commitments would be necessary during the 1971-1972 season, but expressly declining to decide whether elements of the plan were otherwise lawful, the Commission permitted the plan to take effect after a nominal suspension period of one day, pending completion of suspension proceedings under § 4. These proceedings are still pending.

Alagasco, Atlanta Gas, and others, whose service contracts with Southern were affected by the curtailment plan, petitioned the Commission for leave to intervene in the suspension proceedings. When the Commission permitted the curtailment plan to take effect, the intervenors requested the Commission to reconsider its interim action. These petitions were denied. A petition for partial stay of the suspension order, filed by Atlanta Gas, was denied by the Commission on March 24,1972.

The petitions for judicial review of the Commission’s action, filed pursuant to § 19 of the Act, 15 U.S.C.A. '§ 717r, followed in due course.

The petitioners contend that the Commission cannot, under § 4, permit a curtailment plan to take effect on an interim basis without making, at the very least, a preliminary determination that the curtailment is necessary in order to effectuate the policies of Order No. 431. The petitioners contend, further, that where, as they alleged, the curtailment plan establishes service priorities that are inconsistent with priorities established in outstanding certificates of public service and convenience, the Commission cannot allow the plan to take effect without invoking the elaborate hearing procedure set out in § 7 of the Act, 15 U.S.C.A. § 717f. Finally, the petitioners contend that the Commission’s action was unlawful because the Commission did not, prior to the interim action, undertake a detailed evaluation of the environmental impact of the curtailment order, as required by the National Environmental Protection Act (NEPA), 42 U.S.C.A. § 4321 et seq.

The Commission maintains, first, that the contested action was not a reviewable order; second, that it may properly employ § 4 procedures, unadorned by preliminary findings of fact, in the exercise of its curtailment power; and finally, that the NEPA does not require the issuance of a detailed environmental statement prior to the issuance of an interim suspension order.

Reviewability

The Natural Gas Act provides for review by the court of appeals of “an order issued by the Commission in such proceeding” under the Act. 15 U.S.C.A. § 717r(b). The Act does not require that the order be “final”, and the Act does not, by its terms, impose any other limitation on the class of actions subject to review. The courts have recognized this fact; nevertheless, they have traditionally declined to review many actions which, in a literal sense, are “orders issued by the Commission in a proceeding” under the Act. In general, the courts have declined to review non-final orders that are not “definitive” in their impact upon the rights of the parties and do not threaten the petitioner with “irreparable harm”. See Federal Power Commission v. Metropolitan, Edison Co., 1938, 304 U.S. 375, 58 S.Ct. 963, 82 L. Ed. 1408; Amerada Petroleum Corp. v. Federal Power Commission, 10 Cir., 1960, 285 F.2d 737; Algonguin Gas Transmission Co. v. Federal Power Commission, 1 Cir., 1953, 201 F.2d 334.

The requirement that the reviewable order be “definitive” in its impact upon the rights of the parties is something more than a requirement that the order be unambiguous in legal effect. It is a requirement that the order have some substantial effect on the parties which cannot be altered by subsequent administrative action. See Atlantic Seaboard Corp. v. Federal Power Commission, 4 Cir., 1953, 201 F.2d 568. The additional condition of reviewability —the requirement that the order threaten “irreparable harm” — is, to that extent, redundant, since an “irreparable” injury, like the effect of a “definitive” order, cannot be redeemed by subsequent official action. See Atlantic Seaboard Corp. v. Federal Power Commission, supra at 572.

We hold that the Commission’s interim suspension order is reviewable because it is definitive in its impact upon the rights of the parties and threatens irreparable harm. The order permits Southern to withhold volumes of gas which it is obliged to deliver under private contract. The order may prove to be temporary, since it' may be changed when the Commission considers the facts of the case on the merits. But the present effect of the order cannot be substantially altered by subsequent action of the Commission. There is nothing the Commission can do at a later date to change the fact that the petitioners do not now receive volumes of gas which they may be entitled to receive under contract. In terms of its impact upon the parties, the order is as “definitive” as it could be; and if it is legally injurious, its consequences will be irremediable at a later date.

The petitions for review are properly before this court.

The Legality of § U Procedures

In Federal Power Commission v. Louisiana Power & Light Co., 406 U.S. 621, 92 S.Ct. 1827, 32 L.Ed.2d 369 (1972), the Supreme Court upheld the power of the (Commission to order the curtailment of gas deliveries to all customers of jurisdictional pipelines — customers purchasing gas for their own consumption as well as customers purchasing gas for resale to ultimate consumers. More critically, for purposes of the present appeals, the court held that the Commission may properly utilize the procedures of § 4 as a means of exercising its curtailment power.

Without seriously contesting the power of the Commission to order curtailments, the petitioners strenuously urge the impropriety of a curtailment procedure which allows a curtailment plan designed by a pipeline to take effect before the Commission has determined, after hearing or after some minimal preliminary investigation, that curtailment is “necessary” within the meaning of Order No. 431. Petitioners maintain that such a procedure is subject to abuse and, in fact, that it has been abused in this case: Southern, they contend, faces no shortages that necessitate a curtailment of firm or non-interruptible service, as contemplated by Order No. 431. Southern has chosen, they allege, to exploit the procedure sanctioned by that order to reallocate sales for its own financial gain. Petitioners maintain as well that in light of the inconsistency between priorities established in the curtailment plan and priorities established in outstanding certificates of public convenience and necessity, the plan should not go into effect without a hearing as contemplated by § 7 of the Act. 15 U.S. C.A. § 717f.

By arguing that a hearing is required, petitioners advocate a curtailment procedure which has been expressly rejected by the Supreme Court. In Louisiana Power & Light Co. v. Federal Power Commission, the court found that any process which would require the Commission to hold a hearing before taking remedial action would be an “unsuitable” vehicle for the exercise of curtailment power, because (1) the process would entail substantial delay and (2) any remedial order could only have prospective application. 406 U.S. at 643, 92 S.Ct. at 1840, 32 L.Ed.2d at 387. In essence, the court found that the general state of emergency created by the national shortage of natural gas necessitates a curtailment process which allows the Commission, in particular cases, to act “now” and find facts later. Accordingly, the court held that the adoption of such a procedure by the Commission was within the general power of the Commission to take all measures “necessary and appropriate” to effectuate the provisions of the Act. See 15 U.S.C.A. § 717o. This holding is seriously at variance with the petitioner’s position that a prior hearing is required where persons who oppose curtailment contend that it is not necessary within the meaning of Order No. 431, or that priorities established by the curtailment plan are inconsistent with priorities established in outstanding certificates of public convenience and necessity.

We hold that the consideration of these contentions may be properly deferred until the hearing is ultimately held, and that the Commission may not be required to abandon a procedure which facilitates effective interim action.

Similar difficulties attend the less sweeping argument that the Commission may permit a curtailment plan to take effect only after some minimal preliminary determination that the plan is consistent with Order No. 431. The Supreme Court has held that the Commission may employ the procedures of § 4 in the exercise of its curtailment power. Section 4 does require the Commission to give reasons in writing when it suspends the operation of a proposed change in service. Absent suspension, however, there is no requirement that the Commission make a preliminary determination of the validity of the proposed change. In short, unless the Commission acts to suspend the proposed change, the change will take effect. The Commission may enter upon a hearing to determine the lawfulness of the change but the change will become effective unless suspended. We are not persuaded that a different procedure, one required neither by statute nor by case law, is required here, solely because the notice of change is filed in response to an administrative order (Order No. 431).

The argument of petitioners that a curtailment plan may not take effect without a preliminary determination by the Commission that a curtailment of firm or non-interruptible service is necessary is further weakened by the facts of this particular case. Here the Commission has made a determination of sorts. Petitioners sought to have the curtailment plan suspended for the full statutory period. Relying upon Southern’s statement that a curtailment of firm service would be required during the 1971-1972 heating season, the Commission, informed by what the petitioners concede to be the “enormous amount of data” in its possession regarding the supplies of natural gas available to pipeline companies, determined that only a one-day suspension period was warranted in this case. This determination was made without benefit of a hearing and there was no decision as to whether elements of the curtailment plan were “unjust, unreasonable, unduly discriminatory or preferential,' or otherwise unlawful”. This determination, presumably based on facts already within the knowledge of the Commission, was effective, pending a plenary hearing.

The National Environmental Protection Act

Considerations that justify the Commission’s power to follow expeditious procedures in the exercise of its curtailment power obtain with equal force where, as here, aggrieved persons contest the validity of an interim curtailment order on the ground that the Commission must undertake a detailed evaluation of the environmental impact of curtailment prior to the issuance of the order. A detailed evaluation of the environmental impact of a curtailment order would entail precisely the sort of delay which the Supreme Court noted and disapproved in the course of a decision which held that the Natural Gas Act authorizes the Commission to follow summary procedures in exercising its curtailment power. Louisiana Power & Light Co. v. Federal Power Commission, supra. Cf. Port of New York v. United States, 2 Cir., 1971, 451 F.2d 783. Such considerations of policy, together with the familiar principle of statutory construction which requires the reconciliation of diverse statutory provisions where reconciliation is possible, would in themselves be ample support for a holding that the NEPA does not mandate a detailed environmental investigation at the interim stage.

The mandate of the NEPA on federal agencies is that they comply with the procedural duties. imposed by the Act to the fullest extent possible. See Calvert Cliff’s Coord. Com. v. United States Atomic Energy Com’n, D.C. Cir., 1971, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1114-1115. As there noted, the legislative history of the NEPA interprets “to the fullest extent possible” to mean compliance unless compliance would give rise to a violation of statutory obligations. As Louisiana, Power & Light Co., supra, makes clear, the Federal Power Commission has a statutory duty to the public under the Natural Gas Act to take effective interim curtailment action in the exigencies presented by gas shortages. We cannot say that the NEPA suspends this duty of the Commission.

In sum, we affirm the order of the Commission which is here in question.

No. 72-1539

Claiming to be aggrieved by the interim curtailment plan which we have reviewed in Nos. 72-1415 and 72-1475, Atlanta Gas, et ah, initiated a civil action in the district court. They asserted that the order was illegal and advanced arguments substantially the same as those later advanced in the petitions for review. By way of relief they prayed (1) for a declaration that the interim order had no effect upon Southern’s contractual obligations, (2) for an injunction against Southern to restrain implementation of the curtailment plan, (3) for specific performance of the contract between Southern and Atlanta Gas; and (4) as to Atlanta Gas only, for damages for breach of contract. Finding that the Federal Power Commission and, on review, the court of appeals were the proper forums for the adjudication of these claims, the district court dismissed the complaint, relying upon the doctrine of primary jurisdiction and the special statutory review provisions of § 19 of the Act. 15 U.S.C.A. § 717r. We agree with the district court except as to the claim of Atlanta Gas for damages allegedly arising out.of breach of contract.

We have already decided, in our consideration of the petitions for review, that the interim curtailment order was valid. This is sufficient answer to any contention that the district court should have reviewed the action of the Federal Power Commission under the doctrine of reviewing administrative conduct alleged to be in excess of delegated powers or contrary to specific statutory provisions. Cf. Boire v. Greyhound Corp., 376 U.S. 473, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964); Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958).

At the same time, quite apart from questions concerning the legality of the interim order, the dismissal of the complaint by the district court raises question concerning the impact of a Federal Power Commission interim order, otherwise legal, upon claims grounded in private contract — claims which are alleged to be within the diversity jurisdiction of the district court. We turn then to these questions.

As to the prayers for specific performance and injunctive relief, the dismissal of the complaint was proper. An order as sought from the district court would have required Southern to deliver gas according to a schedule that was inconsistent with the curtailment plan placed into effect by the Commission. It would have constituted an unwarranted interference with lawful regulatory authority. Cf. Michigan Consolidated Gas Co. v. Panhandle Eastern Pipe Line Co., 6 Cir., 1949, 173 F.2d 784. The district court could not enjoin the Commission under the circumstances and it could not have achieved the same result by enjoing Southern and requiring it to perform the contract. Thus, as regards the prayer for injunctive and specific performance relief, the complaint, though within the diversity jurisdiction of the district court, did not state a claim upon which relief could be granted.

This leaves for consideration the question of damages for breach of contract presented in the context of diversity jurisdiction. Without the involvement of the Commission we would have nothing more than a simple suit for breach of contract under notice pleading concepts. No answer to the complaint has been filed. We have not seen the contract.

On the one hand, it is urged that the complaint does not state a claim upon which relief can be granted because of the primary jurisdiction of the Commission and because of the failure to exhaust administrative remedies. If on the other hand, a claim is stated for breach of contract, we are told of the anticipated defense of impossibility of performance due to the supervening Commission order. And, of course, this defense may also ultimately involve whether an interim order, as distinguished from a final order, may constitute such a defense.

We are of the view that the district court was premature in dismissing the claim of Atlanta Gas for damages arising out of the alleged breach of contract. We perceive the position of the district court to be that the court was without jurisdiction over the entire matter, including the breach of contract claim, because of the scheme of statutory regulation which vests regulatory power in the Commission. This seems to be somewhat broader than the doctrine of primary jurisdiction or the failure to exhaust administrative remedies.

We think that the course to be followed by the district court is dictated by Carter v. American Telephone & Telegraph Co., 5 Cir., 1966, 365 F.2d 486. That case was a private antitrust action for treble damages and injunctive relief. The complaint anticipated a defense implicating the validity of a tariff which purported to restrict the use of the contested device. We held that the question of the validity of the tariff was within the primary jurisdiction of the Federal Communications Commission and that the proper procedure for the district court to follow was to remand the case to the Federal Communications Commission for a determination of that issue, while retaining jurisdiction of the ease.

Here, although the interim order was asserted as a basis for dismissal, it is clear that the question of validity vel non of the curtailment is still to be decided by the Commission. Given these facts, we hold that the better procedure is for the district court to retain jurisdiction over the claim for damages pending final decision by the Commission on the validity of the proffered curtailment plan. To this end, we vacate the order of the district court on the breach of contract claim.

We neither forecast nor foreclose the issues, if any, which may be presented in the district court, once the validity of the curtailment plan has been finally determined.

In Nos. 72-1415 and 72-1475, the order of the Commission is affirmed. In No. 72-1589, the order of the district court is affirmed in part, and vacated and remanded in part for further proceedings consistent herewith.

      . 15 U.S.C.A. § 717c:
      (c) Under such rules and regulations as the Commission may prescribe, every natural-gas company shall file with the Commission, within such time (not less than sixty days from June 21, 193S) and in such form as the Commission may designate, and shall keep open in convenient . form and place for public inspection, schedules showing all rates and charges for any transportation or sale subject to the jurisdiction of the Commission, and the classifications, practices, and regulations affecting such rates and charges, together with all contracts which in any manner affect or relate to such rates, charges, classifications, and services.
      (d) Tinless the Commission otherwise orders, no change shall be made by any natural-gas company in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days’ notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changos to take effect without requiring the thirty days’ notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they .shall ho filed and published.
      (e) Whenever any such new schedule is filed the Commission shall have authority, either upon complaint of any State, municipality, State commission or gas distributing company, or upon its own initiative without complaint, at once, and if it so orders, without answer or formal pleading by the natural-gas company, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and the decision thereon, the Commission, upon filing with such schedules and delivering to the natural-gas company affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer pei’iod than five months beyond the time when it would otherwise go into effect, and after full hearings, either completed before or after the rate, charge, classification, or service goes into effect, the Commission may make such orders with reference thereto as would be proper in a proceeding initiated after it liad become effective. If the proceeding lias not been concluded and an order made at the expiration of the suspension period, on motion of the natural-gas company making the filing, the proposed change of rate, charge, classification, or service shall go into effect. Where increased rates or charges are thus made effective, the Commission may, by order, require the natural-gas company to furnish a bond, to be approved by the Commission, to refund any amounts ordered by the Commission, to keep accurate accounts in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts were paid, and, upon completion of the hearing and decision, to order such natural-gas company to refund, with interest, the portion of such increased rates or charges by its decision found not justified. At any hearing involving a rate or charge sought to be increased, the burden of proof to show that the increased rate or charge is just and reasonable shall be upon the natural-gas company, and the Commission shall give to the hearing and decision of such questions preference over other questions pending before it and decide the same as speedily as possible.

      . “Order Promulgating Statement of General Policy” in Docket No. R-418 (Order No. 431). The order provided in pertinent part:
      In 1970, the staff, having been directed, surveyed jurisdictional pipelines to determine whether adequate gas was available to the pipelines in order to fill storage fields in anticipation of the 1970-71 heating season and in anticipation of emergencies which would arise during the heating season if adequate gas supplies were not available to the consumer. It appearing to the Commission that supplies were not available, the Commission, acting pursuant to its emergency powers, promulgated Order 402 (35 F.R. 7511) and 402A (35 F.R. 8927) which authorized distribution companies to make resales of gas to other distribution companies and to jurisdictional pipelines in order to assure that the storage fields would be filled by winter and authorized the emergency purchases of gas from otherwise non jurisdictional companies. This action was taken on May 6, 1970 and .Tune 3, 1970. By notice of proposed rule-making issued October 6, 1970 and adopted December 10, 1970 the Commission amended Section 157.29 of its Regulations (Order No. 418, 35 F.R. 19173) to permit emergency purchases of gas by natural gas pipelines directly from gas producers. Notwithstanding these emergency measures, a number of natural gas pipelines indicated their inability to deliver sufficient gas to meet their firm demands. Because of the implementation of emergency purchases coupled with a winter of normal temperatures serious disruptions of service wore not widespread.
      * * * * *
      § 2.70 Measures for the Protection of Reliable and Adequate Natural Gas Service.
      This Commission, charged with the responsibility for natural gas reliability, hereby promulgates as a statement of general policy that jurisdictional pipeline companies shall take all steps necessary for the protection of as reliable and adequate service as present supplies and capacities will permit during the 71-72 heating season and thereafter, including adequate injection into storage in anticipation of the heating season.
      In order to effectuate the foregoing:
      (1) During the storage injection season all natural gas pipelines subject to the jurisdiction of the Commission, should make every reasonable effort to fill all storage fields supplied by such pipelines to a capacity sufficient to meet the anticipated heating season demands.
      (2) All jurisdictional pipelines will within 30 days hereof, submit a written report (four copies) to the Secretary of the Commission indicating how the instant statement of policy will be implemented. Pipelines responding that curtailment will be necessary will file a tariff sheet, pursuant to Sections 4 and 5 of the Natural Gas Act and the Commission’s Regulations thereunder, setting forth a curtailment plan to effectuate the instant policy or state that the curtailment program if any, currently on file will effectuate this policy. The curtailment plan proposed may be divided between the injection season and the heating season, since different objectives may require different treatment.
      Consideration should bo given to the curtailment of volumes equivalent to all interruptible sales and to the curtailment of large boiler fuel sales where alternate fuels are available.
      (3) The Commission recognizing that additional short-term gas purchases may still be necessary to meet the 1971-1972 demands, will continue the emergency measures referred to earlier for the stated 60-day period. If the emergency purchases are to extend beyond the 60-day period paragraph 12 in the Notice issued by the Commission on July 17, 1970, in Docket No. R-389A should be utilized (35 F.R. 11638). The Commission will consider limited term certificates with pre-granted abandonment, if the pipeline demonstrates emergency need, after complying with paragraphs 1 and 2, above.
      (4) Where emergency gas purchases are made and/or a curtailment program is instituted to implement the above policy the pipeline should place, or already have in effect, volumetric limitations on sales at current levels.
      (5) Notice should be taken that the Commission will re-examine existing commodity rate levels and, to the extent necessary, may redesign existing commodity-demand rate relationships in present and future pipeline rate cases.
      (6) Pipelines who can do so are encouraged to propose exchange arrangements with other pipelines.
      (7) Jurisdictional pipelines have the responsibility in the first instance to adopt a curtailment program by filing appropriate tariffs. Such tariffs, if approved by the Commission, will control in all respects notwithstanding inconsistent provisions in sales contracts, jurisdictional and non-jurisdictional, entered into prior to the date of the approval of the tariff.
      Nothing stated herein should be construed as placing a limitation on measures to be taken by jurisdictional pipelines to effectuate the instant policy.
      (B) The statement of general policy adopted herein shall be effective upon issuance of this order.

      . The Commission characterized the changes effected in the revised tariff sheets as follows:
      “The filing in Southern’s response to our Order No. 431 and the changes contained in those tariff sheets represent Southern’s proposed curtailment plan. The plan is divided into two parts, one for the storage injection period (April 1 through October 31) and the other applicable for the heating season (November 1 through March 31). Generally the storage injection plan involves these steps : (1) curtailment of deliveries of gas in excess of Contract Demand of a resale customer at each delivery point, or in excess of the firm requirements of direct consumers, where the gas is used or sold as fuel for electric generation in a plant where generation of electricity for sale represents the primary function of such plant; (2) curtailment of deliveries of gas in excess of the Contract Demand of a resale customer at each delivery point, or in excess of the firm requirements of direct consumers, where the gas is used or sold for interruptible use; (3) curtailment of remaining electric generation fuel requirements; (4) curtailment of remaining interruptible use requirements; (5) curtailment of firm industrial re- . quirements; and (6) curtailment of remaining requirements. The heating season curtailment plan is similar to the storage injection curtailmént plan except that (1) following the initial curtailment of gas used as fuel for electric generation on an individual delivery point basis, the remaining curtailment steps are on a group basis; and (2) systemwide conjunctive billing is permitted a multiple delivery point customer during the heating season when such customer is limited to a below Contract Demand or Maximum Delivery Obligation and the forecast mean temperature at Birmingham Alabama is 35° Fahrenheit or lower.” Order Suspending Proposed Tariff Sheets, December 23, 1972.

      . Georgia Power Company, Georgia Public Service Commission, and Savannah Electric and Power Company.

      . The suspension order provided in pertinent part:
      “On November 24, 1971, Southern Natural Gas Company (Southern) tendered for filing under Section 4 of the Natural Gas Act revised tariff sheets to its ETC Gas Tariff, Sixth Revised Yolume No. 1 and requested that those sheets become effective December 25, 1971, or, if suspended, that the period of suspension be limited to one day.
      * sj: s¡; s|: *
      “Protests have been filed to Southern's proposed curtailment plan and requests have been made that we suspend the plan for tlie full statutory period. We find that Southern’s proposed plan has not been shown to be lawful and may be unjust, unreasonable, unduly discriminatory, or preferential, or otherwise unlawful under the Natural Gas Act. Consequently, we will suspend the tendered tariff sheets. Southern has stated that curtailments of firm service may be required during this heating season and its present tariff does not contain a curtailment procedure. Consequently, we believe that a one-day suspension period, as requested by Southern, is warranted in this case. . . . ”

      . We do not reach the question whether a tariff revision of the type here involved is a “major federal action significantly affecting the quality of the human environment” within the jurisdictional meaning of the NEPA. § 102(C). Title 42, § 4332(C). Cf. Zabel v. Tabb, 5 Cir., 1970, 430 F.2d 199, 211.

      . Tho other plaintiffs, Georgia Power Company, Savannah Electric and Power Company and the Georgia Public Service Commission, did not claim a breach of contract and thus do not claim damages.

      . No question is presented in this ease of a ruling by the Commission that Commission approval of a curtailment plan prevents a recovery for breach of contract, either because of the preference avoidance power of the Commission, 15 U.S.C.A. § 717c (§ 4 of the Natural Gas Act), or otherwise. Cf. Louisiana Power & Light Co. v. Federal Power Commission, 5 Cir., 1973, 476 F.2d 132, this day rendered.


source: Caselaw Access Project

author: McWilliams, circuit judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James CASTEEL, Defendant-Appellant.
    No. 72-1644.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Jan. 10, 1973.
    Decided March 29, 1973.

      Edward H. Funston, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., Bruce E. Miller, and Richard L. Meyer, Asst. U. S. Attys., on the brief), for plaintiff-appellee.
    Sam A. Crow, of Crow & Skogg, Topeka, Kan., for defendant-appellant.
    Before BREITENSTEIN, McWILLIAMS and BARRETT, Circuit Judges.
   McWilliams, circuit judge.

James Casteel was convicted by a jury of transporting in interstate commerce two forged checks in violation of 18 U. S.C. § 2314. He now appeals and we affirm.

It was stipulated at trial that Casteel caused to be transported in interstate commerce from Topeka, Kansas, to Kansas City, Missouri, the two checks in question, cashing one check at Falley’s Market, in Topeka, and the second at Sutton’s Market, also in Topeka. It was further stipulated that each of the checks had been forged by one Thomas Dorsey. Accordingly, the only real issue in the case was whether Casteel knew at the time he cashed the checks that they were forged or falsely made instruments.

Evidence adduced upon trial disclosed that one Dee Osborn had her purse stolen while working at a Montgomery Ward store in Topeka. In Miss Osborn’s purse was her checkbook containing blank checks on a Kansas City, Missouri, bank. The two checks which formed the basis for the present pi’osecution were identified by Dee Osborn as being hers, each bearing her printed name on its face. Each check also bore a maker’s signature which purported to be that of Miss Osborn. Miss Osborn denied, however, that such purported signatures were in fact hers, and testified that she had given no one permission to sign her name for her.

As above indicated, it was stipulated that one Thomas Dorsey had made out the face of each of the two checks, forging in each instance the signature of Dee Osborn as the maker of the cheek. James Casteel was the named payee on each check, and he in turn endorsed each check as the payee in cashing them at the two markets in Topeka.

As mentioned, the only real issue in the ease was whether Casteel had so-called guilty knowledge when he cashed the two checks, i. e., knowledge of the falsity of the checks. To establish this element of the offense, the Government relied chiefly on the testimony of two lady employees of a local Topeka concern known as Research & Data Corporation, hereinafter referred to as R & D. The nature of that company’s business was described by one witness as follows:

“Our Research & Data works with merchants, and business and law enforcement on bad checks, shoplifting and other similar types of losses. Primary purpose is the prevention of these crimes. The businesses do send in their losses such as cheeks to us to work on. We are employed by the business on a monthly employment basis like an employee * *

The two employees of R & D testified that the two checks in question were referred to them by the two markets which had initially cashed them, the cheeks having been returned to the markets after payment had been stopped. One employee testified that she telephoned Casteel and asked him to drop into her office and discuss the two checks in question. Several weeks later Casteel did appear at the offices of R & D where he was interviewed concerning his knowledge of the two transactions. Both of these employees testified that on that occasion Casteel stated that it .was he who had endorsed the two checks and that he knew the “checks were bad when he cashed them.” According to these two witnesses, Casteel was advised that what he had said could be used against him in court, and that he replied that he knew it. Casteel then left the offices of R & D and was not arrested till sometime later.

Casteel testified at his trial that he did not know the checks were forged when he cashed them, though he did know they were forged when he was interviewed by the employees of R & D. Casteel then went on to testify that the checks in question were given him by his friend, Thomas Dorsey, in exchange for some auto parts. Casteel explained the fact that the maker’s signature on each of the two checks was purportedly that of Dee Osborn, and not that of Thomas Dorsey, by testifying that he just assumed that Miss Osborn was a friend of Dorsey and was buying the parts for him. Casteel’s testimony was corroborated to some degree by his sister and his mother. Neither the Government nor Casteel called Thomas Dorsey as a witness, a fact that will be referred to in more detail in a moment.

At trial, objection was made to the admission into evidence of the statements made by Casteel to the employees of R & D on the ground that Casteel was not given a full and effective warning of his constitutional rights at the outset of the interrogation process as prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). In fact, says counsel, Casteel was given no warning, let alone a full and effective one. This objection was overruled by the trial court and the principal contention in this court concerns the propriety of that ruling.

At the outset it is to be noted that R & D is a private enterprise, and not a public law enforcement agency. According to the record, R & D received the two checks here in question from the two markets which had cashed the checks, each market being a subscriber to the services afforded by R & D. The latter then made its investigation of the matter, which included an interview with Casteel, with the checks in question being ultimately forwarded to the FBI The two employees of R & D had no special powers of arrest and their testimony was that they could only ask Casteel to come to their offices, which he did after a delay of several weeks, and that at the conclusion of the interview Casteel was free to leave, which he did. There is nothing in the record before us to indicate that R & D in its investigation of the matter was acting as an alter ego of any law enforcement agency, or was in anywise in collusion with any such agency. Nor is there any contention that the statements themselves were involuntarily given by Casteel. Rather, it is the position of counsel that Casteel’s statement to the two employees of R & D should have been excluded solely because of the failure to give a Miranda warning. On this state of the record we hold that there was no requirement that a Miranda warning be given Casteel by the employees of R & D, and that accordingly the trial court did not err in admitting into evidence the admissions thus attributed to Casteel.

As we read Miranda v. Arizona, supra, the necessity of fully and effectively informing one of his constitutional right to remain silent, or obtain the presence of counsel, arises when a custodial interrogation by law enforcement officers is about to commence. The Constitution does not protect an alleged criminal against his own failure to remain mute in every environment and under all circumstances. Stowers v. United States, 351 F.2d 301 (9th Cir. 1965). Since the instant case does not involve a custodial interrogation by law enforcement officers, we deem Miranda to be inapplicable. To hold that Miranda does have applicability would require an extension of that rule, and we are disinclined to thus extend. See United States v. Cowley, 452 F.2d 243 (10th Cir. 1971), where we held that a Miranda warning was not needed where the statements in question, though given to the police, were made before the defendant was taken into custody or otherwise deprived of his freedom of action in any significant way.

Two cases from other Circuits are directly in point. In United States v. Bolden, 461 F.2d 998 (8th Cir. 1972), it was held that a statement given a store security officer was not inadmissible evidence because of the failure to give a Miranda warning in view of the fact that the defendant when he made the statement was not under “custodial interrogation” because: (1) defendant's freedom of action had not been restrained in any significant way; (2) his statements were in fact voluntarily given; and (3) the statements were not given to a “law enforcement official.” In United States v. Antonelli, 434 F.2d 335 (2d Cir. 1970), it was held that the Fifth Amendment privilege against self-incrimination does not require the giving of a Miranda warning by private citizens or security personnel employed thereby who take a suspect into custody. We subscribe to the result and reasoning in each of those eases. See also in this regard: Note, Criminal Law Admissibility of Confessions or Admissions of Accused Obtained During Custodial Interrogation by Non-Police Personnel: Are the Miranda Warnings Required?, 40 Miss.L. J. 139 (1968); and Note, Confessions Obtained Through Interrogations Conducted by Private Persons, Investigators, and Security Agents, 4 Willamette L.J. 262 (1966).

Our holding is in line with our reasoning in the recent case of United States v. Harding, 10th Cir., 475 F.2d 480, 1973. There, we held that the Fourth Amendment prohibition against “unreasonable searches” did not apply to searches by “private citizens not acting in collusion with federal officers.”

In the instant case, there is the suggestion that the two employees of R & D to whom Casteel volunteered his incriminating statements were “acting in consort with the FBI.” It is sufficient to say that the record simply does not support such conclusion. The fact that the checks in question were eventually forwarded to the FBI, or that the two employees did from time to time in the course of their duties converse with various law enforcement officers is insufficient to support the suggestion that in calling Casteel into their office and making inquiry about the checks, the two employees of R & D, in the language of Antonelli, had some sort of a “de facto connection with any public law enforcement agency.”

Counsel also argues that the judgment should be reversed because of improper closing argument by the Government’s attorney. In his closing argument, counsel for Casteel chided the Government for failing to call as its witness Thomas Dorsey, the stipulated forger of the two checks. In response thereto the Government attorney noted that Dorsey was Casteel’s friend and wondered if Dorsey was such a good friend of Casteel’s, why he (Dorsey) “isn’t here testifying for him.” In this regard counsel argues that by such comment the Government’s attorney improperly placed on Casteel the overall burden of proof, or at least the burden to produce Dorsey.

This particular matter is without merit. The comment was «• not improper. Counsel does have the right to reply to an argument raised by his opposing advocate. United States v. Guajardo-Melendez, 401 F.2d 35 (7th Cir. 1968).

In United States v. Panepinto, 430 F. 2d 613 (3d Cir. 1970), cert. denied sub nom. Orangio v. United States, 400 U. S. 949, 91 S.Ct. 258, 27 L.Ed.2d 256 (1970), defense counsel, as in the instant case, in closing argument took the prosecutor to task for failure to call a certain witness who conceivably could have refuted the defendant’s testimony. In that case, it was held that the prosecutor was justified in thereafter pointing out that the defendant also had the power to subpoena the witness in question to corroborate his story, had he been so inclined. The comment by the Government attorney in the instant ease was equally justified.

Judgment affirmed.


author: CLARK, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Michael APOLLO, Defendant-Appellant.
    No. 72-2005.
    United States Court of Appeals, Fifth Circuit.
    April 3, 1973.
    Rehearing Denied May 18, 1973.

      Robert J. Lerner, William M. Coffey, Milwaukee, Wis., for defendant-appellant.
    William S. Sessions, U. S. Atty., Wayne P. Speck, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.
    Before ALDRICH, SIMPSON and CLARK, Circuit Judges.

       Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.

   CLARK, Circuit Judge:

Michael Apollo was convicted after a jury trial on two counts related to smuggling untaxed marijuana into the United States from the Republic of Mexico. The first count alleged that Apollo engaged in a conspiracy with thirteen other defendants to import marijuana in violation of 21 U.S.C. § 963. The second-count charged Apollo and three others with the substantive offense of importing approximately 700 pounds of marijuana in violation of 21 U.S.C. § 952(a) and 21 U.S.C. § 960(a)(1). He appeals. We reverse.

1. SUFFICIENCY OF THE EVIDENCE

Apollo contends that the evidence presented at trial was insufficient to support his conviction and therefore that his motion for a directed acquittal was improperly denied. We recite the proof in the light most favorable to the jury’s verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

A. The Company

Direct evidence consisting of the testimony of guilty-pleading co-defendants and an unindicted co-conspirator established the existence of an extensive marijuana smuggling operation known to the participants as The Company. The central parties of this conspiracy were Dr. Willis B. Hollingsworth and members of the Estes family. To assist in the importation and distribution of marijuana, The Company enlisted the assistance of additional parties including David Willingham, a licensed aircraft pilot, and Philip Homburg who served as sales agent for The Company in Indianapolis, Indiana. Between May and September 1971, The Company’s aircraft made at least seven trips to northern Mexico and returned to the United States with substantial quantities of marijuana. The next-to-the-last of these trips occurred on September 10 when Willingham delivered 1,100 pounds of Mexican marijuana to Homburg in Indianapolis. The following day, after a stop-over in Milwaukee, Wisconsin, to pick up William Estes and 5,000 dollars, Willingham flew back to Sabinas Hidalgo, Mexico, where the 5,000 dollars was used by Dr. Hollingsworth to purchase another shipment of 700 pounds. A few hours later Hollingsworth and Willingham were arrested by customs officers at the San Antonio, Texas airport. Two days later, Homburg was arrested while transporting the prior 1100-pound delivery of marijuana from Indianapolis to Milwaukee.

B. The Milwaukee Connection

Thi'ough Philip Homburg, The Company had made connection with Charles Cocroft, a wholesale dealer in marijuana in Milwaukee. In August 1971, Homburg made several deliveries of Company marijuana to Cocroft. By the end of the month Cocroft informed The Company that he had a potential purchaser for much larger quantities of the weed — up to 1,000 pounds per week — if the price could be reduced to 100 dollars per pound. On September 11 William Estes went to Milwaukee to authorize this reduced price contract for The Company. During these negotiations with Estes, Cocroft left the meeting with approximately 100 pounds of marijuana, then returned with the 5,000 dollars, and announced that the deal with the large-scale retail dealer had been consummated. Cash in hand, Estes and Willing-ham left immediately on the first leg of the ill-fated round trip to Sabinas Hidalgo.

C. Apollo and The Company

Michael Apollo’s alleged role in the conspiracy was as the retail distributor to whom Cocroft sold and agreed to sell Company marijuana. At the date of Apollo’s trial Cocroft, who had been arrested and released on bond, was a fugitive from justice. Since none of the other alleged conspirators ever dealt directly with Apollo, proof of his conspiracy participation rests on testimony of witnesses who described what they saw and heard of the negotiations between Cocroft and Apollo, or who simply repeated what Cocroft told them. The Government’s evidence against Apollo consisted of (1) testimony of Philip Homburg concerning three meetings between Cocroft and Apollo; (2) testimony of Dean Johnson about transfers of marijuana and accompanying conversations between Cocroft and Apollo; (3) testimony of co-defendants Homburg and William Estes regarding statements made to them by alleged co-conspirator Cocroft that Michael Apollo was the retail distributor with whom Coeroft had worked out an agreement to sell Company marijuana; (4) testimony of Carol Hoagland, a girl Apollo dated, that in November 1971 Apollo told her he- was then dealing in marijuana; and (5) two bricks of marijuana which were found in Apollo’s car when it was seized in March 1972.

D. Twice-Told Tales

In Montford v. United States, 200 F.2d 759, 760 (5th Cir. 1952), this court laid down the rules governing the sufficiency of evidence in cases where, as here, testimony is introduced to prove the defendant’s connection with a conspiracy by hearsay statements and declarations of persons named as his co-conspirators but not otherwise proven to be such:

The declarations of one conspirator made in furtherance of the objects of the conspiracy, and during its existence, are admissible against all members of the conspiracy. Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429. But a defendant’s connection with a conspiracy can not be established by the extrajudicial declarations of a co-conspirator, made out of the presence of the defendant. There must be proof aliunde of the existence of the conspiracy, and of the defendant’s connection with it, before such statements become admissible as against a defendant not present when they were made. Glasser v. United States, 315 U.S. 60, 74, 62 S.Ct. 457, 86 L.Ed. 680, 701 . . . .

In testing the sufficiency of the evidence to support Apollo’s conviction, we must therefore disregard the extensive testimony which recited Cocroft’s statements to his fellow conspirators implicating Apollo as the retail outlet for The Company’s marijuana. See Panci v. United States, 256 F.2d 308 (5th Cir. 1958).

E. Evidence of Subsequent Offenses

The proof that tended to link Apollo with dealing in marijuana two to six months after the alleged conspiracy and importing offenses for which he was on trial was improperly admitted. At the outset it must be borne in mind the evidence did not show convictions although they strongly tended to indicate conduct which would violate the laws of Wisconsin. Next, we consider that it was the Government’s assertion that the probity of this proof lay in its tendency to show a pattern or scheme of conduct. The problem for this theory is that Apollo was not on trial for being a marijuana pusher but for illicitly introducing the weed into the United States.

The proper test for balancing the substantial relevance and materiality such subsequent misconduct evidence must possess against the less-than-subtle prejudice it carries is well defined in prior precedent and need not be reiterated. See United States v. Johnson, 453 F.2d 1195 (5th Cir. 1972) and the cases there cited. See also the proposed Rules of Evidence for United States Courts and Magistrates § 404(b) and 2 J. Wigmore on Evidence § 304.

Apollo’s November admission to Miss Hoagland that he was then dealing in marijuana and the discovery of two bricks of the substance in a search of his car in March obviously constituted two strikes against him with the jury. Just as with prior conviction evidence, such proof of subsequent suspicious activity must be limited to that which substantially relates to an element of the present offense to be admissible. This proof won’t pass muster and it should not have been allowed.

F. The Good Stuff

Stripped of the toxic hearsay and prejudicial “bad man” evidence, the Government’s proof is reduced to establishing four meetings between Cocroft and Apollo. The first occurred in mid-August 1971, immediately after Philip Homburg had delivered a load of Company marijuana to Coeroft’s Milwaukee apartment. Both Homburg and Johnson testified that they saw Apollo enter Co-croft’s bedroom which served as a warehouse for Company marijuana; however, neither witness overheard any conversation which may have occurred therein. Johnson testified that upon leaving the bedroom Apollo was carrying a closed, plastic sack containing what Johnson believed to be compressed bricks of marijuana. At that moment and in Johnson’s presence, the following exchange occurred:

COCROFT: “Can you handle it ?”
APOLLO: “Oh yes, I can handle it. I’m going to run it up to Madison.”
COCROFT: “I need the money as soon as possible because I want to recop [i. e. repurchase] so that we can get orders and things going.”
APOLLO: “Well, I’ll get the money as soon as possible. Is it good stuff?”
COCROFT: “It is Mexican. I only have the best.”

Homburg testified that he was in Co-croft’s apartment during two additional meetings between Cocroft and Apollo in late August or early September. However, on neither occasion did Homburg overhear private conversations between the two men nor did he observe a transfer of marijuana or any other incriminating activity.

Johnson testified that he was present at a fourth meeting between Co-croft and Apollo on September 11, the day of William Estes’ visit to Milwaukee. At this time Johnson observed the transfer of suitcases by Cocroft and Apollo from Cocroft’s automobile to Apollo’s car. During the transfer, Johnson overheard the following conversation :

COCROFT: “It looks like we’re just moving.”
APOLLO: “I’ve got to leave right now to run up to Madison.”
COCROFT: “Good. I’ve got some stuff coming right away and they want cash for it.”

Apollo makes no contention that Johnson’s recitation of these conversations between Cocroft and Apollo were inadmissible hearsay. These conversations are clearly admissible as res gestae or as admissions and adopted admissions of the defendant. McCormick, Law of Evidence § 239, § 246, § 274.

G. The Test Applied

Apollo contends that above recited evidence does not prove that he had entered into an illicit agreement with the members of the smuggling conspiracy and, in fact, proves nothing more than that Apollo was a purchaser of Company marijuana. Apollo relies upon the opinion of the Seventh Circuit in United States v. Ford, 324 F.2d 950, 952 (1963): “The relationship of buyer and seller absent any prior or contemporaneous understanding beyond a mere sales agreement does not prove a conspiracy In such circumstance, the buyer’s purpose is to buy; the seller’s purpose is to sell. There is no joint objective.” This court has recently cited Ford for the proposition that: “Absent an agreement to advance a joint interest, any purchases and sales would normally not constitute conspiratorial activity.” United States v. Cook, 461 F.2d 906, 910 (1972). See also United States v. Koch, 113 F.2d 982 (2d Cir. 1940) (single purchase of narcotics insufficient to prove conspiracy); United States v. Varelli, 407 F.2d 735, 748 (7th Cir. 1969) (isolated purchases of merchandise stolen from Interstate Commerce insufficient to prove conspiracy).

The Government, in response, cites a line of cases following the Second Circuit’s opinion in United States v. Bruno, where that court indicated that proof of purchases and sales of narcotic drugs, without other evidence of agreement, was a sufficient basis upon which a jury could infer a conspiratorial connection among the participants. The reasoning was epitomized thus: 105 F.2d 921, 922, rev’d on other grounds, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257 (1939). See also United States v. Tramaglino, 197 F.2d 928, 931 (2d Cir.), cert. denied, 344 U.S. 864, 73 S.Ct. 105, 97 L.Ed. 670 (1952); United States v. Reina, 242 F.2d 302, 306-307 (2d Cir.), cert. denied, 354 U.S. 913, 77 S.Ct. 1294, 1 L.Ed.2d 1427 (1957); Valentine v. United States, 293 F.2d 708 (8th Cir. 1961), cert. denied, 369 U.S. 830, 82 S.Ct. 848, 7 L.Ed.2d 795 (1962); but see United States v. Aviles, 274 F.2d 179, 189-190 (2d Cir.), cert. denied as to various parties, 362 U.S. 974-982, 80 S. Ct. 1057-1073, 4 L.Ed.2d 1009-1016 (1960).

The evidence did not disclose any cooperation or communication between the smugglers and either group of retailers, or between the two groups of retailers themselves; however, the smugglers knew that the middlemen must sell to retailers, and the retailers knew that the middlemen must buy of importers of one sort or another. Thus the conspirators at one end of the chain knew that the unlawful business would not, and could not, stop with their buyers; and those at the other end knew that it had not begun with their sellers. That being true, a jury might have found that all the accused were embarked upon a venture, in all parts of which each was a participant, and an abettor in the sense that the success of that part with which he was immediately concerned, was dependent upon the success of the whole.

We find it unnecessary in this case to define precisely how limited purchases, in number or size, may be in such “mere purchases” cases and still permit the intent to participate in an unlawful conspiracy to be inferred by a jury. Compare United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L. Ed. 128 (1940) with Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943). In the present case, there was direct proof of a continuing relationship between Apollo and Cocroft, a known conspirator, which resulted on at least two occasions in the witting transfer of Company marijuana to Apollo. Furthermore, the conversations between Apollo and Cocroft in the presence of third parties demonstrate that Apollo was aware of Cocroft’s involvement with one or more other parties in a large-scale operation to illicitly import and distribute marijuana. Whether Apollo was intended to be within Cocroft’s “we” when Cocroft stated he needed the proceeds from Apollo’s resales so - “we can get orders and get things going” or when he told Apollo, “It looks like we’re just moving,” these statements indicated that Apollo was fully aware that he was the product outlet and the source of cash inflow that enabled the unlawful plan to operate. We find this evidence, although cloudy as to the exact terms of agreement between Cocroft and Apollo, sufficient to support a reasonable inference that Apollo had entered an illicit joint venture with Cocroft and his co-conspirators. In terms of this Circuit’s test for the sufficiency of circumstantial evidence in criminal cases, “reasonable minds could conclude that the evidence is inconsistent with the hypothesis of the accused’s innocence.” United States v. Warner, 441 F.2d 821, 825 (5th Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971); United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971); United States v. Gaviria, 471 F. 2d 1181, 1183 (5th Cir. 1973).

It cannot be gainsaid that the viable evidence in this case was skimpy. This is frequently true in conspiracy situations, nevertheless the evidence, when viewed most favorably to the correctness of the jury’s conclusion, was sufficient to support a guilty verdict in regard to Apollo’s participation in the conspiracy. Since it was and since a party to a conspiracy is liable as a principal for all offenses committed in furtherance of the conspiracy while he is a member, Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946); Roberts v. United States, 416 F.2d 1216, 1223 (5th Cir. 1969); Gradsky v. United States, 376 F.2d 993, 996 (5th Cir.), cert. denied, Grene v. United States, 389 U.S. 908, 88 S.Ct. 224, 19 L.Ed.2d 224 (1967), the jury was entitled to hold Apollo responsible for the substantive offense charged in Count Two.

II. CONSPIRATORIAL HEARSAY

Despite the fact that we find the trial record evinces marginally sufficient non-hearsay evidence to support Apollo’s convictions, it is clear that the guilty verdicts cannot be permitted to stand. Virtually from the starting gun, the court allowed the Government erroneous hearsay shortcuts that mandate reversal.

In Lutwak v. United States, the Supreme Court taught this rule:

In the trial of a criminal case for conspiracy, it is inevitable that there shall be, as there was in this case, evidence as to declarations that is admissible as against all of the alleged conspirators; there are also other declarations admissible only as to the declarant and those present who by their silence or other conduct assent to the truth of the declaration. These declarations must be carefully and clearly limited by the court at the time of their admission and the jury instructed as to such declarations and the limitations put upon them. Even then, the application of the rule places a heavy burden upon the jurors to keep in mind the admission of certain declarations and to whom they have been restricted and in some instances for what specific purpose, [emphasis added]

344 U.S. 604, 618-619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953). Cf. Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Lutwak established a minimum obligation on the trial judge in a conspiracy case in which extrajudicial statements of alleged co-conspirators are proffered to give a cautionary instruction on the limited uses of hearsay testimony, explaining clearly to the jury the requirement that the conspiracy itself and each defendant’s participation in it must be established by independent non-hearsay evidence which must be given either prior to the introduction of any evidence or immediately upon the first instance of such hearsay testimony. See Menendez v. United States, 393 F.2d 312 (5th Cir. 1968), cert. denied, 393 U.S. 1029, 89 S. Ct. 639, 21 L.Ed.2d 572 (1969).

The order of admission of proof in a conspiracy ease is, of course, a matter within the discretion of the trial court; See, e. g., United States v. Rhoden, 453 F.2d 598, 600 (5th Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972); United States v. Knight, 416 F.2d 1181, 1185-1186 (9th Cir. 1969); Downing v. United States, 348 F.2d 594, 600 (5th Cir.), cert. denied, 382 U.S. 901, 86 S.Ct. 235, 15 L.Ed.2d 155 (1965). Testimony concerning the declarations of co-conspirators may be admitted before the existence of the conspiracy is established by independent evidence. But the unmistakable hazard of allowing this procedure highlights the need for the court to condition the minds of the jurors so that they will not fail to remember that none of this hearsay will bootstrap the necessary establishment of the conspiracy itself by firsthand proof.

From beginning to end, the record in the present case is replete with the instances in which government witnesses recited extrajudicial statements from Cocroft and other alleged co-conspirators linking Michael Apollo to the smuggling conspiracy. Upon the first instance of such testimony, the defendant promptly objected to its introduction without a cautionary instruction. Not only did the court overrule this objection, but further stated in the presence of the jury that “connection with conspiracy must of necessity be established by some hearsay in this kind of case.” Thereafter, without further comment and over consistent defense objections, the court permitted a veritable flood of similar hearsay testimony.

The Government calls our attention to the charge given by the court at the conclusion of the trial. While it does contain an accurate statement of the role of hearsay evidence in conspiracy cases, it came too late. This delicately dangerous defusing must be firmly in the jury’s minds when the hearsay is proffered. An instruction at the end of the trial cannot correct the erroneous refusal to give the proper cautionary instruction when it was first requested.

We expressly pretermit ruling on the remaining errors asserted.

Reversed.

      . Since there was no motion in the alternative for a new trial based on the insufficiency of the evidence, reversal on this ground would require that the indictment be dismissed. United States v. Musquiz, 445 F.2d 963, 966 (5th Cir. 1971); 2 Wright, Federal Practice and Procedure § 470 (1969).

      . Hollingsworth and five members of the Estes family pled guilty to the conspiracy and substantive charges alleged in the indictment.

      . We note that, having defended the admission of the two bricks on the ground that this evidence tended to show the commission of the offense of conspiracy seven months prior to the seizure, the government inconsistently argues, in regard to the maximum consecutive sentences imposed on Apollo after the present convictions, that this marijuana was evidence of the commission of a separate offense of possession of marijuana for resale during the period when Apollo was free on pretrial bail.

      . In light of our decision in Part II of this opinion, we do not decide whether its introduction standing alone constituted reversible error. We simply hold that this proof added nothing to the sufficiency of the evidence to support the Government’s conspiracy case.

      . The Government now argues that Apollo could have been convicted as an aider and abettor under 18 U.S.C. § 2. The case was not submitted to the jury on that theory, the Government’s requested charge having been given strictly in terms of Pinkerton liability. A conviction cannot be affirmed on appeal on a theory which was not presented to the jury.


author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Spruill BEASLEY, Defendant-Appellant.
    No. 72-1825.
    United States Court of Appeals, Ninth Circuit.
    April 5, 1973.
    David M. Rothman, Beverly Hills, Cal., for defendant-appellant.
    William D. Keller, U. S. Atty., D. Henry Thayer, Eric A. Nobles, Asst. U. S. Attys., Los Angeles, Cal., for plaintiff-appellee.

      Before WRIGHT and WALLACE, Circuit Judges, and EAST, District Judge.

       Honorable William G. East, United States District Judge, Eugene, Oregon, sitting by designation.

   WALLACE, Circuit Judge:

Beasley was convicted of the interstate transportation of a stolen motor vehicle in violation of 18 U.S.C. § 2312. His appeal alleges two errors: that certain evidence at the trial should have been suppressed since it was obtained in violation of the Fourth Amendment and that the trial' court erred in not answering a question propounded by the jury. We affirm.

Beasley was driving a 1971 Lincoln with two passengers when the California Highway Patrol stopped him for speeding. Both officers noticed that, although this late-model vehicle should have had blue and gold California license plates, it had the older black’and gold ones. The driver stated he was John Beasley and produced a Xerox copy of a California vehicle registration for the vehicle. The registration .showed that Patrick Brady owned the ear. Beasley claimed that Brady was his roommate and had given him the permission to drive the Lincoln.

Officer Thompson proceeded to fill out a speeding citation while Officer Cross radioed Highway Patrol headquarters. A record check there revealed that the license plates on the car belonged to a 1965 Pontiac and that the vehicle identification number on the copy of the registration was for a 1969 Pontiac belonging to Beasley. Cross then noted that the vehicle identification number on the Lincoln (which was in plain view) was different from that on the Xerox copy of the registration slip presented. By similar radio record check, he was advised the car was registered to Avis-Rent-A-Car.

Armed with this information, the officers requested that Beasley accompany them from alongside the busy highway to the Highway Patrol office 11 miles away. Once at the station, Cross was told by his superior officer to search the car for the “packing slip” and any Avis identification numbers. The “packing slip” is a packet secreted in the automobile by the manufacturer which contains certain information including the vehicle identification number.

During this search, he looked in the glove compartment and saw an Eneo credit card receipt. After they determined the car was stolen, it was seized and later introduced at trial. While searching under the front seat, one of the places where “packing slips” are hidden, Cross discovered a wallet. He looked inside the wallet and found that the wallet belonged to Steven Shannahan. When asked about the wallet, Beasley replied that he did not know Shannahan and that the wallet did not belong to him. The wallet was also introduced at the trial.

The trial judge did not state the basis for his denial of the motion to suppress. It is possible that the true owner, Avis, gave permission to the Highway Patrol by telephone for the search, but the record is unclear on this point. And unaided by any finding of fact, we are unable to draw such an inference.

The totality of the facts, including those which Cross obtained by radio while Beasley was stopped on the highway, constituted sufficient probable cause. This probable cause, together with the requisite exigencies, allowed a warrantless search. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L. Ed. 543 (1925). But, in the instant case, the officers did not search on the highway; rather they requested Beasley to follow them to the California Highway Patrol office. “The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.” Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970). See United States v. Barron, 472 F.2d 1215 (9th Cir., 1973) In the instant case, mobility was still a factor as neither Beasley nor his companions were under arrest at the time of the search. In fact, mobility existed to a greater degree than in Chambers where the defendants were under arrest. 399 U.S. at 52 n. 10, 90 S.Ct. 1975.

Therefore, we hold that the search for the “packing slip” was reasonable under the circumstances. Chambers v. Maroney, supra; United States v. Ellison, 469 F.2d 413 (9th Cir. 1972); United States v. Ellis, 461 F.2d 962 (2d Cir. 1972). See also United States v. Zemke, 457 F.2d 110 (7th Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2051, 32 L.Ed.2d 335 (1972).

There is nothing in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) to the contrary. The rule of Chambers is adhered to in the majority (id. at 478-82, 91 S.Ct. 2022) and the plurality (id. at 458-60, 91 S.Ct. 2022) segments of the opinion. See United States v. Ellison, supra; United States v. Zemke, supra.

While properly searching for the “packing slip,” Cross found the wallet under the front seat.' It was reasonable and legally permissible for him to open it for the limited purpose of determining ownership. This is especially true when he found it in a car which he had reason to believe belonged to a rental agency. Limited and reasonable measures can be taken by a law enforcement official to protect property obvious to him and left in an automobile in his custody. See Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed. 2d 1067 (1968); United States v. Mitchell, 458 F.2d 960, 961-62 (9th Cir. 1972).

After approximately two hours of deliberation, the jury sent out a note stating: “Do we the jury have to be sure beyond all doubt that Beasley knew it [the car] was stolen?” The court did not answer the question and the jury returned the verdict some three hours later. Although Beasley’s attorney was aware of these developments at some point prior to the return of the verdict, no objection was made. Beasley has failed to demonstrate the requisite plain error. Wilson v. United States, 422 F.2d 1303 (9th Cir. 1970). “The necessity, extent and character of additional instructions are matters within the sound discretion of the trial court.” 422 F.2d at 1304 (citations omitted).

Affirmed.

EUGENE A. WRIGHT, Circuit Judge, concurs in the result.

      . The reasoning of the Court in Chambers is significant:
      Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which the “lesser” intrusion is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a ear before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment. 399 U.S. at 51-52, 90 S.Ct. at 1981.

      . “And as to the automobile exception, we do not question the decisions of the Court in . Chambers v. Maroney . . . .” 403 U.S. at 482, 91 S.Ct. at 2047.


author: WILLIAM E. DOYLE, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John E. SWINDLER, Defendant-Appellant.
    No. 72-1826.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Feb. 22, 1973.
    Decided March 27, 1973.

      Edward H. Funston, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., Bruce E. Miller, and Glen S. Kelly, Asst. U. S. Attys., on the brief), for plaintiff-appellee.
    Patrick J. Hurley, Braintree, Mass., for defendant-appellant.
    Before HILL and DOYLE, Circuit Judges, and BRATTON, District Judge.
   WILLIAM E. DOYLE, Circuit Judge.

The appellant was convicted September 5, 1972, of the offense of conveying from place to place within the United States Penitentiary at Leavenworth, Kansas, a thing designed to kill, injure, or disable an employee, officer, agent or inmate of that institution. The indictment was pursuant to 18 U.S.C. § 1792.

The facts are simple. The incident in question occurred on November 12, 1971, when the carpenter foreman, one Kenneth Payne, noticed a large quantity of sparks being emitted from a sanding machine. Payne went to investigate and the defendant stepped back next to the wall so that Payne’s view of him was partially blocked. The appellant then reached behind himself and when Payne got to him he was holding a 16 penny nail in his hand. He told Payne that he was making a screwdriver out of it. Appellant was requested to go to the office approximately forty feet from the sanding machine. Once inside the office the appellant was searched by Payne and this yielded a steel bar which had been ground apparently and which was being made into a knife. It was found in the appellant’s trousers pocket and was still hot. Testimony was that this item would be naturally found in the machine shop, but not in the carpenter shop.

Payne testified that when he was taking the appellant from the carpenter’s shop to the captain’s office appellant asked Payne if he could talk him “out of this.”

The contentions made on this appeal are that, first, the evidence was insufficient to establish conveyance from place to place within a federal penal institution of a weapon, contrary to 18 U.S.C. § 1792; second, that the offense in question requires proof beyond a reasonable doubt of a specific intent to violate the statute or to knowingly and wilfully perform the act which the law forbids. It is claimed that the court erred in failing to instruct the jury as to the element of specific intent; third, that the court erred in refusing to grant a writ of habeas corpus ad testificandum for an inmate witness named Pino; fourth, that the government’s failure to furnish an FBI report containing informal statements of certain witnesses constituted a violation of 18 U.S.C. § 3500; fifth, that the act under which this case was prosecuted is unconstitutional.

On behalf of the government the evidence consisted of the testimony of two correctional officers at the Leavenworth institution together with an FBI agent who was assigned to the institution. The substance of the testimony of Kenneth Payne has been set forth. A Mr. Kenny was in the office at the time that Payne searched appellant and discovered the instrument in question and he partially observed what occurred. The FBI agent testified that a portion of the instrument was hot when it was first brought to him several minutes after it came into Payne’s possession.

Witnesses on behalf of the defendant testified that he was sharpening nails and did not have the metal in his possession or on his person.

I.

SUFFICIENCY OF THE EVIDENCE

The thrust of the argument on behalf of appellant is that there is no proof of actual conveyance, but rather evidence that the instrument was found in his possession after it had been moved from the grinder to the office. It is true that the testimony is circumstantial, but his possession of it in the office is indeed a strong circumstance since it is most unlikely that the defendant would have assumed possession of this instrument after he arrived at the office since he knew that he would be searched. On the contrary, he would have unloaded it if possible.

This court has held in a recent decision that even a short space in which the transportation occurred is enough and the defendant does not quarrel with this rule. See United States v. Meador, 456 F.2d 197 (10th Cir. 1972). At about the same time it was ruled that the movement of a knife to a stationary position did not constitute ' transportation, but that is not this case. Compare United States v. Bedwell, 456 F.2d 448 (10th Cir. 1972).

We now turn to consideration of the additional point as to the sufficiency of the evidence, the contention that the proof is inadequate to establish the capacity of the knife to produce injury or death. There was testimony that the metal bar was indeed being ground into a “knife.” The jury had before it the object itself — a ten inch piece of sharpened steel. So expert testimony was unnecessary since the jury could conclude that this object was designed to kill, injure or disable. Although in United States v. Roche, 443 F.2d 98, 100 (10th Cir. 1971), two expert witnesses testified that it was their opinion that the device there in question was a weapon, as defined by § 1792, the court stated:

we think it unnecessary in this ease to construe whether the terms “weapon” and “firearm” encompass only devices of demonstrated lethal capability. ->:• •» * clearly the statute goes further than prohibiting only proven combat weapons. The crime extends to carrying devices designed to kill, injure or disable, regardless of their subsequently proven effectiveness.

II.

WHETHER SPECIFIC INTENT WAS ESTABLISHED

It is noteworthy that there is no mention of intent in paragraph two of § 1792, supra. The offense consists of conveying into the institution, or from place to place therein, any firearm, weapon, explosive or any lethal or poisonous gas, or any other substance or thing designed to kill, injure or disable. Thus, all the emphasis is on the act. The proof must establish, first, the existence of a weapon or thing designed to kill, injure or disable. Secondly, it is essential that the weapon or thing be transported within the institution.

The statute is silent on intent, but obviously criminal intent is an essential element and the judge recognized this. His instruction called for knowingly doing the act of transporting an instrument and so knowledge that the thing transported was a weapon or thing designed to kill, injure or disable. Defendant contends that there must be in addition a proof of specific intent to disobey the law, and he cites our decision in United States v. Meador, 456 F.2d 197, 199 (10th Cir. 1972) as requiring this. True, we noted in that opinion that the trial court had instructed the jury that the defendant had to have specific intent to disobey the law as a necessary prerequisite to conviction. We approved the trial court’s instruction as being “full and complete.” On a reconsideration of this question, in the light of the facts here presented, we are of the opinion that the statute does not demand proof of specific intent as is suggested in Meador, and we further believe that the trial court’s instruction at bar was, under the statute, not only sufficient but was appropriate.

III.

THE DENIAL OF THE DEFENDANT’S REQUEST PURSUANT TO RULE 17(b)

Error is not apparent in the denial of defendant’s application to subpoena the witness Pino who was then at Springfield, Missouri. The only assurance that defendant’s counsel could give to the court was that Pino was present in the institution and in the carpenter’s shop on the day of the incident. He could not represent to the court that Pino’s testimony was necessary to an- adequate defense. Under these circumstances the court’s refusal was within its discretion under Rule 17(b).

IV.

Nor do we see any error in the failure of the government to furnish 18 U.S.C. § 3500 statements. These consist of informal descriptions by the investigating FBI agent as to testimony of several witnesses. Examination discloses that these are not true statements within the contemplation of 18 U.S.C. § 3500, and while it might have been better policy for the United States Attorney to furnish these, we are unable to say that the failure to do so would require a reversal since prejudice was not suffered.

V.

As to the contention of the appellant that the statute, § 1792, is so vague and indefinite that it does not give notice of conduct which it prohibits, we have dealt with -this question previously in United States v. Hedges, 458 F.2d 188 (10th Cir. 1972); United States v. Bedwell, 456 F.2d 448 (10th Cir. 1972); and United States v. Meador, 456 F.2d 197 (10th Cir. 1972), and are of the opinion that the statute is clear enough, and indeed we have so held in Carter v. United States, 333 F.2d 354 (10th Cir. 1964).

We conclude that the judgment of the district court should be and the same is hereby affirmed.

      . The second paragraph of this section provides:
      Whoever conveys into such institution, or from place to place therein, any firearm, -weapon, explosive, or any lethal or poisonous gas, or any other substance or thing designed to kill, injure, or disable any officer, agent, employee, or inmate thereof, or conspires so to do—

      . The trial court’s instruction that knowledge was a requisite element reads:
      In every crime there must exist a union or joint operation of act and intent. The burden is always on the prosecution to prove act and intent beyond a reasonable doubt. Intent may be proved by circumstantial evidence. It rarely can be established by any other means. While witnesses may see and hear and thus be able to give direct evidence what a defendant does or fails to do, there can bo no eye witness account of the state of mind witli which the acts were done or omitted. What a defendant does or fails to do may indicate intent or lack of intent to commit the offense charged.
      It is reasonable to infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted, so unless the contrary appears from the evidence, the jury may draw the inference that the accused intended all the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from any act knowingly done or knowingly omitted by the accused.
      In determining the issue ns to intent, the jury is entitled to consider any statements made and acts done or omitted by the accused and all facts and circumstances in evidence which may aid in determination of state of mind.