author: McENTEE, Circuit Judge.

text:
    Antranik MALAJALIAN, Plaintiff, Appellant, v. UNITED STATES of America, Appellee.
    No. 74-1128.
    United States Court of Appeals, First Circuit.
    Argued Sept. 10, 1974.
    Decided Oct. 22, 1974.

      Henry A. Folien, Jr., Watertown, Mass., for plaintiff, appellant.
    Alfred S. Lombardi, Atty., Tax Div., Dept, of Justice, with whom Scott P. Crampton, Asst. Atty. Gen., James N. Gabriel, U. S. Atty., William A. Brown, Asst. U. S. Atty., Meyer Rothwacks, and Michael L. Paup, Attys., Tax Div., Dept, of Justice, were on brief, for appellee.
    Before McENTEE and CAMPBELL, Circuit Judges, and MOORE, Senior Circuit Judge.

       Of the Second Circuit sitting by designation.

   McENTEE, Circuit Judge.

Taxpayer appeals from an order of the district court dismissing his complaint for improper venue. We affirm.

Taxpayer Malajalian, a resident of Beirut, Lebanon, entered the United States under a business visa on April 22, 1972, and remained as a non-resident alien until June 22, 1972, at which time he left this country. On June 20, as the taxpayer was preparing to depart for London from Logan Airport in Boston, a routine inspection of his baggage disclosed $147,595 in bills of small denomination. Notified of the discovery of this treasure-cache, the Internal Revenue Service terminated taxpayer’s tax year under § 6851 of the Internal Revenue Code and made two jeopardy assessments against him totaling $131,331. When this amount was levied upon and seized out of taxpayer’s funds, still in the possession of the Customs Bureau, he filed a tax return declaring that he had no taxable income for his truncated 1972 tax year and requested a refund of the amount seized. After more than six months had passed without action on the claim by the Commissioner, taxpayer instituted suit for refund in the United States District Court for the District of Massachusetts. The court granted the government’s motion to dismiss on grounds of improper venue, and this appeal followed.

Section 1346 of the Judicial Code endows the district courts with jurisdiction, concurrent with the Court of Claims, over civil actions against the United States for the recovery of internal revenue taxes alleged to have been erroneously assessed and collected. Section 1402(a)(1) restricts venue in actions against the United States to the district where the plaintiff resides. Since taxpayer, an alien, concededly does not reside in Massachusetts, he cannot lay venue there if § 1402(a)(1) is read ■literally.

Recently, in a patent infringement suit against an alien, Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706, 710 & n. 8, 92 S.Ct. 1936, 1939, 32 L.Ed.2d 428 (1972), the Supreme Court reiterated its longstanding view that “Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other.” The Court reasoned that “venue provisions are designed, not to keep suits out of the federal courts, but merely to allocate suits to the most appropriate or convenient federal forum.” However, it was easier for the Court in Brunette to avoid a venue gap than it is in the instant case. First, Brunette involved construction of conflicting statutory provisions rather than the necessity to read language into a single governing provision. Second, the traditional judicial view that suits against aliens are outside the scope of venue laws does not generally carry over to suits by aliens.

Taxpayer can derive little consolation from the holding of United States v. New York & O.S.S. Co., 216 F. 61 (2d Cir. 1914), an admirality suit under the Tucker Act in which a non-resident alien was permitted to sue upon an express finding that respondent had waived its venue objection. See also Choremi v. United States, 28 F.2d 913 (D.Mass. 1928). The court declined to venture an opinion as to the result that would obtain if, as in the instant case, there had been no waiver.

Taxpayer next cites a series of cases decided under the Suits in Admiralty Act, 46 U.S.C. §§ 741-752 (1970), which has its own venue provision permitting suits against the United States in the district where libelants reside or have their principal place of business or in which the vessel or cargo charged with liability may be found. 46 U.S.C. § 742 (1970). Although there is at least one case to the contrary, The Elmac, 285 F. 665 (S.D.N.Y.1922), the courts construing this provision have generally allowed non-resident aliens to bring suit in any district on grounds that otherwise they would have no forum in which to sue. See McGhee v. United States, 154 F.2d 101 (2d Cir. 1946); Metaxas v. United States, 68 F.Supp. 667 (S.D.Cal.1946); Middleton & Co. v. United States, 273 F. 199 (E.D.S.C.1921); Kulukundis v. United States, 132 F.Supp. 477, 132 Ct.Cl. 644 (1955). Apart from the fact that these decisions are predicated upon a special statutory provision, they are in-apposite here because the taxpayer, unlike the claimants in the admiralty actions, may repair to the Court of Claims to press his suit, an alternative forum in which his alienage will pose no obstacle.

Legislative history of relevant statutory provisions in fact provides some evidence that Congress was aware of the venue gap existing as to tax refund suits by aliens against the United States in the district courts. Prior to 1966, an alien individual had two possible avenues open for a tax refund suit, without regard to the forum at issue here. An alien before 1966 could sue for a tax refund in the Court of Claims if the country of which he was a citizen permitted itself to be sued by citizens of the United States having claims against it. 28 U.S.C. § 2502 (1970). But even without reciprocity an alien could sue the collecting director in the district court where the director resided, since suit against the collecting director is not, at least in form, a suit against the United States. See H.R.Rep. No. 1915, 89th Cong., 2d Sess. 6 (1966). In 1966 Congress abolished refund suits against collecting officers. Act of Nov. 2, 1966, Pub.L. 89-713, § 3(a), 80 Stat. 1108, codified at 26 U.S.C. § 7422(f) (1970). By thus restricting the taxpayer to his judicial district of residence (i. e., in suits against the United States), Congress sought to prevent forum-shopping by taxpayers looking to the district where the tax collector resided. H.R. Rep. 1915, 89th Cong., 2d Sess. 6 (1966). Congress apparently recognized the effect this abolition would have on aliens:

“. . .in order to preserve the right of aliens and foreign corporations to bring tax refund suits, the bill also modifies present law by permitting aliens and foreign corporations to bring such suits directly against the United States irrespective of whether the foreign country of citizenship or incorporation allows itself to be sued by U. S. citizens or corporations.” Id.

Implicit in this statement is the awareness and conclusion that an alien not “residing” in any judicial district could not sue the United States in any district court. In the view of the writers of the congressional reports, the 1966 legislation was enacted “only because other adequate remedies either are already available, or are being made available by this bill, for the recovery of illegal collections.” Id. See also S.Rep No. 1625, 89th Cong., 2d Sess. 6-7 (1966-2 Cum. Bull. 803, 807-08).

The taxpayer also adverts to several statutory provisions to support his position. Section 1402(a) (2) of the Judicial Code accords non-resident alien corporate taxpayers the privilege of bringing suit in the district where the tax return was filed. Nowhere in the meager legislative history of this provision do we find the slightest hint that Congress intended its benefits to extend to individuals. S.Rep. No. 2445, 85th Cong., 2d Sess., in U.S. Code Cong. & Admin.News 5263, 5265. In fact it was adopted in response to conflicting decisions in the federal courts concerning the residence of corporations. The legislators did recognize that the bill would cover the apparent problem of lack of venue for foreign corporations. H.R.Rep. No. 1715, 85th Cong., 2d Sess. 2 (1958); S.Rep. No. 2445, supra, citing Argonaut Navigation Co. v. United States, 142 F.Supp. 489 (S.D.N.Y.1956). Nor is venue proper in the district court for an alien, individual or corporate, in any other of the various types of suits brought under the Tucker Act. 7B Moore, Federal Practice § 1402, at JC 598.1 (2d ed. 1974).

Finally, the taxpayer cites language in the legislative history of an amendment to the Judicial Code eliminating the $10,000 ceiling on tax refund suits in the district courts, Act of July 30, 1954, Pub.L. No. 83-559, ch. 648, § 2(a), 68 Stat. 589, codified in 28 U.S.C. § 2402 (1970), to the effect that all taxpayers should have the benefit of a local remedy regardless of their financial status. H.R. Rep. No. 659, 83d Cong., 2d Sess., in U.S. Code Cong. & Admin.News 2716, 2717. Context indicates that the innocuous use of the word “all” in a committee report was not intended to effect the major revision of the law which taxpayer seeks; neither the amendment nor the report makes any reference to alienage.

The district court’s order dismissing the complaint is affirmed.

      I. The taxpayer correctly asseverates that if forced to resort to his remedy in the Court of Claims he will no longer be entitled to a jury trial as he would in the district court under 28 U.S.C. § 2402 (1970). His contention that he must therefore be afforded access to the district court to assert his jury trial “right” overlooks the fact that the constitutional jury trial guarantee is inapplicable in tax refund suits. Wickwire v. Reinecke, 275 U.S. 101, 105-106, 48 S.Ct. 43, 71 L.Ed. 840 (1927). While an alien who must sue in the Gourt of Claims lacks the choice between forums available to a resident and may incur additional time and travel costs, this slight unequal treatment does not amount to a convincing Equal Protection claim in view of Congress’ apparent desire to have all alien suits brought in one court, the Court of Claims.


source: Caselaw Access Project

author: BUTZNER, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Kobert SIFUENTES, Appellant.
    No. 74-1369.
    United States Court of Appeals, Fourth Circuit.
    Argued July 24, 1974.
    Decided Oct. 30, 1974.

      Michael Branham, for appellant.
    David H. Hopkins, Asst. U. S. Atty., E. D. Va. (Brian P. Gettings, U. S. Atty., on brief), for appellee.
    Before CRAVEN, BUTZNER and FIELD, Circuit Judges.
   BUTZNER, Circuit Judge:

This appeal questions whether the admission into evidence of some 826 pounds of marijuana, taken without a search warrant from Robert Sifuentes’ rented truck, violated his rights under •the fourth and fourteenth amendments. The district court denied a motion to suppress this evidence, and Sifuentes was convicted for possessing the drug with intent to distribute it. We affirm.

Several hours after Sifuentes cheeked into a motel in Fairfax, Virginia, he was arrested there for carrying a concealed weapon, a misdemeanor. Later he was charged with abduction, a felony, as a result of forcing a porter to accompany him to the lobby at gunpoint during the afternoon.

When he was booked on the first charge, he was routinely searched by the police, who found a key to a Ford vehicle among the items in his pockets. Testimony about his reaction to this discovery varied. An officer stated that Sifuentes denied any knowledge of the key or the vehicle to which it belonged. Sifuentes testified that he simply remained silent about the key. The court credited the officer’s version, and we must accept this finding. Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963).

After Sifuentes expressed concern about his suitcase, which had been left in the lobby, two policemen returned to the motel to pick it up for safekeeping. The motel manager also requested its removal. At that time the officers examined the motel register, which indicated that Sifuentes had checked in with a panel truck. The license number on the register matched that of a locked rental truck in the motel parking lot. The policemen examined the truck from the exterior but did not enter it. The night manager then requested one of them to remove it from the motel lot.

As a result of Sifuentes’ denial of any knowledge of the truck and the contradictory motel registration form, the officers believed that the truck might have been stolen, a common problem with rental vehicles. This suspicion, coupled with the night manager’s request that the truck be removed, led to the decision to impound the vehicle by securing it with a guard. The officers then returned to the police station and made an inconclusive investigation to determine whether the truck had been stolen.

The detectives to whom the case had been assigned decided to move the truck to the police garage for storage and for inventory of its contents in accordance with departmental regulations. They also notified a county narcotics investigator that a cheek of Sifuentes’ record indicated that he had previously violated narcotics laws. A police sergeant, the narcotics agent, and the detectives then went to the motel to move the truck to the garage. When the officers opened the truck to drive it away, they smelled a strong odor of marijuana. They immediately examined the contents of several closed boxes which they saw inside the truck. All of the boxes contained marijuana.

In the meantime, a lawyer had been obtained for Sifuentes. Contrary to Si-fuentes’ statements to the police, he revealed to the lawyer that he had parked the truck at the motel. Without the knowledge of the police, the lawyer went to the motel to see where the truck was, but by the time he arrived the police had moved it.

This ease does not precisely fit into any of the categories recognized by the Supreme Court as justifying the war-rantless search of a motor vehicle. The government does not contend that the truck was readily mobile and that the police had probable cause to search it. The seizure of the marijuana, therefore, cannot be justified under the rationale of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), or Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Similarly, the officers’ lack of information about the truck’s contents precludes resort to the theory that it was subject to forfeiture. Cf. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). Nor could it be impounded as evidence of crime. Cf. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The search was remote in time and place from Sifuentes’ arrest; therefore, it cannot be justified as incident to an arrest. See Preston v. United States, 376 U.S. 364, 367, 84 S. Ct. 881, 11 L.Ed.2d 777 (1964). The seizure, however, can be sustained under the plain view doctrine.

The warrantless seizure of objects in plain view does not violate the fourth amendment if the initial intrusion of the police is lawful and their discovery of the evidence is inadvertent. See Coolidge v. New Hampshire, 403 U.S. 443, 466, 470, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). When the police opened the door of the van, they saw the boxes and smelled a strong odor of marijuana. These facts combined to place the contraband in plain view, that is, obvious to the senses. Moreover, discovery was inadvertent. Although a narcotics detective had joined the police because of Sifuentes’ prior narcotics record, there is no proof that the officers knew in advance of the contraband or that they intended to seize it. The information about Sifuentes’ narcotics record undoubtedly aroused suspicion, but the impoundment of the truck by placing a guard over it was made before the police learned of his earlier involvement with drugs. In this respect, the case differs from Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), where the police’s prior knowledge of the evidence and their intention to seize it demonstrated that they did not act inadvertently.

The critical question is whether the officers’ initial intrusion into the truck was lawful. They acted because of three facts: Sifuentes’ denial of any knowledge of either the vehicle or its key, the contradictory entries on the motel register linking Sifuentes to the truck, and the manager’s request that they remove it from the motel parking lot. These facts induced the police to impound the truck by placing it under guard and subsequently to move it to the police station. Their initial intrusion resulted from the impoundment.

In two recent cases, the Supreme Court held that impoundment provided a lawful reason for initial intrusion into a vehicle whose operator was detained in custody. See, e. g., Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) ; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). In a third case, Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), the Court found the initial intrusion lawful after the police had exercised control over a disabled vehicle by having it towed to a private garage, even though they had relinquished physical custody. In Cooper, the court justified the initial intrusion because it afforded protection for the officers; in Harris, the intrusion was for the justifiable purpose of protecting the owner’s property; and in Cady, justification arose out of the necessity to protect the public. See Cady v. Dombrowski, 413 U.S. 433, 447, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

Although the facts of this case differ from those in Cooper, Harris, and Cady, the underlying principles of these cases are applicable.. Here, too, the police acted reasonably to impound the vehicle. Sifuentes’ disavowal of knowledge about the truck, which was contradicted by the motel register and his possession of the key, justified the police in believing that it might have been stolen. Sound police practices dictated impoundment of the vehicle to protect both its rightful owner and the motel. The decision to remove it to the police station complied with departmental regulations and relieved the officer who had been assigned to guard duty. Here, as in Cady, the police were performing, though for different reasons, “community caretaking functions.” Cady, 413 U.S. at 441, 93 S.Ct. 2523. Their initial intrusion was reasonable and lawful. Therefore, their seizure of contraband in plain view did not violate the fourth amendment. Sifuentes’ request for his lawyer to check on the truck did not relieve the police of their responsibility, especially since they were unaware of the lawyer’s investigation.

Sifuentes assigned two other errors. He asserted that since a state court had previously suppressed the same evidence, the district court was collaterally estopped from admitting it. State law, however, is not controlling, Cooper v, California, 386 U.S. 58, 61, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), and lack of identity between state and federal governments precludes estoppel. United States v. Smith, 446 F.2d 200, 202 (4th Cir. 1971). See Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) (dictum).

Sifuentes also complained that the government failed to prove that the marijuana was the species proscribed by 21 U.S.C. §§ 841(a)(1) and 802(15) (1970). We agree with other courts that have rejected this contention. See, e. g., United States v. Gaines, 489 F.2d 690 (5th Cir. 1974); United States v. Rothberg, 480 F.2d 534 (2d Cir. 1973); United States v. Moore, 446 F.2d 448 (3d Cir. 1971). Cf. United States v. King, 485 F.2d 353, 360 (10th Cir. 1973).

The judgment is affirmed.

      . Judge Oren R. Lewis heard and decided the motion to suppress the evidence. Judge Albert V. Bryan, Jr. presided at the trial.

      . Throughout the trial, witnesses, lawyers, and the court variously referred to the im-poundment of the truck as occurring either when it was placed under guard or when the truck was moved to the police garage several hours later.
      The district court, in accordance with the views expressed by Sifuentes’ counsel, ruled that the impoundment took place when the truck was placed under guard. Since the guard effectively prevented anyone from having access to the truck, we agree with Sifuentes and the district court that posting the guard impounded the truck. Cf. Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).


author: WILLIAM D. MURRAY, District Judge: ALFRED T. GOODWIN, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Henry Ogle WATSON, Defendant-Appellant.
    No. 73-1539.
    United States Court of Appeals, Ninth Circuit.
    March 20, 1974.
    Rehearing Denied March 20, 1974.
    Certiorari Granted Feb. 18, 1975.
    See 95 S.Ct. 1117.
    Alfred T. Goodwin, Circuit Judge, dissented and filed opinion.

      Michael D. Nasatir (argued), of Na-satir, Sherman & Hirsch, Beverly Hills, Cal., for defendant-appellant.
    Michael T. Kenney, Asst. U. S. Atty. (argued), William D. Keller, U. S. Atty., Eric A. Nobles, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
    Before ELY and GOODWIN, Circuit Judges, and MURRAY, District Judge.

       The Honorable W. D. Murray, United States District Judge for the District of Montana, sitting by designation.

   WILLIAM D. MURRAY, District Judge:

An indictment was filed against the appellant on September 11, 1972, alleging a four count violation of 18 U.S.C. § 1708 (stealing from the mails). Count 1 alleged a violation on August 23, 1972; Count 2 alleged a violation on August 17, 1972; Count 3 alleged a violation on August 23, 1972; and Count 4 alleged a violation on May 28, 1971. The appellant was ultimately tried on Counts 1, 2 and 3. Count 4 was dismissed. The jury returned a verdict of guilty as to Counts 1 and 3, and not guilty as to Count 2.

On the day of the trial, the district court heard motions to suppress evidence pursuant to Rule 41(c) Federal Rules of Criminal Procedure and a motion to determine the voluntariness of any post-arrest statements pursuant to Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). In response to these motions, the government called Frank L. Barbarick, a U. S. Postal Inspector, as a witness. Inspector Bar-barick testified that he was contacted on the telephone by one Awad Khoury on August 17, 1972. He knew Khoury as Tony and had previous contacts with him from five to ten times. In the course of these prior contacts, Khoury related information concerning appellant Watson and his associates. This information was found to be reliable by Inspector Barbarick.

In the August 17, 1972, phone call, Khoury advised the Inspector that he, Khoury, was going to receive a Bank of America credit card from appellant Watson. The card was in the name of Syed T. Ahmad. Barbarick told Khoury to bring the credit card to Barbarick’s office when he received it from Watson. Later on that day, Khoury brought the credit card into Barbarick’s office. Khoury said that he had received this card from appellant and that appellant wanted him to purchase TWA airline tickets. Khoury also showed Inspector Barbarick a slip of paper that gave names and addresses for the airline tickets to be purchased. Inspector Barbar-ick told Khoury to arrange a meeting with appellant Watson. Khoury advised Barbarick that a meeting was scheduled for August 22, 1972, but this meeting did not take place. A meeting with Watson on August 23 similarly did not take place. Finally, a meeting between Khoury and Watson was set up for noon on the 23rd of August at Ship’s Restaurant in Los Angeles. Barbarick testified that he told Khoury to determine at the meeting whether Watson had any additional credit cards in his possession. If Watson did have some additional cards, Khoury was to light a cigarette as a signal to Postal Inspectors inside the restaurant. These inspectors would then activate a signal alerting Inspector Bar-barick outside the restaurant. ‘ Upon receiving the prearranged signal Barbar-ick and other inspectors entered the restaurant and placed the defendant under arrest, advising him that he was under arrest for possession of stolen mail. Inspector Barbarick then asked Watson if he could look in his car. Watson said “Go ahead.” Using the key to the car which Watson had turned over, Barbar-ick opened the car and searched. Under the floormat on the driver’s side he recovered an envelope. Inspector Barbar-ick’s later testimony indicated that the envelope which he discovered was not opened until he returned to his office in downtown Los Angeles. At that time he found that two smaller envelopes were contained inside the larger envelope and that it was these two envelopes which contained the credit cards which are the source of the allegations in Counts 1 and 2. In making the arrest the inspector testified he was relying on the evidence acquired on August 17, 1972, which was six days prior to arrest.

In his initial argument, appellant raises the strictly technical point that a stipulation which his attorney and the United States Attorney intended to introduce was never affirmatively or competently entered into or accepted by the court and that, consequently there is an absence of proof.

The record reveals that both parties, the court and the jury all were under the impression that the stipulation had been entered in the record. The agreement to stipulate was communicated to the court prior to the empanelling of the jury. The stipulation was read to the jury in the government’s opening statement. The defense counsel referred to the stipulation during his cross-examination. The appellant himself made reference to the stipulation. Since all parties concerned were under the impression that the stipulation had been entered in the record, the defendant-appellant cannot be allowed to benefit from a purely technical error, if in fact there was error.

Appellant next contends that (A) the hearing on the motion to suppress failed to establish that the informant’s reliability was sufficient to warrant use of his “tip”; (B) he contends that the failure to obtain an arrest warrant vitiates the arrest and subsequent seizure; and (C) he contends that a consent to search cannot be acquired during an illegal detention and that his consent was not shown to be voluntary and knowledgeable.

As to appellant’s first contention, the Judge at the suppression hearing found that the informant’s reliability had been established by the testimony of Inspector Barbarick and that the reliability standards of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 had been met. Inspector Barbarick testified that he had been contacted by Informant Khoury prior to August 17, 1972, on five to ten occasions and that Khoury had related information concerning appellant Watson and his associates and that the information supplied helped in knowing the whereabouts of people that were involved in mail theft throughout the Los Angeles area. There is sufficient evidence to support the trial judge’s finding that Khoury was “reliable”. Consequently, on August 17, 1972, when Khoury gave Barbarick the credit card which he said he had received from Watson, probable cause existed to arrest appellant Watson for mail theft.

Appellant’s second contention has merit, i. e. the failure to obtain an arrest warrant vitiates the arrest. As stated above, Inspector Barbarick had probable cause to arrest appellant on the 17th of August, 1972. However, the arrest was not made until six days later— on the 23rd of August. There appears to be no reason for the failure to present the question to a detached magistrate to obtain an arrest warrant.

“The case of Warden v. Hayden, [387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782] where the Court elaborated a ‘hot pursuit’ justification for the police entry into the defendant’s house without a warrant for his arrest, certainly stands by negative implication for the proposition that an arrest warrant is required in the absence of exigent circumstances.” Coolidge v. New Hampshire, 403 U.S. 443, 480, 91 S.Ct. 2022, 2045, 29 L.Ed.2d 564. “[The warrant requirement] is not an inconvenience to be somehow ‘weighed’ against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the ‘well-intentioned but mistakenly over-zealous executive officers’ who are a part of any system of law enforcement.” Coolidge, supra at 481, 91 S.Ct. at 2046. The government in this case has shown no “exigent” circumstances which would justify not obtaining an arrest warrant during the six day interim period between the 17th of August and the day of the actual arrest. The arrest of the appellant was in violation of the 4th Amendment to the U. S. Constitution.

Thirdly, appellant attacks the volun-tariness of his consent to search. At the time appellant consented to the search, he was under arrest. Nothing in the record indicates that he knew of or was advised of his right not to consent to the search of his automobile.

At the time of the consent to the search of this car, the law of the Ninth Circuit required a showing that the defendant knew he could withhold his consent and a showing as to whether any consent was coerced or uncoerced. Schoepflin v. United States, 391 F.2d 390 (9th Cir. 1968). However, in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Supreme Court, reversing an earlier decision by this court, 448 F.2d 699 (9th Cir. 1971), held that:

“ . . . Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. . . . ”

Recently, in United States v. Rothman, 492 F.2d 1260 (9th Cir., 1973), this court, conceding that Schneckloth is limited by its facts to cases in which the consenting party is not in custody, observed that we have never applied a different test for consent searches on the basis of the pre-consent arrest of the consenting party and held that “arrest is but one factor, albeit a critical one, in determining whether or not the consent was voluntary.” 492 F.2d at 1264 n. 1. Hence, the Supreme Court’s “totality of circumstances” test applies to all consent search situations, whether or not the consenting party is under arrest.

Here, we find that the totality of circumstances strongly suggests coercion. Appellant had been placed under arrest and was in custody at the time that he gave the officers permission to search his car.

“ . . .In looking at the factual issue of voluntariness, the court must be aware of the ‘vulnerable subjective state’ of the defendant as well as the possibility of ‘subtly coercive police questions.’ Schneckloth v. Busta-monte, supra, 412 U.S. at 229, 93 S.Ct. 2041, 36 L.Ed.2d 854 and the inherently coercive nature of custodial interrogation, Id. at 247, 93 S.Ct. 2041, 36 L.Ed.2d 854.” United States v. Rothman, 492 F.2d at 1265.

Not only was appellant Watson in custody, he was in custody in violation of the Fourth Amendment, since the agents had failed to obtain an arrest warrant. Moreover, in Rothman, where we held that the defendant had not properly consented to a search, the defendant admitted that he knew that he had a right to refuse. Here, nothing indicates that Watson knew or was advised of his right not to consent to the search of his automobile. Hence, in light of Schneck-loth and Rothman, we hold that the in-custody search of the appellant was invalid, and the fruits of the search should have been suppressed.

In light of the above it is not necessary to discuss other issues raised.

Reversed.

ALFRED T. GOODWIN, Circuit Judge

(dissenting):

I would affirm. I agree that the agents could have obtained an arrest warrant as early as six days before they arrested Watson, but it by no means follows that the arrest without a warrant was not lawful. I know of no case which holds that officers must make an arrest the moment they come into possession of enough evidence to cause a magistrate to issue a warrant. United States v. Leon, 460 F.2d 299, 300 (9th Cir. 1972). There are many times when good law enforcement commends further investigation. At the time of Watson’s arrest, a pre-arranged signal gave the officers new knowledge that Watson was then in possession of additional stolen credit cards. This information alone would have justified a warrantless arrest at the time it was made.

Given a lawful arrest, the only basis Watson urged in the trial court for his motion to suppress the evidence collapses. I do not join in the majority’s discussion of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), as it is not responsive to any issue raised below or in the briefs and arguments on appeal.

      . The stipulation read as follows: “That on or about August 14th of 1972, BankAmericard Corporation sent through the mails three credit cards' in separate envelopes, with separate addresses on them. That these three separate and distinct credit cards and envelopes were addressed to, number one, a Marlene M. Steinberg, at 12407 Ohio Avenue in Los Angeles. And that her credit card number was 4024 681 187 691. In addition, another credit card on or about August 14, was sent by BankAmericard to one Syed T. Ahmed. And that was sent to 1502 Wellesley Avenue, in West Los Angeles. His credit card number was 4024 682 059 676. Another credit card was sent by BankAmericard through the mails to one Kenneth Sorensen of 12118 Ohio Avenue, in West Los Angeles. His credit card number was 4024 688 038 351.” It was further stipulated that the individuals to whom these credit cards were addressed neter received the credit card in question.


author: PER CURIAM: GEWIN, BELL, THORNBERRY, COLEMAN, AINSWORTH, RONEY and GEE, Circuit Judges

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Nathan George DINITZ, Defendant-Appellant.
    No. 73-2109.
    United States Court of Appeals, Fifth Circuit.
    Nov. 27, 1974.
    Gewin, Bell, Thornberry, Coleman, Ainsworth, Roney and Gee, Circuit Judges, dissented and filed opinion.
    Fletcher N. Baldwin, Jr., Univ. of Fla., Gainesville, Fla. (Court-appointed), for defendant-appellant.
    William H. Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Jr., Nick P. Geek-er, Asst. U. S. Attys., Pensacola, Fla., for plaintiff-appellee.
    Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORN-BERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
   PER CURIAM:

The court, en bane, affirms the panel opinion holding that a defendant’s motion for mistrial does not remove the bar to reprosecution when the formal mistrial motion by defendant is solely caused by an abuse of judicial discretion, which though not intended to avoid an acquittal, is so damaging to the defendant that he cannot proceed with his case and submit it to the jury then empaneled. The judge’s action, taken without defendant’s provocation or consent, had the effect of depriving him of effective assistance of counsel thereby making further conduct of the trial impossible.

In order for a defendant’s motion for a mistrial to constitute a bar to a later plea of double jeopardy, some choice to proceed or start over must remain with the defendant at the time his motion is made. The dicta from United States v. Jorn, which is the foundation of the dissent, does not encompass the extraordinary circumstances of the present case, in which judicial error alone, rather than defendant’s exercise of any option to stop or go forward, took away his “valued right to have his trial completed by a particular tribunal.”

GEWIN, BELL, THORNBERRY, COLEMAN, AINSWORTH, RONEY and GEE, Circuit Judges

(dissenting):

We respectfully dissent for the reasons stated in the dissent filed to the panel opinion. United States v. Dinitz, 5 Cir. 1974, 492 F.2d 53, 61 (dissenting opinion).

We also note that the panel opinion in United States v. Walden, 4 Cir. 1971, 448 F.2d 925, relied upon in the original majority opinion in this case, was superseded on rehearing en banc. United States v. Walden, 4 Cir. 1972, 458 F.2d 36 (affirming district court on double jeopardy question by an equally divided court).

      . 492 F.2d 53 (5th Cir. 1974).

      . “If that right to go to a particular tribunal is valued, it is because, independent of the threat of bad-faith conduct by judge or prosecutor, the defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a declaration of mistrial. Thus, where circumstances develop not attributable to prosecutorial or judicial overreaching, a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by pros-ecutorial or judicial error.”
      400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543, 556 (1971).


author: AINSWORTH, Circuit Judge:

text:
    BEAUMONT INDEPENDENT SCHOOL DISTRICT, Plaintiff-Appellee, v. DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, Defendant-Appellant.
    No. 74-2656.
    United States Court of Appeals, Fifth Circuit.
    Nov. 15, 1974.
    Rehearing and Rehearing En Banc Denied Jan. 3, 1975.
    Roby Hadden, U. S. Atty., Tyler, Tex., J. Stanley Pottinger, Asst. Atty. Gen., Brian K. Landsberg, Joseph D. Rich, Marie E. Klimesz, Attys., Dept, of Justice, Washington, D. C., Dennis R. Lewis, Asst. U. S. Atty., Beaumont, Tex., for defendant-appellant.
    Robert Q. Keith, Hardy D. Akin, Beaumont, Tex., for plaintiff-appellee.
    Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
   AINSWORTH, Circuit Judge:

The Department of Health, Education and Welfare contended in this case that the student and faculty assignment practices of the Beaumont Independent School District violated the equal protection clause of the United States Constitution and Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d). An appropriate order was sought from the District Court to remedy this condition.

After a full hearing the District Court rendered its judgment denying the relief sought by plaintiff except that the Court ordered uniformity in the grade structures of all junior and senior high schools. We hold that the District Court erred in granting inadequate relief and that the case should be remanded so that the further relief sought by plaintiff be granted.

The defendant School District has a current enrollment of 6,736 white and 6,628 black students (also a Spanish sur-named student population of 440). It is one of two independent School Districts in the City of Beaumont, Texas. Up to 1963, under Texas state law, the School District assigned students and faculty on the basis of race through the use of dual attendance zones. However, a freedom of choice desegregation plan was adopted by the School District beginning in 1965. Despite this plan, two thirds of the black students in the School District attend nine all black or virtually all black schools. The racial composition (white-black) of students enrolled in the elementary, junior high and high schools of the District is reproduced in the margin.

It is obvious from even the most cursory examination of the student enrollment table and the white-black ratio set forth therein, that the public schools of the Beaumont Independent School District are not effectively desegregated and that appropriate steps must be taken by the School District to remedy this condition.

It is not enough for the School District to point to its employment of freedom of choice since it is apparent that this method has not been successful in desegregating the schools. Under Green v. County School Bd. of New Kent Co., Va., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968), freedom of choice is an unacceptable method of desegregation if it does not produce a unitary school system. See also Alexander v. Holmes County Bd. of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969). As the United States points out in its brief in this case, we have time and again disapproved the use of freedom of choice where it has failed effectively to desegregate public schools.

Under the circumstances, the District Court is obliged to reconsider this case and require the School District to institute an effective plan which is constitutionally sound. On remand the District Court must follow the remedy set forth in detail in Cisneros v. Corpus Christi Independent School District, 5 Cir., 1972 (en banc), 467 F.2d 142, 152-153.

As to faculty desegregation, the District Court is directed to comply with the requirement of Singleton v. Jackson Municipal Separate School Dist., 5 Cir., 1970 (en banc), 419 F.2d 1211.

Vacated and remanded for further proceedings.

      . Students Enrolled
      W 1964-65 B % B 1973-74 W B % B
      High Schools
      Beaumont (9-12) 1165 0% 720 272 24.7%
      Charlton Pollard (10-12) - 1067 100% 1062 100.0%
      French (9-12) 1191 0% 1591 267 14.2%
      Junior High Schools
      Austin (6-8) 732 0% 1073 88 7.4%
      Bowie (6-8) 912 0% 372 377 49.5%
      Crockett (6-8) 409 0% 178 220 47.0%
      Dunbar (7-9) 616 100% 505 100.0%
      Lincoln (7-9) - 694 100% 564 100.0%
      Elementary Schools
      Adams - 302 100% - - closed
      Averill 277 0% - - closed
      Bethune (K-6) - 426 100% 338 100.0%
      Carver (1-6) - 665 100% 436 100.0%
      Dowling (K-6) 466 0% 32 344 88.9%
      Edwards (1-5) 465 0% 205 70 25.0%
      Field (K-5) 631 0% 617 48 7.1%
      Fletcher (K-5) 270 0% 53 272 69.4%
      French (K-5) 572 0% 182 257 56.2%
      Guess (K-6) 821 ’0% 884 52 5.5%
      Longfellow (K-5) 606 0% 540 57 9.0%
      Lucas (K-5) 451 0% 35 272 88.6%
      Martin (K-6) - 710 100% 685 100.0%
      Ogden (K-5) 363 0% 225 117 30.4%
      Pipkin - 682 100% - - closed
      Washington (K-5) - 441 100% - 309 100.0%
      TOTAL 9331 5605 6707 6612 48.1%

      . See, for example, the following representative cases cited by the Government: United States v. Hinds County School Board, 5 Cir., 1969, 417 F.2d 852 (twenty-five school districts) ; United States v. Board of Education of Baldwin County, Ga., 5 Cir., 1969, 417 F.2d 848; United States v. Choctaw County Board of Education, 5 Cir., 1969, 417 F.2d 838; United States v. Jefferson County Board of Education, 5 Cir., 1969, 417 F.2d 834 (two school systems) ; Hall v. St. Helena Parish School Board, 5 Cir., 1969, 417 F.2d 801 (thirty-six parish and two city school systems) ; Davis v. Board of School Commissioners of Mobile County, 5 Cir., 1969, 414 F.2d 609; United States v. Indianola Municipal Separate School District, 5 Cir., 1969, 410 F.2d 626; Anthony v. Marshall County Board of Education, 5 Cir., 1969, 409 F.2d 1287; Adams v. Mathews, 5 Cir., 1968, 403 F.2d 181 (forty-five school systems).

      . Some of the alternative methods set forth by us in Cisneros include pairing or clustering of schools in close proximity, the realignment of school assignment zones, and the relocation of portable schoolrooms. Another method is to restructure the assignment of students already being transported. Also, the Court must consider the pairing or clustering of schools in noncontiguous zones but must minimize student .transportation requirements. Likewise, the use of a majority to minority transfer must be provided.


author: BELL, Circuit Judge:

text:
    Sonnie Wellington HEREFORD, IV, et al., Plaintiffs, United States of America, Plaintiff-Appellant, v. HUNTSVILLE BOARD OF EDUCATION et al., Defendants-Appellees,
    No. 74-3363.
    United States Court of Appeals, Fifth Circuit.
    Nov. 20, 1974.

      Wayman G. Sherrer, U. S. Atty., Birmingham, Ala., Mark Gross, Brian K. Landsberg, Civ. Rights Div., App. Section, Dept, of Justice, Washington, D. C., for plaintiff-appellant.
    James G. Harrison, Huntsville, Ala., amicus curiae, for Bailey, Thompson & University Park Association.
    Joe L. Payne, Huntsville, Ala., for defendants-appellees.
    Before BELL, AINSWORTH and GODBOLD, Circuit Judges.
   BELL, Circuit Judge:

This appeal presents a tag end to the litigation involving the desegregation of the Huntsville school system. In 1974 we affirmed the approval by the district court of a plan of student assignment formulated by HEW. Hereford v. Huntsville Board of Education, 5 Cir., 1971, 448 F.2d 784. At that time plaintiffs and the Department of Justice sought to have an alternative HEW plan substituted with respect to the two schools here involved, Calvary Hill and Terry Heights.

All remained quiet until May 1974 when the defendant school board sought court approval of changes in the grade structure of the system’s schools to the middle school concept, changes in some attendance zones, and in the use of some buildings. The Department of Justice responded by seeking, inter alia, a new desegregation plan for the Calvary Hill and Terry Heights elementary schools. The district court rejected the Department of Justice prayer as to these two schools after an evidentiary hearing, and the focus of this appeal is this rejection.

We view this case as presenting no more than a motion in the district court for further relief in a typical school desegregation case where modification is indicated because of lack of success. Cf. Ellis v. Board of Public Instruction of Orange County, Florida, 5 Cir., 1974, 465 F.2d 878, where we required a new plan as to three schools in a system, which schools had not been desegregated.

The facts here indicate that the district court did not err with respect to the Terry Heights school. The racial ratio of the Huntsville school system is 83 per cent white and 17 per cent black. We approved the 1971 plan on the projection that Terry Heights would be 65.5 per cent black. The testimony in the district court here, and made into a finding, was that the Terry Heights school had stabilized from an attendance standpoint. This finding is well supported. The 1973-74 student population of the school was 71.73 per cent black. It was 70.20 per cent black as of September 20, 1974. This is a small variance from the 1971 projection of 65.5 per cent and we find no error in the failure of the district court to require that the plan be modified as to this school.

We have a different view with regard to Calvary Hill. The 1971 plan projected it to be 67.6 per cent black with 367 white students to attend with 765 black students. The white students have never attended. The maximum number of whites to attend was 55 in the 1971-72 school term. In the 1973-74 term this school was attended by 598 black students and only 25 white students. As of September 1974 there were 368 black students and 15 white students in attendance. The district court should have required that the school board modify the student assignment plan to desegregate the Calvary Hill school. As in Ellis v. Orange County, supra, this school has never been desegregated.

The method of desegregation to be followed is settled in this circuit. See Cisneros v. Corpus Christi Independent School System, 5 Cir., 1972, 467 F.2d 142 (en banc). On remand, the district court is directed to follow the remedy set out in Cisneros, 467 F.2d at 152-153.

Affirmed in part; reversed and remanded in part for further proceedings not inconsistent herewith.

      . Plaintiffs made no appearance in the district court but have filed a brief here adopting the position being taken by the Department of Justice.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Benjamin Zuleta HERRERA, Defendant-Appellant.
    No. 74-1831.
    United States Court of Appeals, Fifth Circuit.
    Dec. 5, 1974.
    Theodore S. Worozbyt, James Martin Gecker, Atlanta, Ga., for -defendant-appellant.
    John W. Stokes, U. S. Atty., J. Robert Cooper, Jerome J. Froelich, Jr., Asst. U.
    S. Attys., Atlanta, Ga., for plaintiff-ap-pellee.
    Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges.
   PER CURIAM:

This appeal is from the conviction of appellant by the district court sitting without a jury on a charge of escape from the United States Penitentiary in Atlanta in violation of 18 U.S.C.A. § 751(a). Appellant was serving a sentence at the time of the escape for violation of the narcotics laws. Following his escape he was able to make his way to Bogato, Colombia, his home. Some fifteen months later he was arrested in Peru and returned to Miami where he was placed in American custody.

In the words of appellant:

“I was travelling in our airplane from Santiago to Quito. The airplane stopped at Lima, Peru. He stopped over to refuel, and two American agents, one named Verdugo, and two Peruvian agents, those agents took me out of the airplane to meet another person, and I was accused to be escaped from one American prison.”

He also stated that he stayed in Peru five days and was then taken to the airport and “deported” to the United States. He described the trip from Lima to Miami as follows:

“Q When you came from Peru to Miami, was there a Peruvian police officer with you ?
“A Yes, one from Peru and one from the United States.”

The escape was not disputed. The principal assignment of error is the contention that under present standards of due process, the district court was divested of jurisdiction over appellant by virtue of the illegality of his arrest in Peru and subsequent delivery to the federal authorities in Miami. The argument is that he was kidnapped and forcibly abducted in contravention of federal statutes, and in a manner which violated the territorial integrity of Peru contrary to the United Nations Charter and the Charter of the Organization of American States. He also urges a loss of jurisdiction by reason of the failure of the United States to follow the orderly processes of extradition under the treaty between the United States and Peru.

It is settled by both Supreme Court decisions and decisions of this court that these contentions are without merit. Ker v. Illinois, 1886, 119 U.S. 436, 444, 7 S.Ct. 225, 30 L.Ed. 421; Frisbie v. Collins, 1952, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541; United States v. Caramian, 5 Cir., 1972, 468 F.2d 1370, 1371; United States v. Vicars, 5 Cir., 1972, 467 F.2d 452, 455; United States v. Cotten, 9 Cir., 1973, 471 F.2d 744, 748; Hobson v. Crouse, 10 Cir., 1964, 332 F.2d 561.

We have considered the case of United States v. Toscanino, 2 Cir., 1974, 500 F.2d 267, en banc rehearing denied, two judges dissenting, 43 USLW 2175 (October 8, 1974). It involves claims of kidnapping, extended torture and electronic surveillance by or at the direction of United States officials in a foreign country with the consent and knowledge of the United States Attorney for the Eastern District of New York. Aside from the wide variance between facts of this case and the claims asserted in Toscanino, we are bound on the basic proposition by the Ker and Frisbie decisions of the Supreme Court and our decisions cited supra. We find no merit in this assignment of error.

We also find no merit in the claim that trial counsel was ineffective. Appellant in a pro se brief filed some months before the brief filed by his counsel makes the additional contentions that taking his good time because of the escape violated the double jeopardy clause, and that the district court abused its discretion in the length of the sentence imposed, a sentence within statutory limits. We likewise reject these assignments of error.

Affirmed.

      . Appellant is represented on this appeal by counsel employed for the appeal. In their appellate brief, they allege facts which read on the claims made by Toscanino. There is no record basis whatever for the claims and counsel so conceded on oral argument. They excuse their unusual conduct on the basis that they recited what they were told post-trial by appellant.